ADJ-00030963

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00030963

Parties: 

Complaint:

Date of Adjudication Hearing:  27/05/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

This dispute refers to a complaint of unfair dismissal in circumstances where the Complainant does not have 12 months service. On that basis the Complainant, an Online Marketing and sales Assistant for a Charity Organisation has submitted her complaint under the Industrial Relations Act.

The Complainant commenced employment on 8th July 2019 and submitted that her employment ended on 29th May 2020. The Respondent maintained that the Complainant was not dismissed but that she did not return to work after a Covid-19 Lockdown period in 2020.

Summary of Complainant’s Case:

The Complainant submitted that she did not receive the Respondent’s submission until two days before the within hearing and this was a severe disadvantage to her.

The Complainant maintained that she was dismissed on 29th May 2020 due to health and safety issues practiced by the Respondent relating to returning to work following the Covid-19 pandemic, and a mandatory course that had to be completed before being permitted to return to work. The Complainant asserted that she was not allowed to do the course unless she signed a document and a policy.  The Complainant maintained that there were insufficient safety arrangements in place at the time and she was concerned for her own safety. As she was asked to sign the document by a third party, on the street outside the place where the training was to take place, she was not comfortable to do so. Accordingly she was not permitted to attend the training.  As a consequence of not attending the training she was not allowed by the Respondent to return to work.

The Complainant submitted that the Respondent should be held accountable for what occurred in circumstances where the Complainant’s concerns were not addressed. As a consequence of the Respondent’s failure to deal with her concerns she was shut off from her holiday pay and her income. 

The Complainant maintained that she lodged a complaint to the Respondent at the time which included extensive correspondence, but the complaint was not properly addressed by the Respondent.

Summary of Respondent’s Case:

The Respondent maintained that the Unfair Dismissals Act does not apply in this situation as the Complainant has less than 12 months service. Complainant.

The Respondent acknowledged that the Complainant was employed on a Community Employment Scheme (CES) on a fixed term contract from 29th May 2019 until 24th April 2020. The Complainant was employed on a parttime basis for 19.5 hours per week at a rate of pay of €225.2 per week.

The Respondent submitted that following the shut down that was required due to the Covid-19 Pandemic, staff were recalled to work in May 2020 and were required to complete a return to work document and attend training in accordance with the Government guidelines that were issued at that time.

On 26th May 2020 documents were prepared to ensure a safe return to work by staff, where staff were required to sign a self-declaration prior to the training.  The training was planned to take place in a boardroom where only 6 to 7 people would attend.

The Respondent acknowledged that the Complainant attended on the 29th May 2020 for the return-to-work training but she refused to sign a document before participating in the training. As the CES Supervisor attending that day had not received a copy of the signed declaration from the Complainant she asked the Complainant to sign it, but the Complainant refused. It is the Respondent’s position that the Complainant refused to sign the form and was unwilling to discuss the matter inside the building, and the Complainant left without signing the form and therefore did not participate in the training. 

The Respondent further maintained that it did not act in an unreasonable manner in seeking the Complainant to sign a return-to-work document and attend the training. 

The Respondent acknowledged that it received a written complaint from the Complainant on 2nd June 2020 by email.    The Respondent responded on 3rd and 4th June 2020 advising it would consider the issues raised and revert to the Complainant. The Complainant responded on 5th June 2020 seeking for the matter to be reviewed by a Third party.

On 10th June 2020 the Respondent sent a detailed letter of response to the Complainant and proposed a grievance meeting for 12th June 2020.  A series of correspondence between the parties then occurred and where the Complainant was invited to a grievance hearing on 19th June 2020.  The Complainant maintained she needed time to consider the response. The Respondent wrote to the Complainant again on 22nd June 2020 inviting her to a meeting on 25th June 2020. The Complainant responded on 24th June 2020 and inter alia advised the Respondent she was progressing her concerns to the WRC.

On 7th July 2020 the Respondent again sought a meeting with the Complainant for 23rd July 2020 and urged her to attend. The Complainant did not accept this invitation to attend a meeting and responded by reiterating her concerns and intentions.

The Respondent submitted that further correspondence occurred between the parties, but the matter was not resolved, and the Complainant did not agree to meet with the Respondent to resolve her grievance.

Findings and Recommendations:

It is a matter of fact that the Complainant was on a fixed term contract of employment that commenced on 8th July 2020. The Complainant did not return to work at the end of May 2020 following a Covid-19 lockdown period. 

Having reviewed the matter I am satisfied that the Complainant expressed concerns regarding her return to work in May 2020 after the Covid-19 lockdown in 2020.  For its part the Respondent was seeking to address this issue, but the Complainant maintained her concerns were not being addressed appropriately and therefore sought to have the matters resolved at the within hearing.

I am satisfied that the Respondent has an established Grievance Procedure to deal with issues of concern from employees, and in the within case the Complainant appears to have lost confidence that her concerns could be addressed internally. However, I do not find that the grievance procedures have been exhausted, and I find the matter of concern should be appropriately addressed within the Grievance procedures. Both parties are obliged to complete that process before referral to the WRC.

Decision:

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

I recommend that the Complainant engage in the Grievance procedure, and in light of the difficulties that have arisen between the parties in attempting to progress that complaint that an independent and suitably experienced person be appointed to Chair the grievance procedure to consider and make findings on the Complainant’s grievance.

Dated:   November 22nd 2022

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Key Words: