Complainant

Respondent

Parties

Kelly  Moore

ISS Ireland Limited

Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning and Maintenance Agency

Representatives

Mairead Harnett                                       The HR Suite

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039100-001

07/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007

CA-00039100-002

07/08/2020

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

CA-00039100-003

07/08/2020

To overcome the health concerns associated with face to face hearings in the course of the Covid pandemic, the WRC has been assigned the status of “designated body” under SI 359 2020 for the purposes of Section 31 of the Civil Law and Criminal Law  (Miscellaneous Provisions) Act of 2020. This has allowed the hearing of this case to be held remotely. I confirm that this facility (on the WebEx platform) is organised and Hosted by the WRC. I am satisfied that the hearing has not been prejudiced for having been heard remotely and transparency and principles of natural justice have been observed.

In line with the recent Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) it is confirmed that this case may be attended by any member of the Public who may wish to attend (including where such attendance is at a remote hearing).

In accordance with the Workplace Relations (miscellaneous Provisions) Act 2021 any person giving evidence in the course of this hearing was invited to make an affirmation solemnly declaring to tell the truth on the understanding that not to do so is a criminal offence punishable by operation of the Law.

The option to swear an Oath (in lieu of Affirmation) was also provided where parties were in possession of such Holy Book as might be relevant to their own belief.

The complainant brings an Unfair Dismissal claim against her employer of seven years in circumstances where they had terminated her employment by reason of third-party client’s decision to stop her attending at that particular facility. The Complaint issued on the 7th of August 2020.

The Complainant withdrew other claims which were not relevant to and did not feature in the termination of her employment.

The Complainant was unrepresented. I did not form the view, listening to this Complainant, that she fully understood the workplace process she had engaged in, or how the outcome came about. She is clear that she never did anything wrong.

The Respondent asserts its entitlement to terminate this employment by reason of the fact that the Complainant’s own behaviour has resulted in a prohibition on her return to the client workplace wherein the Respondent had assigned her for the previous six years. The Respondent was represented, and I was provided with a submission together with a small amount of documentation.

I have carefully considered the evidence adduced in the course of this hearing. The fact of their having dismissed the complainant herein has not been denied by the Employer. In the circumstances the burden of proof rests with the Respondent to demonstrate that it has acted fairly and reasonably in all the circumstances.

At the outset the complainant withdrew her Penalisation claims.

The Complainant started with the Respondent Company in and around six years ago in September of 2013. The Complainant was engaged as an Office Cleaning worker and was placed at the site of a third-party client (R). There is no suggestion that in the first six years of her employment with the Respondent and at the client’s site that any issue arose regarding the Complainant’s work. The Complainant worked a fifteen-hour week at around the minimum wage.

The Complainant continued to attend at her place of employment at the start of the pandemic. It seems that on the 1st of April 2020 some incident occurred in the workplace and the complainant may have not been in compliance with social distancing regulations. On the same day, the Complainant left the premises having notified the Management at R that she was unwell and was going to contact her G.P. I note tensions were high at this time as people were wrestling with the implications of Covid.

I am still not clear as to what actually happened on that date (April 1st), but I do consider it very significant that the Respondent was contacted by a member of the client (R) Management team on the 2nd of April 2020 to be told that as far as the client was concerned the Complainant would no longer be permitted onto the client site to provide a cleaning service. This is relevant because the Respondent company has a third-party Pressure Policy which informs all employees that in the event of a third party client stating that it is not willing to have a particular employee to be placed on it’s premises then the Respondent may have to dismiss such an employee. The company does guarantee that it will take all reasonable steps to avoid or mitigate this outcome by way of relocation or finding other alternative employment if possible. I would presume given the size and breadth of the Respondent company that alternative arrangements can generally be made.

However, I would also note and accept that at this particular time many alternative workplace options which might have been open to the Respondent and the Complainant were not available because the Pandemic had fully closed down so many workplace.

I am not satisfied that the Complainant was made fully aware of the precariousness of her situation when she was called in for an Investigation meeting concerning whatever incident had occurred on the 1t of April on the site owned by 3rd party client R. The Complainant had been suspended on pay from the 1st of April and was invited to attend the Investigation on the 21st of April. I am further concerned at the seeming lack of investigation in the purported internal investigation process. To my mind there appears to have been a clear conflict of evidence that simply was not further investigated. I note that the Complainant waived any right to have representation and it is not clear to me how her interests were being protected in this process. In particular, the notes of this meeting do not dwell on the issue of the third-party refusal to have the Complainant back and I cannot be sure that the Complainant was fully aware of the significance of the issue.

A Disciplinary hearing was held (of which I have no notes) and the outcome of that was the sanction of being issued with a written warning which is specifically noted (in the letter of the 19th of May 2020) to have a six-month lifespan. A right of Appeal was allowed up to the 25th of May 2020. What is noticeable about this letter is the absence of any reference to the fact that the company was also in the process of determining whether or not the Complainant could be placed in another facility given that she was no longer allowed to return to the one she had been working in for the previous six or seven years. There is therefore no reference in this letter to the fact that her employment is still in doubt.

I would have to accept that the Complainant was not aware that her employment was in jeopardy. She had engaged in a Disciplinary process and had been given a sanction which was to operate for six months. This reference to six months alone could have provided her with the comfort of her continued service. It does not strike me as surprising that she did not appeal the sanction. She was, as I noted at the hearing, prepared to take her medicine. Regarding the issue of her non-return to the particular site wherein she had previously worked I accept that in ordinary times an employee such as herself with a good track record and a longevity of service would surely have been provided with alternative workplace options? The Respondent is a big company with many employees placed in all sorts of sites around the city and country. As I have said, in ordinary times there would be options.

I do of course recognise that these were not ordinary times and the Respondent was in fact having to avail of the Government funded lay off schemes for many of its employees in circumstances where the sites and facilities into which theses employees would normally be placed were closed down as part of the lockdown.

The Respondent was faced with two choices. On the one hand it could terminate the Complainant’s employment in circumstances where the third-party pressure policy had come into play. On the other hand, it could treat the Complainant in the same way as it was treating the majority of it’s workforce by putting her on lay off until such time as demand for the services of the Respondent company was a factor. Going with the second option meant that the service accrued to the Complainant was not lost and the likelihood of being able to place her was significantly increased after the lay off period. The Respondent however chose to terminate the employment and notified the Complainant by letter dated the 28th of May as they have been unable to identify suitable alternative employment.

It should be noted that in the course of the hearing before me, there was a stark lack of evidence presented to me of any steps (reasonable or otherwise) that were taken to determine if the Complainant would ever be likely to atone for her misdemeanour in the workplace wherein she had been working. Nor is there any evidence of identifying any other potential workplaces wherein she might be placed in due course. That is to say when the pandemic is over. There is a three-line email in the papers that purports to deal with this issue.

On balance, I find the decision to terminate this employment at this time as having been extremely unfair. Whilst the complainant may have made a mistake in her assigned workplace, there is no question that the mistake was other than minor in nature and attracted a sanction reflective of this fact. I accept the Employer had a problem in terms of the company R stating it would not take the complainant back. However, the decision to put the Employee on Lay off (which was going to cost the company nothing – as a government funded programme) was so much more preferable a choice to the choice of rendering the Complainant unemployed in a pandemic that, in fact, no further comment is required.

The decision was Unfair and unreasonable and to that end the Complainant must succeed in her claim.

The Complainant gave evidence of ongoing difficulty in obtaining employment.

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

CA-00039100-001  - The Complainant was Unfairly dismissed and I award her €7,500.00 compensation for remunerative losses.

Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007

CA-00039100-002 – This complaint was misconceived, and the Complainant withdrew this Complaint.

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

CA-00039100-003

 - This complaint was misconceived, and the Complainant withdrew this Complaint.