ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00027968

Parties:

Dispute:

Date of Adjudication Hearing: 07/09/2020

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The aforesaid dispute was received by the Workplace Relations Commission (hereinafter ‘WRC’) on 30th April 2020. In accordance with Section 13 of the Industrial Relations Act 1969, following the referral of the aforesaid dispute to me by the Director General, I inquired into same. I proceeded to hearing on 7th September 2020 and gave the Parties an opportunity to be heard by me and to present any evidence relevant to the dispute. The Worker, Mr A was in attendance and represented himself. There was no appearance on behalf of the (former) Employer. Both Parties had confirmed consent to communication by electronic means and had been in prior email contact with the WRC. The Employer had not indicated any objection to an Adjudication Officer investigating this dispute pursuant to Section 36(1) of the Industrial Relations Act 1969, any difficulty attending or sought a postponement. I allowed a period of thirty minutes to elapse before commencing the hearing.

I also satisfied myself that the Employer had been properly notified of the hearing details. Mr A expressed his disappointment that the Employer had chosen not to engage but indicated that it was important that he had an opportunity to be heard and to vindicate his position for the purposes of future employment. The Employer was copied with documentation submitted by Mr A at the hearing and has not contacted the WRC to date to proffer any explanation for its non-attendance. Mr A was also afforded a period of time to ensure that all relevant documentation was submitted. All oral evidence and supporting documentation received have been taken into consideration.

Background:

The Worker was employed by the Employer, a UK based Travel Company, as a Sales Executive on 17th June 2019. He earned €2500 gross per month. He contended that he was summarily dismissed on 24th April 2020, and not having the requisite 12 months’ service for a complaint under the Unfair Dismissals Act 1977 sought compensation under Section 13 of the Industrial Relations Act 1969.

Summary of Complainant’s Case:

The Worker, Mr A gave evidence outlining the circumstances giving rise to his dismissal by the Employer. With a history of relevant work experience, he had successfully applied directly to the new CEO of the UK-based Travel Company, Mr B, for a sales position based in its Irish branch and commenced employment as a Sales Executive there on 17th June 2019. Upon passing his six months’ probation period he received an increase in salary from €28,000 to €30,000 per annum equating to €2,500 gross per month. He was furnished with ‘Statements of Main Terms’ which set out the basic terms of his employment and expressly provided: “The terms and conditions of your employment shall be governed under the laws applicable to the Republic of Ireland.” It was further confirmed: “The disciplinary rules and procedures that apply to your employment are shown in the Employee Handbook to which you should refer.” Mr A confirmed that he never received a Staff Handbook setting out the disciplinary rules and procedures because the Company only had a UK-based version.

Mr A maintained that there were no complaints about his work and all was well until Mr B took over operations from the former owners in early 2020. The previous owner had informed the staff in the Irish branch in November 2019 about a change in pay date from four-weekly to monthly. The staff had been split as to the preferred payment schedule. Upon not hearing anything further about the proposed change and whether it was going ahead, in early January 2020 Mr A queried this with the Finance Manager who said that he would liaise with Mr B about the change and revert. When he had heard nothing further by mid-February, he requested clarity from the Finance Manager so that he could rearrange his bill payments accordingly. The Finance Manager responded to the effect “…you've been told numerous times that it is monthly now, and I will get a contract out to you for signing.” Mr A responded that he would not sign anything until he had spoken to a union representative. He clarified that that the Employer is not unionised and he was referring to availing of independent advice. A few days later, he received a call from Mr B who abruptly told him that he was out of order and should not threaten his senior management team with union reps and that he wanted to sack him so he should count himself lucky. He apologised and thought this was forgotten. He did not receive the updated Statement confirming the changes to payment until March 2020.

The nature of the Employer’s business was such that it was badly impacted by the Covid-19 Pandemic. On 19th March 2020, staff in the Irish branch were temporarily laid off work due to the Pandemic and were later asked to return when the Temporary Covid-19 Wage Subsidy Scheme was introduced. Mr A was asked to return to the business for three days a week (Tuesday, Wednesday and Thursday). There had also been staff changes around the same time with one staff member being let go and Mr A’s line Manager was replaced. The week before Easter he approached his new Manager to ask how his working week would pan out with it being Easter and Good Friday usually being a paid holiday and whether he would get a paid day off or in lieu. She obtained HR Consultancy advice and reverted to say that he would not be getting an additional day off for Easter. He expressed his disappointment with the decision stating that he could not do anything else but accept the decision. During this conversation, his Manager also asked me how he felt about being back at work and the handling of the lay-off situation. He responded that he felt that it was not handled very well, the communication was poor as staff had been left for nearly two weeks without any communication from senior management, there was no checking on their welfare and they had very little idea of where they stood long term. The next day he received an email from his Manager telling him that she had passed on his concerns to Mr B and he would ring him later to discuss them. As he had believed his conversation with the Manager to be in confidence he felt this was a breach.

Later that day, Mr A received a call from Mr B who again abruptly told him that his opinion was wrong and that his attitude was appalling. Mr B did not permit him to respond, telling him that he was the boss and Mr A was to listen. Mr A told Mr B that he made him feel like a child. At the end of their conversation, Mr B informed him that he would be getting a verbal warning and would receive a letter in the post to go on his file. He accepted the warning and continued on with his job.

Two weeks passed and instead of the letter, Mr A received an invite to a Zoom meeting on 24th April 2020 from Mr B entitled 'Follow up to verbal warning'. There was no indication as to the content of the intended call so he asked his Manager if she knew what it was about and she replied that she did not. He assumed that was to formalise the verbal warning. During the scheduled Zoom call, Mr B informed Mr A that he was following up on their last conversation and indicated that he was not satisfied with the way it was left and of Mr A’s reaction. He said that Mr A had misjudged the way the Company worked and the impact of his conduct when speaking to Mr B, emailing the Finance Manager and reference to obtaining advice from a union representative because none of what they do warrants that sort of response. Mr A acknowledged his viewpoint and pointed out that he had apologised at the time and explained that as it was a difficult and uncertain time financially he was questioning things and apologetically said that he could be a bit hot-headed. Mr B replied that he had to support employees in much worse situations than him and was worried about his traits especially his hot-headedness. He said that nothing he does is on the fly and the Employer operates properly within the law with HR support and advice. However, after what he had witnessed, Mr A had not demonstrated that his performance was what was required within the business. When Mr A pointed out that he gets nothing but positive feedback, Mr B responded that he was not questioning his customer service skills but how he operates within his business. The manner in which he responded to certain things within the business made him feel that the performance standards he sets do not meet what Mr B wants. Therefore the role was no longer there for him and he would receive a letter that day by email and recorded delivery which he could appeal. He maintained that this was an appropriate course and it was the right thing to do both for the business and for him because long term Mr A may become more frustrated with how the business was developing. Mr A replied that he was obviously not going to change his mind as he had made his decision, in response to which Mr B agreed that was the position. Mr A then reiterated his position that he was 110% committed to the business and went above and beyond. Mr B said that was not disputed or in question. When Mr A pointed out that the decision was unfair as no performance issues regarding his job had ever been highlighted, Mr B confirmed that he never said it was about his performance in the job. Mr A also pointed out that he had not been afforded an opportunity to improve following the verbal warning. He also questioned the basis for his dismissal, in response to which Mr B said he would get a letter. He confirmed that it was not for gross misconduct and Mr A said that he was entitled to fair procedures. Mr B responded that he had taken HR Consultancy advice and was going through the necessary processes which he was not going to debate. Mr A asked where he stood financially and Mr B said that would also be in the letter. Mr A then politely ended the conversation.

Mr A received a letter later the same day from Mr B dismissing him with one week’s pay in lieu of notice stating: “As per the company’s disciplinary rules and procedures we retain the discretion to take into account your length of service with the company and to vary the procedures accordingly. As a consequence, therefore, and taking into account your length of service I have decided that your employment should be terminated, due to the following concerns: Unsatisfactory standards of performance following training.” The letter also confirmed that he had the right of appeal to the HR Manager within 5 days in writing “… giving the full reasons as to why you believe your dismissal was either inappropriate or too severe.” Mr A was shocked and upset by his dismissal and the basis for same, being unsatisfactory performance when Mr B had expressly informed him during their Zoom meeting that his performance was not in question and submitted a detailed appeal. An appeal hearing was arranged with the HR Manager by Zoom on 1st May 2020. He was told to state his case without any input or questioning from the HR Manager. Nor was he ever provided with the details of how his performance had been unsatisfactory following training. He received a letter dated 6th May 2020 confirming the outcome from the appeal hearing upholding his dismissal and stating as follows: “During the hearing we discussed and confirmed the grounds for your appeal were as follows: You indicated that the sanction of dismissal was too harsh or unjust. Having given the matter full consideration, I am now writing to confirm that the original decision taken by Mr B stands for the following reasons: Unsatisfactory standards of performance following training.” The letter did not provide any detailed reasoning or engage with the main basis for Mr A’s appeal, being that no issues had been raised with his performance and indeed quite the contrary coupled with the fact that Mr B had confirmed that this was the case during their Zoom meeting of 24th April 2020.

Overall, Mr A was extremely upset at his dismissal and the unfair manner in which he had been dismissed at such a difficult time. He was particularly aggrieved that the reason given for his dismissal was unsatisfactory performance in circumstances where he had always given 110% and was regularly given positive feedback and additional responsibilities from his colleagues and managers in the UK, citing examples. If his performance had been in issue, he questioned why had this not been brought to his attention and why he had not been offered additional training or a performance improvement plan. He submitted that there had been a complete absence of fair procedures leading to his dismissal. He did not receive any advance notice that the meeting was disciplinary, he was not offered a representative or taken through a formal process, his questions were not answered and a letter confirming his dismissal was received within hours of the meeting. He submitted vouching documentation confirming his efforts to find alternative employment.

Summary of Respondent’s Case:

The Employer did not attend the hearing nor did it seek to put its position in writing to the WRC.

Findings and Conclusions:

As per the Labour Court’s position as confirmed in Bord Gais Eireann -v- A Worker AD1377, the Adjudicating Officer’s role in the context of dealing with a dispute relating to disciplinary action is confined to considering the reasonableness of procedures utilised in the particular circumstances, as opposed to adopting the role of the employer and making findings of fact in relation to the matters alleged. In this respect, I am guided by S. I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures), which requires that the procedures for dealing with workplace disciplinary matters (reflecting the varying circumstances of enterprises / organisations) must comply with the general principles of natural justice and fair procedures as set out in jurisprudence. Notwithstanding that the employment relationship has been terminated, there are numerous examples of both the WRC and Labour Court seeing fit to recommend awards of compensation in respect of unfair dismissals with less than twelve months’ service including those during the probation period where there has been a breach of fair procedures by an employer.

In the instant dispute, I found the Worker, Mr A to be an impressive witness and his account of the circumstances giving rise to his dismissal to be wholly credible and documented. The Employer has not proffered any evidence in rebuttal of same. On the balance of probabilities, I am therefore satisfied that there has been a complete absence of fair procedures in accordance with the general principles of natural justice and as required byS. I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures). Specifically, Mr A was never furnished with any disciplinary procedures as required by the Code and there was a complete absence of any fair procedures. In particular, he was not given any notice of the nature of the disciplinary meeting of 24th April 2020 or afforded representation. He was dismissed during the meeting as confirmed in a letter furnished shortly afterwards. Nor was any reasoning provided for upholding the dismissal on appeal. If there had been shortcomings in Mr A’s performance, then as a minimum, he should have been informed of same and provided with the necessary supports and training. One can only speculate as to the real reason/s behind this dismissal but my role is confined to assessing the reasonableness of procedures utilised in the particular circumstances. In the instant case, I am quite satisfied that for reasons unrelated to Mr A’s performance, the Employer orchestrated a sham disciplinary process leading to his dismissal. This is supported by the absence of any procedures whatsoever, the differing reasons given during the meeting and in the letter of dismissal, and the absence of any evidence supporting performance issues. Whilst the correspondence furnished may have the appearance of following process, it amounts to no more than going through the motions and the decision to dismiss a fait accompli from the outset. Naturally, this has caused upset and financial hardship to Mr A at a particularly difficult time. Unfortunately, there remains a common misconception that fair procedures are not required when employees have less than twelve months’ service and they can simply be dismissed. There are of course many responsible employers who do the right thing by their employees even in challenging circumstances and are to be commended.

Recommendation:

Section 13 of the Industrial Relations Acts 1969 requires that I make a recommendation in relation to the dispute. I recommend that within 42 days hereof, the Employer makes an ex gratia payment of €10,000 to the Worker in compensation for the manner in which he was dismissed. For what it is worth, I also recommend that the Employer reviews all its workplace practices and procedures.

Dated: December 2nd 2020

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Section 13 of the Industrial Relations Act 1969 – Dismissal with less than 12 months service – Bord Gais Eireann -v- A Worker AD1377 – S. I. No. 146/2000 – fair disciplinary procedures