ADJ-00025400

Complainant

Respondent

Anonymised Parties

A Cleaning Operative

A Contract Cleaning Company

Representatives

Michael Kelleher Solicitors

Management Support Services (Ireland) Ltd

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-00032172-001

13/11/2019

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

CA-00032172-002

13/11/2019

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

CA-00032172-003

13/11/2019

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

CA-00032172-004

13/11/2019

The complainant was employed by the respondent from on or about 8th April 2011 until her dismissal on 21st June 2019. Prior to the dismissal, the complainant worked approximately 26 hours per week and was paid €270 gross per week. The complaints were referred to the Workplace Relations Commission (WRC) on 13th November 2019.

CA-00032172-001 – Written terms and conditions of employment.

The complainant’s representative stated that despite a petition being submitted to the respondent seeking copies of written terms and conditions of employment, these were never furnished to the complainant.

CA-00032172-002 – Terms and conditions of employment (Contract Cleaning ERO)

The complainant’s representative stated that she did not receive her written terms and conditions in line with the provisions of the Contracting Cleaning Industry Employment Regulation Order (ERO)

CA-00032172-003 – Provision of core terms and conditions of employment

The complainant’s representative stated that the complainant did not receive a written statement of her core terms and conditions of employment. The complainant’s representative stated that, as a vulnerable employee, the complainant should have been provided with a written copy of this statement as well as copies of the policies and procedures applicable to her employment.

CA-00032172-001 – Written terms and conditions of employment

The respondent outlined that the complainant was employed by another employer in 2011 and remained employed by that entity until a transfer of undertakings took place in September 2014. The respondent contends that it complied with the transfer of undertakings regulations at the time but should not be held accountable for breaches that may have occurred previously. The respondent contends that a breach of the legislation by the previous employer would have occurred in and around June 2011 which was approximately three years before the complainant transferred to the employment of the respondent. The respondent contends that it could not possibly have complied with the legislation in 2011 and that it was never the intention of the transfer of undertakings regulations to transfer liabilities of employment legislation breaches from one employer to another.

CA-00032172-002 – Terms and conditions of employment (Contract Cleaning ERO)

The respondent contends that the subject matter of this complaint is identical to Complaint Application CA-00032172-001. The respondent submits that both complaints cannot proceed on the same set of facts and that the complainant must elect which complaint to pursue. On the substantive issue, the respondent contends that any breach of the ERO would have occurred two months after the complainant commenced her employment in April 2011 which was prior to the transfer of undertaking and her subsequent employment with the respondent. In those circumstances, the respondent contends that it should not be held accountable for any breaches of the ERO that occurred previously.

CA-00032172-003 – Provision of core terms and conditions of employment

The respondent stated that the requirement to provide core terms and conditions of employment came into effect on 4th March 2019 with the enactment of the Employment (Miscellaneous Provisions) Act, 2019. The respondent stated that this legislative requirement did not have retrospective effect and therefore, the respondent has not breached the legislation.

CA-00032172-001 – Written terms and conditions of employment

Having considered the submissions of both parties, I do not accept the respondent’s position that a breach of the legislation would have occurred two months after the commencement of the complainant’s employment. In my view, there was a continuing breach of the legislation in circumstances where the complainant was never provided with a written copy of her terms and conditions of employment. The complainant was also entitled to receive written notification of any changes to her terms and conditions of employment that occurred while employed by the respondent.

CA-00032172-002 – Terms and conditions of employment (Contract Cleaning ERO)

The subject matter of this complaint has been addressed in Complaint Application CA-00032172-001 above. As this complaint is based on the assertion that the complainant did not receive written terms and conditions of employment, I find that it is a duplicate complaint and cannot succeed.

CA-00032172-003 – Provision of core terms and conditions of employment

The requirement to provide core terms within five days of the commencement of employment came into effect from 4th March 2019 with the enactment of the Employment (Miscellaneous Provisions) Act, 2019. As an existing employee the complainant could have requested a written copy of core terms from the respondent in line with the provisions of the legislation, however, there was no evidence that such a request was made.

CA-00032172-001 – Written terms and conditions of employment

The complaint is well founded. The respondent is directed to pay the complainant €540 (Two weeks gross pay) in compensation.

CA-00032172-002 – Terms and conditions of employment (Contract Cleaning ERO)

This complaint is not well founded.

CA-00032172-003 – Provision of core terms and conditions of employment

This complaint is not well founded.

The respondent contends that the dismissal of the complainant was not unfair. The respondent stated that the complainant was dismissed on 21st June 2019 while in receipt of a final written warning relating to a previous disciplinary process. The respondent stated that the complainant was subject to an investigation and disciplinary process following an incident on or about the 24th May 2019. The complainant was alleged to have used the same cleaning cloth when moving from bad to bed in the Hospital where she worked and not cleaning her hands in between beds. The respondent stated that the complainant was shown how to carry out the task, so it is not accepted that her inability to speak English prevented her from carrying out her duties properly. The respondent stated that, having received a formal complaint from the Household Services Manager, an investigation and disciplinary process took place in line with the respondent’s policies and procedures. The respondent stated that the complainant’s actions amounted to a clear breach of health and safety practices and, as there was also a breach of trust and confidence that the behaviour would not be repeated, the complainant was dismissed from her employment. The respondent stated that the complainant appealed the decision to dismiss her, but the appeal was ultimately unsuccessful.

Legal submissions

The respondent contends that the complainant was dismissed in accordance with Section 6(4)(a) of the Unfair Dismissals Acts, 1977-2015 in relation to her competence in carrying out her duties to the required standard. The respondent stated that the complainant failed to follow the most basic procedures relating to her role on 24th May 2019 despite receiving refresher training just 24 hours earlier. The respondent stated that its investigation and disciplinary process was carried out in line with its policies and procedures and the complainant was afforded her right to representation at all times. The respondent stated that there were no procedural issues raised by the complainant at any time during the process. In conclusion, the respondent stated that the dismissal of the complainant was procedurally and substantively fair.

The complainant’s representative outlined a number of issues experienced by the complainant since the arrival of a new supervisor in 2017 and the subsequent unfair treatment she experienced since then. The complainant stated that she received a final written warning in December 2018 as a result of a flawed and unfair disciplinary process. The complainant stated that in May 2019, the complainant was subject to an investigation and disciplinary process after a “formal complaint” was received. The complainant stated that there was no investigation carried out into whether she was the person mentioned in the complaint. In addition, the complainant contends that she was not provided with training in a language she could understand and that this was not taken into account at the disciplinary stage of the process. The complainant also stated that she only used the same cloth in cleaning the strip lighting that passed across bed spaces at head height but that this was not taken into account either. The complainant stated that termination of her employment was a foregone conclusion and was disproportionate when considering the complainant’s unfortunate mistake on the day in question. The complainant also stated that there were no valid reasons provided in the appeal decision relating to the dismissal. The complainant’s preference if she is successful in her complaint is to be reinstated to her position with the respondent.

Mitigation of Loss

The complainant’s representative stated that possibly due to the complainant’s age and limited knowledge of the English language, she has been unsuccessful in securing alternative employment since her dismissal despite applying for a number of positions. The complainant’s representative stated that the complainant wants to work and is keen to return to employment as soon as possible.

In relation to this complaint, I have not given any consideration to the events that led to the complainant receiving a final written warning in December 2018. The warning in question was issued and was not appealed. In those circumstances, the complainant must have accepted the sanction imposed at that time. In relation to the complaint of unfair dismissal, the role of an Adjudication Officer is to decide if the actions of the respondent in dismissing the complainant were reasonable having regard to all of the circumstances of the dismissal. The applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”  In considering whether the respondent’s decision to dismiss the complainant was within the range of reasonable responses of a reasonable employer, I note that the day before the incident of 24th May 2019, the complainant was provided with refresher training in relation to cleaning procedures and infection control. While the respondent has stated this in justifying its reason to dismiss the complainant, I find it reasonable to assume that carrying out a task in line with the training received may not happen immediately. The complainant stated that she recognised her error in this regard and had apologised stating she had not meant to cause any harm. I also note that the complainant had worked without issue for in excess of five months since receiving the final written warning in December 2018. I have also reviewed the “formal complaint” of the Household Services Manager which suggests that an auditor who was carrying out a hand hygiene audit, noticed a contract cleaner moving from bed to bed using the same cleaning cloth and not cleaning her hands between beds. In her correspondence to the respondent, the Household Services Manager asks that the staff member be addressed and retrained if necessary. I have given a lot of consideration to this complaint. The complainant made a mistake and while I fully acknowledge the importance of cleaning and infection control procedures, I am of the view that dismissing the complainant on the basis of this one incident was not within the range of reasonable responses of a reasonable employer. In my view the dismissal was disproportionate and substantively unfair. In assessing the appropriate redress, I have taken into account that there is a level of contribution on the complainant’s part to her dismissal.

Having considered the submissions of both parties, I find that the complaint is well founded. The complainant is to be re-engaged by the respondent with effect from the date of this decision. The respondent is also directed to pay the complainant €5,000 in compensation which equates to approximately five months net pay.

Written terms and conditions of employment, Unfair Dismissal