Complainant

Respondent

Anonymised Parties

A Retail Assistant

A Retailer

Representatives

T.A.O'Donoghue and Son Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029473-001

04/07/2019

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

CA-00029473-002

04/07/2019

The complainant details that she did not receive terms and conditions of employment. The worker also details that her employment was terminated unfairly without appropriate procedures and in breach of SI 146/2000.   The respondent did not attend.

A brief chronology of events can be summarised as follows:

Around 15 May 2019 a review of the store was posted on social media which detailed that relatives of the reviewer, one of whom is an adult with additional needs and is non-verbal, had been told that store policy is not to serve lottery tickets to people with additional needs.

On that same day the complainant received a call from Ms A, director of the respondent asking if she served the customer concerned on 11th May 2019 and the complainant denied serving the customer on 11 May.

While working on 17th May 2019, the complainant was given a letter by Ms A, detailing that she was suspended with pay pending an investigation.

A meeting took place on 21st May 2019 attended by the complainant, her witness, Ms B and another representative of the respondent Mr C.

On 23rd May the complainant received a letter advising of her dismissal effective 22nd May 2019.

The complainant commenced employment on 15th October 2018 and detailed that she never received any statement of her terms of employment.

The respondent did not attend the hearing. The respondent advised in advance of the hearing that they were unable to attend the hearing.

With regards to this specific complaint they detailed in an email dated 14 January 2020 to the WRC that “we make no contest to the complaint under the Terms of Employment (Information) Act 1994” and that it was an “oversight”.

Section 3 details that “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing …particulars of the terms of the employee’s employment…”

The respondent in their email of 14 January detailed that they made no contest to this complaint.

I find that the respondent has not met their obligations in providing the complainant with her terms and conditions of employment. I uphold the complaint and I find it is well founded and order the respondent to pay the complainant €1,100.

The worker commenced employment on 15 October 2018.

She was contacted by Ms A around 15 May asking if she had sold a customer, a lottery ticket on 11 May 2019. The complainant detailed that she had not sold him a ticket on that date.

On 17 May, 3 hours into her work, the complainant was approached by Ms A and advised that she was suspended with pay in accordance with the company disciplinary policy pending an investigation into “allegation of discrimination and false representation of company policy”.   There was no disciplinary policy enclosed with the letter.

The worker attended a meeting on 21st May 2019 with her witness Ms B and the investigative meeting was conducted by Ms A with another employee, Mr C, in attendance as notetaker.

The worker had been advised that the meeting would be conducted in accordance with the company’s disciplinary policy but the worker never received a copy of same despite repeated requests. The worker had also been advised that she would have a chance to review the notes taken at the meeting but never received copies despite repeated promises.   It was only following her submission of her dispute to the WRC that she received a copy of these notes.

It was also submitted that the worker advised the following: that she did not serve the customer on May 11th but did serve him on May 4th, she denied she ever refused to serve him and denied that she ever said or suggested that the store would not serve the customer.

The worker’s understanding at the end of the investigate meeting was that the meeting was adjourned to allow the employer to investigate further. The worker was shocked to receive a letter of dismissal which detailed that owing to gross misconduct her employment was terminated which had never been suggested to her before as a possible outcome. The worker was also shocked to see that the respondent replied to the social media posting by detailing that the incident “may result in severe disciplinary sanctions” and “in relation to the incident that occurred in the store recently we would like to make the following statement” andfurther on “the staff member involved acted independently and is presently being dealt with”.

The worker outlined that the matter was never fully investigated, there were no statements taken, no right of appeal, no disciplinary meeting, inappropriate postings by the respondent of the status of the investigation on social media, no cctv provided, no till receipts reviewed, no particulars of alleged witnesses, no notes given to the complainant of the investigative meeting, a lack of fair procedures and rights to natural justice. It was further submitted that the employer was unclear as to when the alleged incident occurred and referred to the customer “when pressed regarding the date the family conceded…” that the alleged incident occurred on 4th May.

Case law cited including A Store Manager/ A Supermarket (ADJ-00007706, A Security Officer v A Facilities Management Company ADJ-00004209, Beechside Company Limited t/a Park Hotel Kenmare v A Worker LCR 21798, Irish Postmasters Union v A Worker CD/10/839, DHL Express Ireland Ltd v Michael Coughlan UDD1783, Connolly v McConnell 1983, A Worker v Terapie Clinic LCR21396.

The respondent did not attend the hearing. The respondent advised in advance of the hearing that they were unable to attend the hearing.

With regards to this specific complaint the respondent sent an email to the WRC on 14 January 2020 which referenced “there may have been a small number of errors made on our part in the administration element of the suspension and the ultimate dismissal due to an inexperience with a matter of this magnitude, but the core issue was that a very serious complaint was made by a long standing customer against (the complainant)” and they referred to the disruptive nature of the investigative meeting and enclosed some documentation including copies of the original complaint, notes from the meeting with the customer and notes from the meeting with the worker.

It was unfortunate that the employer did not attend the hearing.

A negative review was left on social media regarding the manner in which a staff member was alleged to have dealt with the relative of a social media reviewer. It was also alleged that the staff member discriminated against the customer on the basis of his disability. The employer advised on social media that they would investigate the incident.

As part of their investigation, the employer suspended the alleged worker with pay and conducted an investigate meeting. It would appear that the employer was unable to answer questions regarding the manner in which they were investigating the incident. Furthermore, reference was repeatedly made by the employer to their disciplinary policy yet the worker did not receive details of the employer’s grievance and disciplinary process as expected as per Section 3 of SI 146 of 2000 which sets out

“In the interest of good industrial relations, grievance and disciplinary procedures should be in writing and presented in a format and language that is easily understood. Copies of the procedures should be given to all employees at the commencement of employment and should be included in employee programmes of induction and refresher training and, trade union programmes of employee representative training. All members of management, including supervisory personnel and all employee representatives should be fully aware of such procedures and adhere to their terms.”

and indeed it appears from correspondence sent in by the employer to the WRC that no policy was in place.

The employer’s decision to investigate this alleged incident required procedural fairness which is rooted in the common law of natural justice and I find there has been little evidence of procedural fairness or natural justice in this dispute which included no right of appeal.

I find merit in the worker’s dispute and find it well founded and taking into consideration the circumstances of the dispute as well as the significant upset caused to the worker, I award the worker the sum of €4,000.

CA-00029473-001

I find that this complaint is well founded and order the employer to pay the complainant €1,100.

CA-00029473-002

I find merit in the worker’s dispute and find it well founded and I award the worker the sum of €4,000.

Terms and conditions of employment, industrial relations act,