Complainant

Respondent

Anonymised Parties

A Covid Test Swabber

A Covid test provider

Representatives

  In person

 Peninsula Business Services Ireland Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00045360-001 CA-00045360-002

26/07/2021

The employer is a provider of Covid Tests, and the employee was a swabber within that service. She was employed on a 6-month fixed term contract from December 2020. The employee submitted two issues for consideration under the Industrial Relations Act 1969. The first issue CA-00045360-001 concerns a disciplinary process relating to incidents that took place on 8th June 2021. The second issue CA-00045360-002 relates to an alleged unfair dismissal which his somewhat linked to the first issue. As the complainant did not have the requisite service to bring a complaint under the Unfair Dismissals Act, 1967, the matter was referred under the Industrial Relations Act, 1969.

Incidents of 8th June 2021

The employee was out with friends on the evening of 7th June 2021. On the morning of the 8th June 2021, the employee attended for work and a team leader who was aware she had been out the night before was concerned that she may be under the influence of alcohol and as a result of being out late the previous night, should not be at work on that particular day. The Team Leader outlined that he had been on the nightshift the previous night and had seen on the employee’s Instagram story that she was out socializing with friends. The team leader said he was concerned as to the employee’s suitability to be at work although he did confirm that the employee did not appear drunk, and she did not smell of alcohol. The team leader said concerns arose in his mind following his conversations with others who were of the view that the employee in question should not be at work.

The employee was dismissed for gross misconduct on the 10th June 2021 although this was reduced to a final written warning on appeal. The employee was unsuccessful in her application for the role of team lead in the organization and not offered a permanent contract following the expiry of her fixed terms contract in July 2021. The employment ended in July 2021 on the expiry of the 6-month fixed term contract.

CA-00045360-001 – Disciplinary process

The employee contends that the employer did not follow its own procedures in relation to the disciplinary process. The employee denied being either unfit for work or under the influence of alcohol and stated that she did not confirm same to the team leader or to other staff on the day. The complainant contends that relevant witnesses were not interviewed in relation to the situation pertaining on the day and that no investigation or disciplinary process took place. The employee also stated that she had sought that the team teader be investigated by the employer as his actions towards her were malicious but that this did not happen as the employer stated his actions were not malicious. The employee contends that the situation resulted in her being unsuccessful in an application for another role in the company as well as the non-renewal of her contract or the offer of a permanent position in the company.

CA-00045360-002 – Unfair Dismissal

The employee stated that her dismissal was unfair as it occurred without any proper investigation or disciplinary process in relation to the events of 8th June 2021. The employee acknowledged that the dismissal was rescinded, and she remained in her position until the expiry of her fixed term contract on 31st July 20201.

CA-00045360-001 – Disciplinary process

The employer stated that the employee was disciplined as a result of attending work while under the influence of alcohol having been out late on the night of 7th June 2021. The employer stated that the team leader’s observations and the concerns of other staff as well as the employee’s own acceptance of her actions led to her dismissal for gross misconduct. The employer stated that the dismissal was rescinded following an appeal as the employee’s previous work performance was considered and it was decided that she should be given a second chance. The employee continued to work until the expiry of her fixed term contract on 31st July 2021.

The employer also stated that the employee was given a warning for breaching covid guidelines after she had returned to work following the appeal of her dismissal. The employer stated that in early July 2021 the employee tested herself for covid and logged her own positive test result using a colleague’s log in detail. Both of these actions were against covid guidelines within the organisation. The issue resulted in the employee being demoted from a swabber to a scanner for the remainder of her employment. The employer stated that it made the decision not to renew the employee’s contract when it expired in July 2021.

CA-00045360-002 – Unfair Dismissal

The employer contends that the employee was not unfairly dismissed as she continued to work in the company until 31st July 2021 when her 6-month fixed terms contract expired. The employer contends that the complaint is without merit and should fail.

CA-00045360-001 – Disciplinary process

In my view there were a number of serious flaws in the employer’s process such as the lack of any investigation into the events of 8th June 2021. There was also no disciplinary process. It appears that the employer simply decided the employee was guilty of gross misconduct on the basis of what it had been told and on the basis of the employee’s own admission of guilt (which is denied). The employer stated that the employee’s previous work performance was taken into account and that she was successful in appealing her dismissal and returned to work to finish out the remainder of her fixed term contract. While the employer contends that it acted appropriately, I find that the lack of a proper investigation and disciplinary process denied the employee fair procedures and the principles of natural justice in relation to the issues that led to her dismissal. A proper process may not have resulted in a dismissal and although the employee was successful at appeal, she was strongly of the view that it was the events surrounding 8th June 2021 that were the reasons why she was unsuccessful in obtaining another role in the company and was let go on the expiry of the fixed term contract.

In all of the circumstances of this issue, I find that the complainant was treated unfairly by the employer in relation to its handling of the process concerning the events of 8th June 2021. I find that the employee should receive compensation as a result.

CA-00045360-002 – Unfair Dismissal

Having heard the submissions of both parties to this compliant, and as acknowledged by the employee, she was reinstated to her position on appeal and continued in her employment until 31st July 2021 when her position ended in line with the provisions of her fixed term contract. On that basis her complaint of unfair dismissal fails.

CA-00045360-001 – Disciplinary procedures

In respect of the disciplinary procedures and the lack of fairness and transparency in that process, I recommend that the employee be paid €2,000 in compensation.

CA-00045360-002 – Unfair Dismissal

For the reasons stated above, I do not find that the employee was unfairly dismissed.

Unfair dismissal, Disciplinary process.