Complainant

Respondent

Parties

Ana  Asavoae

Comer Property Management Limited ,Comer Group Ireland

Representatives

Marius Marosan

 HR Representatives

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00043451-001

08/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00043451-002

08/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043451-003

08/04/2021

The Complainant took up employment with the Respondent on 01/01/2019 as a result of a transfer of undertakings.  She was employed with her previous employer from 29/04/2016.  As a result of an incident in February 2021 the Complainant was dismissed on 01/04/2021.  The Complainant is seeking compensation as she claims she was unfairly dismissed.  The Respondent refutes the allegations and believes that it followed proper procedures at all times.

The Complainant submitted three complaints.  The first was a complaint in relation to her terms and conditions of employment.  It was submitted on her behalf that the contract issued by the Respondent did not comply with the Employment Regulation Order (ERO) for the contract cleaning industry.  Specifically, there was no references to overtime, hours worked, minimum wages, details of sick leave provisions and disciplinary procedures.

The second complaint was in relation to the payment of wages which she claimed that were due to her when her employment was terminated.   She was paid one week and should have been paid for four weeks.

The third complaint was a complaint of unfair dismissal. It was submitted on the Complainant’s behalf that the Respondent failed to follow the general guidelines of S.I. No 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures.  Specifically, the letter of invitation, dated 26/03/2021, to the disciplinary meeting did not contain details of the allegation or complaint that the Complainant was required to address.  The Complainant was not advised in that letter that she was entitled to be represented by a work colleague or trade union representation.  The follow up letter of dismissal, dated 31/03/2021, did not advise the Complainant of her right to appeal the decision to dismiss.  There was no attempt to provide the Complainant with any documentation in her own language or have it translated for her.  The Respondent was aware that she required the services of an interpreter.

It was submitted on behalf of the Complainant the delay in holding the disciplinary meeting and the absence of fair procedures render the dismissal unfair.  The Complainant is seeking compensation.  The Complainant confirmed that she obtained work within one week of her dismissal with her original employer.

The Respondent submits that the Complainant was issued with a contract of employment on 02/01/2019.  At the hearing the Respondent representatives confirmed that they were unaware of the letter issued to the complaint on 07/12/2018 from her previous employer which confirmed that she was transferring to the Respondent on a transfer of undertaking.  It is the Respondent’s position that they are not covered by the ERO as they are not contract cleaners.

In relation to the payment in lieu of notice the Respondent confirmed that she was paid one week’s notice and accept that she should be paid two.  As they were not aware of a transfer of undertaking arrangement they did not consider that they had any other obligation to the Complainant.

In relation to the unfair dismissal complaint the Respondent outlined that a breach of security occurred in February 2021 and this was brought to their attention about two weeks later.  On investigation it was found that the Complainant’s security card was used.  The Complainant was invited to a disciplinary meeting and she was provided with a copy of the “Counselling and Disciplinary Policy and Procedure”.  This document clearly outlines the procedure including the right to be accompanied by a “support person”.  The document also provides details of the Respondent’s appeal process and specifically that: “All team members have the right to appeal against a termination they believe has been unfair.

To initiate your right of appeal you need to contact the appropriate Senior Manager and Group HR Manager within five working days of the team member receiving the written decision. The appeal must state in writing the grounds for appeal”.

The Respondent did provide the Complainant with an interpreter who was also an employee of the Respondent.  It is the Respondent’s position that they followed proper procedures and they were reluctant to dismiss the Complainant as she had been a good employee, but they had no option given the serious breach of trust that occurred.

CA-00043451-001:  This is a complaint pursuant to the Terms of Employment (Information) Act, 1994.   The Complainant submits that she did not receive a document which complies with Section 3 of the Act.  Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’ s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’ s employment, that is to say: 

(a) the full names of the employer and the employee; 

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014); 

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; 

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000; 

(e) the number of hours which the employer reasonably expects the employee to work — 

(i) per normal working day, and 

(ii) per normal working week.

Section 3 of the Terms of Employment (Information) Act 1994 provides for further details to be given to an employee not later than two months after the commencement of the employee’s employment.

The Terms of Employment (information) Act, 1994 implements an EU directive and applies to all persons working under a contract of employment or apprenticeship (whether on a fulltime or part time basis).  It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said statement of terms.  The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the statement of terms.

The Complainant alleges that the contract she was issued was not fully compliant with all the details prescribed in the Employment Regulation Order (ERO) relating to the cleaning industry.  Details in relation to the overtime arrangements, hours worked, minimum wage, details of the sick pay scheme, and details of the grievance and disciplinary policy were not included. The Respondent contends that the ERO is not applicable to them. The Complainant was employed as a permanent cleaner and worked 40 hours per week on a Monday to Friday basis.  The Complainant was paid more than the rate stated in the ERO.  It is clear that the Complainant received a contract of employment when she transferred to the Respondent.  This document does not contain all of the information as prescribed in the Terms of Employment (Information) Act 1994.

 While some of these terms may be viewed as trivial and technical in nature it is well established by the Labour Court that a failure to comply at all with Section 3 of the Act can be reduced to a trivial or technical matter.  In the case of TED2013 the Labour Court stated: “If this Court were to accept the contention that a total failure to comply with Section 3 of the Act was a breach of such little significance as to allow the application of the de-minimus rule, the Court would, in effect, be allowing that Section 3 of the Act could, as a general proposition, be ignored unless a worker could show a detriment arising therefrom.  The Court does not accept that such a contention can be drawn”.

There is an onus on the Respondent to provide an employee with all details which are fully compliant with the Act and to and to retain such a document for at least a year after the employment ends. I find that there was a contravention of the Act during the relevant period.  In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.  I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.3 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should not be applied.  I therefore order that the Respondent pay the Complainant the sum of €912 representing two week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00043451-002: The second complaint relates to the failure of the Respondent to pay the correct sum to the Complainant in lieu of notice.  The Respondent paid one week and accepts that she is due another week.  However, the Respondent failed to take account of the Complainant’s transfer under the TUPE regulations.  In a post hearing response, the Respondent confirmed that they were unaware that the complainant was covered by the TUPE regulations and believes that “it must have been a second generation TUPE”.  The Respondent agreed to pay her four weeks’ notice.  I accept the Complainant’s uncontested evidence that she commenced employment on 29/04/2016 and it was terminated on 01/04/2021.  This equates to a period of 4 years, 11 months and 3 days.  As she has not reached the required threshold for a five-year payment as claimed, I find that the Complainant is entitled to a further week’s pay of €456.00 gross.

CA-00043451-003: In relation to the complaint of unfair dismissal it is not disputed that the Complainant was dismissed. The legal onus is on the Respondent to show that the dismissal was not unfair.  In this case, the dismissal arose from the receipt of a serious complaint in relation to unauthorised access to a premises.  The evidence was that the Complainant had permitted a contractor access to a premises where security in an important factor. 

I have listened carefully to the evidence tendered and considered the documentation of both parties.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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 he held without contravention (by him or his employer) of a duty or a restriction imposed by any statue or instrument made under statute.”

Furthermore, Section 6 (6) of the Unfair Dismissals Act 1977 places an onus on the employer which provides:

“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.”

The burden of proof lies with the Respondent to show that the Complainant’s dismissal was fair.  In formulating a decision, I am conscious that in my role as an Adjudicating Officer, I must not assume the mantle of an employer regarding the facts in any case.  My role is to decide whether, within the so-called band of reasonableness of decision making, an employer’s decision is not unfair.  The band of reasonable test was considered by the Irish High Court in Bank of Ireland v Reilly ([2015] IEHC 241.  In that case, Noonan J looked at S 6(7) of the Unfair Dismissals Act 1977 and outlined that it provided that a court have regard to the reasonableness of the employer’s conduct in relation to a dismissal.  He stated:

“That is, however, not to say that the court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that of the employer.  The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”

It is not my function to determine if the dismissal was the correct sanction.  It is my function to determine if the sanction of dismissal came within the “band of reasonableness” cited in the above referenced cases.  I am guided by the jurisprudence of the High Court in the case of Bank of Ireland.  In all the circumstances of this case I find that the action of the Respondent in dismissing the Complainant for gross misconduct was within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s dismissal.

The importance of fair procedures in cases involving dismissal on grounds of misconduct has been set out in our case law.  The WRC and Labour Court have consistently emphasised that an employer is required to follow fair procedures before it decides to dismiss an employee.  The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

The Code of Practice emphasises that good practice entails several stages in the discipline and grievance process:

-           That employee grievances are fairly examined

-          That details of any allegations or complaints are put to the employee concerned

-          That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

-          That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

-          That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The decision of the Court of Appeal in Iarnród Eireann v McKelvey [2018] IECA 346 gives clear guidance on the precise employee rights when an employee is faced with allegations of gross misconduct.  Mr McKelvey had been accused of fraudulently using a fuel card.  Although the case concerned the right to legal representation in a disciplinary case, which was subsequently adjudicated upon in the Supreme Court, the Court of Appeal took the opportunity to positively reaffirm and identify the precise rights to which Mr McKelvey was entitled as part of fair procedures in a formal disciplinary procedure:

(i)                  “His right to know the nature of the complaint/allegation against him

(ii)                His right to know the procedure to be followed in the course of the investigation;

(iii)               His right to know the potential implications of the complaint/allegation should it be established, i.e., the sanction/sanctions that might be imposed;

(iv)               His right to be heard in relation to the complaint/allegation and to make representations in relation thereto;

(v)                 His right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses;

(vi)               His right to call witnesses in support of his stated position.”

The Complaint in this case was entitled to these same rights.

There are procedural flaws in the disciplinary and appeal process which resulted in the dismissal of the Complainant. As the Complainant was not represented at any stage there was an obligation on the Respondent to comply with the principles of natural justice, their own procedures and acceptable practices as outlined in the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The notice of the Meeting dated 26/03/2021 represents a shortcoming by the Respondent in terms of fair procedures and robust practices.

I also accept the evidence that there was no internal appeal process outlined to the Complainant in her letter of dismissal dated 31/03/2021. The Respondent did not fully comply with the principles of fair procedures and natural justice.  In that context the dismissal in this case is unfair from a procedural perspective.

However, I do find that the Complainant contributed to the situation she found himself in.  She did not accept that the incident had the potential to cause serious consequences for the respondent and their client. 

I accept the Respondent’s evidence that the lack of remorse at any stage by the Complainant was a significant contributory factor in their decision to dismiss. 

Redress:

Mitigation of Loss:  Section 7 (2) of the Act deals with compensation and mitigation of loss.

(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) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved by the Minister,

(e) the extent any) of the compliance or failure to comply by the employer, 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 …

(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 [2014], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu or in addition to pay.”

The Complainant was dismissed on 01/04/2021 and obtained employment on 05/04/2021 I am satisfied that the Complainant mitigated her loss and remains in full time employment.  I am satisfied that the Complainant contributed to the dismissal and damaged the Respondent’s trust and confidence in her. Having taken all matters into account I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts.  Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Act is well founded and I award the Complainant compensation of €1,368.

CA-00043451-001: Terms and Conditions of Employment: I order the Respondent to  pay the Complainant the sum of €912 representing two week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00043451-002: Pay: I find that the Complainant is entitled to a week’s pay of €456.00 gross.

CA-00043451-003: Unfair Dismissal: I find that the Complainant’s claim under the Unfair Dismissals Act is well founded and I award the Complainant compensation of €1,368.

Unfair dismissal.  Payment in lieu.  Fair procedures.