ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034822
Parties:
| Complainant | Respondent |
Parties | Natalie Kilduff | Woodie's |
Representatives |
| Fergus Dwyer, IBEC |
Complaint(s):
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-00045937-001 | 02/09/2021 |
Date of Adjudication Hearing: 12/10/2023
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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.
Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
The Complainant as well as three witnesses on behalf of the Respondent gave evidence on oath/affirmation and the opportunity for cross examination was afforded to the parties.
This hearing was held in conjunction with ADJ 37307 and this should be read in conjunction with that the decision.
Background:
The Complainant commenced her employment as a Store Colleague with the Respondent on 23 January 2001. When she was transferred from her position in the e-store to her old position of Store Colleague in February 2021, she was informed that henceforth she would be required to work evenings and weekends. She asserted that she should have only had to work 9 to 5 as she had always done in the past. Despite having continued to work the same hours she had always done, she was subjected to disciplinary action by the Respondent because she would not work evenings and weekends and was ultimately dismissed from her employment as a result of insubordination. |
Summary of Complainant’s Case:
The Complainant commenced her employment as a Store Colleague with the Respondent on 23 January 2001. In December 2018, the Complainant was transferred from her position of Store Colleague to the E-Store Team in the Respondent’s Tallaght branch. As a result of a huge increase in the business carried out by the e-store team because of Covid 19, the Respondent had to move the e-store operation to Drogheda because of the space restrictions in their existing office. The Respondent offered the Complainant the opportunity to transfer to Drogheda, which she declined because it was some distance from her home. Given that she refused this offer, the Complainant was afforded the opportunity to transfer from her position in the e-store to her old position of Store Colleague in February 2021, which she accepted. The Complainant asserted that she should have only had to work 9 to 5 in this role as she had always done in the past. She further stated that she could not work evenings or weekends because she was caring for her father who was terminally ill. Despite having continued to work the same hours she had always done; she was subjected to disciplinary action by the Respondent because she would not work evenings and weekends and was ultimately dismissed from her employment. |
Summary of Respondent’s Case:
In December 2018, the Complainant was transferred from her position of Store Colleague to the E-Store Team in the Respondent’s Tallaght branch. On 1 February 2021, the Complainant was informed that the E-Store section was being relocated to Drogheda. In light of this she was afforded the following options; (i) she could relocate to Drogheda if she so wished where she could work a Monday to Friday working pattern, or (ii) she could remain in the Tallaght branch as a Store Colleague working the standard Store Colleague hours which entailed being fully flexible working evenings and weekends, as per her stated Terms and Conditions. The Complainant availed of the Store Colleague role in the Tallaght branch. To facilitate her return to a flexible working pattern it was intimated to her that this would take place on a staggered basis over three months. However, she subsequently steadfastly refused to work the flexible hours as set out in her statement of terms and conditions of employment which she signed on 1 October 2020. On 15 March 2021 the Complainant invoked the Respondent’s grievance procedure highlighting three issues of concern, (a) Hours of work change (b) Short notice of role change, and (c) No redundancy offered. On 18 March 2021, the Complainant was invited to a grievance meeting that was scheduled to take place on 25 March 2021. She was advised that she could be accompanied to the meeting by a work colleague or trade union representative. The meeting, which was chaired by Mr. Keith Byrne, took place as scheduled on 25 March 2021 and a note taker was present to document the proceedings. The Complainant attended alone. On 2 April 2021. the grievance outcome was issued. The Complainant’s grievances in respect of short notice being provided in relation to her change of hours and the Respondent’s failure to offer redundancy were not upheld. However, she was afforded two options, (a) Should she wish to remain in the Tallaght store, she could avail of a 12 month transitioning period to facilitate her return to working store hours, or (b) She could undergo an informal interview for a position in the Accounts Payable Office working office hours Monday to Friday on a salary of €27,000. The role was based in the same building where she was currently working. Not only would this role have increased her salary but she would have also availed of a bonus scheme. The Complainant was asked to consider the options being put forward and reply by 9 April 2021. She was also advised of her right to appeal the findings made by Mr. Byrne should she so wish. On 8 April 2021, the Complainant corresponded with Mr. Byrne informing him that she would be declining the two options put forward by him. She did not appeal the grievance outcome. On 1 June 2021, the Complainant failed to adhere to her rostered working hours. Disciplinary proceedings were commenced against the Complainant for her alleged failure to work an evening shift. On 2 June 2021, the Complainant was invited to an investigation meeting scheduled to take place on 4 June 2021. She was advised that the matter under investigation was ‘Insubordination and refusal to adhere to rostered working hours on 1 June 2021’. The Complainant was advised that another refusal by her not to work her rostered hours on 8 June 2021 would not form part of a disciplinary process given that fact that she was a valued member of the Woodies Team. In effect the Complainant was given another chance. She was, however, informed that any further refusal to comply with her rostered working hours could potentially result in suspension pending a disciplinary investigation. In the following months, the Complainant refused to work one evening shift per week resulting in disciplinary proceedings being instigated against her on four occasions. An incremental sanction was imposed in each case consisting of a first written warning being imposed on 21 June 2021, a final written warning being issued on 2 July 2021, 5 days unpaid suspension on 15 July 2021, and finally dismissal on 30 July 2021. The requirement that a Store Colleague is required to work a flexible working pattern is clearly outlined at paragraph 3 of the Complainant’s contracted Terms and Conditions which states, inter alia, “Your hours of work are 39 hours per week over 5 days, Monday – Sunday, and will involve evening, Bank Holiday and weekend working” On 20 July 2022, the Complainant refused to adhere to her rostered working hours. She was placed on paid suspension pending a disciplinary investigation into her alleged gross misconduct, namely insubordination and refusal to adhere to rostered working hours. On 23 July 2021, the Complainant was invited to a disciplinary hearing. She was provided with all relevant material and advised of her right to be accompanied at the meeting. She was further advised that, if found to be in breach of the matter alleged, a disciplinary sanction up to and including dismissal could be imposed. The disciplinary hearing, which was chaired by Mr. David Nally, HR Business Partner took place on 26 July 2021 as scheduled. A notetaker recorded the proceedings and the Complainant availed of her right to be accompanied and in this regard was accompanied by her work colleague. On 30 July 2021, the Complainant was informed that she had been found in breach of the matter alleged and that by way of sanction she was to be dismissed with immediate effect. She was further advised of her right of appeal. The Complainant did not appeal the finding of dismissal. |
Findings and Conclusions:
The Law: Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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 Unfair Dismissals Act, 1977 provides as follows: 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 qualification 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 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. Section 6(6) of the Act states as follows: In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal. Section (6) 7 of the Act, in relevant part, makes provision as follows: (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…. (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, (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. Findings: I should highlight firstly that I have considerable sympathy for the Complainant in this case given that she found herself in a situation where she was dismissed from a company, through no serious misconduct of her own, where she had over 20 years’ service, at a time when she had caring responsibilities for her father who was terminally ill. I also noted that, despite having acknowledged in their termination letter how “upsetting” the termination of her employment might be for the Complainant, the Respondent did not afford her the basic courtesy of a face-to-face meeting to explain why she was being dismissed and inexplicably chose instead to dismiss her via email. Notwithstanding my sympathy for her situation however, I must also recognise that, although she made the Respondent aware of “personal difficulties” which she stated did not allow her to work past 5pm in the evenings as they required, she did not at any stage clarify the full extent of these difficulties or explain that her father, who she was caring for, was in the final stages of his life. While the Complainant stated in evidence at the hearing that she failed to do so because she wanted to keep these matters private, the Respondent could not have known the extent of her personal challenges without her having revealed this information. Bearing this in mind, I must examine if, without this important context, the Respondent acted reasonably both in terms of the options presented to her arising from the transfer of the E-store and ultimately in deciding to terminate the Complainant’s employment. I note firstly that sales in the E-store team, where the Complainant worked from December 2018 to February 2021, grew exponentially because of Covid 19 and that the Respondent had to move the operation to Drogheda because of the space restrictions in their existing office. Quite appropriately, the Respondent offered the Complainant the opportunity to transfer to Drogheda, which she declined, which was not unreasonable given that it was some distance from her home. Given her refusal to transfer, the Respondent then offered her a role as a Store Colleague similar to which she had worked in prior to moving to the E-store team but stated that they expected her to be available on evening and weekends, in accordance with the terms and conditions of employment she signed on 1 October 2020. The Complainant stated however that the offer of a return to her previous position was not reasonable because when she had worked in the role in the past she only worked from 9 to 5, that other colleagues who had remained in the Store Colleague role and did not, unlike her, move roles were only working 9 to 5, and the new requirement to work evenings and weekends was not suitable because of her personal circumstances. In deciding whether it was reasonable to offer her a position in the store in a similar role to that she had previously worked, albeit with different hours, I note that unlike an employee who returns from maternity leave and who must be allowed to resume her employment on the same terms and conditions she enjoyed prior to the start of her maternity leave, there was no obligation on the Respondent to offer the Complainant the same role with identical terms and conditions to that which she had previously. In examining whether the role was a suitable alternative, as the case law on unfair dismissals would suggest, I must only decide whether the Respondent acted reasonably in offering her a similar role to which she had worked in previously, albeit with different hours. Having carefully considered the matter, I find that, given the Respondent's business demands for flexibility, the decision to offer the Complainant a position reminiscent of her previous role, but now involving evening and weekend work, was a reasonable one. As also highlighted above, the Complainant did not make the Respondent aware of the seriousness of her father’s condition and they could not have known of the difficulties the proposed change in hours would cause for her because she did not specifically alert them to same. I also noted that the Respondent offered to phase in the move to the flexible hours over a 12-month period and am of the view that this constituted a further example of the lengths they went to, to secure the Complainant’s continued employment. What was even more inexplicable than the Complainant’s unwillingness to work evenings and weekends was the decision she made not to apply for a role of accounts payable clerk in the Respondent’s office, which would have paid a similar amount to her role in the e-store and involved the same 9 to 5 working hours. While she stated in her evidence that she should not have had to apply for the role, I do not find that it was unreasonable of the Respondent to have insisted that she did. I also cannot ignore that the Complainant did not seek to appeal the decision to terminate her employment. Specifically, it is incomprehensible that, when she knew her employment had been terminated, she did not appeal the dismissal and explain in detail to her employer at the appeal hearing, in a last ditch attempt to have her termination overturned, why she could not work outside of her normal 9 to 5 hours. Given the more than reasonable attempts that had been made by the Respondent to retain her in employment prior to then, it is conceivable that she would have been allowed to resume her employment and work from 9 to 5 for the period in which she was providing end of life care to her father. Considering all of the foregoing points, I find that the Complainant was not unfairly dismissed. |
Decision:
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.
I find that the Complainant was not unfairly dismissed for the reasons set out above. |
Dated: 15th February 2024
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
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