Complainant

Respondent

Parties

Ksenija  Bakic

Neville Hotels Limited

Representatives

  Self-represented

Barry O’Mahony BL instructed by ARAG Legal Protection Ltd

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-00061125-001

22/01/2024

The complainant was employed as an accommodation assistant from May 2022 until the termination of her employment by the respondent on grounds of misconduct on 7 December 2023.

The complainant referred this claim of unfair dismissal to the Workplace Relations Commission on 22 January 2024.

The complainant worked as an accommodation assistant at the respondent’s hotel from May 2022 until she was dismissed on 7 December 2023 for alleged misconduct.

The complainant was accused by a supervisor on 22 November 2023 of not having cleaned a room properly.  The supervisor’s friend, a porter in the hotel, was present when the supervisor called the complainant back to the bedroom.  The issues raised by the supervisor with the complainant were all lies.  The porter agreed with everything the supervisor said.  An argument ensued between the complainant and the supervisor because the complainant had had enough of the supervisor’s attitude towards the complainant.

The complainant had raised many complaints with HR about the supervisor, but HR had done nothing. 

The complainant was unable to defend herself properly against the complaint.  HR and the accommodation manager were heavily against the complainant.  The complainant was unable to secure a witness. 

The complainant received no verbal or written warnings.

At a meeting with independent senior managers, the supervisor and porter were defended.

The complainant was required to leave staff accommodation. 

The general manager in conducting the appeal did not respond in a timely manner and defended everyone involved in the process.

The complainant was dismissed based on he/she said and without concrete proof or evidence.

The complainant sought compensation for unfair dismissal.  Following the termination of employment, the complainant received social welfare until she commenced a full-time, permanent job on 4 March 2024.  

Complainant’s oral evidence

The complainant confirmed that issues with a previous supervisor in 2023 were resolved by mediation.  The complainant was happy with the mediation outcome.

There were no disciplinary issues in 2022. 

The complainant confirmed going shopping when she had texted that she was too tired to attend work for her rostered shift on 15 October 2023.   

The complainant did not appeal the written warning that issued to her on 28 November 2023 in respect of her conduct on 18 November 2023 as there was nothing she could do.  She was not thinking about the warnings on her file.  Many of the issues were made up or exaggerated.

The complainant raised a grievance on 23 November 2023 against her supervisor and the accommodation manager which she subsequently withdrew because she didn’t think it necessary or helpful.  She thought the outcome would be the same as with her previous supervisor.

The complainant could not recall what she did regarding the options the HR manager informed her of in relation to pursuing her grievance. 

The complainant believed the respondent’s process in relation to the complainant’s conduct on 25 November 2023 was unfair and incorrect because the respondent defended the porter and supervisor.  There was no physical contact during the incident, and the supervisor did not produce medical evidence. 

The complainant never had any issues with other people.  The complainant did not threaten the supervisor, and the porter did not intervene.

Cross-examination

In relation to the November 2023 disciplinary issues, the complainant maintained that all the witnesses were lying.  The complainant agreed that she had had a heated argument with the supervisor and that she approached the supervisor to give her a pat on the back.  The complainant did not intend hurting anyone.

The complainant confirmed that in all matters up to the final disciplinary issue in November 2023, the complainant had the opportunity to appeal disciplinary decisions, but did not do so.  The complainant had an opportunity to have a colleague attend meetings with her during the disciplinary process, but nobody wanted to become involved.

In relation to the complainant’s appeal of the decision to dismiss, the complainant disputed having been aggressive towards the supervisor but did not provide an explanation for why in the middle of an argument, she made to pat the supervisor on the back.

The complainant confirmed staying on in staff accommodation until 3 January 2024 and having been provided with a reference by the assistant HR manager.

The complainant is paid more in her current employment than what she was paid in employment with the respondent.

The complainant commenced employment with the respondent in May 2022 and resided in staff accommodation provided by the respondent for the duration of her employment. 

The complainant was dismissed following a serious incident which occurred on 25 November 2023.  The complainant was issued with a number of disciplinary sanctions during her employment. 

The complainant was issued with a written warning on 29 May 2023; a verbal warning on 19 October 2023 and a written warning on 28 November 2023.  The complainant did not appeal these warnings. 

By email dated 23 November 2023, the complainant lodged a grievance against two colleagues.  She withdrew the grievance by email later the same day.

The complainant was suspended from work by letter dated 28 November 2023 pending investigation of a reported incident involving the complainant on 25 November 2023.  The respondent took the decision to dismiss the complainant following an investigation, disciplinary and appeal process.  The respondent agreed to extend the complainant’s accommodation to 3 January 2024 despite the termination of her employment.  

The respondent submitted that the complainant’s dismissal was both procedurally and substantively fair.  Various case law was cited, including on the appropriate test, procedural fairness and redress.

Summary of sworn oral evidence of Mr Marcos Suarez

This witness worked for the respondent as a porter at the relevant time.  The witness was asked by a supervisor to assist with making up a bedroom which had not been done properly. The supervisor called the complainant to come to the room with the caddy because the carpet was not properly cleaned.  The supervisor asked the complainant to clean properly and told the complainant that the bed had not been made properly.  The complainant spoke in a bad manner to the supervisor and the two began arguing.  The complainant threw the hoover and key cards to the room on the floor.  The supervisor had tried to telephone their manager, and the complainant had approached the supervisor in an unfriendly manner to try to take the telephone.  It was at this point that the witness intervened asking the complainant to do as had been requested as they were in a hurry.  The witness confirmed his account of the incident as set out in an email 27 November 2023.  On 6 December 2023, he was asked to attend head office with a manager, Ms Okulewicz, and to tell her everything he had seen that day.  The witness explained his email to Ms Okulewicz.

The complainant had no questions for the witness.

Summary of sworn oral evidence of Ms Niamh Cox

Ms Cox was employed with the respondent as Human Resources Manager at the relevant time.

The witness confirmed the contract of employment that issued to the complainant, the respondent’s disciplinary rules and the complainant’s confirmation of having read and understood the employee handbook.  The witness confirmed that the respondent’s disciplinary procedure was applied to a reported incident of violent/threatening behaviour on the part of the complainant.

A grievance raised by the complainant in March 2023 was dealt with through mediation with agreed outcomes. 

The witness outlined various disciplinary issues concerning the complainant, including an inappropriate customer interaction, attendance and work performance issues. The complainant was given a verbal warning on 19 October 2023.  The complainant did not appeal this warning.

A report of the complainant kicking a vacuum cleaner up against a wall was the subject of a disciplinary investigation and a meeting with the complainant on 23 November 2023.    The complainant’s response was that the supervisor and manager were all friends and were bullying the complainant.  The complainant received a written warning on 28 November 2023 and was told a drastic improvement in her work performance and attitude was required.   The complainant did not appeal the warning.  In the interim, a report had been received in relation to the incident of 25 November 2023 and the complainant raised, and withdrew, a grievance against a supervisor and manager. 

The witness wrote the letter of 28 November 2023 suspending the complainant with pay pending investigation of the complaint received of threatening and aggressive behaviour on the part of the complainant towards her supervisor on 25 November 2023.  The complainant reignited her grievance complaint against the supervisor and manager on the same date and the witness sent her information on the respondent’s bullying and harassment policy. 

The complainant was liaising with the witness in relation to her bullying and harassment complaint, sending emails on a piecemeal basis.   The witness wrote to the complainant after meeting with her explaining how her complaints should be pursued and the need for professional engagement.

A disciplinary investigation meeting was held with the complainant on 29 November.  The complainant had a colleague accompany her at the meeting.   The complainant’s response to the allegation was that she had just wanted to pat the supervisor on the back.  The witness 100% did not believe this to be the case.   The complainant asserted that everyone was telling lies.  The witness believed it was a suspected case of gross misconduct and referred the case on for a disciplinary hearing.  The witness’ involvement in the disciplinary process concluded at this point and she was not involved in the decision to dismiss.  The complainant was provided copy of the investigation report and notes of the investigation meeting along with the invitation to attend a disciplinary hearing. 

The witness met with the complainant on 7 December 2023 to inform her of the outcome of the disciplinary process, which was that of summary dismissal.  At this meeting, the witness advised the complainant that if she wished to proceed with her grievance with a co-worker, which was a separate case, the witness would look into this. 

The witness was not involved in the complainant’s appeal of the dismissal decision.  The complainant remained in staff accommodation until 3 January 2024.

The complainant had no questions for the witness.

Summary of sworn oral evidence of Ms Daria Okulewicz

At the HR manager’s request, this witness conducted the disciplinary hearing on 5 December 2023.  The witness had had no prior dealings with the complainant.  The witness outlined how she conducted the meeting and that her purpose was to ascertain the situation from a different perspective.  The witness spoke with the porter and the supervisor separately.  The complainant maintained in the meeting with the witness that nothing had occurred however the witness did not believe the complainant was being open or forthcoming in this regard based on the video footage and the statement of the porter.  The witness was absolutely satisfied the allegations against the complainant could be upheld.  She had considered the structure of the department and the supervisor’s role.  Whilst she had hoped for a different outcome, she was satisfied the complainant should be dismissed.  The witness informed the HR Manager of her decision.

The complainant had no questions for the witness.

Summary of sworn oral evidence of Ms Ana Apostol

The witness was the HR assistant manager that dealt with a complaint from a guest in May 2023 involving the complainant. The witness held a disciplinary investigation meeting with the complainant arising from the complaint.  The outcome of the meeting was to issue a first written warning to the complainant.  The complainant at the meeting had agreed to having confronted guests about their complaint, which the witness viewed as unacceptable behaviour.  The complainant took no responsibility for her conduct and saw no issue with her having confronted hotel guests.  The witness developed an action plan for the complainant to ensure the issue did not arise in the future and the written warning was to remain on the complainant’s file for 12 months.  The complainant did not exercise a right to appeal the decision. 

The witness was contacted by the complainant’s supervisor on 21 November 2023 with a complaint about the complainant not following instruction and kicking a vacuum cleaner.  The witness passed relevant information on to the HR Manager.

The witness was contacted by the supervisor with a further complaint about the complainant not following instruction and acting in a threatening manner on 25 November 2023. The witness gathered information in relation to the complaint and passed it on to the HR manager.  The complainant came to the witness’ office on 28 November; she was visibly upset and angry and maintained that everyone was lying and against her.  Notwithstanding the complainant’s suspension, she came to work on 4 December 2023.  The witness met with the complainant and explained to her about her suspension and how dismissal was a potential outcome of the disciplinary process. 

The witness was not involved in disciplinary outcomes concerning for the complainant after her decision in respect of the May 2023 incident.

The witness obtained approval for the complainant to remain in the staff accommodation until 4 January 2024 and informed the complainant.  On 3 January, the complainant emailed the witness advising she had found somewhere to live and was leaving the staff accommodation.  

The complainant did not have any questions for the witness.

Summary of affirmed oral evidence of Ms Kate Kavanagh

The complainant reported to the witness, an accommodation manager with the respondent.  The witness dealt with staff issues as part of her role.

The witness outlined an attendance issue concerning the complainant on 15 October 2023 when the complainant texted the witness to say that she was very tired and was not coming to work her rostered shift.  The witness later discovered the complainant was shopping.  The witness reported this to HR.  A verbal warning issued to the complainant for this attendance issue and a performance issue.

The witness recalled being contacted by the supervisor in respect of the complainant’s behaviour towards the supervisor on two occasions in November 2023. 

Summary of affirmed oral evidence of Mr Colin Brown

The witness is general manager at the respondent’s hotel. 

The witness conducted the complainant’s appeal of the dismissal decision of 7 December 2023.

The witness had regard to the complainant’s letter of appeal, provided the complainant an opportunity to produce evidence or witnesses and met with the porter and the supervisor.  The witness looked into the accuracy and voluntary nature of their statements. The witness was not satisfied of any coercion, grudge or conspiring against the complainant, as asserted by the complainant.   

The witness met with the complainant on 21 December 2023.  The witness confirmed his notes of that meeting and the outcome letter he issued on 22 December upholding the decision to terminate the complainant’s employment. 

The complainant had the opportunity to have someone attend the appeal meeting with her.  The witness felt that he had gone over and above in meeting with the complainant.  The witness had afforded the complainant opportunity to produce any evidence or witnesses in relation to the 25 November incident.

The respondent’s disciplinary procedures detail threatening behaviour as an instance of gross misconduct. 

The complainant was summarily dismissed by the respondent on 7 December 2023.  The complainant referred a claim of unfair dismissal to the WRC on 22 January 2024.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977, as amended, (“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)(b) of the Act deems for the purpose of the Act a dismissal resulting wholly or mainly from the conduct of the employee, not to be an unfair dismissal. 

In accordance with section 6(6) of the Act, it is for the employer to show that the dismissal resulted wholly or mainly from the conduct of the employee or that there other substantial grounds justifying the dismissal.

Section 6(7) of the Act provides that in determining whether a dismissal is unfair, 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, 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 …”

My role is to decide against the facts whether the respondent’s decision to dismiss was reasonable.

The Decision to Dismiss

It was the respondent’s case that there were issues with the complainant’s conduct throughout her employment and that she was dismissed following a serious incident which occurred on 25 November 2023.  It was submitted that on either the complainant’s overall conduct or her conduct on 25 November 2023, the termination of the complainant’s employment was reasonable and justified.   

The complainant did not dispute the disciplinary issues of May 2023 and October 2023 in respect of which the complainant was given a first written warning and verbal warning.  The complainant did not exercise her right to appeal these disciplinary sanctions.

The complainant’s supervisor made two complaints about the complainant to HR in November 2023. 

The first complaint related to the complainant’s conduct when the supervisor called the complainant back to clean a room on 18 November 2023.  The respondent issued the complainant with a written warning on 28 November 2023 in respect of this incident.  The disciplinary sanction was not appealed by the complainant. 

The second complaint related to the complainant’s performance and conduct on 25 November 2023 when called back to clean a guest room.  A porter provided a witness statement in respect of this complaint.

The respondent suspended the complainant on 28 November 2023 further to the second complaint and pending its investigation of alleged threatening and aggressive behaviour on the part of the complainant towards the supervisor and issues regarding the complainant’s attendance. 

At an investigation meeting with HR on 29 November 2023, the complainant was given copy of the statements of the supervisor and porter and a video clip recorded by the supervisor was played for the complainant.  There was reference made to attendance issues at the investigation meeting, but no specific detail provided.  The focus of the investigation meeting was on the interaction between the complainant and supervisor on 25 November 2023.  The complainant maintained that the supervisor and porter were friends and had set her up in making the complaints.  The complainant further maintained that the supervisor only took issue with the complainant’s work standards and made her feel inferior.   The complainant questioned the supervisor’s independence and right to take issue with the complainant’s work. 

The investigation report, notes of the investigation meeting and an invitation to a disciplinary hearing issued to the complainant on 30 November 2023.

The disciplinary meeting on 5 December 2023 was conducted by a manager in the hotel, Ms Okulewicz.  The allegation the subject of the disciplinary meeting was of violent and threatening behaviour to a fellow employee constituting endangerment of another person in the workplace and gross misconduct.   At the disciplinary meeting, the complainant disputed the legitimacy of the supervisor’s request that the complainant clean the room again; the complainant disagreed that the room required cleaning.  The complainant maintained that the supervisor had provoked her and that when the exchange became heated, the complainant went towards the supervisor to give her a friendly pat.   The complainant did not accept she had been aggressive towards the supervisor.  Ms Okulewicz did not believe that the complainant was open, or forthcoming based on the video footage and the porter’s statement.  Ms Okulewicz was satisfied the porter and supervisor’s accounts were credible and reliable.  Ms Okulewicz informed the HR manager of her decision that the complainant should be dismissed for her conduct.

The respondent’s disciplinary procedure details behaviours which may be considered as gross misconduct and may result in summary dismissal, depending on the circumstances of the case.  Violent or threatening behaviour is included in a non-exhaustive list of examples. 

The respondent decided that the complainant’s conduct constituted gross misconduct and informed the complainant on 7 December 2023 of its decision to dismiss the complainant with immediate effect.

This decision was upheld on appeal by the general manager.  The general manager probed the complainant’s assertion of a grudge and of employees conspiring against her but could not establish any evidence to support the assertion.

The Disciplinary Process

I have considered the respondent’s disciplinary process in the context of section 6(7) of the Act and certain fundamental requirements of fair procedures which in my view are applicable in the circumstances of this case.  

The respondent’s letter dated 28 November 2023 required the complainant to attend a disciplinary investigation meeting and suspended the complainant on pay pending full investigation. 

I am satisfied that the complainant’s suspension pending investigation was justified based on the documentation before me referring to harm, threats and demands. I consider suspension to have been appropriate to protect everyone, including the complainant, from any risk and to facilitate proper conduct of the respondent’s investigation and disciplinary process.

There was no evidence of the investigation procedure having been explained to the complainant by management, as per the respondent’s disciplinary procedure.  Statements and video footage were shown to the complainant for the first time at the investigation meeting.  It is evident from the investigation report that the investigation was not limited to assessing whether there was evidence warranting a disciplinary hearing rather it detailed a summary of findings in respect of the allegation and concluded that the complainant’s conduct constituted gross misconduct and that the complainant’s explanations were not acceptable.  This report was before the decision-maker at the disciplinary hearing.

The respondent’s terms of reference for its investigation stated that “the employee will have the right to be represented by a person of her choice throughout the process.”  The Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000, S.I. 146 of 2000, (the “Code of Practice”) contains general guidelines on the application of grievance and disciplinary procedures and promotes best practice in the application of such procedures and in dealing with other issues detrimental to the rights of individual employees.  Express reference is made to a general principle of natural justice and fair procedures that the employee concerned is given “the opportunity to avail of the right to be represented during the procedure”.  For the purposes of the Code, an “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise. 

The letter dated 28 November 2023 advised the complainant that she was entitled to bring a witness along to the meeting.  The minutes of the investigation meeting on 29 November 2023 record the complainant being asked whether she wanted to bring anyone with her as a witness.  An exchange is then recorded which concerned arranging a witness for the complainant.  I have reservations about the understanding of the colleague ultimately sourced to attend the meeting as to their role at the meeting and of the complainant having the opportunity to avail of adequate representation in circumstances where the respondent advised the complainant of a right to bring a witness or produce a witness for the meeting.  

It is my view that the information provided by the respondent in relation to an entitlement to bring a witness to the investigative disciplinary meeting and appeal meeting impacted or detracted from the complainant having an opportunity to avail of adequate representation.  A witness or note-taker does not correspond to a representative and it is further unclear whether the witness opportunity referred to a witness to the meetings or to the 25 November incident.

The respondent’s letter dated 30 November 2023 requiring the complainant attend a disciplinary hearing did refer to a right to be represented by a work colleague in line with the respondent’s disciplinary policy.  However I consider the opportunity to avail of representation in accordance with the Code of Practice to carry particular significance on the facts of this case where the complainant asserted colleagues conspiring or being pressurised to act against her, where the complainant raised at the investigation meeting of 29 November 2023 an issue with the person she wished to bring as a ‘witness’ and having regard to the nature of the investigation itself.  The complainant’s position throughout the disciplinary process and at the hearing before me was that the complaint against her was a set-up, because of a personal grudge and that other employees acted against the complainant because of their friendship with the supervisor.  The respondent was aware of the complainant’s position on this from grievances the complainant had raised and what the complainant said during the meetings.  Clearly the respondent was dealing with a testing and ever-changing situation of complaints about, and from the complainant.  However, in my view, this ought to have brought into greater focus the opportunity for the complainant to avail of representation to ensure a fair and impartial determination of the issues.

On the facts of this case, I find that non-observance of the above-mentioned principles of natural justice and the respondent’s own procedures were such as to bring the respondent’s decision to dismiss outside the range of reasonableness.  I find that the dismissal was unfair in the circumstances. 

Redress

The complainant sought compensation as redress for unfair dismissal.  This was the form of redress addressed by the parties at the hearing.  The complainant obtained alternative employment with a new employer following the dismissal and remained in that employment at the time of the hearing.  Accordingly, I consider it to be the appropriate form of redress having regard to all the circumstances.

In determining compensation payable under section 7(1) of the Act, I have had regard to section 7(2) of the Act and consider relevant the extent the complainant contributed to the dismissal and the measures adopted by the complainant to mitigate financial loss in consequence of her dismissal.

I find that the complainant contributed very significantly to her dismissal for the following reasons.  The complainant had an active disciplinary record at the time of the disciplinary process in relation to the 25 November incident.  The complainant did not contest the three disciplinary warnings in relation to her conduct, attendance and performance.  The information before the respondent following the final disciplinary process included the complainant’s account of the complainant having disagreed with the supervisor on 25 November 2023 about the cleaning standards in the room, the supervisor and complainant arguing and the supervisor provoking the complainant. I am satisfied that it was reasonable for the respondent to discount the part of the complainant’s account that she was going to give the supervisor a friendly pat and to conclude that the complainant’s conduct was unacceptable.

There was no evidence before me of the complainant’s efforts to mitigate financial loss attributable to the dismissal.  The complainant submitted that she was on social welfare until she took up her current employment.  It is not clear to me the efforts made by the complainant to mitigate her loss from December 2023 to 4 March 2024. 

Based on the foregoing, I consider an award of nil compensation just and equitable having regard to all the circumstances.

For the reasons set out above, I find that the complainant was unfairly dismissed and award nil compensation payable.

Unfair Dismissal – Conduct – Fair procedures – Redress – Contributory conduct – Mitigation efforts