Complainant

Respondent

Anonymised Parties

Cleaning Operative

Cleaning Contractor

Representatives

Self

John Barry Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00029437-005

02/07/2019

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

CA-00029437-006

02/07/2019

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

CA-00029437-007

02/07/2019

The Complainant was employed by the Respondent from 19th December 2016 as a fulltime cleaning operative on a named site. The employment was terminated on 19th June 2019 on grounds of gross misconduct. The rate of pay at the time of termination was €846 per fortnight. The complaints are made under the Unfair Dismissals Act 1977, the Minimum Notice and Terms of Employment Act 1973 and the Industrial Relations Act 1946 (section 45A).

The case made by the Complainant was set out in detail in her complaint form and in associated documents which formed part of an internal investigation into her conduct prior to her dismissal. During the hearing it was established that there was no substance to the case related to section 45(a) of the Industrial Relations Act. Complaints regarding unpaid holiday pay were referred by the Complainant to the Inspectorate of the Workplace Relations Commission. It is understood that on making a site inspection that the Inspectorate informed the Respondent that there was an outstanding liability for payment in lieu of notice and this direction was followed by the Respondent. The issue of whether the payment was liable for tax at the point of payment, i.e. whether it should have been gross or net, was discussed at the hearing.

The following are extracts from the Complainant’s submission:

“What was the reason given for your dismissal or the reason that you left employment?”

Response: “Gross misconduct. Failure to follow specific instruction given by management resulting in aggression towards management. Illegal and unjust/unfair treatment by management”.

“Events leading to dismissal.”

Response: “The following instances of management mistreatment/neglect/incompetence contributed significantly to my dismissal as they built the foundation for a tense mistrustful relationship.

1.      Dec 2016 - April 2018: Unrealistic work demands. 1-2 hours overtime required daily.

2.      May 2017: On completion of 6 months’ probation and being made permanent I asked to join the pension scheme and was told there was not one.

3.      January 2018: Instead of being rewarded for unpaid overtime I was passed over for promotion. A new employee was employed as my supervisor.

4.      June 2018: Incomplete administration of hepatitis B vaccine and so ineffective due to [named employee] failure to coordinate with HR. Vaccine necessary due to health and safety risks on site.

5.      14 March - 25 April 2018: On sick leave for 6 weeks due to knee injuries caused by split shifts and the excessive walking and standing required. During this time I received a total of only €757.06 from [the Respondent] and DSP combined.

6.      May 2018: Disrespectful attitude to my father’s suspicious death regarding bereavement entitlements.

7.      Jan - May 2019: At least 4 surprise, unscheduled training sessions conducted by [named supervisor] 1 to 1 during my shifts, lasting 5 to 15 minutes.

8.      Sept 2017 - Oct 2018: [...] no record of work hours and attendance due to clocking system failing to read my fingerprints.

9.      Dec 2016 - Jan 2019: No record of work hours and attendance due to clocking system failing to record any attendances.”

The Complainant stated that the tense relationship continued with:

“their continual reprisals for doing additional work and using different cleaning methods and when I displayed my irritation they interpreted as aggression. At no time ever whilst working for the Respondent did I ever threaten any colleague with violence. They have no basis to claim they were scared. I am even physically smaller and older than them. This dismissal is unfair as the behaviour which they claim is gross misconduct is a direct result of their unjust and illegal mistreatment of me on numerous counts.” 

The Complainant then lists a series of dates commencing on 18th October 2018 and continuing until 19th June 2019 at which time she received a summary dismissal letter. Two of these dates were concerned with being reprimanded. The first for cleaning an area which was that of another employee and the second of which was for using an incorrect floor washing method. On 23rd April 2019 the Complainant describes a:

“30 minute unscheduled meeting with [the manager] about clocking in before 5pm and clocking out after 9pm. Felt irritated, unvalued and pushed/kicked the trolley into the lift causing two small dents on leaving”.

On the 24th of April there was a meeting with the manager about the lift incident and she explained her irritation. On 10th May 2019 she was approached by the supervisor whilst hoovering an area and reprimanded. She was subsequently suspended for three days. There followed a pre-disciplinary investigation meeting on 24th May and a disciplinary meeting on 11th June. On 19th June she was notified in writing of her dismissal.

The Complainant started work in alternative employment on 14th October 2019 where she received €520 per week. That employment had ended on 28th February 2020.

Dismissal as a fact is not denied. The Respondent submitted that it was continually necessary for management representatives to take the Complainant to task due to her failure to carry out the duties she was required to do, attend work at the rostered times and her abusive attitude towards both her work colleagues and management.

Prior to the incident in May 2019 which resulted in a disciplinary hearing, a number of difficulties had been experienced with the Complainant. It was submitted that the Complainant consistently acted as if her cleaning standards were superior to those of the Respondent. It was necessary to talk to the Complainant about her cleaning on a number of occasions. For example, when she was seen splashing water on the floor when cleaning a toilet area. When challenged by the supervisory staff who observed this, she stated that she knew how best to clean the floor and not the supervisor (date October 2018).  

Other staff members complained about working with the Complainant because of the tantrums and moods she would be in and her behaviour towards them and this included towards her supervisors.

On numerous occasions it was necessary for her supervisors to talk to her about the fact that she would take so long cleaning and that she would clean other areas which had been assigned to other members of staff, who often had already cleaned the area. The Complainant was maintaining that she had too much work to do while at the same time cleaning areas to which she was not assigned.

There was an issue in relation to the Complainant’s timekeeping. A biometric timekeeping system had been installed which involved using fingerprints for identification. The system would not recognise the Complainant’s fingerprint and because of this problem it was necessary for management to talk to the Complainant about her timekeeping as she was arriving or leaving work early while at the same time maintaining she had not enough time to do her duties and was working extra hours.

Over the period of 2018-2019 there was an ever-growing number of instances where difficulties were being experienced with the Complainant. Due to the clocking machine difficulty she was instructed to report to her manager if she arrived late, but she failed to do so. The Complainant became aggressive when she was challenged by anybody regardless of what rank they were in the organisation. Her work colleagues have become afraid to interact with her due to the fact that she would be abusive to them or throw a tantrum. When challenged by a manager she would be equally aggressive and abusive towards the manager. The example given was shortly before her dismissal in 2019 when a supervisor spoke to her regarding her cleaning someone else’s area which had already been cleaned she became annoyed and she proceeded to kick her cleaning trolley with such force that it travelled into a lift which the trolley was keeping open and caused damage to the opposite door of the lift (23rd April 2019). In May 2019 she was again vacuuming an area which was not part of her assignment and when challenged by her supervisor she proceeded to shout at her and waive the vacuum in a manner that caused the supervisor to request another work colleague to remain present because she was fearful of what was going on. A meeting took place between the contract manager and the Complainant and she was told she was to be suspended (10th May 2019). Later the same day she returned to do her second shift and when asked by the contract manager why she was doing this she maintained she thought the suspension was from the following Monday. He then sought her security keys and she refused to give them to him and walked off. He called her, but she ignored him.

A disciplinary investigation took place on the 28th of May. Statements which had been submitted by members of staff were discussed with the Complainant and she was afforded every opportunity to comment on them. It became very clear from the Complainant’s tone during the course of the meeting that as far as she was concerned she would clean other areas if she felt they needed to be done even though she was saying she was under time pressure.

The Complainant did accept that she did raise her voice on occasions but did not regard her behaviour as aggressive while accepting that other people could perceive this as being aggressive behaviour. As far as the Complainant was concerned, she was there to do her work, she did her work very well and she was not at work to make friends or to have social conversations with her work colleagues.

A letter was issued to the Complainant on 7th June 2019 confirming that the matter was going to be referred on to a disciplinary hearing. The disciplinary hearing was held on 11th June 2019. During the course of the disciplinary investigation it became apparent that the Complainant was admitting she had on a number of occasions defied instructions from her supervisors and the explanation given was that she felt that she knew better and would do as she liked and not as the company wanted her to do.

The Complainant also appeared to accept that she did get frustrated and did react when she was spoken to by her supervisor with whom she described having a “personality clash”. As a consequence of the disciplinary hearing a decision was made on 19th June and issued to the Complainant advising her that due to her behaviour there was no alternative but to terminate her employment. The Complainant was offered the opportunity to appeal this decision, but she did not pursue any appeal.

It is submitted that despite the fact that management did try to give the Complainant every opportunity it became very clear by the incident in May 2019 that her behaviour was totally out of control. The Complainant literally kicked a piece of equipment into the lift, causing damage to the lift. The Complainant does not dispute this and stated during the investigation that she “was angry and irritated, I had a conversation with X regarding clocking in early that day”!

The Complainant was given an opportunity at that stage to improve her attitude but the incident in May, where she became seriously abusive towards her supervisor, showed that the Complainant’s behaviour had become intolerable, that her work colleagues and her supervisors felt threatened and clearly her employer no longer had faith in her.

Minimum notice was not paid at the time of dismissal as the dismissal was described as a summary dismissal with immediate effect. This was paid on the direction of the WRC Inspector.

The description of events provided by the parties covering the period January to May 2019 give the very strong impression of an employee who, while committed to doing her own job well and setting high standards for herself and others, became increasingly unmanageable. It is essential for any employment relationship to function that each employee is both managed and manageable providing always that the authority to manage is exercised with care and in a reasonable manner. On the other side of the equation respect for the authority of managers and the capacity to accept reasonable directions from them is an essential and quite normal requirement in an employment relationship. It certainly seems that the Complainant was entirely disrespectful towards her immediate supervisor and reacted poorly to any attempts by that person to manage her. The events of May 2019 with the incident of banging the trolley off the lift and her reaction to being corrected for cleaning another area by her supervisor on 10th May 2019 underline the conclusion that there was a basic lack of respect on the part of the Complainant towards that supervisor who was present and observed the Complainant’s behaviour on both occasions. The incident with the trolley and the lift followed an informal discussion with a more senior manager and the negative reaction of the Complainant to that discussion was displayed in her subsequent her ill-tempered behaviour. Her reaction to being checked about again cleaning another employees designated area was also ill-tempered. The refusal to hand the keys over to the most senior manager following her suspension is inexplicable other than another example of refusing to accept reasonable authority. Essentially, in the period January to May 2019 the Complainant acted as a law unto herself. The employment relationship could not have been sustained on this basis.

While recognising the difficulties faced by those charged with managing the Complainant there remains the issues of the processes which they followed in addressing her shortcomings.

The policy in the Respondent employment refers to S.I. 146 and consistent with that Statutory Instrument and any disciplinary procedure, the main purpose is to address issues of performance allowing for a staged process which gives the employee the opportunity to correct their behaviour, address their performance shortcomings or to ensure that there is no repeat of unacceptable conduct. By any definition issues around clocking in or clocking out; how the employee was “doing her cleaning duties”; “the fact that she would take so long cleaning and that she would clean other areas which had been assigned to other members of staff”; and one issue regarding a cleaning method used by the Complainant; are all matters of work performance the correction of which are ideally suited to the proper use of the disciplinary procedure. Regarding the events of May 2019, these are behaviour issues and certainly the term tantrum used in the submission applies to the behaviour, but aggressive toward an individual other employee appears to be something of an exaggeration of the events as described by the Complainant and those who were present. Generally, the Complainant came across as honest about her attitudes and behaviours when a little more discretion and less forthrightness might have served her better.

In practice, the Respondent used all of the events of January to May 2019 within its disciplinary process at the most serious level, following the suspension, without having used the internal disciplinary procedures beyond some informal discussions, to allow the Complainant the opportunity to correct her own behaviour, to improve her performance or to understand the consequences of a failure to do as required by her managers, none of which was unreasonable on their part. The shortcomings on the part of the managers in utilising their own procedures was contrary to the purpose of such processes including that in the Respondents business. The subsequent rolling up of everything that had bothered the manager and/or the supervisor into one process and added to in their submission to the Hearing of the complaint e.g. the reference to the biometric fingerprint testing, is where the procedures and processes were repeatedly exercised unfairly towards the Complainant. 

In convening a disciplinary investigation by way of a letter of 10th May 2019 the Respondent failed to provide the Complainant with any opportunity to be represented at that stage. Given the nature of the charge and the fact that she had been suspended indicating the most serious level within the disciplinary procedure being considered, given that “summary dismissal” was referenced in the letter of 10th May 2019, the Complainant was entitled to have some support or appropriate representation present at such a meeting.

The letter of 10th May 2019 gives as the purpose of the suspension and the related investigation a “failure to follow specific instruction given by management resulting in aggression towards management”. The reason given for the suspension and the purpose of the investigation were subsequently and without prior notification to the Complainant extended to a range of issues cited in various statements : the events of 23rd April 2019 as well as 10th May 2019; interactions with the employee from 2018 to 2019. It follows that the conduct of the pre-disciplinary investigation extended far beyond the purpose notified to the Complainant in the letter of suspension. This extension into the rolling up of issues not previously identified to the Complainant as issues within the pre-disciplinary process was unfair to her and she had neither the experience or the necessary support to even question the change in approach.

Within the pre-investigation stage there is an extensive statement by the named senior manager which is a second statement within the pre-disciplinary process covering events from August 2018 through to May 2019. This detailed statement comes from the person conducting the pre-disciplinary investigation. In other words, the manager conducting the investigation provided a detailed and negative statement concerning the conduct of the Complainant to the investigation he was conducting. In essence, the particular manager was acting as judge and jury in the one case. He suspended the Complainant; he conducted the pre-disciplinary investigation; and he provided a detailed negative statement of his account of events with the Complainant over an extended period. This was not an objective process.

Moving on to address the disciplinary process, based on the correspondence to the Complainant of 11th June 2019 the notification merely states: “We wish to invite you to a disciplinary meeting in connection to this investigation”. It is clear therefore that the investigation report and the conduct of that investigation had a significant bearing on the final disciplinary process and that investigation process having been found to be flawed in these conclusions significantly undermined the fairness of the later process. The undated letter does provide the opportunity for the Complainant to bring a representative to the disciplinary meeting. However, it does not state what the charge was to which the Complainant was required to answer. When the dismissal letter was issued on 19th June 2019 the reason given for the dismissal reverted to the original notification for the investigation process: “This is due to failure to follow specific instruction given by management resulting in aggression towards management.” At all times that reference is taken to relate to the events of 10th May 2019 and the alleged aggression of the Complainant towards a supervisor. As can be seen from the reading of the material provided to the adjudication hearing, both investigations and the reasoning put forward at the hearing for the dismissal of the Complainant extended far beyond the incident of 10th May 2019.

In totality, each stage of the procedures used by the Respondent was flawed. This leads to the finding that the dismissal of the Complainant was unfair.

There is the issue of the Complainant’s contribution to the decisions of management and this is taken into account in terms of the decision as to redress.

The Respondent has submitted that the Complainant was offered the opportunity to appeal and that she did not take that opportunity which should be taken into account in terms of any complaint of unfair dismissal. On the face of it, the Respondent’s position is not unreasonable allowing for the fact that the Complainant on her own admission, decided she would not get a fair hearing and proceeded to lodge a complaint with the Workplace Relations Commission. However, given the nature and extent of the flaws in the procedures followed by the Respondent up to the point of the decision to dismiss, to hold against the Complainant because she failed to finish out what was essentially a flawed procedure would be entirely disproportionate and unreasonable. The analysis of the material and processes in this case indicate her misgivings were not unjustified. Notwithstanding this point, the conclusion remains that the dismissal was unfair.

Regarding the complaint under section 45A of the Industrial Relations Act 1946, it is concluded that the complaint under this item was misplaced and certainly no evidence was presented at the hearing to support such a complaint.

Regarding the complaint under the Minimum Notice and Terms of Employment Act 1973, it is accepted that payment was made to the Complainant by the employer albeit subsequent to the dismissal and at the direction of the Workplace Relations Commission having conducted an onsite inspection. At the time the complaint was lodged, it was well founded.

Unfair Dismissal Act 1977.

The complaint of unfair dismissal brought by the Complainant is well founded. Regarding redress the parties agreed that of the available forms of redress, compensation is preferred. Given the circumstances of the case and the attitudes on both sides, I see no basis for deciding to restore the employment relationship. Compensation is the most appropriate redress. The Complainant was unemployed from June 2019 until October 2019. She is now unemployed again albeit her rate of pay in the employment secured in October 2019 was higher than while employed with the Respondent. The Complainants own behaviour contributed to the breakdown of the employment relationship and this is an important factor in determining the level of compensation. The Complainant is to receive six weeks’ pay in compensation for her unfair dismissal. The Respondent is to pay the Complainant compensation of €2544.

Minimum Notice and Terms of Employment Act 1973.

The complaint of a failure to provide pay in lieu of notice is not well founded.

Section 45A of the Industrial Relations Act 1946

The complaint under Section 45A of the Industrial Relations Act 1946 is not well founded.

Dismissal-Notice Payment