Complainant

Respondent

Anonymised Parties

A Concierge

A Hotel

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00030334-001

16/08/2019

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

CA-00030334-002

16/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030334-003

16/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030334-004

16/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00030334-005

16/08/2019

The complainant was employed on a probationary basis between May 21st, 2018 and May 3rd 2019.  

He makes five complaints; three of these under the Industrial Relations Acts. Further detail was provided on those complaints as follows.

Complaint CA-00030334-001 relates to alleged unfair dismissal, complaint CA-00030334-003 relates to the imposition of a disciplinary sanction and complaint CA-00030334-004 relates to allegations of bullying and harassment.

Complaint CA-00030334-002 relates to alleged unfair dismissal under the Unfair Dismissals Act and Complaint CA-00030334-005 is made under the Protected Disclosures Act.

The sequence of events begins with a letter of complaint made by the complainant on Jan 28th, 2019 about a co-worker. He believes that his employment was ultimately terminated for raising these issues.

He was offered the option of informal resolution of these issues and while he agreed to this and a meeting was arranged he felt that it did not have a satisfactory outcome. A second meeting in February was also inconclusive.

His probation had been extended just before this on January 10th by a further three months to February 21st.

His letter of complaint also contained a reference to certain practises which he said breached the respondent’s policies and concerned the making of payments to the concierge team. (This became the subject of the Protected Disclosure on May 4th.)

He was invited to a meeting on April 19th with the HR Manager and this took place on April 26th.

His timekeeping and specifically a number of ‘lates’ between January 11th and April 19th were discussed at this meeting.

While he was told that failure to reach the required standards of performance etc could result in the extension of his probation, there was nothing to suggest that his employment would be terminated a matter of a few days later. There was to have been a follow up meeting on May 3rd.

However, on that day he received a letter terminating his employment.

He was given the right to appeal and while he submitted a letter of appeal he was not in a position to attend an appeal as he was called for jury service. He advised the respondent of this.

However, he did not receive any final confirmation of the termination of his employment.

The respondent did not attend the hearing.

While a respondent may choose not to attend a hearing and in such circumstances a hearing may proceed, there are some cases, and this is one, where the absence of the employer’s position makes it difficult to reach conclusions on some issues.

This particularly applies to the complaints under the Industrial Relations Act in this case.

Clearly, the complainant was within his probationary period and the termination of his employment appears to be attributable to his failure to navigate that successfully.

However, the correspondence submitted raises some disquieting issues in that regard.

The letter inviting him to the meeting on April 26th referred to two items; timekeeping and ‘Maintaining focus and observance of business levels’. The respondent produced notes of the meeting for the complainant’s consideration and asking him to address omissions or errors.

In response, it appears (from a letter submitted to the hearing which had been sent to him by the respondent on April 30th) that he submitted thirty-eight pages of handwritten notes, which was mainly related to matters not discussed at the meeting.

That letter also invited him to a reconvened meeting on May 3rd. The complainant’s evidence was that no meeting followed, and he was dismissed.

If so, that is not an acceptable way to terminate a person’s employment, even one on probation.

These are clear, and serious procedural defects that denied the complainant the standard of fair procedure and some level of common courtesy even in respect of the termination of a probationer employee.

For that reason, I uphold Complaint CA-00030334-001 in respect of the alleged unfair dismissal and I make my recommendation below.

The complainant also submitted that his termination was attributable to the letter of complaint he submitted on January 10th. It seems unlikely that the respondent would have waited until May 3rd  to react to this and I do not find this claim credible. There is also the evidence of the performance issues.

In relation to the other issues, commencing with complaint CA-00030334-002 which relates to alleged unfair dismissal under the Unfair Dismissals Act the complainant does not have the required service to bring it within jurisdiction.

He appeared to be saying that the making of the Protected Disclosure brings it within the exemptions provided for in the Act. The flaw in this submission is that he made what he describes as the Protected Disclosure the day after his employment was terminated.

Accordingly, this complaint is not well founded.

Complaint CA-00030334-003 relates to the imposition of a disciplinary sanction but no evidence was offered of a disciplinary sanction unless the extension of the probation in January falls into this category. I find that it cannot be considered to be a disciplinary sanction and in the absence of evidence of any other sanction this claim fails.

Complaint CA-00030334-004 relates to allegations of bullying and harassment. Initially, according to the complainant these were dealt with in January and February by the respondent by means of the informal approach and he was told by the respondent that the conduct he complained of would be brought to an end.

While he says he continued to complain about bullying and harassment he could provide no details of when, and specifically whether he had formalised these through the respondent’s grievance procedures. In the absence of these actions this claim too must fail.

Finally, complaint CA-00030334-005 is made under the Protected Disclosures Act. The disclosure was of ‘serious wrongdoing among members of the Concierge Team at the [respondent] hotel’.

He referred to some of the issues having been raised at the earlier meeting in January.

Neither this letter nor the one in January provided detailed particulars but the latter referred to ‘payments by some parties’ (to members of the concierge team,) and which he was told at the meeting ‘contravened the conditions of employment and that changes were to take place’.

While an obvious, first issue to be decided in such cases is whether the complainant actually made a protected disclosure this really only becomes a significant matter if, in fact, there has been penalisation as a result of doing so.

As already noted the complainant in this case only raised the matter after his employment had been terminated.

For the sake of completeness, it is helpful to note that the Protected Disclosures Act 2014 provides a good flavour at Section 3 of the nature of ’relevant wrongdoings’ for the purposes of making a protected disclosure.

They include

(a)    That an offence has been, is being or is likely to be committed

(b)   That a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work

(c)    That a miscarriage of justice has occurred, is occurring or is likely to occur

(d)   That the health or safety of any individual has been, is being or is likely to be endangered

(e)    That the environment has been, is being or is likely to be damaged

(f)     That an unlawful or otherwise improper use of finds or resources of a public body, or of other public money, has occurred is occurring or is likely to occur

(g)    That an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h)   That information tending to show any latter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

The complainant outlined at the hearing the practices to which he was referring in his disclosure.

It would indeed be surprising if established to be true they did not breach the respondent policies as according to the complainant they involved unofficial ‘commission’ being paid for business referrals.

This falls considerably short of the standards of wrongdoing indicated by the above extract from the Act and in any event did not result in any penalisation of the complainant.

This complaint fails.

For the reasons set out above I find that complaint CA-00030334-002 is not well founded.

For the reasons set out above I also find that complaint CA-00030334-005 is not well founded.

I uphold complaint CA-00030334-001 and recommend that the respondent pay the complainant €3,500 in compensation for the breach of his rights.

I do not uphold complaints CA-00030334-003 or complaint CA-00030334-004.

Dismissal, fair procedure