ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00027396

Parties:

Dispute:

Date of Adjudication Hearing:  08/01/2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This industrial dispute pursuant to Section 13 of the Industrial Relations Act 1969 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 4th March 2020.  Following delegation to me by the Director General, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a remote hearing on 8th January 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S. I. 359/2020, which designates the WRC as a body empowered to hold remote hearings.  There was consent by both Parties to the remote hearing and by the Employer to adjudication by the WRC on this dispute.  Both Parties represented themselves, the Employer being a Firm of Solicitors.  The Parties were permitted a further period of time to submit any additional supporting documentation.  Nothing material arises from post-hearing documentation submitted by the Worker such that would require a further hearing.  All evidence, submissions and documentation received have been taken into consideration.

Background:

The Worker was employed by a Firm of Solicitors, as a Receptionist on 26th November 2018.  She earned €2,292 gross per month.  She contends that she was summarily dismissed on 6th September 2019, and not having the requisite one year’s continuous service for a complaint under the Unfair Dismissals Act 1977 seeks recourse under Section 13 of the Industrial Relations Act 1969.  The Employer maintains that her employment was properly terminated in accordance with her contract.

Summary of Worker’s Case:

The Worker, Ms A gave evidence outlining the circumstances giving rise to the termination of her employment by the Employer.  It is common-case that she was initially employed by a recruitment agency on a temporary placement with the Employer from 15th October 2018 before being invited to apply for the position of front of office Receptionist which was up for competition.  After a successful application process, she was offered the position which commenced on 26th November 2018.  The terms were verbally communicated and subsequently confirmed in writing in a document dated 24th January 2019.  She was also provided with a ‘Reception Manual’.  The salary was €26,500 per annum for a 37.5 hour working week from Monday-Friday between 9am-5.30pm.  Clause 4 entitled ‘Probationary Period’ stated: “The first two months of your employment will be a probationary period.  The firm may at the expiration of the two month period extend the probationary period if necessary.”  Clause 7 entitled ‘Notice’ stated: “Your employment may be terminated by either party giving to the other either (a) one month’s notice in writing of their intention to terminate this agreement or (b) the statutory notice to which you are entitled to under the Minimum Notice and Terms of Employment Act (whichever is the longer).  (The Employer) shall be entitled to pay a salary in lieu of notice.”  Clause 8 referred to the Employee Handbook (partially furnished) for the policy on illness, disciplinary procedure and other staff issues.  Relevant to this dispute, it provided for annual performance appraisals in February by the Office Manager.  It also set out disciplinary procedures (including for performance related issues) with steps (depending on the level of seriousness) ranging from a verbal warning up to dismissal and provided: “You may be dismissed where your performance is wholly unsatisfactory and usually this will occur when there has been no improvement after you have received reasonable warnings as appropriate or where you have committed an act of serious misconduct that makes continued employment with the firm impossible.”

Ms A maintained that she had not been provided with a job description outlining her specific duties and in addition to the usual duties associated with reception work, she also undertook other administrative duties as requested by staff members.  She said she had been happy and open to do whatever was asked of her and nobody had ever made any formal complaint about her work.  She also maintained that she had been informed that after six months’ service, the position was hers permanently.  A Salary Certificate completed by the Employer on her behalf for a mortgage application dated 25th March 2019 referred to her employment as being ‘permanent’ and confirmed that her probation period would be completed on 26th April 2019.  She also maintained that during the period of her almost ten months of employment with the Employer, she did not have any performance or other assessment suggesting that she was in any way incompetent in her position.  She said that she had requested a performance appraisal but was never provided with same.  She did not recall any meetings wherein Ms B had raised various issues about her performance with her and she was not offered any training beyond informal assistance with her role in the early stage.

On the morning of 6th September 2019, she was approached by the Office Manager, Ms B and called into a meeting.  As they entered the meeting room one of the Partners, Mr C also entered the room and asked her to sit down.  She was told that her employment would end on that day and she should leave “quietly” by lunchtime.  She was not given any explanation as to why she was being dismissed in such a manner and all she was told was “it’s nothing personal.”  It is common-case that she was very upset at the meeting and took some time thereafter to transfer personal files from the office server to a USB key before leaving the building.  She said that she had permission to use office equipment to type and print personal documents outside of working hours.  Ms A subsequently received a letter dated 9th September 2019 from Ms B stating: “I refer to our meeting on Friday last 6th September 2019 with myself and (Mr C) at which we gave you notice oftermination of your employment with (the Employer).  As outlined to you at the meeting, there has been a number of concerns and issues which we have had with you in your role as receptionist including attendance, following up on email enquiries and your competency to carry out all the duties necessary for the position.”  It also confirmed payment for one month in lieu of her notice with a deduction of 4.25 days for excess of her leave entitlement and wished her the best with her future career. 

Ms A said that she had been praised for her work throughout this employment by different Solicitors and there was no sense or logic as to why she was dismissed.  This has caused her considerable financial difficulty as only a week beforehand, she had received keys to a new house and it also impacted on the care of her young child.  It had also affected her self-esteem and confidence.  She had obtained alternative employment approximately five weeks thereafter.  As she was not required to obtain a reference from the Employer, her dismissal had not impacted on her ability to source alternative employment.  More recently, she was out of work and on PUP owing to the pandemic.

Ms A responded to a number of issues raised by the Employer in its submission and under questioning from Mr C about the permanency of the position and her competency during her employment.  When asked when she had been informed that the position was hers and that it was permanent by Ms B, she said that this had occurred at an informal meeting when she had required the completion of the form to confirm that her position was permanent for a mortgage application.  It was further put to her that a Solicitor within the Firm had undertaken time-consuming conveyancing on her new house without charging a fee as they had wanted to help her given her personal circumstances.  Ms A agreed that she had received this assistance but maintained that she had not requested this as a favour and had been willing to pay.  It was put to her that various competency issues had been raised throughout her employment and in particular, attendance and lateness.  Specifically, she had left the building without cover during the Christmas period and failed to attend for work over that period.  In response, she said that on that occasion she had been alone in the building when she had become very unwell with an infection.  There were no other staff present to report the matter to and she had unsuccessfully tried to contact Ms B.  She was subsequently hospitalised for ten days in January 2019 owing to her personal situation.  This may have been raised by Ms B but was clarified with medical certification.  An email from a Partner in May 2019 expressing disquiet that a delay in the relaying of an email query from a potential client that resulted in the person going elsewhere was furnished and put to Ms A.  In response, she said that the query in question could have gone into a spam folder and there would have been a good explanation.  She was also asked about leaving her desk and reception unattended to deliver post.  She said that this had arisen at the start of her employment when she was unaware of the procedure and had ceased upon it being brought to her attention.  She accepted that she had been late for work on a number of occasions as a consequence of her difficult family circumstances and her car breaking down.  She also accepted that on occasion she had given short notice in relation to medical and other appointments pertaining to her personal situation including an occasion on 16th April 2020 but had used her annual leave for the purposes of same.  It was put to her that the short notice had caused inconvenience to the staff who had to cover for her.  She said she was not made aware of this being an issue at the time.  She accepted that she been paid one month in lieu of notice.

Regarding the circumstances in which her employment was terminated at the meeting of 6th September 2019, it was put to Ms A that she had been told that she might prefer to leave immediately as she was upset.  It was also put to her that she had asked for permission to download her personal files.  As she had an issue with the USB key, she had been permitted to remain on the premises for some hours unsupervised to undertake same.  Whilst Ms A accepted that it was possible that her probation period could have been extended, she maintained that she had not received any formal complaints about her work and had not been afforded fair procedures.

Summary of Employer’s Case:

A written submission outlining the Employer’s position in relation to this dispute was supplemented with direct evidence from Ms B.  It was confirmed that Ms A had been recruited as a Receptionist and her primary duties were to take incoming calls, deal with visitors to the office, management of the meeting rooms on a daily basis, opening post and DX and relaying e-mail enquiries to the relevant fee earners.  The terms were contained in the document dated 24th January 2019.

The Employer took issue with the factual position presented by Ms A as put to her above.  In particular, it was disputed that she was told to leave “quietly” at the meeting of 6th September 2019 and that “it’s nothing personal”; that she was told that the position was hers ‘permanently’; and that she did not have any assessment during her employment.  It was common-case that Ms A had been asked to attend a meeting with Ms B and Mr C on 6th September 2019 where she was informed that the Employer had decided not to continue with her employment.  At the meeting, she was reminded that Ms B had met with her on a number of occasions to discuss various concerns and issues in relation to her performance as Receptionist including her ability to carry out her day to day duties in a competent and satisfactory manner, attendance and lateness.  She had a habit of leaving her desk to deliver post around the office and had to be spoken to about the importance of staying in reception so as not to miss any incoming calls.  During the Christmas period when she was rostered to cover reception on 27th and 28th December 2019 she had left the office on the incorrect assumption that she did not need to be there because very few others were present.  She was also in the habit of taking time off at very short notice thus leaving reception unattended which had caused significant operational difficulties.  She had acknowledged how on one occasion a Partner had raised a serious concern about her failure to follow up on internet enquiries.  When she had suggested that this had been addressed at the time, Mr C had reminded her that her probation had been extended to allow her to improve her performance.  Ms B then confirmed that unfortunately they had decided not to continue with her employment and that she was being given one months’ notice in accordance with her contract and would be paid in lieu.  Ms A had become upset and tearful, setting out how she had recently purchased a house and had difficult personal circumstances.  Ms B and Mr C acknowledged their awareness of her personal circumstances and went through the reason for the decision to terminate her contract of employment again.  It was because of her upset that she had been told that she could leave her employment at that point rather than having to work the rest of the day.  However, she had been reluctant to leave immediately as she wanted to retrieve personal files that had been stored on the office server.  She was afforded time to save her files to a USB key and left the office some hours later at 3.30pm.  It was also confirmed that the letter of 9th September 2019 confirming the termination of her employment and payment in lieu of her notice as outlined above was subsequently sent to Ms A. 

Direct Evidence of Ms B, Office Manager

Ms B gave evidence regarding the procedures adopted to manage Ms A’s performance during her employment with the Employer.  Ms A’s role had been made clear to her from the outset.  The Employer had also tried to accommodate her  personal circumstances.  Although her request to start and finish work half an hour earlier was refused as cover was required for business hours, other staff had covered reception for Ms A on occasion to facilitate her leaving early to collect her daughter.  She confirmed that the Employer conducts an annual review of staff in December/January and Ms A was not included as she had only been with them for a few months and in January 2019 her probation period had been extended after a period of absence.  This was confirmed verbally as they are a small firm and “deal with things informally”.  She had also spoken to Ms A informally about ongoing issues with her performance which continued after her probation period.  Specifically, she had to speak to her about leaving her desk.  Ms A had also been late on a number of occasions and specifically on 13th March 2019 when her daughter was sick, on 12th April 2019 she was 45 minutes late and on 13th June 2019 she was an hour late when her car broke down.  She had also been late back from lunch on occasion.  This had caused disruption in the office.  It had been a learning curve and had become clear that she was not developing into the role as expected.  She was not the best person for Receptionist and this could not be remedied with training.  She was not picking up on key points such as time-keeping and remaining at her desk.  Following each time they had spoken, things would slip again.  She was continually leaving her desk and coming into Ms B’s office to ask her routine questions.  Consequently, they had formed a view that it was not working out.  Ms B also clarified that they had only suggested that Ms A leave early on 6th September 2019 as she was so upset.  She was aware that Ms A used the printer but not that she held personal files on the server.

Under questioning from Ms A, Ms B accepted that her replacement had been included in the annual performance review.  Ms A also put it to Ms B that she had not received any formal training.  Ms B accepted that she had not been given any prior notice of the meeting of 6th September 2019 or afforded the right of appeal against termination.  Regarding the performance issues raised, Ms B also accepted that there had been no formal complaint against Ms A.  Ms A also put it to Ms B that her probation period had ended in April 2019 and the only concern thereafter was the email in May 2019.  Ms A maintained that she had furnished Ms B with medical certification to cover the Christmas period when she was sick.  Ms B responded that the certification referred to later dates.  Ms B accepted that her subsequent absence in January 2019 arose from her hospitalisation. 

In conclusion and on behalf of the Employer, it was submitted that Ms A had not identified any dispute in respect of which adjudication is warranted pursuant to Section 13 of the Industrial Relations Act 1969 or otherwise.  The Employer decided to terminate Ms A’s employment in accordance with the terms of her contract of employment in circumstances where it was not satisfied with her performance in her role as Receptionist and she was treated fairly throughout.

Findings and Conclusions:

Effectively this is a dismissal with less than one year’s service for lack of competency.  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 and also confirmed in jurisprudence.  Specifically, paragraph 4.3 of S. I. 146/2000 provides: “Good practice entails a number of stages in discipline and grievance handling.  These include raising the issue with the immediate manager in the first instance.  If not resolved, matters are then progressed through a number of steps involving more senior management, HR/IR staff, employee representation, as appropriate, and referral to a third party, either internal or external, in accordance with any locally agreed arrangements.”  It follows that rather than determining whether the Worker’s performance merited the termination of her employment on the ground of competency, my role is to assess the process by which this decision was made.  Notwithstanding that the employment relationship has usually ceased in such disputes, there are numerous examples of the employment fora recommending awards of compensation in respect of dismissals (with less than one year’s service required for a complaint under the Unfair Dismissals Acts) where there has been a breach of fair procedures.  In particular, the Labour Court has consistently found that employers are required to afford due process to employees before a decision to dismiss is taken, even if the employees concerned are not covered by this legislation.  Consequently, the provision of a clause to the effect that employment may be terminated by either party giving notice to the other does not override the requirement for abidance with due process. 

In the instant case, the Employer had written procedures for managing discipline including performance related issues entailing a stepped approach with dismissal resulting only where performance was “wholly unsatisfactory” and there was no improvement after the employee had received “reasonable warnings”.  Taking the Employer’s evidence at its height, I note that there was no written confirmation or minutes outlining any performance related issues or an extension of the probation period.  There was no evidence at all of any extension of probation beyond 26th April 2019.  Regardless of whether an extension to probation had been verbally communicated, I am of the view that it was reasonable for Ms A to consider her position as being permanent after 26th April 2019.  Even if I accept that genuine performance issues arose beyond the usual teething issues that one might expect with a new placement and minor inconveniences accommodating Ms A’s difficult personal circumstances, there was no evidence of any stepped approach to managing such issues.  Regarding the delayed response to an email in May 2019, this was not deemed serious enough to be raised as a disciplinary issue with Ms A at the time and appears to be retrospectively relied upon to justify the decision to terminate her employment.  Even if I accept the Employer’s contention that issues with her performance were communicated to Ms A verbally, I am not satisfied that this was sufficient to constitute “reasonable warnings” where dismissal resulted and particularly given the nature of its work and expertise.  There was no process or safeguards in relation to the meeting of 6th September 2019 where Ms A was effectively summarily dismissed as confirmed in the follow-up letter of 9th September 2019.  In particular, she was not given any notice of the meeting to afford her the opportunity to obtain advice and present her position, to be accompanied or to appeal.  Given that dismissal was a fait accompli at that stage it matters little what was said at the meeting.  Therefore and on the balance of probabilities, I am satisfied that the procedures adopted fell short of both the Employer’s own procedures and those required in accordance with the general principles of natural justice andS. I. No. 146/2000.  Naturally, the termination of employment in such a summary manner caused upset, uncertainty and some financial loss to Ms A at a difficult time.

Recommendation:

Section 13 of the Industrial Relations Acts 1969 requires that I make a recommendation in relation to this dispute.  In light of the above, I recommend that within 42 days hereof, the Employer makes an ex gratia payment of €2,500 to the Worker in compensation for the manner in which she was dismissed.  I have factored in the conveyancing assistance afforded to Ms A and pay in lieu of notice.

Dated:  April 7th 2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words: Section 13 of the Industrial Relations Act 1969 – Dismissal of employee with less than one year’s service on ground of competency – S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) – breach of fair procedures and due process