Complainant

Respondent

Anonymised Parties

Team Leader

Local Development Organisation

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-00029485-001

05/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029485-002

05/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00029485-003

05/07/2019

The complainant commenced employment with the respondent as a Team Leader in August 2014. The respondent is a service provider for community-based projects. In February 2019 the complainant was informed that he was required to move his work location to another town. The complainant objected on a number of grounds. Following a written warning the complainant transferred under protest but shortly afterwards his employment was terminated on 27 May 2019.   The complainant is claiming unfair dismissal, notice money and outstanding annual leave entitlement.

No allegations were put to the complainant.

No investigation took place.

No representation was offered to the complainant.

The appeal hearing was conducted by the same person who decided that the complainant be dismissed.

The whole process was fundamentally flawed.

The complainant did not receive payment in lieu of notice.

The complainant left work without permission and was warned regarding this matter.

Management received information regarding inappropriate contact by the complainant with clients of the respondent.

Management regarded these issues as amounting to gross misconduct.

It was decided that the complainant would be dismissed with immediate effect and he was informed accordingly when he presented himself for work.

The complainant’s dismissal was upheld after an appeal hearing.

The complainant has been paid all monies due to him.

The complaints contained in this file were heard in conjunction with the complaint / dispute contained in File No. ADJ-00021784.

The complainant was employed as a Team Leader / Supervisor by the respondent which operates community-based projects within its area. The employment commenced on 18 August 2014. The complainant was issued with a Statement of Employment which stated that the location of the post was in the town where the respondent’s Head Office was located and that the organisational area was the relevant county. The complainant was, however, assigned to work on a particular project in a branch office in the county and had responsibility for a number of staff in that location. There was no issue with the complainants work during this time.

On 6 February 2019 the Project Coordinator (and complainant’s line manager) visited the branch office and informed the complainant that he was required to re-locate to the organisation’s Head Office. The complainant stated that this visit was unannounced and that the request was a complete surprise to him.   The complainant immediately objected to the proposed transfer. The accounts of the meeting by the persons concerned differ with the complainant stating that the Coordinator failed to engage with details of the complainant’s new role, responsibilities, travel time, expenses, etc. The Coordinator stated that he attempted to point out that it was normal practice to transfer members of staff and that the proposed change would not involve any change in grade, status or earnings. It would appear, however, that the atmosphere at the meeting became heated and that consequently the meeting did not last very long.

The Coordinator sent an email the next day stating that the complainant was required to move for “operational reasons” and advising that in order to allow the complainant to make arrangements for the move the transfer would take effect on 4 March 2019. The Coordinator further stated that at the request of the complainant a copy of his contract was forwarded to him some days later as was a copy of the Staff Handbook.

On 25 February the Coordinator sent an email to the complainant confirming that his transfer would occur on 4 March as advised and informing the complainant that a named member of staff would meet him on that morning to brief him on operations in Head Office. The complainant replied that afternoon and reiterated that he would not be moving to the other location. The complainant also complained about the lack of information and consultation and about the concern that he had that the transfer involved a demotion. The complainant also contacted other persons involved in the organisation including the CEO as well as his union official.

The coordinator responded by email on 28 February in which he stated that the move “is to accommodate the development of our new social enterprise initiative”. The email went on to mention that it was custom and practice to request staff members to move location within the county. The email ended by stating that if the complainant maintained his refusal to transfer “sanctions would be invoked”. The Coordinator also wrote to the complainant’s union official later that day setting out the respondent’s position and stating that he would be willing to discuss options “that might ameliorate any problems (for the complainant) in making the move, but the content of my email to him this morning…..still stands”.

The complainant did not move offices on 4 March. On 5 March the Coordinator emailed the complainant expressing his disappointment at the failure to transfer and referenced the section of the Staff Handbook dealing with refusal to carry out “reasonable management instructions”. The email then went on to state:

“This official written warning is to advise you that you are expected to do this by no later than 9am on Wednesday 6th March and that failure to do so will result in further disciplinary action up to and including termination”.

The complainant’s union responded on his behalf later that day requesting a withdrawal of the warning which it claimed was issued in breach of the principles of natural justice.   The union also advised that that the complainant wished to appeal the warning. The complainant went out on sick leave at this time and claimed that this was due to the stress caused by these events. The Coordinator wrote to the union on 6 March acknowledging the request for an appeal hearing and also suggesting that the parties meet on an informal basis to discuss the matters with a view to reaching agreement on how to move forward. The union responded by rejecting the idea of an informal meeting and requesting details of an independent person to hear the appeal. The union did state, however, that they were available for a meeting.

A meeting was held between the parties on 13 March to discuss the proposed transfer with the complainant being accompanied by his union official. No progress on the issue was made but at the end of the meeting the complainant submitted a medical certificate from a GP to the effect that his patient was suffering from chronic pain and as a result was not fit to drive long distances. There is a dispute in the accounts of what was stated by the Coordinator in response to this certificate. The complainant’s account is that the Coordinator sympathised with the complainant and said he was aware of this. The Coordinator stated that he had responded by telling the complainant that this matter would have to be referred to the company as it was the first that he had heard about it.

Further correspondence occurred between the parties with the union asking that the complainant’s grievance in respect of the transfer request be heard in conjunction with the appeal of the written warning. The grievance was submitted in writing on 19 March. On 28 March the respondent submitted the name of the person who would hear these matters. The complainant sent an email objecting to the named person as he was a member of the respondent’s board.

The hearing was eventually arranged for 9 April to be heard by the nominated person. At the meeting the complainant’s side objected to the presence of the notetaker provided by the respondent as he was the same notetaker who had provided notes for the meeting held on 13 March the contents of which they had issues with. The meeting did not proceed that day as a result of these objections.   The meeting was supposed to be re-scheduled but this was then cancelled and no appeal hearing took place.   The respondent had in the meantime referred the complainant to an occupational health specialist (OHS) as a result of the medical certificate handed in at the meeting of 13 March.

On 10 May the respondent sent a letter to the complainant offering “a final one-week period to make any necessary arrangements to facilitate the transfer”. The complainant did not attend the OHS appointment on 13 May as he had issues with regard to the terms of the referral. On 15 May the complainant responded to the letter of 10 May repeating his position in respect of the transfer and requesting certain information in this regard. The complainant went on to state:

“If this move takes place, please note that you knowingly as my Employer are putting my health at risk.

Also please note for complete clarity – if this move takes place, I will be doing so under protest.”

The complainant also explained that due to issues with the referral he had missed the OHS appointment and had been informed by the OHS provider that requests for re-scheduling would have to come from the respondent. On 17 May the complainant emailed the respondent to confirm that he would attend for work at the new location on the following Monday. The complainant again requested certain details including a detailed job description and a time / date to discuss expenses and travel time. This email reiterated the points about health risk and acting under protest.

On 20 May the complainant attended for work at the new location. He met with a member of staff who could not provide clarity as to his role. He emailed the Coordinator that morning regarding having a discussion about expenses / travel time and also sought clarity on his new role. The complainant again emailed the Coordinator that afternoon regarding these matters and advised that until such time as terms were agreed he planned to leave the office at 3.30pm to allow for the 45 minutes each way travel time. That evening the Coordinator sent a letter by email to the complainant setting out the background to the issue over the previous 13 weeks from the respondent’s point of view and ending the letter by stating that leaving the office at 3.30pm was in breach of the complainant’s contract and that any recurrence would lead to the termination of the complainant’s employment.   On 21 May the complainant’s union responded on his behalf protesting at the treatment suffered by their member and advising that the issues would be referred to the WRC.

According to the respondent’s submission information was received with regard to interactions between the complainant and clients of the respondent’s service on 23 May. An investigation at senior management level took place on 24 May which decided that the complainant’s behaviour amounted to gross misconduct and a decision was made that the complainant should be dismissed immediately. The complainant’s access to emails was also disabled and the locks on his workplace changed. On 27 May the complainant reported for work and was instructed to go and meet the Coordinator. According to the complainant he asked for a shop steward to be present but was told that there was no need for this. The complainant was met by the Coordinator who proceeded to read from a letter which stated, inter alia, that “your attempt at psychological and emotional exploitation of vulnerable clients has created distress and mental anguish for them, potentially placing them in danger and is tantamount to abuse.” The letter informed the complainant that he was dismissed forthwith for gross misconduct. The letter was dated 24 May. There was no reference to the right of appeal but the letter stated that any further communications should be directed to the respondent’s CEO.

On 27 May the complainant’s union wrote to the CEO stating that the complainant wished to appeal against the dismissal and pointing out that he was unaware of the grounds for his dismissal. The appeal hearing was held on 18 June and conducted by the CEO. The complainant was accompanied by his union official.   The CEO would not discuss the contents of the dismissal letter and stated that his function was to hear the grounds of appeal. The official stated that they could not specify the grounds of appeal as they did not know why the complainant was dismissed. The CEO stated at the meeting that he supported the decision to dismiss the complainant. The outcome of this meeting was that the appeal was rejected. A job advertisement in relation to the complainant’s position was advertised in early June.

The union referred the complaints to the WRC on 5 July 2019.

Complaint No. CA-00029485-001:

This is a complaint under the Unfair Dismissal Acts, 1977 – 2015, to the effect that the complainant was unfairly dismissed.

Section 6(1) of the Act states:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(b) of the Act states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one of the following:

(a)    the capability, competence or qualification of the employee for performing work of the kind which he was employed by his employer to do,

(b)    the conduct of the employee……..

Section 6(7) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –

(a)    to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

The respondent has a staff handbook which contains a section dealing with Grievance and Disciplinary Procedures. A copy of this handbook was sent to the complainant and on several occasions the Coordinator made reference to it in correspondence. The Disciplinary Procedure is laid out in Section 9.2 of the handbook. In that Section it is stated:

“Before the start of any stage in the procedure, you will be told of the nature of the complaint against you and no decisions will be made without you having been given the opportunity to fully state your case.   At all stages of the process, you will be made aware of the standard of performance that is expected of you and any necessary assistance to achieve these levels…..At all stages of the disciplinary procedure, you have the right to be accompanied by a work colleague or representative. You have the right to appeal against any disciplinary action that is taken against you.”

In addition, an employer is expected to apply the principles contained in the Code of Practice on Grievance and Disciplinary Procedures, S.I. No. 146 of 2000.   Paragraph 6 of the Code states:

The procedures for dealing with such issues reflecting the varying circumstances of enterprises / organisations, must comply with the general principles of natural justice and fair procedures which include:

That employee grievances are fairly examined and processed;

That details of any allegations or complaints are put to the employee concerned;

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

That the employee concerned has a right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

The background to this dismissal is that the respondent requested the complainant to transfer his work location from one location to another and the complainant strongly objected to this transfer. This process started on 6 February 2019 and generated a lot of interaction between the parties as set out above. The complainant finally transferred under protest on 20 May 2019 but issues arose immediately in this regard.

The respondent alleged that management then became aware of contacts made by the complainant with what was termed “vulnerable clients” of the project which the complainant worked on in the branch office. An investigation took place and it was decided that immediate action had to be taken. According to his own evidence the Coordinator, in consultation with the CEO, decided to terminate the complainant’s employment with immediate effect. A letter to this effect was written on 24 May. The complainant’s Google account was disabled and the locks changed on his office in the branch. The letter was read to the complainant at the meeting on 27 May at which he was dismissed. No details of the investigation were made known to the complainant either at that meeting or at the appeal hearing.

It is clear therefore that the procedures utilised in dismissing the complainant were extremely deficient. The courts have dealt with the issue of fair procedures, or the lack thereof, over the years. In Magill v Tompkins Ltd., UD1665/2012 the EAT determined the dismissal to be unfair because: “she was denied due process and indeed, any process, was not given any details of the complaint against her and had no opportunity to defend herself. Instead, the termination of her employment was presented to her as a fait accompli.”

I have no doubt but that the respondent had become frustrated at the continued opposition by the complainant to the proposed transfer. That, however, is not an excuse for not abiding by the principles of natural justice. The respondent obviously considered that the actions of the complainant in contacting users of their service to be potentially very serious but it was open to management to suspend the complainant with pay, allow a proper investigation to take place and then implement the procedures contained in their own policy. It appears to me that management read the section of the policy dealing with gross misconduct in isolation from the rest of the disciplinary procedure. I accept that the management may not have had much experience of implementing the disciplinary policy to the level that could lead to dismissal. All the more reason then to seek advice from appropriate qualified persons.

As a result, according to the evidence, the decision to dismiss the complainant was taken on 24 May by the Coordinator in consultation with the CEO. The complainant was called to a meeting without notice on 27 May, told that there was no requirement for a shop steward, a letter was read to him by the Coordinator which contained no detail of the complaints against him and he was then informed that he was dismissed.   He was not advised of a right of appeal. After contact from his union an appeal hearing was arranged. This hearing was conducted by the CEO who had been a party to the decision to dismiss. The Labour Court in John Casey Limited v A Worker, CD/05/596, stated that “it is not acceptable for the company to send for an individual without indicating the seriousness of the meeting….and then to summarily dismiss the person.”

The process utilised by management was fundamentally flawed on many levels. The complainant was not given notice of a disciplinary hearing, was not advised of the seriousness of the complaints, was not allowed representation at the hearing, was not advised of the details of the complaints, was not given an opportunity to respond and was not advised of his right of appeal. In addition, the same persons were involved in the investigation stage, the disciplinary stage and the appeal stage which is a breach of the principle that no person may be a judge in his own cause. I therefore have to find that the dismissal of the complainant was an unfair dismissal.

I note that the complainant submitted evidence of seeking employment and that he had succeeded in obtaining temporary employment on similar terms from 19 August 2019 to 23 November 2019.

Complaint No. CA-00029485-002:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973, to the effect that the complainant did not receive any notice of his dismissal due to the actions of the respondent in summarily dismissing him. Section 4 of the Act states:

(1)    An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2)    The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(b)    If the employee has been in the continuous service of his employer for two years or more but less than five years, two weeks

In the case before me, having found that the complainant was unfairly dismissed, it therefore follows that the complainant is entitled to payment in lieu of notice. Based on a commencement date of 18 August 2014 and a termination date of 27 May 2019 the complainant is entitled to a payment of two week’s gross pay which equates to 2 x €772.50 = €1,545.00.

Complaint No. CA-00029485-003:

This complaint under the Organisation of Working Time Act, 1997, was withdrawn at hearing.

Complaint No. CA-00029485-001:

For the reasons outlined above I find this complaint under the Unfair Dismissal Acts, 1977 – 2015 to be well founded. I have noted the complainant’s efforts as regards mitigation. I also have taken into account the actions of the employer and, in particular, the serious deficiencies in the dismissal process.   I therefore order the respondent to pay to the complainant the sum of €15,500 as compensation in this regard.

Complaint No. CA-00029485-002:

For the reasons outlined above I find this complaint under the Minimum Notice and Terms of Employment Act, 1973, to be well founded and I order the respondent to pay to the complainant the sum of €1,545.00 as compensation in this regard.

Complaint No. CA-00029485-003:

This complaint under the Organisation of Working Time Act, 1997, was withdrawn at hearing.

Unfair Dismissal     Flawed Procedures     Code of Practice     Minimum Notice