Complainant

Respondent

Parties

Przemyslaw  Golczewski

ISS Ireland Limited t/a ISS Facility Services

Representatives

Brid Brennan – The HR Suite

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-00060497-001

12/12/2023

The Claimant was dismissed for gross misconduct.

The Respondent objected to any claim relating to the requisite notice not being paid as they were only on notice of an unfair dismissal claim.

The P&C business partner for the Respondent set out that GMP stands for good manufacturing practice. Critically this must be consistent. Part of this is adherence to GDP, good document practice, and this applies across the board. The partner submitted that GMP and GDP were not unique to this employer but across the industry.

The partner then referred to ALCOA.  This is to ensure that if contamination occurs they can identify where it occurred.  As a result, the documentation should only be completed after the work has been completed in the area.

The P&C business partner had previously dealt with a query in respect of pay by the Complainant.

The P&C business partner advised that he gave some advice to the Complainant’s manager regarding the letter from June 2023.  At that stage there was a discussion about whether tasks were outside the Complainant’s job spec. The P&C business partner contacted the previous employer seeking their job spec and the Complainant’s contract.

The head of HR confirmed that he had some interaction with the Complainant during the TUPE process in October 2023.

The P&C business partner gave evidence that the Complainant’s manager contacted HR about a potential breach of GMP and GDP that some work logs were not completed and others altered.  It seemed that three rooms were not cleaned. The Respondent confirmed there was no allegation in relation to signatures for the 30 and 31. The allegations included that the Complainant had put his initials over another colleagues. The Complainant’s supervisor believed he had signed on the 28th of October, for work which was due to be undertaken on the 29. 

The P&C business partner asked a Polish speaking manager to speak to the Complainant in order to prevent any language barrier. The response was that these were not his rooms. In relation to the Complainant’s suggestion that the Polish speaking manager referred to the rooms as numbers, this had not been raised previously. BHU1 has been used for a long period of time at this site. It was hard to believe that the Complainant did not know what they were referring to.  Further, it was unusual that he would say that this was not his work if he did not know what they were referring to. Physioneal was not abbreviated and the Complainant had said he did not clean it. The employee who made the call was not from Castlebar site. The Complainant’s manager gave this staff member the room names. The P&C business partner concluded that it was more probable the work had not been done and the sheet had been altered.

The P&C business partner decided to suspend the Complainant during the investigation and he was paid as normal.

The next step the P&C business partner undertook was to provide the disciplinary process and the letter with the allegations to the Complainant. The Respondent stated that the Complainant had received information about the investigation meeting. 24 hours in advance of the meeting the P&C business partner sent on soft copies of all documents referred to. 

The investigative meeting then occurred on a Saturday as these were the Complainant’s usual hours of work. The Complainant was informed he was entitled to representation, three days in advance of the meeting.

The Respondent used a manager who spoke Polish to act as an interpreter for the investigative process.

The P&C business partner stated that at the end of the meeting he explained to the Complainant that he would have an opportunity to change any of the notes. The Complainant was provided with the notes on the 6 November 2023, and he responded on the 6 November 2023.

The P&C business partner found that in respect of allegation 1, the Complainant had not filled out the work logs in respect of some rooms. It would be unusual for work logs to be forgotten.  Depending on the circumstances if someone to forgot to sign them this could result in disciplinary procedure. The P&C partner noted that what the Complainant said at the investigation hearing was different to what he had said earlier and when he queried why there was a difference the Complainant stated he would not recognise BHU1 and BHU2 as rooms.

In respect of allegation 2 the room had been cleaned by another staff member and she had provided her initials in the appropriate documentation spot. The Complainant had scribbled his initials over it. The concern was he would do this again. The P&C business partner had not spoken to this member of staff. The partner stated he did not need to check anything with her. She signed on the task sheet. The issue here is that the Complainant had deviated from the task sheet. There is a specific process for errors where a line is put through them and it is notarised when signing over.

In respect of allegation 3, the Complainant accepted that he had completed the training and that he had had retraining when the Respondent company took over.  His training must be done annually.  The P&C business partner was unsure if the training had been provided in Polish. 

The P&C business partner stood over his decision and findings. He emailed the Complainant with the report and appendix and set out that he was referring the matter to a disciplinary hearing. The P&C business partner regularly undertook investigation meetings such as this.

The P&C business partner explained that the request for a different manage for the investigation meeting only came at the end of the process and there was no grounds set out for it. The Complainant could request a new manager for the disciplinary stage.

The P&C business partner accepted the Respondent recognises unions and that a number of the staff are in SIPTU. 

The head of HR has undertaken a number of disciplinary hearings, he would have completed more whilst in earlier roles but less so in this role which he is in for the last 4 years. 

The head of HR corresponded with the Complainant in respect of the hearing date, that it would occur by Teams and that he was entitled to representation. A Polish speaker would be in attendance to act as interpreter.

The disciplinary meeting had to be rescheduled as the room was not available. 

The Complainant did not have any representation and at the start of the hearing the head of HR confirmed that the Complainant was happy to continue without this representation. During the hearing the head of HR asked a number of questions and asked the Complainant if there was any other information he wished to put forward.

The head of HR provided the Complainant with the notes of the meeting and asked him to provide any comments in respect of it. The Complainant did provide comments which are reflected at the end of the note of the meeting.

The head of HR then deliberated on the decision.  He noted that it was a very serious allegation, particularly a breach of GDP as it could cause contamination of a product. The head of HR also noted that there was a risk of further breaches. He looked at the ender uses, health care users who would be affected. There was also reputational damage for the company and the client. The batches may have to be destroyed. It could affect the contract with the third party and therefore other staff members.

This was a very serious matter in the head of HR’s opinion and therefore a high sanction was required. He considered a final warning. However, there was a risk of repeating the situation.  Inconsistent responses had been provided. There was a belief that the Complainant unilaterally decides what tasks to conclude. At no point in the process had the Complainant assured the Respondent that he would not repeat his behaviour.

There is only one other retail site locally that the Respondent works at. There were no vacancies in the area. The head of HR had considered relocation but given that the allegations included a failure to follow managerial tasks, this was not really an option. Thus, the head of HR felt the appropriate sanction was to dismiss the Complainant.

The Complainant was informed of this by letter including a section on appealing the decision. The head of HR alerted the manager who would be hearing the appeal there was a potential appeal.  The head of HR did not ring the Complainant to advise him of the dismissal. He was informed by letter which was sent by email. The head of HR never refused the Complainant an appeal. The Complainant could also have contacted him about an appeal but he did not. The Respondent submitted that the appeal would be to a different manager.

The head of HR noted the issue was that the documentation had not been completed, not that the rooms were dirty or the products were dirty on the 28th or 29th of October. There was a risk of contamination as the Complainant had failed to comply with GDP. The head of HR concluded that the Complainant had not completed all the tasks on the list and instead did tasks that others were assigned. 

The Respondent accepted that there had been no previous issues with the Complainant save for June 2023 that they were aware of.

The Respondent stated the Complainant’s manager disputed she ever asked him to sign for works on a different day to when the works were undertaken.  

The head of HR set out that the company is in 30 countries.

The Respondent’s preferred form of redress was compensation given that there was a breach of trust.  They did not believe that the employer/employment relationship could be recommenced.  The last payment that the Complainant received should have been on the 8 December 2023 but instead his holidays 47.5 hours were paid on the 22 December 2023.

The Respondent confirmed that they will provide a certificate of employment.  

The Respondent’s representative submitted that there was full employment in Castlebar and the Complainant had not made any inroads in respect of his obligation to mitigate his losses. 

The Complainant attended the hearing, gave evidence and submitted numerous documents in relation to his claim.

The Complainant submitted that his complaint related to unfair dismissal and the requisite notice not being paid. He had worked at the site for over 10 years.  His job was to clean the rooms, the floor, the door, the wall and if any spillages clean that up as well.  He was assigned his work by the manager.  He was required to sign a sheet to say the work had been done.

The Complainant accepted that he was aware GMP and GDP needed to be followed and that he had received training on them. However, he said in practice there was discretion as to what should occur. The Complainant submitted that the previous employer had allowed him to sign in advance for duties being undertaken. He accepted that he received training in September 2023 which was in English and he understood it. GDP required that he sign after the work is completed.  He had completed training in GDP every year. The Complainant was unsure as to the risks if GDP was not complied with. He accepted that the products were for hospital use. 

The Complainant set out that originally he had specific rooms that he worked at weekends but more recently he was asked to deal with the car park and toilets. He was not provided with the appropriate uniform for working outside.

The Complainant referred to an earlier payment query which he maintained he had not been paid yet.  The Complainant submitted he was owed €150 or €200. 

On the 28th of October 2023 the Complainant came to work and checked the list. He performed the work in one room. This was not on the list. The previous person had not completed this task despite it being on their list. The Complainant could not recall their name. This would occur on a regular basis. Other staff from the third party also asked him to clean other rooms. The Complainant stated that on the 28 October 2023 he did complete his list that ISS had left him, referring to it as a quick clean. In two rooms he forgot to complete the documentation.

On the 29th of October, the Sunday, another ISS staff informed the Complainant that she had done his room. It was on his list. The Complainant checked and the room was clean. He then did his two rooms. The Complainant did not check if this other staff had signed for her work. The physioneal room was not done but the other one was. The other cleaner told the Complainant to do them at the handover. It would be normal not to finish the list provided by ISS as there would normally be more work than the hours provided.

On the 31st of October 2023, the Complainant asked the manager about receiving forklift training, as he wanted to be able to work in both areas.  His manager did not respond.

On the 1st of November 2023, the Complainant received an email that he was suspended and that there was an investigation. The Complainant accepted that he received the documents. The Complainant accepted that he had received the handbook as part of the TUPE procedure, but he had not read it and it was in English.

In respect of the allegation the Complainant signed over an other employees initials, he did not recall whether initials were already in the appropriate space on the document when he signed it. 

The Complainant submitted that when he was on the phone with the Polish speaking manager, the Polish speaking manager had referred to numbers and he simply responded that that was not his work.  He did not ask what rooms he was talking about. He did not have time to talk as he was driving. The Complainant did not ring back in relation to this issue. It was only when he was provided with the document later that he checked the rooms and he was clear that he did clean them. The telephone call just referred to numbers.

The Complainant submitted that the note of the investigation meeting contained mistakes and bits were not accurate. It was put to the Complainant that he had been provided with a copy of this and asked to provide any amendments to same. He responded that he was a simple person and did not have the ability to change it. The Complainant maintained he did not understand he could add amendments. He also stated that the interpreter who was present at this meeting did not help, he was on a laptop sitting away from him. The Complainant set out that he was not in a union. As the meeting was at the weekend no one would go with him.  He had not asked for the meeting to be moved to during the week. 

The Complainant asked to change manager for the investigation. He felt the dismissal was connected to a personality clash. The manager seemed to believe that he was a danger. The Complainant stated that he apologised for doing absolutely nothing. 

The Complainant felt that the investigation was flawed as there was no evidence in respect of it. The Complainant maintained that evidence was missing.  He could not recall if he signed one of the forms over where another staff made had initialled. The Complainant believed that the Respondent was accusing him of signing on the 29, 30 and 31 which he had not seen. The Complainant stated that the investigation was not completed correctly. 

The Complainant questioned why the disciplinary hearing was rescheduled. 

The Complainant asked why the other member of staff who had signed was not questioned.  She should have been asked about doing some of the rooms and leaving some rooms.  On Saturday the Complainant maintained she had not completed the Physioneal room and on Sunday she left the Physioneal room for him. The Complainant maintained that this other staff member had signed for his work. He stated that when he commenced his shift it was decided that he would do the Physioneal room as it was dirty. As he was the last shift if there was work left over, he had to do it. The Complainant stated that he had done the jobs that the other staff member had left for him and questioned why she was not called or questioned.  

The Complainant noted the rooms were not dirty, the products were not dirty, nothing was contaminated. He had done his job correctly. The Complainant was assigned over 30 hours of tasks for each shift. The shift before had not completed their tasks and he was required to do them. 

The Complainant stated that someone could sign before and that someone was lying. He could not name who was lying. He stated he never signed in advance. He did everything on the list and more. The Complainant then concluded that he had wanted to return to work.

There had been a previous issue on the 1 April where the manager had asked the Complainant to sign for the 31st of March. The Complainant stated there was a text message screenshot in relation to this. 

The Complainant accepted that he did not appeal his dismissal as he believed it would be appealed to the same manager. The Complainant stated that the head of HR who dealt with the disciplinary procedure told him the appeal would be heard by the same person. The Complainant did accept that he had received the letter of dismissal which stated that a different person would deal with the appeal. The Complainant stated there was a miscommunication and that he mis-read the letter. 

The Complainant set out that he had received a letter from his manager in June 2023.  He had complained about it further up and nothing occurred. 

In respect of redress the Complainant was looking for compensation. The Complainant had applied for one job on the 6 December which he had been informed about by someone telling his wife.  On 24 January he contacted a company he was on the waiting list for this job.  He went to another cleaning company. Last week the Complainant applied for a factory food job. Since his employment ended he had applied for three jobs. The Complainant stated that he wanted a new role and not to work in this industry anymore.

Section 6(1) of the  Act provides:

"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."

Section 6(4) of the UD Act provides:

"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:…

(b) the conduct of the employee…"

Section 6(7) of the 1977 Act provides:

"Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if 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."

In O’Riordan v Great Southern Hotels UD1469/2003, the Employment Appeals Tribunal has provided a set of guiding principles that an Adjudication Officer must follow when determining whether the respondent reasonably concluded that the complainant was guilty of an Act of gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

The High Court has further echoed and reinforced this line of reasoning  in Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241, in which Noonan J remarked:

"Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned."

It is not an Adjudicators role to determine whether the Complainant was guilty of the accusations  laid against him but instead to determine  whether the decision by the Respondent to dismiss was reasonable and proportionate, based on the information available to it at the material time, and, furthermore, that proper, fair and impartial procedures were adopted by the Respondent when carrying out the dismissal.

The P&C business partner determined that the allegations were upheld and warranted a disciplinary investigation. It would have been advisable for the other employee to be interviewed although this is not fatal to the investigation.

The head of HR affirmed the seriousness of the conduct and noted there was no suggestion by the Complainant that his actions would be different in the future dismissal was the most appropriate sanction.

The Complainant raised the issue of missing evidence. I am satisfied there was sufficient information and documentation at both the investigation and disciplinary hearings to reach the conclusions that were reached. In particular, in evidence, the Complainant did not accept any of the allegations. He did not see anything wrong with ignoring tasks set for him by his manager, instead attending to work in “my rooms” which was assigned to others. There was no indication the Complainant saw anything wrong with his conduct, or that he would act differently going forward.

At times the Complainant’s evidence was inconsistence. He stated he did not know he could propose amendments or comments to the notes of the Investigation meeting, but did this for the Disciplinary meeting. At other points he was vague, when provided with a copy of the document with his initials he could not recall if there was already initials in the relevant box which were now marked out.

Having reviewed  all the  evidence and submission in this case I am satisfied that the investigation and disciplinary processes were in-depth. Evidence was gather and considered. The Complainant was given opportunities to present his side of the story. The Respondent fairly concluded the behaviour of the complainant constituted gross misconduct. Therefore, I deem the decision to dismiss as rational and proportionate and falling within the spectrum of reasonable actions expected from an employer, consistent with the guidance from the High Court in Governor and Company of the Bank of Ireland v Reilly. Consequently, I find no unfairness in the dismissal of the Complainant.

Having found that the Complainant was fairly dismissed for gross misconduct, I find that the complaint was not entitled to minimum notice.

For the reasons outlined above, I find that the complaint is not well-founded.

Unfair Dismissals Act 1977-2015, Gross Misconduct, Fair Procedures