FULL RECOMMENDATION
PARTIES : APLEONA HSG LIMITED DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s) ADJ-00023324 CA00029437-006
Ms. Cowan, ‘the Complainant’, worked for Apleona HSG Ltd., ‘the Respondent’, as a Cleaner from December 2016 to June 2019. Following her dismissal, the Complainant lodged a complaint under the Unfair Dismissals Act 1977-2015, ‘the Act’ with the Workplace Relations Commission, ‘WRC’. The complaint was upheld by an Adjudication Officer, ‘AO’, who awarded compensation of €2544. The Complainant appealed the quantum awarded to this Court. Summary of Respondent’s arguments Prior to an incident in May 2019, there had been difficulties with the Complainant’s work performance and attitude. When challenged about the quality of her work, the Complainant acted as if her cleaning was superior. Other staff indicated that they did not wish to work with her as her attitude was difficult. Her behaviour and outbursts were also directed at supervisors. The Complainant complained that she had too much work to do but also cleaned areas assigned to other staff. There was also an issue with time-keeping. The Complainant became aggressive whenever she was challenged. Shortly prior to her dismissal, the complainant was approached by a supervisor regarding the fact that she was cleaning an area cleaned by another member of staff that day. The Complainant became agitated and she kicked her cleaning trolley with such force that it travelled into an elevator and caused damage to the opposite door. This was witnessed by other staff but was, initially, denied by the Complainant, who later admitted her behaviour. This was not an unusual occurrence and supervisors had to ensure that they would have other staff present due to the Complainant’s behaviour. On or about 10 May 2019, another incident arose. Again, the Complainant was vacuuming an area that was not part of her duties. When approached by her supervisor, the Complainant became agitated, began waving the vacuum cleaner in a threatening manner and was shouting. The supervisor called another member of staff to the scene. Both of the witnesses described the behaviour as so aggressive that they were fearful of physical violence. The Contracts Manager, Mr. Patrick Lawless, was called. He suspended the Complainant and a letter of suspension issued. The Complainant returned to work the same day and Mr. Lawless had to request that she leave. The Complainant refused to hand back her keys. The Complainant responded by letter. She acknowledged the two incidents, albeit with a less aggressive slant on events. The Complainant was invited to an investigation meeting, which took place on 28 May 2019. At the meeting, various statements by other staff were discussed with her. The Complainant’s attitude was that she would decide what areas to clean. She admitted to knowingly ignoring instructions. She admitted that she raised her voice on occasions but refused to admit that this was an aggressive act. Her opinion of the incident on 10 May 2019 was that her supervisor speaking to her about cleaning an area other than one she was directed to clean was a ‘waste of time’, that she was ‘p*****d off’ and that she showed it. On or about 7 June 2019, Mr. Lawless issued his investigation report, in which he recommended disciplinary action. A disciplinary meeting took place on 11 June 2019, conducted by Ms. Abeania Higgins. During the meeting, the Complainant admitted her behaviour and it was quite clear that she had no intention of changing. The Complainant referred to a personality clash with her supervisor, which appeared to relate solely to the fact that her supervisor made repeated attempts to get the job done correctly. On 19 June 2019, the Complainant was told that she was being summarily dismissed. She was offered the opportunity to appeal but she did not do so. The Respondent is of the view that there were substantial grounds justifying the dismissal, while acknowledging that there were procedural flaws. The Respondent is of the view that she was compensated adequately by the AO. The Court is referred to s.6 of the Act and to the observations in the High Court case ofConway v. An Taoiseach, Unreported 12 April 2006,which noted that the procedures permitted must be flexible, provided the central tenets of justice are followed. At all times the Complainant was treated fairly. She believed that the rules did not apply to her. She was supplied with all documentation and was never refused the right to representation. The AO pointed to imprecision in the original charge. However, the process has to be viewed in its entirety. The Respondent does not believe that imprecision disadvantaged the Complainant. The Respondent has a duty to all staff for their well being and to ensure that they are not subject to the behaviour to which the Complainant has admitted. The Complainant chose not to avail of her right to appeal, seePungor v. MBCC Foods Ltd., UD 584/2015,in which the Employment Appeals Tribunal noted the obligation on an employee to exhaust all internal procedures prior to lodging a complaint of unfair dismissal. The Respondent acknowledges flaws in its process, for which the AO has compensated the Complainant. Summary of Complainant’s arguments The Complainant’s actions arose out of understandable frustration and concern about her treatment by the Respondent. There are gaps in the records of hours worked by the Complainant because the clocking system would not read her fingerprints. Because she worked in a laboratory, the Complainant signed consent forms to allow the Respondent to arrange Hepatitis B vaccinations. She never received the third and final vaccine, despite raising this continually. The Complainant suffered severe knee pain due to being on her feet for 16 hours per day. When she required sick leave, as a consequence, for a period of 6 weeks in March-April 2018, she received a total of €759.96 from Aploena and €457.90 from the Department of Social Protection. She applied for knee injury expenses of €749.74 but was told that she did not qualify as her injury was not caused by a prescribed disease developed due to the nature of insurable employment. On returning to work, the Complainant’s request, backed by a Doctor’s recommendation, to work a single shift rather than a split shift was not accommodated. When the Complainant’s father died in May 2018, she asked her supervisor for details of bereavement leave and was told that she would enquire. When the Complainant raised the matter again a few days later, the supervisor appeared not to know of the Complainant’s bereavement. This was disrespectful and insulting. Note-The Complainant provided the Court with an extensive list of her daily tasks. In addition to these daily tasks, in early 2019 the supervisor began making unreasonable demands for the Complainant to take on a range of additional tasks. In May 2019, an unscheduled meeting with Mr. Lawless took 30-40 minutes out of the Complainant’s working time. She still had to complete all her tasks, so she had to rush. This led to her being bad-tempered and she pushed or kicked the cleaning trolley into the lift causing it to dent. On being questioned by Mr. Lawless, the Complainant apologised and offered to pay for the damage. This was refused. The final incident involved a reprisal for cleaning a passage allocated to another member of staff that led to a lab. that was cleaned by the Complainant and that was sometimes neglected by the other staff member. The motivation was that this reflected badly on the Complainant who denies waving the vacuum cleaner in a threatening fashion but who was waving the vacuum cleaner in order to complete the work. These events all led to the Complainant feeling undervalued and unappreciated. It is not a fair hearing if the person who suspends is the same person who investigates and formally suggests dismissal in the investigation report. Being suspended and dismissed caused psychological and confidence damage to the Complainant. For two years, the Complainant walked for 45 minutes to be on site at 6am. This caused physical illness. The Complainant’s monthly earnings were €1540. If she had not been dismissed, her earnings from 24 July 2019 to 4 September 2020, would have been €23100. Including social welfare payments, she actually earned €19923. The Complainant secured work on an 11 month contract in October 2019 but that was terminated in 5 months due to a slowdown. The Complainant has not been adequately compensated for loss of earnings and various irregularities throughout her employment. She was denied access to a pension scheme, her safety was breached due to ineffective vaccine administration and she received paltry sick pay. She did not receive the minimum rest periods to which she was entitled. The applicable law Unfair Dismissals Act Unfair dismissal. 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. (6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court , as the case may be, considers it appropriate to do so — (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to insection 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) ofsection 7(2) of this Act. Redress for unfair dismissal. 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.] (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) ofsection 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. (2A) In calculating financial loss for the purposes of subsection (1), payments to the employee — (a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or (b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded. (2B) Where — (a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and (b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be. (3) In this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay. Deliberation There is no substantial dispute between the parties as to whet led to the dismissal. The Complainant, while explaining what occurred and the reasons that led to her actions, essentially accepts that two incidents occurred, and it is common case between the parties that these led to an investigation, followed by a disciplinary process and dismissal. The Respondent argues that the behaviour of the Complainant provided justification, in accordance with the requirements of s.6 of the Act,for the dismissal. However, the Respondent accepts also that there were procedural deficiencies and they accept the AO’s Decision as a fair resolution of the matter. The Complainant, on the other hand, believes that the award is insufficient compensation for the dismissal. The Respondent argues that the failures of process do not impact on the ultimate outcome. However, the Court notes, and the Respondent accepts, that the Complainant was not advised of her right to representation during the investigation; that the Investigator considered his own statement as part of the investigation; that the Investigator went beyond the scope of the original matters raised in the investigation process and that he recommended a sanction, thus failing to maintain the necessary separation between the investigative and disciplinary processes. In the view of the Court, these are not trivial or inconsequential matters, to which might be added the related concerns at the imprecision of charges put to the Complainant and the acknowledgment by the Respondent that a lesser penalty than dismissal was not considered. Without the necessity to put the matter further, it is clear that there was a total failure of process such that the Respondent cannot prove to the satisfaction of the Court that the dismissal was fair. In accordance with the Act, when the Court deems a dismissal to be unfair, there are three possible forms of redress available to the Court. Having canvassed the opinions of both parties, neither of whom wish to renew or maintain the employment relationship, the Court accepts that the relationship between the parties is such that it would be in the best interests of neither to seek to have the employment relationship restored. Accordingly, the Court considers that the appropriate redress is that of compensation. In considering compensation, s.7 of the Act requires the Court to consider the actual losses incurred due to dismissal, attempts to mitigate any such losses and the level of contribution by the dismissed person to the dismissal. The Court accepts absolutely that the behaviour of the Complainant was not acceptable and that it contributed to the dismissal. The Court notes also that the Complainant did not avail of all processes available to her. The Court further notes that the Complainant, to her credit, secured another job about four months after her dismissal, albeit one that has since been concluded. In giving figures for her losses to the Court, the Complainant took account of social welfare payments. In accordance with s.7 of the act, these are disregarded by the Court. In light of her actual losses due to the dismissal, the serious and commendable attempts to mitigate same and taking account of her contribution to her dismissal, the Court considers that a compensation payment to the Complainant by the Respondent of €5000 is warranted for her unfair dismissal and the Court so determines. Determination The Decision of the Adjudication Officer is varied.
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