ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033418
Parties:
| Complainant | Respondent |
Parties | Gemma Myles | Gerry's Fresh Foods |
Representatives | Ms. Nicola Carlos, Vincent Hoey & Co. Solicitors | Self-Represented |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00043862-001 | 04/05/2021 |
Date of Adjudication Hearing: 05/05/2022
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance with 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.
Background:
The Complainant commenced employment with the Respondent on 28th September 2018. At all relevant times the Complainant roles was described as “Store Supervisor”. The Complainant was a permanent, full-time member of staff in receipt of an average weekly payment of €464.75. This employment was terminated by the Respondent on 6th November 2020.
On 4th May 2021, the Complainant referred the present complaint to the Commission. Herein, she alleged that her dismissal was substantively and procedurally unfair. The Respondent denied this allegation, submitting that the Complainant was dismissed on foot of a robust disciplinary process and on progression from an earlier sanction.
A hearing in relation to this matter was convened for and finalised on 5th May 2022. This hearing was conducted by way of 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 technical issues were experienced by either party throughout the hearing.
The Complainant gave evidence in support of the her own complaint. A HR Manager gave evidence in support of the Respondent. Both parties were cross-examined by the opposing side. No issues as to my jurisdiction to hear the present complaint were raised at any stage of the proceedings.
As dismissal as a fact was accepted by the Respondent, they accepted the consequent burden of proof imposed by the Act and presented their case prior to the Complainant. |
Summary of the Respondent’s Case:
The Complainant commenced employment with the Respondent on 28th September 2018. During the relevant period of the purposes of the present complaint, the Complainant was engaged as a “store supervisor”. This role involved a certain managerial function as regards the general floor staff. During this employment, the Complainant was absent from work for a period of a number of days. Whilst it transpired that the Complainant was ill during this period, and she offered to produce a doctor’s certificate in respect of the same, the Respondent was concerned that she failed to follow their internal procedures in relation to the reporting of her absence. On the Complainant’s return, she was invited to a meeting in respect of this matter and was issued with a written warning in respect to a failure to adhere to company procedure. In the course of this meeting, the Complainant accepted that her absenteeism and behaviour were not acceptable from a member of management. On 17th October 2020, the Complainant was scheduled to attend for work at 7 a.m. Prior to attending for this shift, the Complainant contacted a co-worker and arranged for this person to cover her shift. On Monday 19th October, the HR Manager of the Respondent issued an email to the Complainant. Herein, she stated that she had become aware that the Complainant had travelled outside of the county during her day off. Having regard to the same, and the relevant HSE advice, the HR Manager advised that the Complainant should quarantine for a period of 14 days. This email also referred to the previous warning received for absenteeism and unacceptable behaviour. By response, the Complainant advised that the Respondent’s interpretation of the HSE guidelines was incorrect, and that there was no requirement for her quarantine as requested by management. Following the same, the manager contacted the HSE whereby their position was confirmed. On 22nd October 2020, the Complainant was invited to meeting the following day in respect of these matters. The Complainant did not attend this meeting, stating that she did not see the correspondence until after the proposed time for the meeting has passed. A further meeting was scheduled for 30th October 2020, again the Complainant did not attend the same. When asked to explain her non-attendance, the Complainant again stated that she did not see the email for a few days. A final meeting was arranged for 6th November 2020, with the Complainant attending the same. In the course of this meeting, the issue regarding the Complainant’s non-attendance and failure to adhere to company policy was discussed. In circumstances whereby the Complainant had a written warning on file in respect of an absenteeism issue, and in contemplation of her managerial role, the Respondent informed the Complainant that her actions constituted gross misconduct and her employment was duly terminated. In answer to a question, the HR Manager denied that no investigation had been conducted in relation to either issue. She stated that in both situations an internal investigation had been conducted regarding the issues at hand, both of which were accepted by the Complainant in any event. She further denied that the sanction of dismissal was disproportionate, particularity when the Complainant had already received a warning for a similar matter in the past. In answer to a question posed by the Adjudicator, the Respondent confirmed that the warnings presented at the meeting of 6th March were drafted prior to the same, and presented to the Complainant for her signature in the course of the meeting. |
Summary of the Complainant’s Case:
From the outset, the Complainant submitted that her dismissal was procedurally and substantively unfair. She accepted that she was absent for a period of three days as submitted by the Respondent. However, in evidence she stated that during this occasion she suffered from an infection that affected her speech. As a consequence of the same, she instructed her mother to contact the Respondent on her behalf to explain her absence. She further submitted that on her return to work she presented that Respondent with a doctor’s certificate. At this point, the Respondent indicated that they were not interested in the same. The Complainant did attend a meeting with the Respondent whereby they set out their concerns regarding her absence, however she denied that she received a formal warning in the course of the same. On Sunday 18th October 2020, the Complainant was on a scheduled day off. On this date she arranged a recreational trip out of the county. She stated that at this stage the Covid restrictions were somewhat flexible and she believed that such a trip did not breach any HSE guidelines. On the way back from this trip, the Complainant’s car broke down and she had to wait a significant period of time for a lift home. As the Complainant was concerned that she would not be in position to attend work the following day, she contacted a colleague to cover her shift to ensure that the Respondent would suffer no disruption to its operations. The following day the Complainant received an email from the Respondent advising that she had to quarantine for a period of 14 days. This communication went to express the Respondent’s disappointment at the Complainant’s absence. The Complainant queried the 14 day quarantine requirement with the HSE, who informed her that no such requirement existed in her situation. Over the next week the Respondent invited the Complainant to a number of meetings in respect of this issue. These invites were issued to email usually less than 24 hours prior to the proposed meeting. As the Complainant did not habitually check this email account the Complainant missed these meetings on two occasions. The Complaint did attend a meeting on 6th November 2020. In the course of this meeting the Complainant was presented with two warnings to sign. The Complainant did not have sight of these warnings in advance and was unsure as to what exactly she was signing. Following the same, the Complainant was informed that her employment was to be terminated on the grounds of gross misconduct. The Complainant requested that this dismissal be confirmed by correspondence, however no correspondence issued by the date of the hearing. The Complainant similarly requested copies of the two warnings signed at the meeting, these also were not produced in advance of the hearing. By submission, the Complainant’s representative stated that the Respondent procedures were so fundamentally flawed so as to fail to provide even the minimum level of fair procedures. They further submitted that the dismissal of the Complaint was an entirely inappropriate and unwarranted sanction. Having regard to the same, they submitted that the dismissal of the Complainant should be deemed to be unfair for the purposes of the present Act. |
Findings and Conclusions:
Section 6(1) of the Unfair Dismissals Acts provides that, “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed….not to be an unfair dismissal” for the purposes of the Acts. Section 6(6) of the Unfair Dismissals Act provides that, “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 [6](4)” Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had: 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…with the procedure…or with the provisions of any code of practice….”. S.I. No. 146/2000, commonly referred to as the “Code of Practice on Grievance and Disciplinary Procedures”, sets out a basic procedure which a Respondent should follow prior to dismissing an employee. These include, putting the allegations to the Complainant in writing in advance of a hearing, allowing the Complainant the opportunity to properly defend herself at the hearing, permitting the appropriate right of representation, and allowing an internal appeal of any determination. An employee’s right to such procedures, amongst others, was recently confirmed by the Supreme Court in the matter of McKelvey v Iarnród Éireann / Irish Rail [2019] IESC 79. In the present case it is apparent that the disciplinary process adopted by the Respondent did not respect the Complaint’s right to fair procedures. In particular, I note that there while the Complainant was invited to a meeting, and informed of a general right to representation, she was not informed of the detail allegations against her, was not provided with any of the evidence to be used the Respondent during the process, she was not informed of the nature of the meeting and was not informed that her employment may be terminated on foot of the same. These failures on the part of the Respondent resulted in the Complainant attending a meeting where she was fundamentally unprepared to defend herself against the allegation to led to her dismissal. Having regard to the same, and the Respondent failure to allow an internal appeal of the matter, I find that the Complainant’s dismissal was procedurally unfair. In addition to the foregoing, the rationale for the dismissal of the Complainant remains somewhat unclear. The evidence of the Respondent was that she was dismissed for a failure to following procedure in respect of absence. However, in the second instance described by the parties, it is apparent that when the Complainant became aware that she may be unavailable for work, she took all reasonable steps to ensure that her shift would be covered by a colleague. Such an action is indicative of a conscientious, reasonable employee and certainly does not constitute grounds for dismissal. The Respondent also raised issue with the fact that the Complainant breached the HSE’s Covid 19 guidelines on her day off and consequently endangered the rest of their staff and customers. In this regard, I note the Complainant’s acceptance that she breached the guidelines in existence on this date. However, in this situation it was open to the Respondent to insist that the Complainant procure a negative Covid-19 result prior to any return to employment. While the Complainant may have been subject to some form of disciplinary process on foot of the same, the outcome of dismissal in the absence of any formal investigation into the surrounding circumstances is an inappropriate sanction and does not fall within the band of reasonable responses open to the Respondent. Having regard to the totality of the foregoing points, I find that the dismissal of the Complainant was procedurally and substantively unfair. Consequently, I find that she was unfairly dismissed within the meaning of the Act and her application is duly well-founded. |
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.
I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded. In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance. In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses following her dismissal. In this regard, I note that the Complainant found alternative employment approximately five months following her dismissal. Having regard to the totality of the evidence presented, in particular the Complainant’s evidence in respect of mitigation of losses, I award her the sum of €7,000 in compensation. |
Dated: 7th December 2022
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Non-attendance, failure to following procedure, internal procedures |