Employee

Employer

Anonymised Parties

A Covid-19 Swabber

A Covid-19 Testing Company

Representatives

Not represented

Peninsula Group Limited

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00047149-001

12/11/2021

The employee is a recently qualified secondary school teacher and, during his training, he worked for the HSE as a Covid-19 swabber.   He gave up his job with the HSE to do his teaching practice, and when he completed his studies, he applied for a job with this employer, a private Covid-19 testing company.  Following a telephone interview, he commenced work on August 13th 2021.  His employment was terminated on September 10th 2021.  The employee claims that he was undermined and discredited by the employer and that his dismissal was unfair.

The employee provided a written submission in advance of the hearing of this dispute on July 1st 2022.  In his submission, he said that, during his third week as a Covid-swabber, around August 31st 2021, he noticed that he was being closely observed by his team leader.  His team leader told him that he had done a swab incorrectly; however, the employee claims that he did not do the swab incorrectly, although he accepts that he made some mistakes earlier that day, by not putting names on specimen containers.  He said that these mistakes “were not life-threatening” because the containers had a barcode which could be connected to the person who provided the specimen.

On September 2nd, the employee said that he was requested to meet his team leader, who told him that he was making too many mistakes.  This conversation place in an office where another team leader and the area manager were present and the employee said that he felt intimidated and embarrassed.  He said that the swab that he was criticised about produced a result, which proves that it was done properly.

Two days later, on Saturday, September 4th, the employee said that he was again requested to meet his team leader.  He was told that he had to attend re-training.  The employee said that he informed his team-leader that he has dyslexia and that no enquiries had been made regarding the possibility that he might need additional support or more time to complete certain aspect of his work.

The employee said that, during his telephone interview for the job as a Covid-swabber, he told the interviewer about his experience with the HSE.  He said that the interviewer suggested that he might be suitable for a job as a team leader and he agreed that this would be of interest to him.  At the meeting on September 2nd, the employee told his team leader that any reports about him making mistakes would be sent to HR and that this would affect his opportunity to be appointed as a team leader.  He said that his team leader made no reply to this.

On the day this meeting took place, the employee said that he noticed a colleague, a Pakistani man, in the team leader’s office for four hours and he thinks that this employee was being prepared for an interview for a job as a team leader.  He said that the team leader was friendly with the Pakistani employee and he thinks that the reason that he was accused of making mistakes was so that negative reports could be sent to HR about him which would affect his chances of being offered the job of team leader.

The employee said that he thinks that, by reporting that he had made mistakes and insisting that he re-train, the team leader harassed him and discriminated against him on the ground of his disability, the fact that he has dyslexia.

To alleviate his stress and to remove himself from his team leader, the employee said that he decided to opt for the night shift, where he would report to a different team leader.  The following day, he had a meeting with the HR manager and another manager from the HR department.  He told them about his experience with his team leader, his decision to move to nights and his opinion that he didn’t need to re-train.  The HR manager said that she intended to ignore the reports that she had received about the employee, but she recommended that he do the re-training.

Onn September 9th, the employee said that he got a phone call from a member of the HR department to ask him if he was still interested in being a team leader.  He was asked to send her an email to confirm his interest in this job.

On September 10th, the employee said that he got a phone call from the HR manager regarding a report that she received that he had used a pejorative term to refer to the Pakistani man who the employee assumed was being prepared for a team leader’s role.  The employee said that he was sickened at this accusation and he denies ever using an insulting remark about anybody of a different faith or nationality to him.  He said that he believes that the person who reported that he had insulted the Pakistani man made a genuine mistake and that she heard him refer to him simply as “a Pakistani.”

At the hearing of this matter, the employee said that when he went home, he decided that he would resign.  He felt that he had been victimised and bullied and that his good name had been impugned. As he was writing an email to confirm his resignation, he got an email from the HR manager to inform him that his employment was terminated because he was considered not to be suitable for the job.

At the hearing on this matter, the employee said that, as a secondary school teacher, his name and reputation are of utmost importance and the fact that he was accused of using a racial slur is upsetting and distressing.  He said that he was not given a chance to defend himself or to clear his name.

When I asked him what he expected from the hearing today at the WRC, the employee said that he wants a finding that the way he was treated was wrong and intimidating.  He said that he was not offensive to his Pakistani colleague.  He wants the employer to take steps to ensure that nothing like this happens again and he wants some acknowledgement of his dyslexia and the fact that he needs a bit of extra time to absorb information.

On behalf of the employer, Ms Conroy provided a submission late on the evening before the hearing.  The employee objected strongly to proceeding without having an opportunity to properly formulate a response to the employer’s document and I considered adjourning the proceedings so that I and the employee could read it.  In the end, we agreed that the time would be better spent if the hearing went ahead.  It was also agreed that Ms Conroy would retain the submission and that she and the manager in attendance would make a verbal presentation in response to the employee’s articulation of what occurred during the four weeks of his employment.

Ms Conroy accepted that, in advance of his start date, there was a discussion with the employee about a role as a team leader and that, around December 8th or 9th 2021, the HR manager asked him if he was interested in this job.

Addressing the issue of re-training, Ms Conroy said that not putting the name of the specimen donor on the specimen is a serious issue and that this mistake has implications for the quality of the service being provided.

Regarding the Pakistani man who the employee thinks was being prepared for an interview for a role as a team leader, Ms Conroy said that he was already a team leader at the time that the employee assumed that his was being prepared for the interview.  He was working closely with the employee’s team leader and this is the reason that they spent a lot of time together. 

The quality assurance reports about the employee’s performance contained remarks that were complimentary, but which had some negative observations.  When the HR department received a report that he had used an offensive term to refer to the Pakistani employee, this had to be investigated.  The person who reported that he made the remark stood over what she said she heard.  The employer had to act on this complaint, by carrying out an investigation.  The statement of the employee who reported the remark was corroborated by other employees. 

Regarding the allegation of bullying, Ms Conroy suggested that the team leader had to monitor the employee’s work and address some performance issues, but this doesn’t mean that the team leader engaged in bullying.

Ms Conroy accepted that there were certain procedural failings in the way the employee was dismissed.  She apologised to the employee at the hearing, saying that he should have been given an opportunity to appeal against the decision to terminate his employment.

At the conclusion of the hearing, Ms Conroy observed that the employee was clearly upset at the allegation that he had used a racial slur and she said that this indicates that would not conduct himself in a racial manner and that he would not knowingly offend any of his colleagues.

I have given serious consideration to the employee’s grievance about his experience of working for this employer from August 13th until September 10th 2021.  At the hearing, he said that he worked hard to get up to speed in the job, although he was already an experienced swabber.  He said that he did whatever he was asked to do, including driving a company vehicle and transporting test samples.  He has dyslexia and, although he never informed his employer of this fact, he expects that his team leader would have investigated the possibility that he needed some additional support with learning how to do the job.  It seems to me that, having got off to a good start, some mistakes and his wrong assumption that a colleague might be put forward for training as a team leader, led to him having a fractious relationship with his own team leader. 

For the four weeks that he was employed, the employee was on probation.  The purpose of probation is to give an employee an opportunity to learn the rudiments of a new job and for an employer to assess their suitability, from the perspectives of performance and “fit.”  It is apparent that, during his early weeks in the job, the employee made some mistakes and he was asked to undertake a half-day’s re-training.  A colleague then reported that he referred to another colleague using a disparaging and racially offensive term.  This allegation resulted in a brief investigation by the HR manager, who, on September 10th, brought it to the employee’s attention and asked for his response.  He denied that he had been offensive and he was genuinely distressed at the suggestion that he would use a racial slur.  He decided to resign.  He said that before he got a chance to submit his resignation, he got an email from the HR manager.  She told him that she had received feedback regarding his suitability and that his employment would be terminated with immediate effect.  On September 14th, the employee submitted a formal complaint regarding his treatment, complaining that he had been harassed and intimidated by his line manager.  The HR manager replied to say that this would be investigated; however, when the employee submitted this grievance to the WRC, it seems that the investigation did not proceed.

From the perspective of his complaint of harassment and intimidation, based on his submission at the hearing of this grievance, I can find no evidence that he was harassed or treated in a discriminatory manner due to his dyslexia.  As his team leader was unaware that he has dyslexia, he could not have discriminated against the employee for that reason.  It is apparent that some attention was paid to the employee’s mistakes and this may have been uncomfortable for him, but feedback about performance is part of the normal supervisor / employee relationship and is not the same as harassment.

Having listened to the employee’s submission at the hearing, it seems to me that, to some degree, he was the cause of his own downfall, because he assumed that one of his colleagues was being preferred over him for promotion to the job of a team leader.  He did not know that the employee concerned was already a team leader and he wrongly concluded that the reason that his supervisor was raising concerns about his performance was because he wanted his friend to be promoted and he didn’t want the employee to be promoted.  Clearly, there was a gap in communications and, before drawing conclusions, it was incumbent on the employee to get his facts straight.

Having reached this conclusion, I must also address the failure of the employer to follow any procedure in the lead-up to the employee’s dismissal.  I accept that, in general, a complaint being considered under the Industrial Relations Act is a less formal matter than a hearing under the Unfair Dismissals Act; however, I am guided by the decision of the Labour Court in the case of Beechside Company Limited, trading as the Park Hotel Kenmare and A Worker, LCR 21798.  It is clear from this decision that the requirement for fair procedures is not confined to employees who have adequate service to benefit from the protection of the Unfair Dismissals Act, and the Labour Court has consistently determined that employees with short service come within the protection of Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures.

Before he was dismissed, the employee should have been informed of the performance problems or the conduct that was leading his managers to conclude that he was unsuitable for the job.  As he had very short service, it would not have been appropriate to go through each stage of a disciplinary process; however, he should have been given an opportunity to address the issues that were causing concern.  If someone had explained to him what was required to ensure that he remained in the job in the longer term, I have no doubt that he would have reached the standard of performance that was required.  Because of the failure of the employer to engage in any procedures, I have to conclude that the dismissal of this employee was unfair.

At the hearing, on more than one occasion, the employee was adamant that he was not seeking compensation and that his objective in submitting this grievance was to clear his name.  He accepts that the person who reported that he used a disparaging remark to refer to his Pakistani colleague did so in good faith, but he thinks that she was mistaken and he wanted to assure his former employer that he would never insult a colleague.  At the hearing, on behalf of the employer, Ms Conroy accepted his undertaking in this regard.

It is my view that the fractious relationship between the employee and his team leader was based on an unfortunate assumption that he might be passed over for consideration for a job as a team leader.  I am satisfied that he was not subjected to harassment or discrimination.

I have concluded that the dismissal of the employee was unfair and not in accordance with any procedures.  I recommend that the employer drafts a procedure for managing the performance of employees on probation and that this procedure is issued to new employees as part of their induction.  In accordance with the wishes of this employee, I further recommend that any reference to his performance or conduct is removed from his personnel file.

Failure to adhere to disciplinary procedures