ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009241
| Complainant | Respondent |
Anonymised Parties | Team Leader | A Community Development & Employment Programme |
Representatives | Des Courtney SIPTU | Kealin Ireland |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00012154-001 | 27/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00012154-002 | 27/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 |
CA-00012154-003 | 27/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00012154-004 | 27/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00012154-005 | 27/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00012154-006 | 27/06/2017 |
Date of Adjudication Hearing: 28/09/2017
Workplace Relations Commission Adjudication Officer: Marian Duffy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 13 of the Industrial Relations Acts 1969, Section 6 of the Payment of Wages Act and Section 27 of the Organisation of Working Time Act, 1997] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The complaints referred:
CA-00012154-001, the Payment of Wages Act 1991, withdrawn
CA-00012154-002, the Payment of Wages Act1991, withdrawn
CA -00012154-003, the Industrial Relations Act, 1969, withdrawn
CA-00012154-004, Unfair Dismissals Act, 1977, Not upheld
CA-0001254-005, Minimum Notice and Terms of Employment Act, 1973, allowed
CA-00012154-006, the Organisation of Working Time Act, withdrawn.
Background:
The complainant was employed by the respondent as a Team Leader. He was employed from March 2012 until February 2017 when he was dismissed from his employment for gross misconduct. He is claiming that he was unfairly dismissed and is seeking compensation. |
Summary of Complainant’s Case:
It was submitted that throughout his employment the complainant was subject to annual appraisals all of which were satisfactory. In early 2016 he was put through a disciplinary process following which he was issued with a written warning. He appealed the warning, but he was never informed of the outcome of the appeal. It was submitted that the handling of this process by management affected the complainant’s health. On the 1st of September, he commenced a period of sick leave as he was suffering from work related stress. On 21 October 2016, he was assessed by the occupational health doctor. He was certified unfit for work for eight weeks due to stress. The complainant was certified fit to return to work on the 19th of December 2016. On the 19th of December, he returned to work and he was immediately called to a meeting with his supervisor and the programme manager. He had received no prior correspondence about this meeting and he was refused the agenda prior to the meeting. H secured some assistance from a colleague but in the absence of an agenda he could not consult properly. There were no agreed minutes following this meeting which led to a disagreement between the parties as to the issues discussed and decisions made. The complainant was suspended pending an investigation meeting scheduled to take place on 21 December 2016. At this meeting management outlined their concerns to the complainant relating to the inputting of information on to the relevant databases, alleged concerns of clients in relation to the complainant’s working relationship with them. There were no written complaints or statements from any of the clients in question. There were no agreed minutes produced by management following this meeting. A follow-up meeting was scheduled for 18 January 2017 and the complainant advised management in advance of the meeting that he intended to bring along several witnesses. He also asked for supervised access to his email account to secure some relevant documentation. Management did not allow him to bring witnesses or allow him to have access to his emails. The complainant’s health deteriorated again and he was certified unfit for work by his GP because of stress. He advised management by email that he was unable to attend the meeting. On 23 January 2017, the programme manager wrote to the complainant advising him that the meeting was rescheduled to 31 January 2017. He was also advised that if he did not attend the meeting and co-operate fully with the process he would be dismissed with immediate effect. The complainant’s period of sick leave was extended until 16 February. When the respondent received the medical certificate, a letter of dismissal immediately issued to the complainant setting out the reasons for the dismissal. Following his period of illness, the complainant and his trade union sought to appeal his dismissal and this request was denied. It was submitted on the complainant’s behalf that he was dismissed without any disciplinary hearing while he was on sick leave. He was unable to attend at the investigation meeting because he was on sick leave. It is further submitted that the reasons for the complainant’s dismissal were only brought to his attention after his dismissal. The reasons given for the dismissal in the letter of 1 February 2017 were (1) submitting our entering false/ misleading information, (2) refusal to obey a reasonable instruction from someone authorised to issue such instructions, (3) repeated breach of policies and procedures. It was submitted that these reasons were not the subject of any disciplinary investigation and where only brought to the complainant’s notice after his dismissal. It was further submitted that the complainant’s sick leave arose from work related stress and management never sought to address the reasons for his stress. Instead, on the complainant’s return to work after sick leave, management immediately asked him to attend a meeting and he received no prior notice and no agenda for the meeting at which he was suspended. While he did have representation at the meeting he was given no meaningful right of representation and his request for access to email accounts and to bring witnesses to the follow up disciplinary investigation meeting were both denied as was his subsequent request for appeal hearing. His union submitted that the respondent dismissed the complainant on the grounds of gross misconduct and that reasoning in the case off DHL Express (Ireland) Ltd and Michael Coughlan, UD/17/27 should be applied. The Labour Court stated as follows: “the established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying dismissal.” It was further submitted that an employee’s non- availability to attend an investigation meeting due to certified sick leave cannot be reasonably considered to be gross misconduct. The complainant’s inability to attend does not come within the category of “very bad behaviour such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship a minute longer” as set out in the EAT’s Determination in the case of Lennon v Bredin M160/1978. It was further contended that the employer did not follow any procedures in this case. I was referred to the EAT decision in the case of Employer v Employee UD 420/208 where it was stated that this “dismissal was vitiated by procedural unfairness”. It was argued that the complainant’s inability to attend at the investigation meeting cannot reasonably be construed as gross misconduct and that the dismissal was a disproportionate sanction to the alleged offence. In Frizelle v. New Ross Credit Union Ltd [1997] IEHC 137, Flood J in the High Court stated “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.” The respondent’s letter of 23 January 2017 warns the complainant that he would be dismissed with immediate effect if he did not attend the meeting and if he did not corporate fully with every aspect of the investigation. It was submitted that this correspondence with issued by the respondent in the knowledge that the complainant had been on certified sick leave and unfit for work and could not attend. His dismissal was, therefore, a fait accompli. Referring to section 6(7) Unfair Dismissals Act, the complainant’s representative requested that I should have regard to the “reasonableness of the employer’s conduct” in relation to this dismissal. It is clear management did not follow reasonable procedures in dismissing the complainant. Likewise, it was argued that the dismissal on the grounds of gross misconduct cannot be considered reasonable for the reasons outlined above and that the dismissal was a disproportionate sanction in the circumstances.
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Summary of Respondent’s Case:
The respondent is a not for profit organisation and is a registered charity. Its role among other things is to implement employment programmes on behalf of funding organisations for people experience poverty and social exclusion. The respondent has a contract with Community Work Placement Organisation to implement a programme on its behalf which supports the placement of vulnerable unemployed people into various non-profit organisations to gain work experience and training opportunities. The programme is fully funded by the DSP. The complainant was employed by the respondent in 2012 as a Team Leader with about twenty-five participants to look after. He was required to liaise with potential employers and sponsors within the community sector with a view to providing employment for the members on his team. There is a considerable level of administration attached to the role of Team Leader. The complainant was required to keep records up to date, ensure that payments, holidays and records and details relating to the employees’ community employment records were always accurate so that employees can be tracked. In August 2016, the respondent was contacted by a participant organisation and they lodged a complaint against the complainant who was the Team Leader for the participants working in the organisation. The complainant’s supervisor met with the chairperson of the organisation to get further details. It transpired that there was a significant difference between the organisation’s participation information and that of the respondent’s. There were wrong names, unrecognisable names, and names of participants who had long left the host organisation and some were still being paid. The supervisor arranged a meeting with the complainant. She said that at the meeting the complainant admitted that he had failed to update the system regarding the placement of certain participants, moving them from one host organisation to another, not updating contracts, timesheets or job descriptions. He told her that things had ‘gotten out of hand’ with the host organisation. Midway through the meeting the complainant left the meeting citing stress. He was asked to hand over the relevant files. He said they were not in the building but they were possibly in his car. He did not return to the meeting and immediately afterwards went on sick leave. He then submitted medical certificates stating he was suffering from work related stress. The supervisor wrote to the complainant on the 31st of August 2016 requesting the code for the door and the keys for the filing cabinet and requesting that any of the files not in the office be returned immediately by courier. It came to the respondent’s attention that the complainant had visited some of the participants while he was on sick leave and the Programme Manger wrote to the complainant on the 5th of September informing him that he was not insured to carry out work while he was on sick leave. He was also requested to return the participants files. The supervisor then commenced an investigation into the participants’ files and into the complainant’s record keeping in relation to all the current participants placed on the schemes by the complainant. The supervisor submitted that there was a significant cause for concern in relation to the operation of the scheme and in relation to the complainant’s record keeping. It appeared that many of the files were in a poor state and that the complainant’s work was inaccurate, incomplete, files were missing and participants were being paid who did not turn up for work or who were not actually on the scheme. It was submitted that this left the respondent organisation open to an audit failure and possible financial penalties. It was also difficult to manage the rosters, holiday and sick leave if the participants’ records were not in place. The supervisor said that it was difficult to carry out the investigation as the complainant had retained the files and the information pertaining to the participants. The complainant was on sick leave and management planned to address these issues with him on his return to work. In September 2016, the complainant was certified to return to work but he did not do so and informed the respondent that he was going on annual leave. As taking annual leave following sick leave was in contravention of the regulations management instructed him to return to work immediately. The complainant did not return to work and went on sick leave again. The complainant was referred by the respondent for a medical report on the 21st of October 2016. He was certified unfit for work and the Doctor recommended that he should be reassessed in eight weeks. A further occupational health assessment was carried out on the 13th of December and the complainant was declared fit to resume work on the 19th of December 2016. On his return to work on the 19th of December, the complainant was called to a meeting with his union representative and the Programme Manager and his supervisor. The PM presented him with a letter informing him that he was being suspended on full pay under the disciplinary procedures for suspected gross misconduct. A Disciplinary Meeting was arranged for the 21st of December 2016. The complainant was presented with the findings of the investigation the complainant’s supervisor had carried out in relation to participants on the scheme. The breaches of the policy and procedures were outlined to the complainant. He was given a detailed table listing the problems such as missing time sheets, contracts, sick certificates, inaccuracies contradictions and omissions relating to participants and participant employers. Issues relating to five participants were regarded as extremely series but the complainant did not respond to any of the issues raised. One of the participants was working elsewhere and was still being paid another had left the host organisation and was still being paid, one had never worked for the host organisation named and others admitted that they had never worked the 19 .5 hours but were paid. The meeting was adjourned to the 10th of January 2017 for the complainant to consider the information put to him and to give him an opportunity to prepare a response. The complainant cancelled this meeting with less than an hour’s notice requesting more time to gather information. It was rescheduled for the 12th of January 2017 but it was again cancelled by the complainant because he was sick. The PM wrote to the complainant on the 17th of January, after the complainant’s union representative said that he was unable to contact him, offering two dates for the meeting and asking him to confirm his availability. The complainant emailed his union and the respondent to say he would not be attending the meeting on the 18th of January because he was sick. He enclosed a certificate covering the period 12th of January to the 30th of January 2017. The resumed disciplinary meeting was rescheduled to the 31st of January and the complainant was advised by letter dated the 23rd of January that if he did not attend or cooperate with the respondent that he would be dismissed and there would be no further cancellation or extension granted for the meeting. The complainant did not attend the meeting and submitted a further medical certificate covering him from the 30th of January until the 13th of February. On the 1st of February, the respondent dismissed the complainant by letter setting out the reasons for the dismissal and informing him of his right of appeal within seven working days. The complainant appealed the decision to dismiss him. An appeal hearing was scheduled for the 23rd of February but the complainant requested more notice of the hearing. It was rescheduled for the 1st of March and he said that he was unavailable due to illness. The respondent wrote to the complainant requesting that his union representative contact them before the 10th of March with a view to setting up a meeting and if there was no contact the appeal process would be considered closed and it would not be reopened. There was no contact from the union. In early April 2017, SIPTU requested that the appeal should proceed, but the respondent did not reopen it. With the cooperation of SIPTU, the complainant returned twenty-six missing files a few weeks before this hearing of the case. It was submitted that the complainant was dismissed for gross misconduct. He was offered every opportunity to participate in the investigation and to respond to the allegations but he refused to cooperate either in the investigation or the appeal process.
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Findings and Conclusions:
Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia as follows: “(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this act, to be an on fair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Subsection (4)(b) provides that “the dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the conduct of the employee”. In addition, subsection (7) provides that where appropriate regard may be had “to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.” The approach to cases of dismissal for “conduct” by the EAT was set out in Hennessy v Read & Write Shop Ltd UD192/1978 as follows “In deciding whether the dismissal of the claimant was unfair we apply the test of reasonableness to: I note the respondent received a complaint about the complainant in August 2016 from one of the host organisations and when his supervisor raised the issues with him the complainant immediately went on sick leave. I also note his supervisor requested him to hand over all the files for the participants and the keys to the he failed to do so. The respondent carried out an investigation into the participants on the scheme and the host organisations for whom the complainant had responsibility for and serious deficiencies were uncovered about the management and record keeping for participants on the scheme. The respondent said there were five serious cases where it was discovered that some of these participants were not working on the scheme and were being paid and some were working less than the 19 ½ hours required under the scheme. The respondent arranged to meet the complainant with his union representative on his return from sick leave on 19 December 2016. He was giving given a letter of suspension which outlined the reasons. A further meeting was held on 21 December 2016 where the complainant, who was represented by his union, was provided with the results of the investigation carried out by the respondent. The meeting was adjourned to allow the complainant to prepare a response. A further meeting was arranged for the 10th of January 2017 the complainant did not attend and requested further time to prepare a response. He did not attend the rearranged meeting and he went on for sick leave. A meeting was arranged for the 18th of January and the complainant said he was not attending as he was on sick leave. The respondent then wrote to the complaint and rearranged the meeting for 31 January 2017 outlining the attempts made to investigate the allegations and warning him that if he did not attend for any reason and cooperate with the investigation that he would be dismissed. The complainant did not attend but submitted a further medical certificate covering him until 13 February 2017. On 1 February 2017, the respondent wrote to the complainant advising him he was dismissed for gross misconduct for the following reasons: Submitting or entering of false/misleading information Refusal to obey a reasonable instruction from someone authorised to issue such instructions Repeated breach of policies and procedures I note that the complainant cancelled the meeting of the 10th January because he needed more time to prepare his defence. However, he then cancelled three further meetings because he was sick. He also said, in relation to the meeting of the 18th of January, that he believed that the respondent had already decided the outcome of the investigation. I note that the complainant was out sick for four months after he was initially informed that there are complaints against him. Likewise, I note that the complainant was referred to an occupational health physician who declared him unfit for work for eight weeks and after a further consultation with the OH, he was then certified fit to return to work on 19 December. While I accept that the complainant submitted certificates to say that he was sick, I am of the view that the complainant, by submitting medical certificates, was avoiding providing a response to the respondent in relation to the serious allegations raised. I am also satisfied that there was no basis for the complainant’s contention that the respondent had already decided the outcome of the hearing. It is my view that the respondent had no option but to conclude the investigation after giving the complainant every opportunity to attend and present his response. In coming to this conclusion, I also note that the complainant did not attend two appeal hearings arranged and failed to contact the respondent to reschedule it as requested. In relation to the unions submission that the dismissal was “vitiated by procedural unfairness”, I am satisfied that the respondent notified the complainant of the nature of the complaints against him. He was initially notified in late August 2016 that there were complaints from a host organisation and at the meeting of 19 December 2016 he was notified that the company wanted to investigate irregularities and potential misconduct in relation to participants and these allegations were set out in a document compiled by the supervisor and given to the complainant at a meeting on the 21st December 2016t. In evidence the complainant accepted that he was aware of the allegations against him. He agreed that there were people on the scheme who are not working in the host organisation but they were being paid and that some of the named participants did not work the 19 ½ hours as required by the rules of the scheme. The complainant also accepted that he retained files containing personal details of the participants which he did not return to the respondent until August 2017 despite a number of requests to do so. I note that the participants got a top up on their social welfare payments to work 19 ½ hours on the scheme and that the complainant was responsible for certifying compliance with the scheme to qualify for the payments. It was an abuse of public money and an abuse of trust as a team leader to certify payments for people who were not in fact working and for people who did not work in compliance with the terms of the scheme. Furthermore, the failure to obey the respondent’s instructions to return the files, which contained sensitive information on the participants, was a flagrant breach of the procedures and was unacceptable. I am satisfied that the respondent’s investigation was fair and that procedures of notifying the complainant of the allegations and giving him an opportunity to respond. I am also satisfied that the conclusion arrived to dismiss the complainant was reasonable in the circumstances. For these reasons, I find that the decision taken by the respondent to dismiss the complainant was not unreasonable. The claim fails. Claim for Minimum Notice Section 8 of the Minimum Notice and Terms of Employment Act 1973 provides: “nothing in this Act shall affect the right of any employer or employee to terminate the contract of employment without notice because of the misconduct of the other party”
The complainant’s union representative referred me to the Labour Court’s recent Decision in the case of DHL Express (Ireland) Ltd & Michael Coughlan UDD1738 and submitted that the complainant was dismissed for gross misconduct and asked me to apply the reasoning in that case in relation to misconduct. The Court stated: ‘The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v BredinM160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC, 1996)) wherein the Tribunal states:
In the case of Leopard Security v David Campbell [1997] ELR 227 the EAT stated “The standard …. Which the Tribunal has always applied to the word ‘misconduct’ in section 8 is that the misconduct alleged must be of such a serious nature that the employer would not reasonably be required to keep the employee at work within the workplace even for a short notice period. There is a contrast between the word ‘misconduct’ and the more neutral word ‘conduct’ used in the Unfair Dismissals Act. There have been many cases where the Tribunal has held that the conduct of the employee justified dismissal, but did not justify summary dismissal.” Applying the jurisprudence in relation to the definition of ‘misconduct’, I am satisfied that the complainant’s conduct which is defined as gross misconduct under the respondent’s disciplinary procedures does not in my opinion come within the definition of misconduct as set out in the above jurisprudence. I am satisfied therefore that the complainant is entitled to notice under the Act.
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Decision:
CA-00012154-004 Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. In accordance with Section 8 (1) (c) of the Unfair Dismissal Act, 1977 – 2015 and in view of my findings and conclusions above, I declare this complaint is not well founded. CA-0000121154-005 In accordance with Section 41(5) Part 1 Schedule 6 of the Workplace Relations Act, 2015 and in view of my findings above in relation to the complaint under the Minimum Notice and Terms of Employment Act, 1973, I am allowing the claim and awarding the complainant two weeks pay in the amount of €1,182 in respect of the statutory notice period.
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Dated: 20th November 2017
Workplace Relations Commission Adjudication Officer: Marian Duffy
Key Words:
Unfair Dismissal, Minimum notice, gross misconduct, fair procedures. |