ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006640
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 28/06/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 [ and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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).
Summary of Complainant’s Case:
The claimant submitted that she was employed as a Shift Supervisor with the respondent from the 17th.Feb. 2016 to the 18th.November 2016 when she claims she was unfairly dismissed for having made a protected disclosure.
It was submitted that the claimant had concerns regarding monies held in the safe and ATM machine and had conveyed those concerns to Senior Manager Mr.B. She had also advised him that the stocktake figures for June 2016 had been falsified on the instructions of the local store manager.The store manager left his employment the following day. The claimant submitted that when she commenced employment on a 6 month contract she was advised that her probationary period was for 6 months following which she would be issued a permanent contract. She commenced in house asst. manager training in April 2016 and her hours were increased to 30hrs. per week.No issues were raised in relation to her performance review on the 27th.April.The claimant set out a chronology of her exchanges with Mr.B when she reported the store managers improper activities on the 29th.July 2016.The store manager resigned and the claimant and Asst. manager managed the store until the 8th.August.2017 pending the appointment of a replacement manager.The claimant fell at work on the 7th.August and was on certified sick leave until the 3rd.October2016.
At the company’s request the claimant returned to work under the new manager and was advised that her role had changed and she was no longer a shift supervisor /trainee manager. She was advised that she was now a cashier as the new manager did not use shift supervisors. She was denied access to the back office and all money management functions were removed from her. The claimant found the atmosphere uncomfortable and felt under suspicion even through the former manager had taken entire responsibility for the discrepancies that had arisen. The claimant completed a review form on the 12thNov. and was advised by the manager on the 16th.Nov. that she would not be getting a permanent contract.When she challenged the decision , she was informed that the decision was based on her ability to work with others.It was submitted that the issue of working with others was never raised during the claimant’s employment / she had scored 6/10 in both of her reviews and scored higher in her second review.She was acceptable/above average in all categories.
It was submitted that the claimant’s contract was not renewed because she had made a protected disclosure in accordance with the Act; she had highlighted a relevant wrongdoing .The respondent had failed to make it clear that penalisation for having made such a disclosure would not be tolerated.The claimant was demoted on her return to work- the respondent had no whistleblowing policy in their handbook.It was submitted that the claimants performance reviews were positive ; her 6 month probationary period had passed .It was advanced that the claimant was entitled to the protection of Unfair Dismissals legislation by virtue of having made a protected disclosure and did not require 1 year’s service with the respondent.The claimant was never made aware of any complaints by other staff members about her behaviour at work – if there had been any concern about her performance the respondent should have dealt with same under the company procedures and had not done so. No meeting had taken place into any performance issues.
The claimant set out a chronology of her exchanges with senior managers on her disclosures concerning the former manager. In a post hearing submission the claimant set out evidence of her endeavours to mitigate her loss – the claimant indicated that any emails she had been perusing on the office computer related solely to her and the matter of her return to work after her sick leave when she had incurred a broken coccyx.
Summary of Respondent’s Case:
The respondent denied the complaint and submitted that the claimant’s initial performance review was not favourable.
It was submitted that the new manager was unaware of the circumstances surrounding the previous manager’s departure.It was submitted that on the claimant’s return to work , the new manager had a meeting with her about health & safety issues – he had restricted access to the office by staff to prevent improper use of the computer.It was submitted that he had observed the claimant scrolling through private emails and this was not permitted.
The new manager completed a performance review with the claimant in Nov.2016 which it was submitted was not favourable to the claimant – it was submitted that he was not happy with her suitability to the role. It was submitted that the new manager was not on site when the claimant made her disclosures , that he was unaware of any such disclosures or indeed the reason for the departure of the previous incumbent , that he was given no instructions to dismiss the claimant and that he was fully entitled to dismiss her if unsuitable to the role.
The respondent invoked the provisions of Dan Philpott v Marymount University Hospital and Hospice in support of their contention that the claimant had failed to demonstrate any evidence or material link between the disclosures and the claimants dismissal. It was submitted that the claimant had failed to demonstrate any evidence or to show any material link at all between the disclosures and her dismissal for the purposes of the Protected Disclosures Act, 2014 .It was submitted that “ Akin to the position of Marymount University Hospital , the respondent terminated the employment of the complainant due to her unsatisfactory professional performance”.
In his direct evidence at the hearing the manager asserted that the claimant did not know what she was doing when it came to stock taking and contended that he had to tell the claimant how to do cash. Notwithstanding the submission of the respondent’s representatives, he accepted that he was aware of the circumstances surrounding the departure of the previous manager .He stated that the claimant did not know anything and that there was friction between the claimant and other staff.He confirmed that no staff member had taken a grievance against the claimant and accepted that he had engaged with senior management about the claimant’s future approx.. 3 weeks before the claimant was let go.He stated that the contract was terminated “ for my own reasons and had nothing to do with anything else”.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 have reviewed the evidence presented at the hearing and noted the respondent’s clarification that basic grade staff whether acting up or training as assistant manager all earn the national minimum wage.
I note there is no dispute between the parties with respect to the claimant having made a protected disclosure within the meaning of the Act when she reported on the previous manager.
I have examined in detail the 2 appraisals of the claimant and noted that in the first appraisal the claimant scored “good” with 57 points and above average in 3 different criteria – hygiene, attitude and job performance /customer service.In the second appraisal which was conducted 4 days prior the termination of the claimant’s employment , the claimant scored above average in 6 different criteria – job knowledge , dependability, hygiene, attitudes , job performance/customer service and time keeping and attendance.She scored a total of 61 points – “good score” and scored an acceptable 6 for ability to work with others.The manager was unable to advance any compelling evidence to explain the contradictions between his assertions of performance deficits and inability to work with others in his evidence to the hearing and the positive appraisal outcome which was undertaken 4 days before the claimant’s employment was terminated.In addition I am taking account of the manager’s confirmation at the hearing that no other staff member expressed a grievance in relation to the claimant.In light of the foregoing , I find on the balance of probabilities that the termination of the claimant’s employment was wholly or mainly related to the protected disclosures made by her about the previous manager .Accordingly , I am upholding the complaint and require the respondent to pay the claimant €7,020 compensation within 42 days of the date of this decision.
Workplace Relations Commission Adjudication Officer: Emer O'Shea