ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00032567

Parties:

Complaint(s):

Date of Adjudication Hearing:  28/06/2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,] following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

No objections were raised to the remote hearing.

The parties were advised that arising from the Supreme Court judgement in the Zalewski v Adjudication Officer and WRC (2021) IESC 24 it is necessary for Adjudication Officers to implement certain procedural changes with immediate effect in relation to the conduct of hearings pending the introduction of the required legislative amendments to address the issues.

Therefore, I wish to confirm that the following procedural changes are applicable to the hearing of all complaints being heard now, even if they were lodged before the 6th April,21.

 In this regard, the parties should note that all adjudication hearings are now open to the public, other than where the investigation of the complaint does not amount to the administration of justice.

Furthermore, where a serious, direct conflict of evidence in the complaint before an adjudication officer emerges in the course of the proceedings, the Adjudication Officer will be obliged to adjourn the hearing to wait the require amendments of the Workplace Relations act 2015 and related enactments to grant the WRC the power to administer the \Oath or Affirmation.

The complainant stated that he fully understood   all the facts and he was prepared to proceed with the hearing

Both parties were willing to proceed with the hearing.

Background

 The complainant was employed from the 17th June 2013 until the 12th October 2020 as an administrator. He worked 15 hours per week, and he was paid €269.99 per week. The complainant has complaint that he was Unfairly dismissed which is totally disputed by the respondent.

Summary of Respondent’s position

The complainant was employed by the respondent on 15 hours per week as an administrator. He was job sharing with a fellow worker who was working longer hours than the complainant per week.

The respondent submitted that the complainant’s work was highly important and confidentially based on the cliental that they deal with. The complainant decided that he could carry out this work remotely from his home. The respondent was extremely concerned about this decision by the complainant, and he was instructed to carry out his work in the respondent’s office.

It was further submitted that all protocols were in place for a safe work environment.

Despite being instructed to work from the respondent’s office the complainant continued to work remotely.

At a disciplinary meeting of the 9th October 20 the respondent raised the issues about security of the process that was being carried by the complainant at his home and the implications that this had for their cliental.

The respondent submitted based on the admissions made by complainant during the course of the disciplinary hearing it was made clear that he (Complainant) was absent from work without authorisation, and it was further noted in such regard that he was unapologetic for his actions.

The respondent further submitted that the complainant was requested and instructed to attend work on such dates i.e. 24th, 25th 26 and 27th August 20 and he failed and /or refused to do so.

It was further stated that the complainant was encouraged to file a grievance under the respondent’s procedure and which they would have given serious consideration.

It was pointed out to the complainant that he was required to attend work during this process, but he decided to continue to work from home.

The respondent further added that while the complainant was job sharing with another colleague, she had no difficulty working her full hours in the respondent’s office which had been made environmentally safe for all employees.

The respondent required the complainant to carry out his functions in the respondent’s office during his working hours that he was employed for security and safety reasons.

The complainant failure to follow reasonable instructions left them no option but to terminate the complainant’s employment.

Summary of Complainant’s position

The complainant submitted that he was not absent from work and he clearly demonstrated through his ongoing communications with the respondent, that he was carrying out his work relevant to his role as an administrator.

The respondent showed a clear lack of knowledge of his role and duties thought out the 12 hours and made unreasonable assumptions and statements

The respondent showed an unwillingness to a reasonably consider or discuss whether that he was in breach of government guidelines in his uniquely clerical role in the organisation.

The respondent failed to consider tasks which have been carried out remotely, in line with government health guidelines

The complainant stated that his statements at the disciplinary hearing were misrepresented in the dismissal notice letter and there was no system in place internally to raise or discuss work related issues which directly contributed to circumstances during the twelve hours period in question.

Findings

The complaint was received 23rd March 2021

The complainant referred to incidences that occurred on the 18th September 2013 and the following years.

I find that these matters are not relevant to the case that is before me to day.

I find that the nature of the respondent’s business deals with unemployment, benefit disability benefit and disablement benefit. I find that based on the sensitivity of the parties directly involved it fundamental that privacy and confidentiality is always maintained. 

I find based on submission that the complainant’s work which is shared by a colleague is extremely confidentially and private.

I find that no evidence was presented to the respondent or at the hearing what the complainant’s concerns were.

I find that approach that the complainant adopted was ill conceived.

I find that he should have raised a formal grievance   in accordance with the respondent’s procedures if he had concerns

I find that the complainant made the decision to work remotely from home despite being warned and advised that he could not do so.

I also find that the complainant’s hours of work were 15 hours spread over a week.

I am also taking on board the person that the complainant was job sharing with works longer hours.

I also find that she had no difficulty whatsoever in attending the workplace to carry out her functions.

I find that the work place was inspected and found to be in line with regulations that were required.

 I find based on the nature of the Complainant’s work, the respondent, once they provided a safe work environment and met with the appropriate regulations, had the right to decide where the work should be carried out

I find that it is not within the remit of the complainant to decide to work remotely in circumstances where appropriate safety measures were in place and inspected by the appropriate  agency.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the reasons stated above I have decided that the claim for Unfair Dismissal fails.

Dated:   22nd September 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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