Complainant

Respondent

Parties

Catherine  Crabbe

Grosvenor Cleaning Services Ltd t/a Grosvenor Services

Complainant

Respondent

Representatives

Ms L Crabbe

Mr Maguire, Head of HR

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-00061147-001

23/01/2024

The issue in contention was the alleged Unfair Dismissal of a Supervisor, the Complainant, by a Services & Cleaning Company. The employment began on the 29th September 2017 and ended on the 23rd November 2023.

The rate of pay was stated to have been € 12.50 per hour for a 17.5-hour week.

The Complainant gave an oral Testimony supported by a comprehensive written Submission. Her Advocate was Ms L Crabbe.

Ms Crabbe outlined that the Complainant had an exemplary employment record, up the incidents that lead to the Dismissal, with the Respondent.  She had never been involved in any personal Disciplinary matters. Prior to joining the Respondent, she had an equally exemplary record with other Employers.

On the 30th October 2023 she had received a letter from the Respondent inviting her to an Investigation meeting on foot of an allegedly serious Complaint from the principal Client Company on the site where the Complainant was employed. It alleged that she had essentially falsified her attendance hours and had “Gone home early” on numerous occasions despite still being clocked in.

The investigation meeting took place on the 2nd November and proceeded to a Disciplinary Meeting on the 23rd November. Considerable reference was made to the use of CCTV records and electronic clocking reports. The Respondent stated that the investigation had established that up to 7 hours’ time was unaccounted for and described it as essentially “Theft” from the Company. It was deemed to be “Gross Misconduct” and a Dismissal letter was issued on the 24th November 2023.  No Appeal was lodged by the Complainant despite being advised of the option.

Ms L Crabbe, the Complainant’s advocate, pointed out that the use of CCTV records as a Disciplinary matter had never been agreed with Staff. There were serious GDPR issue here. The Complainant had never received a copy of the Respondent Employment Procedures. In this case she was at a loss as to how to make an Appeal and in any event the suggested Appeal Chairperson was not in any sense sufficiently Independent of the Respondent.

The Complainant had agreed in the Investigation, that she had on occasions gone home early as she was the Carer for her Blind husband. Care issues sometimes arose at home that needed her immediate attention. However, she contested the allegation that she had gone home as early as suggested by the Respondent. She had gone home a few minutes early on a few occasions but nothing at the level suggested by the Respondent.

Ms Crabbe pointed out that the sanction of Dismissal was completely disproportionate for an employee with an exemplary record. She had never received any warnings regarding her performance or timekeeping. This incident was a complete “bolt from the blue” as far as she was concerned and was by its nature completely unfair.

The Respondent gave oral Testimony from a number of Management witnesses (Mr S and Mr O’K) and provided a detailed Written Submission. Chief advocate was Mr Maguire, Head of HR.

The Respondent positon was that, following a significant complaint received from the Client /End User Company regarding the attendance, time keeping patterns of the Respondent staff, an investigation was begun using attendance records and CCTV. This revealed a consistent pattern of early outs while still remaining clocked in.

The Complainant was identified as having time keeping/early out issues amounting to a total of approximately 7 hours paid but not actually on site.

The Complainant was invited to an Investigation meeting on the 2nd November 2023 which was followed by a Disciplinary meeting on the 23rd November 2023. All procedural paperwork was correct, representation was offered, and all information shared.

The Complainant openly admitted to having gone home early on a few occasions due to domestic issues with her blind Husband.

The Respondent emphasised the importance of the End User Contract to the Respondents who were operating in a fiercely competitive market for Cleaning Services. There could be no doubt that the Complainant had abused the positon and was effectively almost guiltily of theft from the Respondent.

After careful consideration the dismissal penalty was the only realistic option available.

An Appeal was offered but never taken up.

Procedurally the Respondent had followed all the required steps and dismissal was a regrettable but necessary penalty.

3:1         The Legal Position, Unfair Dismissals Act,1977, SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary issues and Legal precedents.

The legal position is set out clearly in a landmark decision from Mr Justice Flood in Frizelle v New Ross Credit Union Ltd, [1997] IEHC.

Here Justice Flood stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary issues effectively incorporates much of the Frizelle decision.

Taking this position as a guideline we need to consider the evidence presented.

3:2       Review of Oral Testimony and Evidence presented.

3:2:1       Procedural issues

There can be no fault found here. The Respondent followed all required procedures, Investigation, Disciplinary and Appeal offered. The Complainant by declining to Appeal did not help her case. Legal and Labour Court precedent is strong here. Complainants are expected to fully utilise Employer procedures, including Appeals, before seeking redress from the WRC via the Unfair Dismissal Act, 1977 or other Acts.

3:2:2       Evidence presented.

In any case the issue should be, as quoted by Mr Justice Flood

 “be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered”.

Detailed time sheet evidence was compiled which was part to the material presented. The Complainant Advocate, Ms Crabbe, questioned the basic legality of the Respondent relying on CCTV as part of their investigation. The Complainant had never actually agreed, she alleged, to allow CCTV to be used in a Disciplinary context. She queried the Data Protection issue that was raised here. She also questioned the close business inter relationship between the Respondent Personnel. Mr Maguire, the Head of HR, for example had clearly been in the background if not actually directly involved at the preliminary stages of Investigation & Disciplinary Hearings. Ms Crabbe was of the strong opinion that an Appeal to Mr Mguire would be pointless as he was hopelessly Legally compromised and could never be independent in Hearing an Appeal.

As opposed to these points the Complainant, Ms Crabbe Senior, admitted to going home early on “a few occasions” but cited her belief that the Respondent had exaggerated these incidents. She had not been given her due credit for exemplary service especially during the Pandemic/Covid period and her honesty regarding the clocking issues.  Following normal HR procedures, Ms Crabbe, the Advocate, felt that the Complainant should have been Warned and given a chance to address her relatively minor time keeping issues rather than be dismissed.

The Adjudication view, formed from listening to Witnesses and reading the materials was that the CCTV issue was never very central to the case -it was used as an assistance but not as a main plank of the Respondent case. The time sheets and clocking were the critical issues. The Independence of the Parties on the Management side was a more central issue – clearly, they were business colleagues. However, the overall professionalism of the use of Procedures and the obvious awareness of the proper methods was reassuring. Following good Legal precedents, it would have been better to have used a completely independent person, not the Head of HR, as the Appeal Chairperson.

Nonetheless, the Complainant by refusing to Appeal was making a very negative assumption regarding Mr Mguire that could never be proven without actually presenting the Case. This area is well discussed in the landmark case of Allen v Independent Newspapers [2002] ELR 84

3:2:3        Reasonableness / Proportionality of the Dismissal decision

To quote Mr Justice Flood above

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

It is well stablished Legal precedent that the Adjudication Officer or the former EAT do not substitute themselves for an Employer’s decision making.

In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the [Claimant], nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

The Respondent contended that the employee’s actions contributed wholly to her own dismissal. It is the Respondent’s position that a

“reasonable employer in the same position and circumstances”

would have reached the same determination in the circumstances of the case. As such the Respondent decision to dismiss was reasonable and fair in the circumstances, and the dismissal of the Complainant was not unfair. Therefore, the Respondent argues that the Complainant is not entitled to seek any redress under the Act.

Nonetheless, certain issues arise of concern to the Adjudicator. Firstly, the Compliant had an unblemished record since September 2017. She had performed very well during the Covid crisis. This was acknowledged. There was no effort at concealment and in her Oral testimony she came across as a decent and honest worker. Her early outs were, she maintained, due to her Blind Husband’s care needs. None the less she did not clock out and this was not in her favour.

Respondent witnesses all referred to the importance of the End User contract to the Company and the fact that the issue had arisen due to End User complaints.

It appeared to the Adjudicator that preserving the End User Contract was a major issue for the Respondents and a “robust” Disciplinary response was felt necessary to reassure the End User.

The Complainant was the Supervisor, she had admitted going home early and her continued employment was obviously a key decision for the Respondents.  It was suggested that a shortfall of some 7 hours pay had arisen. This was characterised as “Theft” by the Respondent.

Gross Misconduct is generally accepted, in HR and Industrial Relations circles to be exactly that “Gross” actions generally involving serious Physical Assaults on Fellow Workers, Drugs and Alcohol, Sexual Harassment of Other workers and serious Theft are generally examples found in most Handbooks.

Summary Dismissal without a progression of Warnings, Oral, Written Final Written etc are generally reserved for the most serious issues. This progression did not happen in this case.

Other Sanctions, short of Dismissal, which could have been considered were up to and including a Final Written Warning. It appeared from the oral testimony of

Respondent Managers, (Mr S and Mr O’K) that lesser sanctions were not really considered.

3:3      Conclusion

The summary Adjudication conclusion is that the Dismissal penalty was Disproportionate when all the matters were considered. A Final Written Warning would have seemed Reasonable to most Employers when the facts of the situation and the good record and long service of the Complainant were considered.

However, the actions of the Complainant did not help her case, and this has to be reflected in any redress awarded.

The Dismissal is accordingly deemed Unfair on the grounds of Proportionality.

Unfair Dismissal, Proportionality.