ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044186
Parties:
| Complainant | Respondent |
Parties | Milka Alves Da Rocha | O'Meara Aspect Design Limited |
Representatives | Gavan Mackay, Mackay Solicitors |
|
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00054788-001 | 31/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00054788-002 | 31/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00054788-003 | 31/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00054788-004 | 31/01/2023 |
Date of Adjudication Hearing: 12/10/2023
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 25 of the Equal Status Act, 2000, 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.
Summary of Complainant’s Case:
On August 10th, 2022, the complainant answered a telephone call which came to her at the respondent company. She was unable to catch the name of the caller and advised her manager Lynne O’Neill accordingly, who took over the call.
Following the call, the complainant overheard her manager ridiculing her to the customer by saying "me no speak English" in a mocking tone and accent and laughing with the customer. The following week, the same individual called and spoke to the complainant about her accent and asked how long she had been in Ireland. The complainant felt ridiculed and humiliated.
Nothing further occurred until November 30th, 2022, when a staff meeting took place and Mr. Jamie O’Meara, a director of the company discussed with each employee their roles and how they were performing in the presence of their co-workers.
There were about seven people at the meeting. When Mr. O’Meara spoke to the complainant, she says his tone changed and he adopted a loud and aggressive manner towards her saying that what she was doing was ridiculous and referred to how she interacted with a co-worker.
Specifically, he said “if you’re not happy, the doors and the gates are open”.
The complainant was the only person to be spoken to in this manner and she was upset at the time of the discussion. However, she did not reply to Mr. O’Meara. Following the meeting Ms. O’Neill approached her to see if she wanted to discuss the matter, but the complainant said she did not wish to do so as she remained very upset about what had happened.
She asked to leave work one hour early that day and thereafter was certified as being unfit for work for one week. On her return on December 8th, she asked to speak with Miss O’Neill and expressed her sense of hurt over how she was spoken to at the staff meeting.
In the course of the meeting the complainant was told by Mr. O’Meara that arising from some unspecified mistake allegedly made by the complainant he might have to shut the company down. The complainant asked for more information, and he said he would discuss it further with the accountants.
She was absent from work on December 13th and on her return the following day she received an email requesting that she attend an investigation meeting, and she did so. The invitation to the meeting did not provide any detail as to the nature of the investigation other than that they would be discussing ‘something that has been brought to our attention in the last few weeks’. No elaboration of this was included.
Following this meeting the complainant was invited to a disciplinary hearing on December 16th in order to ’discuss all issues in more depth’.
She did not attend the disciplinary meeting although she was on the premises while it was going on.
However, there was no attempt to persuade her to attend the meeting and it proceeded in her absence. Following this meeting she was dismissed for gross misconduct and for failing to obey a reasonable management instruction. She appealed but no action was taken on her appeal.
This represents a serious breach of the complainant’s right to a fair procedure. She was not given any detail of her alleged misconduct; she was not given the opportunity to consider the case against her or prepare a defence or to be represented at the hearing.
Additional allegations were added by the respondent following the investigation and disciplinary process of the respondent failed to wait to adhere even to its own policies and procedures. It also says that dismissal was totally disproportionate response.
The complainant gave her direct evidence on oath. She described the incident in August 2022 and said that the only difficulty she had on the call was hearing the caller’s name. It was at this point that Ms. O’Neill made the ‘Me no speak English’ remark.
At a later stage her attention was drawn to the system for inputting invoices and on November 30th at the staff meeting, which was the first one she had attended a comment was made in her direction to the effect that something was ridiculous without specifying what it was.
Mr. O’Meara stated to her ‘if you’re not happy the doors and the gate are open’. The complainant said she was certain that the comment was directed exclusively at her. She also stated that at the investigation meeting no specific questions were put to her about any aspect of her conduct or performance. After this meeting she was unwell and, on her return to work sought a meeting to discuss the situation.
She confirmed that her evidence that she was given no accompanying documents related to the proposed disciplinary hearing of which she was given only one day’s notice. She also confirms that she was working in the office that day and had asked that it be rearranged so that she could have an accompanying person. This was refused and even though the time was rearranged she did not attend.
She was completely taken aback by the allegation of gross misconduct. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
There are four complaints. One of unfair dismissal, another related to minimum notice, the third related to outstanding wages and a fourth complaint under the equality legislation which was erroneously made under the Equal Status Act.
Based on the uncontested but persuasive sworn evidence of the complainant, as well as some of the documentary evidence submitted, the sequence of events leading to the termination of her employment makes for disturbing reading.
Specifically, in the absence of an appearance by the respondent it is not clear how these events combined with each other to the extent that she ended up losing her job.
The incident on August 10th, 2022, was an unpleasant one for the complainant and involved unacceptable treatment of her due to a simple problem in communication which could arise even with a native speaker of English. (The complainant gave her evidence to the hearing in English, and she has a very good standard of fluency and comprehension).
Nothing further happened until the staff meeting on November 30th at which she was singled out for some form of special treatment. It is unlikely (but possible) that there was any causal connection between these two events which fell over three months apart, but in some ways that renders it even more difficult to understand why she was treated as she was subsequently.
In respect of the events which followed the November 30th meeting it is easier to see a closer connection.
The complainant went sick following the meeting on November 30th and returned on December 8th.
She met with Mr. O’Meara and Ms. O’Neill to express her concern at how she had been treated.
It was at this point that the rather bizarre allegation emerged to the effect that the complainant had done (or failed to do) something that threatened the financial viability of the entire business, although she was not told what this was.
Indeed, her evidence was that Mr. O’Meara stated that he would have to speak with the accountant suggesting that he too was not clear about the detail (and this is repeated below in the letter to the complainant‘s solicitor on February 2nd, 2023).
Within a few days she was invited to what was described as an investigation meeting, the purpose of which was far from clear. It was described very vaguely as being to discuss ‘something that has been brought to our attention in the last few days’.
Two days later, she was invited to a disciplinary hearing to discuss ‘all issues in more depth’ again, without being told what those issues were,and while there was some confusion over the times for the meetings she did not attend although she was present on the premises.
This was followed by her dismissal for ‘gross misconduct’; for failing to carry out a management instruction.
The notes of the investigation meeting are the most peculiar imaginable. There is a degree of skirting around issues, trying to draw the complainant into giving answers to fairly mysterious and poorly formulated questions, most particularly an insinuation that she might in some way be connected to a potential liability for a payment of €100,000 to the Revenue Commissioners and which could result in the closure of the company.
None of this was explained in any detail.
A letter from the respondent to the complainant’s solicitor on February 2nd, 2023, contains an equally garbled version of this allegation. (This is a reference to the position after the return to work meeting.)
It states
‘I also pointed out to your client that I would be doing a deeper investigation and would be holding our investigation meeting to which I did. [sic] I would also like to point out to you that at this return to work meeting your client was informed briefly regarding the €100,000 owed to revenue and also the fact that I have found issues within the accounts. This is something that your client had denied knowledge of within the investigation meeting and had denied knowledge of to yourself’.
Indeed, at no stage was the complainant told what these alleged errors might be, or to what specifically the ‘errors within the accounts’ related, and she is simply invited to speculate as to what they might be.
Whatever the purpose of this exercise was, it did not succeed in establishing any fact about the complainant’s conduct one way or the other. There was no indication of any findings having been made.
Some of the questions in the investigation are as follows.
Have you signed your contract? Do you know why you are called to this meeting? Can you tell us about some errors that have been made in recent weeks and the business? Do you know about the specific errors? When did you realise these errors were made? Do you understand that we may all revenue in excess of €100,000? How did this happen? What if we are not in a position to pay this amount at this time?
It is clear from the complainant’s responses that she had no knowledge of what these speculative questions were about. There were others about which she was less than forthcoming, but in the circumstances of this so-called investigation that may be understandable. The obligation on the respondent was to put whatever evidence of any alleged wrongdoing he might have had to the complainant in a clear and intelligible way and to get her response.
The invitation to the disciplinary meeting continued in this vein.
Its purpose was described as being to discuss ‘the follow on from your investigation meeting where we will be going over all issues in more depth’. Again, no particulars were given as to what those issues might be, to say nothing of the fact that there had been very little depth the first time they were discussed.
There is also no indication in the notice of the meeting that the complainant would be facing a charge of ‘gross misconduct’.
The complainant did not attend, and while this may have been a mistake, it is hard to be critical of her given the circumstances of this ‘star chamber’ process.
The letter of termination included the following.
The hearing was to review the issues relating to gross misconduct for your role within the company. However, in addition for the reasons mentioned and for your nonattendance on this occasion and failing to obey a reasonable management instruction it has had a major impact on our decision today At the hearing you would have received copies of all the evidence and the results of the following investigations into the incident; However, with your failure to attend he did not afford us the opportunity to do so. At the hearing the information was present that your conduct was deemed to be gross misconduct and appropriate sanction will be summary dismissal. Following a full investigation and consideration of your lack of defence/explanation your conduct was unsatisfactory because: you failed to answer any of the questions posed to you during the investigation meeting and failed to be present during the hearing.
(Adjudicator’s note. This is the text exactly as per the letter).
It proceeded to communicate the decision to dismiss her for gross misconduct.
It is hard to know where the begin with this, but a good place to start is the idea that the respondent considered it acceptable to ambush a person at a disciplinary hearing with previously unpublished information about their conduct at a level that it is ‘deemed to be gross misconduct’.
This would go quite some way to explaining why there might have been ‘a lack of ‘defence/explanation’.
Any reading of the notes of the so-called investigation meeting will show that it bears no resemblance to what is required in such proceedings. Many of the questions put to the complainant in the investigation were incapable of a response and were little more than a fishing expedition. Extraordinarily, there are no questions about the complainant’s specific conduct or any alleged wrongdoing.
The attempt to attribute to the complainant blame for the fact that the respondent was denied the ‘opportunity to provide her with the information’ is perhaps the most outrageous, almost ludicrous aspect of the letter.
The respondent not only had very opportunity to do so before the meeting but had a fundamental obligation to do so. It also appears from the letter that the complainant was actually dismissed for failing to attend the disciplinary hearing, if this is what is meant by ‘failing to obey a reasonable management instruction’ in the termination letter.
The cumulative effect of these breaches of fair procedure renders the process carried out by the respondent a grossly unfair denial of the complainant’s rights to a fair process. I have no hesitation in finding that the dismissal was unfair, and this complaint succeeds.
She states her losses at €8041.00 for the period December 16th, 2022, until March 6th, 2023, at which point she secured employment. She identifies continuing losses of €58.00 per week.
I am satisfied on the basis of her evidence and written submissions that she made the required effort to mitigate her loss and I award her €10.500.00 for the termination of her employment.
Complaint CA-00054788-002 relates to the non-payment of notice. On the basis of her service of approximately seventeen months the complainant is entitled to one week’s pay, and I award her €731.00.
Complaint CA-00054788-003 arises because the respondent deducted €1000.00 from her final pay slip without any notice or authority. According to the evidence given by the complainant this related to payments made by the respondent in respect of sponsorship and her visa application.
There was no contractual or other basis for the deduction and therefore it is an unlawful deduction from her wages, and I award her €1,000.00.
There was some confusion about Complaint CA-00054788-004, which referred to the incident in August 2022 regarding the phone call.
There was an error in submitting this under the Equal Status Act, but in any event, I do not detect a prima facie breach even of the Employment Equality Act in relation to this incident, which more properly ought to have been processed under the respondent’s Dignity at Work policy. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I uphold Complaint CA-00054788-001 and award the complainant €10,500.00 for the unfair dismissal. Complaint CA-00054788-002 is well founded and I award the complainant €731.00.
Complaint CA-00054788-003 is well founded and I award the complainant €1000.00. Complaint CA-00054788-004 is not well founded. |
Dated: 21st November 2023
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Unfair Dismissal, Payment of Wages. |