ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00042220

Parties:

Complaint:

Date of Adjudication Hearing:  04/05/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance withSection 13 of the Industrial Relations Act 1969 following 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:

The complaint referred is that the Worker was unfairly dismissed without due process.

Summary of Worker’s Case:

The Worker stated that she was employed as a Cleaner from around 1 June 2022 to 19 September 2022.  She worked around 15 hours per week.  After she asked for some extra hours, she was called in by one of the Owners and told to leave the nursing home.  She said some reference was made to drink and drug use and that her work was not up to par. The Worker said that she had been a Cleaner all her career and never had any problem.  She denied the Employer’s contention that she was unreliable and often swapped shifts or failed to come into work.  She said she only swapped shifts once or twice.  She said that when she was out sick she was told there was no need for doctors certs.  The dismissal letter she received was worded as follows:

“As per the company's disciplinary rules and procedures, we retain the discretion to take into account your length of service with the company and to vary the procedures accordingly.

As a consequence, therefore, and taking into account your length of service I have decided that your employment should be terminated as you are unsuitable for the role of Cleaner. The fact that you didn't demonstrate your skills and abiJity to perform in your role, and you didn't comply with company policv and procedures. This will take effect on 19 /09 /2022, you will be paid 1 weeks' notice along with any monies owed to you. Your final payment will be issued to you on the 27"' of September 2022 and your employment status will be reflected on Revenue records in accordance with Revenue PAYE modernisation. You can access these details on your "my account" on Revenue's website. You have the right to appeal against my decision, and should you wish to do so you should write to xxxxx, Director, xxxxxxxxx within 7 days giving the full reasons as to why you believe your dismissal was either inappropriate or too severe.”

She believes she was dismissed because a relative of her ex partner phoned the Employer which led to her being accused of drug taking.

She was dismissed without being given a chance to be represented or respond to untrue rumours.

Summary of Employer’s Case:

The Respondent operates a Nursing Home. The Claimant was engaged as a Cleaner.  The claimant was dismissed from her employment on the 19th September 2022, on the grounds that she was unsuitable for the role of Cleaner.  The claimant was advised that she could appeal the dismissal to one of the owners within seven (7) days of dismissal but did not exercise this option. She was specifically advised that her appeal could set why she felt her dismissal “was either inappropriate or too severe”.

The claimant has brought a claim under the Industrial Acts.   The claimant does not have twelve (12) months continuous service.  Following on from this the Workplace Relations Commission (WRC) can only issue a Recommendation, which is not binding on the parties.  Notwithstanding this and as a mark of respect to the WRC the Respondent will engage with the WRC in relation to the claimant’s complaint.   Quite rightly the Respondent will not engage with the WRC in relation to many of the matters engaged in the claimant’s complaint form as they are not relevant to the facts in issue. Unfortunately, the claimant was unable to do the work she was engaged to do nor comply with the respondent’s policy and procedures.

Case law

Case law in support of the Respondent’s position included cases such as:

Geoghegan t/a Taps v A Worker INT 1014 in which the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

The Respondent refers to the case of Pungor v MBCC Foods Ltd. (UD584/25) where the EAT determined as follows:

“The [employee]… was afforded the right of appeal, which she did not avail of. The [employee] has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.”

In summary, the Claimant was dismissed as she was unsuitable and she did not appeal the dismissal.  For this reason her claim should fail.

One of the Directors of the Nursing home stated that in the three and a half months the Claimant was employed, she was in and out of work, sometimes ringing in, sometimes not ringing in.                      She worked three days a week.  Four absences were outlined in June, July and August/September where she was either on sick leave with no cert or was in for two days instead of three.  The Director stated that drugs were not mentioned in the dismissal meeting.

Findings and Conclusions:

There were contradictory and irreconcilable accounts given by both parties regarding the termination of employment meeting.  I note the dismissal letter refers to unsuitability and not demonstrating skills and ability and not complying with company procedures.  The Worker was called in to a dismissal meeting without notice of what the meeting was about and was not given a right of hearing or representation.  Statutory Instrument S.I. 146 of 2000 sets out the basic rights of employees subject to disciplinary action as being the right to know the case against them, the right to reply and the right to representation and finally, the right to appeal  the sanction.  I note the latter option was given to the Worker.  However, without the earlier steps in the process, her failure to exercise her right to appeal was not fatal to her case.  I note the Employer’s point about unreliability and it seems the Worker was absent for times throughout her short employment without proper certification or notice.  In that case she has contributed to the situation in which she found herself.          Because the Employer did not afford the Worker due process, even with her short service, I find that she was unfairly dismissed and I recommend that the Employer offer her a sum of €500 compensation to draw a line under this dispute.

Recommendation:

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

I recommend that the Employer offer the Worker a sum of €500 compensation to draw a line under this dispute.

Dated:   6th July 2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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