ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00032712

Parties:

Complaints:

Date of Adjudication Hearing:  08/02/2023 & 05/04/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the UnfairDismissals Acts, 1977 – 2015 and Section 7 pf the Terms of Employment (Information) Act 1994, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Due to the existence of sensitive medical information in this case I have decided to anonymise the decision as allowed for under Section 13 and 14 of the Workplace Relations 2015 Act:

13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determinesthat, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.

Background:

The complaints are that the Respondent unfairly dismissed the Complainant and failed to provide a written contract of employment.

Summary of Respondent’s Case:

The Claimant was employed by the Respondent as an assistant at the Respondent’s grooming and doggie day-care studio and carried out the general duties involved with animal care and client relations. The Claimant commenced her employment on the 10th of September 2018 and was employed for a period of two years. A number of difficulties arose during the term of the Claimant’s employment with the Respondent. As a result the Claimant’s employment was subsequently terminated by the Respondent. The Claimant claims that said termination was without warning or proper notice period being given, contrary to the Unfair Dismissals Act 1977. The Claimant also states that she was never provided with a contract of employment as set out under the Terms of Employment (Information) Act 1994.

The Respondent wholly disputes these claims and submits that the Claimant’s employment was fairly terminated after a number of both verbal and written warnings were given to the Claimant in relation to misconduct and consistent incompetence in carrying out her duties. The Respondent asserts that said warnings included a final written warning and that both the Claimant’s family and her mentor/job coach were aware of the deteriorating situation and the warnings.

The contract of employment was provided to the Claimant on the commencement of her employment.

The Claimant initially commenced employment with the Respondent on a work experience basis when the Claimant was attending college. The Claimant subsequently failed her college exams and began voluntary work at the Respondent’s business in order to garner further experience as it was, according to the Claimant, the field in which she wanted to work in the future. The Respondent asserts that during this period of work experience the Claimant was hard-working and diligent in the carrying out of her duties and no issues arose at this time in relation to her standards of work.

In or around the summer of 2018 the Respondent was approached by the Claimant’s mentor/job coach who enquired as to whether the Respondent would be willing to employ the Claimant as a paid employee. Given her previous experience of the Claimant and her work ethics, the Respondent agreed to give the Claimant a position at her business.

The Claimant commenced her employment on the 10th of September 2018 and was to be employed on a part-time basis, 21 hours per week over the course of four days per week from between Monday and Friday. These terms of employment were set out in the Claimant’s contract of employment along with the other usual statutory terms such as hourly rate, break times, holidays, duties and responsibilities to name a few. Said contract is dated the 12th September 2018.

The Respondent contends that the workplace relationship ran smoothly until in or around the summer of 2019 when the Claimant began to experience personal problems outside of the workplace. The Respondent alleges that the Complainant engaged in dating apps which led to inappropriate situation including the use of drugs and/or alcohol and the Complainant made this known to the Respondent.  The Respondent asserts that said personal problems began to affect the Claimant’s abilities and concentration levels in carrying out her duties and responsibilities and this became an ongoing problem from this date to the date of termination of her employment in 2021. The Respondent claims that she was left with no alternative but to terminate the employment as a result of this deterioration in both want and capability of the Claimant to perform her duties under her contract of employment.

The Respondent felt genuinely concerned for the wellbeing of the Claimant and was worried about the sudden changes in attitude and behaviour as the Claimant had always been a pleasant and competent employee prior to this period. Thus, in an attempt to accommodate the Claimant and offer her support, the Respondent sat down and had a discussion with the Claimant outlining the decline in her standards of work. The Respondent was hopeful that the Claimant was going through a “rough patch” and began to allocate tasks and duties that the Claimant preferred in order to accommodate her temporarily. However, the Claimant continued to fail in these reduced duties also and the Respondent issued her first verbal warning to the Claimant on the 16th August 2019.

The Claimant’s work ethic and abilities continued to decline and the Respondent issued the Claimant with her first written warning on the 30th December 2020.

Following a discussion with a family member the Respondent agreed the Claimant’s duties could be reduced to just dog walking in or around December 2020 to accommodate the Claimant’s needs.

Following the failure of the Claimant to attend on one day in March 2021, the Respondent contacted her and was horrified by the response that she had broken the Covid-19 restrictions by travelling outside of the 5km radius and that as a consequence of this she was now infected with the virus. The Claimant further stated in her message that she had still intended to attend work with the virus but that her mother had stopped her from going. The Respondent was extremely angry and upset over this particular incident as she had worked very hard to implement the guidelines in her business and among her staff, as well as trying to abide by the law whilst also trying to maintain a business during the difficult times of Covid-19. Further, the Respondent’s immediate family were high risk due to medical issues, which the Claimant was aware of, and thus the Claimant was knowingly content to potentially spread the virus to the Respondent, her staff and her family.

The Respondent asserts that this was the final straw in a long list of grievances over time with the Claimant and her lack of ability and lack of effort to perform even the most basic duties. Despite numerous verbal and written warnings, the Claimant engaged and continued to engage in actions that do not meet the company’s expectations, and which amount to gross misconduct including, inter alia;

• Breaking Covid-19 guidelines and willingness to cause health & safety risks.
• losing dogs and grabbed dogs that should be treated with care in an inappropriate manner.
• administering medication to a dog when she was strictly told not to, resulting in the dog overdosing.
• feeding multiple dogs incorrectly due to failure to listen to instructions which resulted in said dogs having surgery.
• being rude and obnoxious to clients and would often hang up the phone or give incorrect information over the phone.
• spraying perfume on dogs and subsequently lying that she had washed them.
• dragging dogs along the street when they tried to stop to go to the bathroom as the Claimant would not clean up after the dogs as per law.

The Respondent claims that it was due to the Claimants steady decline over the course of two years that resulted in the termination of her employment. The Respondent states that this was not without warning, in fact it was quite to the contrary whereby numerous verbal and written warnings were given to the Claimant not only by the Respondent but by the manageress and that the Claimant’s family and mentor were fully aware of this and engaged in the process for its entirety. The Respondent contends that she offered ample opportunity to the Claimant to rectify the situation, through open discussion with the Claimant and her family, by accommodating the Claimant in reducing her responsibilities and workload where needed and when requested, and by giving the Claimant the benefit of the doubt and providing continuous training and even writing down instructions and tasks for her to follow.

The Respondent claims that there was little to nothing else that she could accommodate the Claimant in with keeping her position of employment. The Respondent claims that the Claimant posed a danger to herself, the staff, the animals and the clients in the careless and neglectful manner in which she was continuing to act in the carrying out of her duties. Thus the Respondent asserts that it would have been negligent of her to continue the Claimant’s employment given the toxic environment that the Claimant was creating in the business. The actions of the Claimant posed as a threat to the continuation of the services carried out by the Respondents business. Consequently, the Respondent contends that the Claimant was fairly dismissed.

The Respondent submitted case law in support of its arguments.

Sworn evidence was given by the Respondent.  She stated that she did provide the Complainant with a written contract.  She gave it to the Complainant, the Complainant’s job mentor/coach and to the Department of Social Protection.  The Complainant was employed on a wage subsidy scheme and the DSP required a written contract to be in place.

In relation to dismissal, the Complainant’s problems began in 2019 and there were numerous incidents where she put dogs at risk, where she acted in a manner which was completely unacceptable.  Instances were outlined in great detail by the Respondent.  She stated that she gave numerous verbal warnings, sometimes in the presence of the Manager Ms G.  A written warning was given in December 2020.  There is no dispute that the Complainant suffered from epilepsy.   Following the written warning, it was agreed that she would do dog walking only.  She dragged a small dog through bushes and other incidents put dogs’ health at risk.   The final straw was when the Respondent was sent a message which indicated that the Complainant had broken the Government’s restrictions on movement during Covid-19 lockdown and was now required to isolate as she may have the virus.  The Respondent was subsequently informed that the Complainant tested positive for the virus.  This was the final straw as the Complainant had already been performing so badly that the business was potentially at risk, and now she had broken Covid rules and was putting staff, and the Respondent’s vulnerable family members at risk.  The Respondent had no option but to dismiss the Complainant in circumstances where she had been given numerous verbal warnings and a written warning for unacceptable work performance and had also broken the rules around Covid-19.                                                                                                                                                                                   In cross examination, the Respondent agreed that the verbal warnings were sometimes ‘informal’ and that she had no dates recorded for many of them.  She also agreed that she did not have a log of every issue that occurred but she would have advised the Complainant’s job coach at the time.             When asked if she knew of the existence of Statutory Instrument S.I. 146/2000, which governs the procedures for grievance and disciplinary matters in employments, she replied that she was not so aware.  

Sworn evidence was given by Manager Ms G.  She stated that the work performance of the Complainant was good at the start but went downhill in 2019. She gave evidence of the incidents which she stated put dogs at risk.  She stated that the affects on the dogs were serious and she witnessed the Complainant being given numerous verbal warnings.  She herself emphasised to the Complainant the standards of care needed for dogs and their safety.  The Complainant always seemed to accept the verbal warnings.

Summary of Complainant’s Case:

The Complainant’s contention is that she was dismissed unfairly as no due process was afforded her.  The Complainant’s solicitor examined the shortcomings in the handling of the dismissal by detailed cross examination of the Respondent/Proprietor of the business and the Manager.  He alleges that no due process was afforded the Complainant and that the significant element of this case is the complete lack of procedures as set out in the code of practice S.I. 146/2000.

The Complainant’s mother gave sworn evidence.  She stated that she is the person responsible for the Complainant, who lives at home with her.  The Complainant was diagnosed with epilepsy in 2005 and has been treated for neurology and anxiety issues.  She is on medication for her conditions.  Contrary to what the Respondent stated, there is no evidence of addictions or alcohol problems.  Regarding the Respondent’s assertion that the Complainant breached the law or Covid rules, the witness stated that she drove the Complainant to a Filling Station half a kilometre away where she met with one person and went for a walk for 2 kms.   She denied Covid breaches.  

Findings and Conclusions:

CA-00043314-001 - Unfair Dismissals Act 1977

The evidence shows that the Respondent encountered numerous problems with the Complainant’s performance for the last eighteen months of her employment.  The law provides at Section 6 of the Unfair Dismissals Act 1977:

 (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.

The Respondent argues that the Complainant was dismissed on grounds of capability and competence and conduct.   It seems indisputable from the evidence that the Complainant acted in a reckless and endangering manner in many of the incidents outlined in the evidence.

However, when moving to sanction or dismiss an employee, the employer has responsibilities which are clearly laid down in statutory instrument S.I. 146/2000, of which the Respondent appears to have had no knowledge.  Specifically that S.I. provides inter alia that the essential elements of any grievance and disciplinary procedure are that they be rational and fair and that the range of penalties that can be imposed is well defined and that the procedures must comply with the principles of natural justice.  These include the right to fully respond to allegations and complaints and for the employee to be represented.

I accept the Respondent’s evidence that the Complainant was spoken to on numerous occasions and received a written warning on 30 December 2020.  However, I have been presented with no evidence to show that the Complainant was advised to bring someone with her when verbal warnings were being given.  There is no evidence to show that the issues outlined in the written warning  were dealt with in a manner that would allow for hearing and representation.   I find that there was a lack of proper procedures in dismissing the Complainant and for that reason alone, I find she was unfairly dismissed.  The Complainant contributed significantly to the situation and this must be taken into account when deciding remedy.   I note no evidence of mitigation of loss.                          I find that re-instatement or re-engagement is not appropriate in the circumstances where the employment relationship is completely sundered.  Compensation at a token level is the appropriate remedy and I award the Complainant the sum of €300.

CA-00043414-002 – Terms of Employment (Information) Act 1994

I note the written contract of employment dated 18 September 2018 submitted by the Respondent and the evidence that the Department of Social Protection confirmed the receipt of same as required to be attached to the application for the wage subsidy scheme.  I accept the evidence of the Respondent and I find the complaint to be not well founded.

Decision:

Due to the existence of sensitive medical information in this case I have decided to anonymise the decision as allowed for under Section 13  and 14 of the 2015 Act:

13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determinesthat, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.

CA-00043314-001 - Unfair Dismissals Act 1977

I have decided that the Complainant was unfairly dismissed and I require the Respondent to pay to the Complainant the sum of €300.

CA-00043414-002 – Terms of Employment (Information) Act 1994

I have decided, for the reasons stated that the complaint is not well founded.

Dated:   29th June 2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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