Complainant

Respondent

Anonymised Parties

Team Leader

Employment provider

Representatives

Barnaba Dorda SIPTU

Aislin Reid IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00028136-001

02/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028136-002

02/05/2019

The Complainant was engaged as a Team Leader for the placement of persons from the unemployment register into subsidised employment in the voluntary sector. The Complainant was disciplined for the manner in which she operated the placement programme for two candidates which gave rise to financial implications for the Employer.

The Complainant rejects the proposition that the Respondent acted reasonably in dismissing her for Gross Misconduct. I was provided with a written submission prepared by the Complainant’s representative, together with a book of relevant documents. I heard form the Complainant herself and she was cross examined.

The Respondent stands over it’s decision to dismiss as fair and reasonable in all the circumstances. I heard from a number of Respondent witnesses and have had the opportunity of reviewing the submission and supporting documentation provided

I have carefully considered the evidence which has been adduced over two days of hearing. Both parties provided me with written submissions together with books of documents supporting their positions.

The Complainant herein gave evidence on her own behalf, and I heard from a number of the Respondent’s witnesses. The Complainant herein is aggrieved that she was summarily dismissed for Gross Misconduct at the end of an Investigation and Disciplinary process which had been triggered by the Discovery of a (perceived) failure by the Complainant to follow company policy and procedures.

The Complainant began her employment with the Respondent in 2011. The Respondent entity works closely with the Department of Employment and Social Protection and is tasked with the job of taking persons selected from the live unemployment register and trying to place them in employment positions suitable to their abilities and requirements. The objective appears to be to try and allow people obtain the confidence and skills which will assist to a full-time return to the workplace. I note that the workplaces involved in this programme are generally in the not for profit sector such as community-based services or charity shops.

As a Team Leader, the Complainant is expected to assess individuals and try and match them to positions and placements which have a chance of success. The individuals receive a monetary supplement to their unemployment or jobseekers benefit of about €25.00 per week. The purpose is to allow people who have been unemployed for more than 52 weeks an opportunity to get into a workplace and learn skills which might allow them to have the confidence to look for further work in due course. I understand that individuals who refuse to engage in the process might find their employment benefit cut and so there is an onus on persons selected to engage.

I have been advised by the Respondent herein, that a person who has been placed in any such employment will be expected to stay for a year. The Respondent is then funded entirely by the Department (through Pobal) to pay the individual directly (in the amount of whatever employment benefit he or she was entitled to together with the extra €25.00 per week). The individual therefore comes off the live register for the duration, but the Department continues to make the payment. This is therefore public monies being moved around.

The Team Leader will have s specific list of potential Employer’s. These will generally be in the not-for profit sector which needs employees/workers but does not have the funding to pay for salaries.

I fully accept that in her seven years in the role of Team Leader that the Complainant has met with people coming to her from very difficult situations. There can be no one size fits all policy and the task of trying to find a position for each individual (with a reasonable chance of success) was an unenviable one. I note that the Complainant took great pride in the positive work she had done and the lengths that she went to to try and successfully place every person that came through her door. Her commitment was clear. I found her evidence to be compelling.

I note that in the course of 2018 there was shift in the workplace atmosphere for the Complainant. A number of complaints about her time keeping came to light and these were being formally dealt with through the internal disciplinary processes.

In addition, the Complainant was unexpectedly being transferred to another site owned and operated by the Respondent. This was something that the Complainant had not sought. The Complainant gave evidence that she was not happy about the move.

On the 5th of September 2018 the Complainant was called into a meeting and advised that she was being suspended with pay pending a full investigation of a number of matters which had arisen since her departure to the alternative site. The allegations included the Falsification of documents and the misappropriation of monies. These are and were very serious and stark allegations and the Complainant was effectively walked off the premises and advised not to contact anyone pending communication from the Employer. The Complainant gave evidence that she did not know the nature of the complaint for some time.

In due course the Complainant was invited to an Investigation meeting on the 16th of October which she was allowed to attend with her SIPTU representative. The Complainant had been provided with a number of documents in advance of this meeting. From the outset – ie the letter of invitation it is noted that the allegations had the status of a suspected gross misconduct.

The Complainant was accused of moving away from the accepted practise for the placement of candidates. I accept the Complainant’s evidence that she only ever acted to facilitate the candidates in question. In the course of her normal day to day employment the Complainant was unlucky to have had two anomalous situations which arose at the same time. The Complainant had interviewed two unemployed women as is her obligation (candidate A and Candidate B). The women (who were unknown and unrelated to one another) each had specified what type of work they wanted to do and where they wanted to be placed. I accept that a Team Leader will try and facilitate a direct request as far as possible and in accordance with this guideline the Complainant set about the task of setting up placements for the two ladies. Once she had successfully concluded this, she contacted the women to tell them they would be starting the next Monday. Unfortunately, both women indicated that a modification was needed. So for example women A had suddenly found out she could only work evenings and weekends whilst women B had insisted she only wanted to work in childcare.

The Complainant worked swiftly to re-arrange the placements and in fact secured prospective placements for the women. To this end, the Complainant brought candidate A to a second-hand charity clothes shop raising money for a children’s charity wherein it was proposed that she would come in after hours to do a cleaning job. The Complainant orgainsed this meeting on a Tuesday with a view to Candidate A starting immediately – this would have meant that the placement would have commenced a day or two after she had listed it as starting on the Monday. Unfortunately, the people running the shop insisted that the Candidate could only start after a Garda clearance had been sought. There was no logic to this request given the position was after hours in a shop that was raising monies for a children’s charity and not in fact dealing with children but they were insistent and the Complainant was therefore not able to start her client immediately

Similarly, candidate B had been found a child care position and but was also faced with the lack of having a Garda vetting.

The Employer’s evidence is clear. If a candidate is not placed then the candidate should not be on the Respondent payroll. The Complainant however allowed the two candidates to continue on the payroll as she had already processed them for inclusion. Despite the fact that the two individuals had not technically taken up their placements pending Garda vetting which the Complainant hoped would come in within a week or at most two.

I do not doubt that the Complainant’s only motivation was to ensure that these two candidates (who had demonstrated a a real willingness to engage with the placement process would secure the placement s which would be ideally suited to their needs). The Complainant had no personal gain to make. The Complainant gave evidence that if the placements had not proceeded then it would have been potentially recorded as a placement refusal which would have a negative knock on effect on the two candidates who would become ineligible for another placement for a year and who might have their unemployment benefit cut.

The Complainant indicated that in the past she had had people threatening suicide where there had been a threat to their state benefits. This was not something that she had coped with very well. I formed the impression that the Complainant was very sensitive to her clients needs perhaps to her own detriment.

It is an unfortunate fact that for reasons beyond the Complainant’s control the Garda vetting took much longer than expected.

When these two situations came to light, the Employer was very concerned at the fact that the Complainant had placed two individuals on payroll but that the two were sitting at home and not in their assigned placements. It is an unfortunate fact that there was a delay of four weeks with one of the candidates and a delay of six weeks with the other. This meant that there were ten weeks of payroll paid out on positions not taken up. I take the Respondents point that this money came out of it’s own funding, but also must recognise that other than the €25.00 top up the monies would otherwise have been paid as unemployment benefit. The Respondent funding is primarily made up of unemployment benefit under another name.

The Complainant clearly gave evidence that the two candidates were made aware of the fact that they would be obliged to make up the weekly hours they should have been working and thereby make up for the lost weeks waiting on the Garda vetting. I was advised that this was a common practise in many of the workplaces that operated to an academic or other calendar. So, for example, if a person was assigned to work 18 hours in a week but was excluded from the workplace for a period over Christmas or Easter, they would still be paid out of the weekly payroll and the hours would or might be made up in other periods.

This practise was not disputed. Indeed, as the contrary was not shown, I accept that the two candidates were willing to abide by this direction and knew that for each week that they awaited Garda vetting they would have to try and make up the hours over the balance of their placement. Although not necessarily relevant to the within proceedings, it is common case that both candidates took up their positions as soon as the vetting was in place and went on to successfully complete their programmes. The Complainant’s intuition regarding these two candidates did not let her down.

However, I have to recognise the fact that the Respondent herein was entitled to be concerned that it’s Team Leader was engaging in the practise of signing off on payroll for placements not placed. This is not a practise condoned or sanctioned in the workplace and the Respondent indicated it might have left them open to considerable criticism from the Department – from whom all funding flowed. Had she sought assistance or clarification, the evidence is that she would have been told to return the two people to the live register pending Garda vetting. In was in this context that the undoubtedly strong words contained in the allegations of falsification and misappropriation arose.

Once the Investigation had been concluded and (inappropriately) a finding made that the actions warranted disciplinary action, the Complainant was brought into a Disciplinary process conducted by LON the CEO. In his evidence before the WRC I note that LON did agree that there were circumstances where a person might be assigned a placement and a delay in taking up the placement might occur for whatever reason. He was, however, adamant that this would be a matter of days - at most a week. From this I have to deduct that the Complainant having started the process, set up the Bank details etc. would not have been criticised if there had been a seven-day delay in starting up. The problem was the longevity.

I note that in his letter outlining outcome, Mr. LON goes beyond the two allegations made and makes findings against the complainant under the headings of trust and reputational damage – this latter finding was not proven and, to my mind, was a perception created by Mr LON. It was unfair of LON to include this finding as he knew that from time this very practise (however minimally) actually did arise in this workplace from time to time.

I heard from the Appeals Officer MB who said in evidence that there were “Grey areas” but as no new information had come to light for the Appeal hearing he was not persuaded to change the outcome of the Disciplinary process. In evidence MB voiced the opinion that the Complainant should not have concerned herself with the potential financial shortfall which would befall a candidate unable to immediately take up a placement. Whilst there is potential that a candidate would fall between two stools for a couple of weeks – with no payment coming in, this could not be the Complainant’s concern.

On balance, I accept that the Respondent was entitled to be concerned at what had happened. Ten weeks pay without placement is very serious. However, I have to recognise that a very reasonable plausible and empathetic reason was given by the Complainant. Her difficulty was that the delay ran on much longer than she expected it would and much longer than previously experienced in the workplace. However, the point here is that this does happen from time to time in the workplace. The Respondent acknowledges that a start point for a placement can be delayed by a few days resulting in payment whilst not on placement. Such hours are easily made up.

I have to conclude that describing this common workplace practise as falsification and/or misappropriation to have been somewhat harsh. The allegations have clear criminal overtones and were intended to scare. As I have said, the Complainant was at fault for allowing the situations run on as long as she did. I am satisfied that the Respondent herein treated the Complainant harshly and vilified her (perhaps misguided) compassion.

On balance, I think the Respondent decision maker (who clearly took into account the fact that the Complainant was facing other disciplinary issues- if not the content thereof) imposed too great a sanction on the Complainant. She had an excellent record and provided a great service. She might have needed re-training she might even have had to face a period of demotion, but she should not have been dismissed. I agree that the sanction was disproportionate and that the Complainant was Unfairly Dismissed.

In assessing loss, I take into account that a sanction at some level would have been appropriate. I also note that the Complainant is in alternative employment -albeit at a lesser rate.

As Summary Dismissal was unfair the Complainant must succeed in her Mimimum Notice claim.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00028136-001

I award the sum of €17,500.00 compensation for Unfair Dismissal

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028136-002

The Complainant is entitled to be paid in lieu of Minimum Notice entitlements. This will be a total of four weeks pay in the amount of €645.00 per week. The Complainant’s duration of employment was between 5 and 10 years.