ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037166
Parties:
| Complainant | Respondent |
Parties | Carol Bradley | Emerald Contract Cleaners t/a Emerald Facility Services |
Representatives |
| Katherine Kelly – Director of Cleaning Marcela Martin – Daily Office cleaning Manger |
Complaint(s):
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-00048495-001 | 06/02/2022 |
Date of Adjudication Hearing: 23/11/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth normally rests with the Respondent. However, I determined from the facts that presented at the outset, that there was ambiguity about whether or not the Respondent had dismissed the Complainant or whether the Complainant herself had left the employment of her own volition. In the circumstances I asked that the Respondent proceed in the first instance and having assessed the facts I could make a final decision.
Per Section 6(6) of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 6th of February 2022) issued within six months of her dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is a serious and direct conflict in evidence between the parties to a complaint, that an oath or an affirmation is required to be administered to any person giving evidence before me. No objection was raised and I can confirm that I have administered the said Affirmation to each of the witnesses as appropriate. It is noted that the giving of false statements or evidence is an offence |
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant brought a support witness to the hearing, and I had a visual on the said individual in the room with the Complainant. The Complainant relied on the comprehensive submission which she had set out in her own Workplace Relations Complaint Form. The Complainant was provided with the Respondent’s submission less than 24 hours in advance of the hearing but made no issue regarding the content of same. The supporting documents were also accepted. The Complainant alleges that she was Unfairly dismissed after about eighteen months of service. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent entity was represented by the Director of Cleaning as well as the Manager in charge of Daily Office Cleaning. The Respondent provided me with a written submission dated the 22nd of November 2022. This came with some supporting documentation and in particular included some text messages between the parties. The witnesses gave evidence on Affirmation. The Respondent rejects that there has been a Dismissal and that the Complainant was offered a placement in an alternative site after her continued attendance at her usual place of work became unviable. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced by the parties in the course of this hearing. The Complainant commenced her Employment with the Respondent Contract Cleaning company in and around July of 2020. The Complainant was placed in a HSE site in Dundalk and this was the only site that the Complainant ever worked in whilst she was an employee of the Respondent Company. The position seems to have been created in response to the Covid pandemic as the Complainant had to present at the office for one and a half hours each weekday to conduct a “Hand Touch” deep clean of the premises to combat covid transmission. The HSE is a large client of the Respondent Company, and it provides Contract Cleaning to a large number of the HSE sites in Dundalk and beyond. The Complainant says that she applied herself to the task and that she had a good routine ensuring that she got everything thoroughly done in the time allotted. I note that the Complainant had to bus to and from her employment and that her times were very much set each day. It is an unfortunate fact that the Complainant was unlucky enough to have developed Covid type symptoms up to three times in 2021 which meant staying away from the workplace until a PCR test could be arranged. In addition, the Complainant was deemed a Covid close contact in and around November 2021 which meant she had to isolate until a PCR could be arranged. In addition, the Complainant had missed a day or two of work as she had had to get a scan performed in and around October 2021. On each of these occasions I am satisfied that the Complainant notified her Employer that she would not be available for work. I do not doubt that these absences caused difficulties for the Employer who needed to back fill these jobs as a matter of urgency so as to keep this valuable client happy. However, this a is a large Contract Cleaning company with up to 350 employees so there can be no doubt that the Respondent was well used to taking swift replacement action when required. In this regard, it is noted, that no issue was ever made by the Respondent concerning the level of absenteeism and indeed in evidence the Director confirmed that staff becoming Covid Contacts and having covid symptoms were, at the time, a regular feature across the workforce. However, the evidence does also tend to suggest that the Respondent was not always able to replace the Complainant at short notice and that this was an issue for the HSE which was running a densely populated service against a Covid backdrop. I am inclined to accept that on or about the 14th of December 2021, the HSE Management in charge of the building wherein the Complainant was conducting her daily deep clean contacted the Complainant’s Line Manager MM and requested an onsite meeting. MM asked the Director to attend the meeting with her. It is clear that HSE Management had formed the impression that the Complainant was not working at an optimum level. It is also clear that instead of seeking to address this as an issue with the Complainant – through her Employer – the HSE had made the decision that they wanted an immediate replacement, with the Complainant to be pulled form the building by the following Friday the 17th of December. HSE Management suggested to the Complainant’s own Managers that there were high levels of absenteeism as well as late starts and incomplete work. This was all presented to the Respondent witnesses as justification for a decision which had already been made in-house. MM had the unenviable task of breaking the news to the Complainant. It is clear from the evidence of both the Complainant and MM that the conversation was very, very upsetting. The Complainant couldn’t believe she was being terminated and didn’t accept any of the criticisms being directed at her concerning the quality of her work. She says her Manager MM knew and agreed that she had always notified them of absenteeism as and when they arose and why they arose. The Complainant could not believe that following Government guidelines was costing her this job. She says MM was also upset and indicated to her that the HSE Managers just didn’t want to hear any excuses. I accept that the Complainant was entitled to be shocked and upset by what happened. She had no inkling that her work and time keeping was being tracked and had been deemed not up to scratch. She was afforded no opportunity to hear or understand at first hand what the problem was with the HSE. She was certainly not afforded a right of reply with the HSE. The decision was made without any regard for how this would impact on her. I can understand that the Complainant felt that her Employer did not have her back when it did not even try to push back on the allegations being made. The Complainant did say in evidence that in the course of the conversation that MM stated that they would “see about getting something else”. I am therefore satisfied that at that moment in time, the Respondent intended locating another position for the Complainant. In fact the Respondent gave evidence that they were always trying to recruit and retain staff and that moving staff between different locations is common and, indeed, is factored into the Contract of Employment. The Complainant says she heard no more from her Employer until after the Christmas period. She gave evidence that she was upset that there was no follow up call to see how she was, and I quite understand that she felt abandoned. On the 29th of December (12 days after the first conversation) MM texted the Complainant about the job offer she’s already made and to see if the Complainant wanted to take it. The Complainant says this is the first she heard of any such job offer. MM explained the details and as a replacement position it seemed ideal as it was 9 hours over three days a week at a premises close to the previous one, overseen by the same HSE Manager. As this was another HSE contract the Complainant was understandably reluctant to take it though I am not clear that she ever communicated this to the Respondent. The next day - December 30th - the Complainant was in touch with MM looking for her holiday pay for the Christmas period and whatever holiday time was built up before the removal from the HSE contract. This text exchange appears, to my mind, to be a definite conclusion of the relationship. MM in particular states that she will “add holidays as final wages next time”. There is no further communication. The Complainant genuinely believes she was fired and the Respondent believes that the Complainant has chosen not to relocate to the alternative on offer. In evidence the Complainant indicated that she has not returned to work since this time and, in fact, has not looked for work. It, therefore, appears that there has been no mitigation for the Financial loss incurred. I explained to the Complainant that there are some UK decisions on this point of third party (in this case the HSE) applying pressure on the Employer to remove a contracted Employee from the third party site. These are the case of Scott Packing and Warehousing Company Limited -v- Paterson 1978 IRLR 166 where Lord McDonald in this Tribunal pointed out that the third party pressure to dismiss could constitute a substantial reason justifying the dismissal of the employee so as to fall within the terms of now s. 98 1 b and he continued at paragraph 6 on page 167: “In our view an employer cannot be held to have acted unreasonably if he bows to the demands of his best customer in a situation such as this even the customer’s motive for seeking the removal of the employee was suspect. “ The second case of Henderson -v- Connect South Tyneside Limited 2010 1RLR 468 states: “The employer has done everything that he reasonably can to avoid or mitigate against the injustice brought about by the stance of the client, most obviously by trying to get the client to change his mind and, if that is impossible, by trying to find alternative work for the employee - but has failed, any eventual dismissal will be fair: the outcome may remain unjust but that is not as the result of any unreasonableness on the part of the employer” Having considered all the facts as presented, on balance I find that the Employer did not do everything it could to mitigate against the injustice visited upon the Complainant. She was accused and removed without any effort made by the Employer to protect her good name. They simply accepted the allegations as true. In fact, the Employer repeated the allegations as matters of fact in both written and text correspondence. I accept that the Employer did make an honest attempt to try and relocate the Employee, but I am not sure there was ever any reality to asking the Complainant to continue working in a building which would be overseen by the same HSE Manager who had been instrumental in removing her. I am therefore finding that the Complainant was Unfairly Dismissed. In assessing loss I must have regard for the fact that the Complainant incurred no financial loss and I am limited to anything up to four weeks remuneration pursuant to Section 7(1)(c)(ii) of the UD Act. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00048495-001 The Complainant was Unfairly Dismissed and I award €400.00 |
Dated: 19-01-2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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