ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00047283
| Worker | Employer |
Anonymised Parties | Health & Safety Advisor | Facilities Management Company |
Representatives | Self-represented | HR Manager |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Industrial Relations Act 1969 | CA-00058106-001 | 04/08/2023 |
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Date of Hearing: 11/01/2024
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The Worker contends that she was harassed in the employment.
Summary of Workers Case:
The Worker provided written and oral submissions summarised as follows:
She was engaged on a fixed term, fixed purpose contract as Health & Safety Advisor. She commenced the employment on 12th July 2023. From the start there were many problems involving safety inductions, lack of respect from some employees when speaking to her and in particular, she was subjected to a distressing experience towards the end of her time in the employment. There was a lack of professionalism when she was finished the employment and went to return equipment, there was no one there to meet with her except the two main protagonists who were the cause of much distress to her. She had taken the role as she had an interest in facilities management. She had decades of experience but had never been treated like she had in this employment. She had been harassed particularly by one subcontractor. He had made an inappropriate remark to her which had been sexual in nature. There was a meeting held with her where it was stated that the subcontractor considered it ‘banter’. The Worker had decades of experience, including working on construction sites, and she certainly did not consider the behaviour ‘banter’. When she was explaining to one Manager about the situation, he asked her did she have any mental health problems. She was out of work for 12 weeks after that, and she had to attend counselling, due to the treatment she received by two particular males in the employment.
Summary of Employer’s Case:
As a preliminary matter, it was submitted that the case should be dismissed, as the Worker did not have 12 months service and could not claim unfair dismissal. In relation to the substantive issue, the Worker was employed as Quality, Environmental, Health and Safety Advisor on a fixed-term contract running from 12th July to 8th September 2023. In July, she made a complaint regarding an altercation between a sub-contractor and her when she was leaving work, during which he was alleged to have made an inappropriate remark. The issue was investigated and the sub-contractor stated that it was banter and the Worker herself had initiated it. There was a meeting held with the Worker, during which there was no meeting of minds on the matter. As the Employer found it was ‘one word against another’, the end of the investigation was inconclusive. During a recess in the meeting, the Operations Director found that as the site was covered, the Worker could be let go early. It was decided that the Worker’s contract be discontinued as it was due to expire in 5 weeks on 8th September 2023. It is argued that as the relationships between the Worker, the Construction Supervisor and the Sub-contractor had broken down, it was decided to terminate the employment which was in compliance with the contract of employment which provided for the right of the Company to terminate prior to the expiry date, due to insufficient work or for some other reason.
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. In relation to the preliminary matter raised by the Employer, this case was referred under the Industrial Relations Act 1969, not the Unfair Dismissals Act 1977, therefore the Worker who referred the case does not have to have 12 months continuous service. The issue is properly before me for a recommendation. I note that in the short time the Worker was employed, she encountered many difficulties and problems most of which she submitted with her referral in a lengthy document. While not addressing every one of her difficulties outlined in the timeline, in this recommendation, I address the incidents which caused her most distress at the end of her employment. I note the Employer investigated the matter of the alleged inappropriate remark made by the sub-contractor on 24th July 2023. The meeting on 31st July 2023 appears to have come to an abrupt end with the Employer deciding to dispense with the Worker’s service 5 weeks before the end of her contract. This action was taken with no due process, no notice and no right of the Worker to appeal. This was an inappropriate way to end the Worker’s employment. I do not accept that due process can be set aside for a general term in the contract that an employee’s employment can be terminated ‘for some other reason’. The Worker’s employment was terminated without reference to her entitlement to one week’s notice, referenced in her contract. In order to draw a line under this dispute, and conclude matters in relation to the fractious relationship between the parties, I recommend the Employer pays the Worker compensation in the amount of 4 weeks’ pay for the early termination of her employment without due process.
|
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend the Employer pays the Worker compensation in the amount of 4 weeks’ pay for the early termination of her employment.
Dated: 23/02/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Industrial Relations, Early termination of contract, compensation 4 weeks. |