UDD2323

1.Appeal of Adjudication Officer Decision No(s)ADJ-00026360

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 22 January 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 4 May 2023. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by e-Celtic Limited ofa decision of an Adjudicator Officer (ADJ-00026360 - dated 12 December 2022) under the Unfair Dismissals Act 1977. The Adjudication Officer upheld the complaint of unfair dismissal by Ms Marta Klinkosz and awarded her €30,578 in compensation.

The Court heard the appeal on the 4 May 2023 in a virtual Courtroom.

For ease of reference the parties are given the same designation as they had at first instance. Hence, Ms Klinkosz is referred to as “the Complainant” and e-Celtic Limited is referred to as “the Respondent”.At the outset of the hearing the Complainant confirmed that she was happy to proceed with the appeal hearing without the services of atranslator.

The Court gave the parties an opportunity to be heard and present to it any evidence relevant to the appeal. Both parties declined to proffer witness testimony and the hearing was conducted on the basis of written and oral submissions.

Position of the Respondent

The Respondent refutes the claim that the Complainant was unfairly dismissed. Mr Subir Mukherjee, on behalf of the Respondent, submits that a major revenue-earning contract was lost due to negligence on the part of the Complainant. Her role was to scan old books in order to reproduce them in a digital format. If pages are missed when scanned, the page sequences become distorted. Despite repeated warnings the Complainant failed to carry out her work properly. The Respondent had no other option but to terminate her employment.

The Complainant was notified that her employment was to terminate at a meeting on 2 December 2019. She was given one month’s notice, as per her employment contract. The termination letter clearly sets out that her employment was terminated due to performance issues. It cites a total of 17 issues that arose since 2015, three of which occurred in 2019. Multiple written warnings were issued to her prior to the termination of her employment. The Complainant was notified verbally about her poor performance and received emails about the quality of her work on a regular basis.

The Respondent refutes that the Complainant was ever advised that her role was redundant.

The Respondent submits that it lost a contract because of the Complainant’s work performance. As a small company, it accepts that it may not have followed all procedures, but it had no option but to terminate her employment.

After she left the employment, the Respondent discovered that the Complainant was doing her own personal work on her work computer during her working hours, which in itself is a serious misconduct. Furthermore, she failed to return company property.

Mr Subir Mukherjee submits that the Adjudication Officer’s findings did not reflect actual facts and that the financial burden of the award made will put a question mark on the existence of the company and the employment of all the people associated with it. The company is now in a loss-making position due to the loss of a key contract.

Position of the Complainant

The Complainant was represented by her husband, Mr Piotr Klinkosz. He outlined to the Court that the Complainant returned to work from maternity leave in the latter part of 2019.On 2 December 2019, she was called to a meeting by her manager and advised that her employment would terminate on 31 December 2019. She was told that a contract with a provider had been discontinued. There was no mention of any performance issues or why the contract was discontinued. She understood there was little work for her to do.

The Complainant was told to take her remaining annual leave and that she would receive a letter in writing. When she queried her entitlement to a statutory redundancy payment, her manager undertook to get back to her. Despite multiple requests she was not provided with a termination letter.

On 2 January 2020 she contacted the Respondent again and was told that she would receive her P45 when the accountant returned to the office on 6 January 2020. On 7 January 2020, she was invited to attend a Skype meeting the following day, but the Respondent failed to attend. She made further attempts to contact the Respondent.

When the Respondent finally contacted the Complainant via Skype he offered to pay her €2,550 as a redundancy payment and said that if she agreed to those terms he would provide her with a termination letter and her P45. There was no mention of performance issues. When the Complainant said that her statutory redundancy should be €5,500 after working 5.5 years, the Respondent disconnected the Skype conference call.

On 7 February 2020, the Complainant finally received a termination letter, which was backdated to 2 December 2019 and confirmed her termination date as 31 December 2019. That letter stated that she was dismissed because of the poor quality of her work. No other reasons are stated.

The Complainant refutes the assertion made about performance issues. Her daily target rate was increased from 2000 scanned pages per day to 4000 scans per day after the owner conducted a work time study. No account was taken of work quality or equipment issues. She highlighted multiple issues about faulty equipment which were not addressed.

The Complainant was actively looking for jobs following her dismissal but was unable to apply without a reference. She experienced multiple problems with accessing job seeker benefits, as she was still registered as an employee of the Respondent with Revenue until 14 February 2020.

The Relevant Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

• 6.— (1)Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
  
  (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
  
  (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
  (b) the conduct of the employee,
  (c) the redundancy of the employee, and
  (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

• “(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—
  
  (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
  
  (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

Deliberation & Findings

Where the fact of dismissal is not in dispute, it is for the Respondent to (1) identify the reason for the dismissal and (2) justify it by showing it was a fair and proportionate response in all the prevailing circumstances.

The Respondent identified the poor performance of the Complainant as the dominant reason in its mind at the time the decision was made to dismiss. The termination letter states that the Complainant’s employment was terminated due to the poor quality of her work, which resulted in a client ending a contract. Having done this the onus is on the Respondent to justify the dismissal by showing that it was a fair and proportionate response in the circumstances.

It is well settled that dismissal grounded on poor performance must be predicated on previous warnings where shortcomings were identified. An employee must know in unequivocal terms the standard to which she is expected to perform and must be provided with a fair opportunity and where necessary, help in achieving that standard. Dismissal for poor performance can only be fair where there has been a succession of failings and the application of a gradual staged disciplinary process.

TheRespondent told the Court that the Complainant wasnotified verbally about her poor performance and received emails about the quality of her work on a regular basis. The Court was directed to various emails in support of the Respondent’s position, however, the Respondent acknowledged that the wording used in some of those emails “may have beensoft”. In response to questions from the Court, the Respondent accepts that the Complainant was given no formal warnings at any stage during her employment about problems with her work performance. The Respondent also accepts that the Complainant was not made aware in advance of the termination meeting on 2 December 2019 that she was a risk of losing her job. It is also accepted that there was no mention of any performance issues at that meeting.

In response to questions from the Court, Mr Subir Mukherjee told the Court that a procedure for dismissals was set out in a company handbook, which he believed was followed. No details of that procedure or the company handbook were provided to the Court. Mr Subir Mukherjee later qualified that statement to say that as a small company it may not have followed all procedures, and that the size of the company is a relevant factor that should be taken into account by the Court.

The Court acknowledges that procedures for addressing performance issues may vary in different employments. For this reason the Court assesses each case before it on its own merits. The Court also acknowledges that the right to fair procedures may need to be balanced against other considerations, however, the small size of a company does not mean that a fair process does not apply.

On the facts of this case, it is clear that before the Complainant’s employment was terminated she had never been subject to any formal warnings about her performance or forewarned that her poor performance could result in her dismissal. Before the decision was made to terminate her employment, the Complainant was not advised of the nature of any complaints against her. She was not given an opportunity to respond to any such allegations or complaints. She was not advised that she was liable to any sort of sanction. She was not given an opportunity to represented at the meeting. She was not given the opportunity to appeal the decision to dismiss her.

In the view of the Court the Respondent has failed to set out any grounds justifying the termination of the Complainant’s employment on grounds of performance.Furthermore, the Court cannot be satisfied from the submissions and the oral submissions made on the day of the hearing that the process used by the Respondent in terminating the Complainant’s employment was fair.

Having considered all of the circumstances of this case the Court finds that the dismissal of the Appellant was unfair.

Remedy

Section 7 of the Act states

• 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
  
  (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
  
  (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
  
  (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
  
  (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
  
  2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

  ( a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

  ( b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

  ( c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

  ( d ) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

The Court having considered the remedies available has decided that reinstatement or re-engagement of the Complainant is not an appropriate option given the lapse of time since the dismissal, and the evident contradictory position of the parties. The Court instead takes the view that compensation is the appropriate redress in this case.

Having assessed all the information before it the Court considers that the Complainant suffered an actual and prospective loss as a result of her unfair dismissal of €29,078 and havingregard toall of the circumstances of this casethis amount is awarded as just and equitable compensation.

Determination

The Court determines that the complaint is well founded.

The Court orders the Respondent to pay the Complainant compensation in the sum of €29,078.

The decision of the Adjudication Officer that the complaint is well founded is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
SOC	______________________
5 JULY 2023	Deputy Chairman