Complainant

Respondent

Parties

Juris  Akmentins

Compass Group

Representatives

Aleksandra Tiiliakainen IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043555-001

12/04/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and four witnesses for the respondent gave their evidence under affirmation.

The respondent is a large food and support services organisation who manage and deliver onsite catering and cleaning services for their clients.  The complainant was employed as a cleaner from September 2006 and became an employee of the respondent by way of TUPE in December 2014.

The complainant submitted that he was dismissed for no reason and that it turned out, from a letter, that he was dismissed for gross misconduct.

The respondent submitted that the complainant was dismissed but that it constituted a fair dismissal.  The respondent submitted that the dismissal came about following warnings and the use of the disciplinary process.

The respondent outlined a history of complicated engagements with the complainant including previous written and verbal warnings, grievance procedures and unauthorised absences. Matters came to a head during the Covid 19 pandemic.  The respondent’s client required heightened levels of cleanliness and requested that the respondent only use its staff rather than engaging agency staff to assist in these additional duties as it wished to restrict the number of persons being admitted onto its premises.

In June 2020, the respondent introduced requirements on mask wearing in the work place. The complainant was offered five different options of mask/face covering but insisted that due to a medical reason he could not wear any coverings.  The complainant did not provide any medical evidence of this and the respondent referred him to an occupational health specialist.  The specialist confirmed that there was no medical contraindication to wearing a face covering and advised trialling a visor again.

Following the visit with the specialist, the complainant was absent without leave again for a three week period.  Upon his return he was not allowed to return to work due to his refusal to wear a face covering.  The report from the occupational health specialist was discussed and shared with the complainant.  He did not agree with it.  He was invited to attend his own GP and to provide a medical cert confirming that he could not wear a face covering.

He was also informed that his unauthorised absence would be investigated.  The complainant did not provide a medical certificate but did not attend for work.  The respondent tried to make contact with the complainant on a number of occasions and invited him to attend a medical appointment. The respondent submitted that the complainant failed to attend this medical appointment and also failed to contact the respondent despite repeated requests to do so.

The respondent submitted that it continued to contact the complainant and in November was offered Employee Assistance.  He was also informed that his continued unauthorised absence may result in his dismissal.  The respondent submitted that the complainant wrote in November to state that he was on annual leave during the August period and that he was prevented from working despite not being sick.  The respondent submitted that it wrote back to him to inform him that his annual leave was not approved.

The respondent submitted that the complainant was requested to attend an investigation meeting on 24 November but failed to do so.  The respondent became aware that the complainant was seen working elsewhere wearing a mask and arranged another investigation meeting.  The complainant was informed that if he did not attend this meeting, it would proceed in his absence.

The investigation officer advised proceeding with a disciplinary meeting.  The complainant was invited to the disciplinary meeting and was advised of his right to be represented by his trade union or a work colleague.  The complainant failed to attend the disciplinary meeting.

The complainant was issued with a final written warning and was requested to return to work immediately.  He was informed of his right to appeal this decision but did not do so. The complainant failed to return to work and was invited to contact his manager.  He did not make contact and a further investigation meeting was arranged to consider his continued unauthorised absence.

The respondent submitted that the complainant wrote to them stating that he was logging mattes with the WRC relating to his continued suspension and continued losses.

The respondent outlined the further steps it took to engage with the complainant, outlining his rights and inviting him to a disciplinary meeting.  The complainant reiterated his earlier correspondence but did not attend the disciplinary meeting.

The disciplinary meeting resulted in the complainant being sent a notice of dismissal on the grounds of Gross Misconduct.  He was also given the right to appeal this decision.

The complainant appealed the decision outlining that

·         the refusal to grant his annual leave was an act of victimisation,

·         he was denied access to work but never told why

·         he lodged a complainant to the WRC and wishes the inspector to join the discussion

·         that he was no a final written warning for 12 months, and

·         that he had found alternative employment.

The appeal was heard and the appeals officer directed that the dismissal be changed from one arising from Gross Misconduct, to a Progressive Dismissal on the grounds of continued misconduct.  The appeals office further ordered the complainant be paid his notice period.

The complainant stated that he did understand why he was dismissed but that there was no excuse for it.  The respondent provided comprehensive written and oral testimony regarding the steps it had taken in relation to investigative meetings followed by disciplinary proceedings and outlined the rights that the complainant had of representation at each stage.

Having considered all the written and oral submissions, it is apparent that the respondent has comprehensive policies in place covering investigations and disciplinary processes which are separate, and those policies are followed.  It is also apparent that the respondent gave the complainant every opportunity to engage with the processes and with the occupational health specialist.  Arising from the written and oral evidence, I am satisfied that the respondent made every effort to conduct itself in a fair and just manner in its dealings with the complainant. Having considered all the written and oral evidence from both parties, I find that the complainant was not unfairly dismissed.

Having considered all the written and oral evidence presented in this complaint, my decision is that the complaint was not unfairly dismissed.

Unfair dismissal – comprehensive engagement – fair and just procedures – no unfair dismissal.