ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00037631

Parties:

Complaint/Dispute:

Date of Adjudication Hearing:  15/03/2022

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 13of the Industrial Relations Acts 1969following 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:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Factual Background -

The Claimant was employed as a project worker working with one service user throughout his employment. The said Service User was transitioning from residential care to after care and the Claimant was moving alongside the Service User to continue his role in support of the Service User.

However, the hours allocated to the Service User by TUSLA were reducing as a result of this transition meaning the previous 16 hour shifts the Claimant worked on were being reduced to 10 hour shifts.

On 06 July 2020, the Claimant’s line manager (‘S’) had a call with the Claimant in which he queried the reduction in his hours and the hours being allocated to the Service User. The Claimant became agitated and verbally aggressive, and S explained the allocation of hours were granted by TUSLA. S ended the conversation due to the language used by the Claimant and asked that he put any concerns in an email to her.

On 07 July 2020, on foot of the aggressive manner in which the Claimant spoke with his superior and his failure to follow reasonable management instructions, the Respondent issued a letter of dismissal to the Claimant by email.

The Claimant’s employment was terminated as a result of “verbal aggression towards S and failure to follow reasonable management instruction”. The Claimant was issued with notice of termination on 07 July 2020 and issued with one weeks’ pay in lieu of notice therein. The Claimant’s effective termination date is 14 July 2020.

The Respondents Probationary Period sets out their right to dismiss the claimant if his work performance is not up to the required standard or if he was considered to be unsuitable.

The Claimant was issued with notice of termination on 07 July 2020 and issued with one weeks’ pay in lieu of notice therein. Within this letter the Claimant was afforded the opportunity to appeal the decision, a right for which the Claimant chose not to avail.  

The Claimant was invited to a meeting in the Respondent offices in order to discuss the letter of dismissal. The Claimant’s responses demonstrate his position within the Company and identifies his issues with “fragile egos” and expresses his intention to “speak his mind whether people like it or not”.

Subsequently, Mr W, Company Director for the Respondent, asked the Claimant to attend a meeting in his office to discuss the incident of 06 July, the Claimant declined on the basis that it was his opinion the Company had made their decision with regard to same.

Furthermore, the Claimant failed to address the issues in a professional manner and failed to put his concerns in an email as per S’s instruction on 06 July 2020.

The Respondent maintains the dismissal was wholly as a result of the Claimant’s behaviour and language during the conversation with S on 06 July 2020 and that such aggressive language and behaviour would not be tolerated by the Respondent. This behaviour falls within the below acts of major and gross misconduct as per the Respondent’s Disciplinary Rules and Procedures in the Employee Handbook –

1. a) rudeness towards customers, members of the public or other employees, objectionable or insulting behaviour or bad language,
2. b) grossly indecent or immoral behaviour, deliberate acts of unlawful discrimination or serious acts of harassment,
3. c) failure to carry out all reasonable instructions or follow our rules and procedures, and
4. d) taking part in activities which result in adverse publicity to ourselves, or which cause us to lose faith in your integrity.

The Respondent draws reference to the probationary period clause as per page 5 of the Employee Handbook as follows –

You join us on an initial probationary period of six months. This does not prejudice our right to dismiss in accordance with the notice provisions contained in your individual Statement of Main Terms of Employment (form SMT), or without notice for reasons of gross misconduct, should this be necessary. During this period, your work performance and general suitability will be assessed and, if it is satisfactory, your employment will continue. However, if your work performance is not up to the required standard or you are considered to be generally unsuitable we may either take remedial action or terminate your employment, without recourse to the disciplinary procedure. At the end of your probationary period, you will again be assessed and, if satisfactory, you will become a member of our regular staff. If you have not reached the required standard, we may either extend the probationary period in order that remedial action can be taken or terminate your employment. At any stage during your probationary period the Company reserves the right to address disciplinary misconduct matters through probationary review assessments. We reserve the right to bypass, at our discretion, any step in the disciplinary process in view of your probationary status or to terminate your contract with notice, if we feel that the severity of the action warrants it. We will be fair in the application of such discretion. Any continuous period of absence of four weeks or more will suspend your probationary period until your return to work.

Furthermore, the Respondent makes notable reference to page 41 of the Employee Handbook as follows –

We retain discretion in respect of the disciplinary procedures to take account of your length of service and to vary the procedures accordingly. If you have a short amount of service you may not be in receipt of any warnings before dismissal but you will retain the right to a disciplinary hearing and you will have the right of appeal.

The Claimant failed to attend the meeting with JW to discuss the incident and furthermore, failed to appeal the contents of the letter sent in error of 07 July 2020. Thus, the termination became effective as of 14 July 2020.

Findings and Conclusions:

The Complainant was in the employment for a number of months, with responsibility for the young person who was ‘coming of age’ and hours allocated to him were being reduced.  The Complainant was very exercised about this, and the evidence shows that he was verbally aggressive to the manager in the phone call of 6 May 2020.   He was dismissed by letter dated 7 July 2020 for verbal aggression and failure to follow reasonable management instruction.  He was given the right of appeal.  He was contacted a number of times by management in relation to appealing the dismissal and I note at one stage the Managing Director offered to have some hours restored to him.  I note that he believed the employer was not going to change its mind on the dismissal.  However he did not give the employer the opportunity to reconsider.  I note the Employee Handbook allows for the employer’s right to dismiss during the probationary period for gross misconduct.

In all the circumstances I do not consider that the Complainant was unfairly dismissed and I do not uphold his complaint.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Dated:   12th May 2022

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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