ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007538
Parties:
| Complainant | Respondent |
Anonymised Parties | HR Manager | Cemeteries |
Representatives | Paul Henry & Ciara Galvin of SIPTU | Tommy Cummins Adare HR, George McCullough, Mervyn Colville |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00010205-001 | 14/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00010205-002 | 14/03/2017 |
Date of Adjudication Hearing: 02/01/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a Human Resources Manager from January 1996 to 5th October 2016. He was paid €51,500 per annum and pension contributions. He has claimed that he was unfairly dismissed and has sought compensation. |
1)Unfair Dismissals Act CA 10205-002
Summary of Respondent’s Case:
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Summary of Complainant’s Case:
The Complainant undertook several roles before he became the HR manager in 2007. He had never been the subject of any disciplinary processes. On 9th March 2016, he was spoken to by the Deputy Chief Executive and Financial Controller to discuss concerns raised by a colleague. He went home ill later that day. On 11th March, he returned but was sent home by the Financial Controller. On 31st March, he attended the company’s occupational physician. On 22nd April, he attended a return to work meeting with the Deputy Chief Executive, Financial Controller and Grounds Facility Manager and a witness colleague. The Deputy Chief Executive sought to speak privately to the Complainant and offered him an exit package alluding to a series of concerns. He was to be phoned the next morning but they didn’t. On 27th April, he was suspended with pay and the Financial Controller was appointed to carry out the investigation. The Complainant did not return to work and he was dismissed on 5th October 2016. It is his position that this was trumped up to get rid of him and justify the dismissal. There were three allegations put to him.
1)Removal of data from the F drive on the company system.
He was accused of a potential breach of trust. This matter is related to a lawful data protection request made by the Complainant on 19th June 2015. This was concerning the non-payment of bonuses for two years. The investigator found that there was a breach of trust, this is disputed. The Deputy Chief Executive assumed the role of Data Controller. It was his responsibility to ensure that the data requested was given over. On 8th March 2016, the Complainant wrote to the company alerting them that they had not complied with the original request of June 2015. In August 2015 he was advised that the folder was available with no instructions, so how can this be a breach of trust. The Deputy Chief Executive in his interview that he didn’t know that the Complainant had access to the folder. The Complainant denies deleting anything.
2) Health & Safety records
There was a complaint to the Health and Safety Authority. The Complainant dealt with this through the Chief Executive Officer, but the CEO was never interviewed by the investigator. There is a difference of opinion of who is responsible for the provision of training for manual handling. It is the Complainant’s position that this was the responsibility of a colleague of his. He disputes that he was solely responsible for arranging such training. At that time the Complainant was driving for change because of the workload issues.
3) Management of an absentee.
There were medical and mental issues that had made the management of this absence difficult. There was a difficulty contacting him. There was a request for a P45 from that employee. It is denied that he exposed the organisation to litigation or monetary risk. I fact he prevented such a risk.
There were serious and grave concerns raised by the Complainant’s representatives at investigation, disciplinary and appeal stages. The management team would not agree to an external independent investigator. HE was forced to go out sick and while he was away they began to pierce together allegations against him. . The Deputy CEO was both judge, jury and executioner. The investigator , the Financial Controller was not independent. The complaint must be a bona fide complaint unrelated to any other agenda. Reasonableness is required They cited case law in support.
It is his position that he has had over twenty years of an unblemished record. He was forced out sick and while he was absent the pieced together allegations in an attempt to manage him out of the business. When he would not discuss an exit package he was sent home, suspended and dismissed. This was an unfair dismissal. He is seeking compensation. He actively sought to mitigate his loss, details supplied. On 1st December 2017 he found work in an HR role and is paid €35,000 per annum.
Findings and Conclusions:
Substantive Matters I note the three allegations made against the Complainant. 1)Unlawfully removing data from the hard drive I note that following a data request made by the Complainant an F drive was set up and a folder created with the information that he had requested. I note that only the Deputy Chief Executive Officer (DCEO)and the Complainant had access to it. I note the conflict of evidence regarding whether all the information had been made available to the Complainant. I note that the data request was made on 19th June 2015, the folder was set up on 6th August 2015 and this was confirmed by email with the access information also on 6th August. I note that it was not until 8th March 2016 that the Complainant wrote to say he didn’t receive the information he sought. I fail to understand why he waited seven months to query it. I note that the IT Specialist confirmed that the last time files were moved or deleted from this file was 17th August 2015. I note that the Complainant denied ever moving or deleting the files. I note that it has been confirmed that the DCEO was in Lanzarotte on that date and so the only person that could have done so was the Complainant. On the balance of probability, I find that he moved and/or deleted documents from that F drive. I note that he accepted that he copied files, after all they were his files. I fail to understand why he denied moving or deleting files. I note that this is why the Respondent is alleging that he has breached the bond of trust. 2) Health & Safety Training I note that the Chief Executive Officer (CEO) requested the Complainant to deal with this. I note that the Complainant delegated this task to his assistant but failed to follow up on this. I find that he failed to manage this properly. Delegation is not abdication and I find that the Complainant abdicated his responsibility. 3) Absence management I find that there was a mismanagement of this absence by the Complainant. I note that there was a string of emails from that absent employee which were not responded to by the Complainant. I find that he failed to deal with this properly. Overall, I find that the Complainant was culpable in all three matters. I do not find that these matters either singularly or collectively amount to such a grievous matter that it warrants summary dismissal. I note that the Complainant had not any disciplinary sanctions on his file. I find that the punishment does not fit the crime. Therefore, I find that the dismissal was substantively unfair. However I find that the Complainant has contributed to his dismissal. |
Procedural Matters
I note that the Complainant was made aware of the allegations against him in writing.
I note that he was suspended with pay pending an investigation.
I note that a detailed terms of reference document was agreed between the parties.
I note that the Financial Controller (FC) carried out a very detailed investigation.
I note that the FC was approved by both sides to carry out the task.
I note that the matter was escalated to a disciplinary investigation which was carried out by the DCEO.
I appreciate that there was a very small management team in this company, however the DCEO was directly involved and a witness regarding allegation 1.
Therefore, I find that it was inappropriate that he should have conducted the disciplinary hearing.
I note that the Complainant was given the right to appeal the decision and it was dealt with by the CEO.
I note that the CEO was involved and a witness in allegation 2 but was not interviewed.
I note that the Complainant was given the right to defend himself at all stages.
I note that he was given the right of representation at all stages.
I find the involvement of the DCEO and the CEO in a process that they were directly involved in has rendered this dismissal procedurally unfair.
I find that it would have been more appropriate to have had an external persons carry out the investigations.
Overall, I find that the dismissal was both substantively and procedurally unfair.
I find that the Complainant has contributed to his dismissal.
I find that the Complainant was employed in a position of trust and he has not acquitted himself well or to a standard expected of such a position.
I find that he has demonstrated failings in the performance of his duties and in the trust placed in him.
I note that the Complainant is seeking compensation.
I find that the Complainant's contribution to his dismissal must be reflected in the quantum of the award of compensation.
I am satisfied that he has properly endeavoured to mitigate his loss.
I note that he has found employment in an HR role on 1st December 2017 at a salary of €35,000 per annum.
Decision:
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 decided that the dismissal was both substantively and procedurally unfair. I have decided that the Complainant has contributed to his dismissal which must be reflected in the quantum of the award. I have decided that the Respondent should pay the Complainant €47,500 in compensation within six weeks of the date below. |
2)Organisation of Working Time Act CA 10205-001
Summary of Complainant’s Case:
He has claimed a carryover of holidays of 6 days in 2014 and 6 days in 2015.
Summary of Respondent’s Case:
The Respondent stated that they do not allow a carryover of holidays. He is not owed any holidays. This claim is rejected. |
Findings and Conclusions:
I note the conflict in evidence regarding whether the holidays were agreed to be carried over. I note that Sec 2 (1)(b) of this Act defines the holiday year as “Leave year” means a year beginning on any 1st day of April”. I note that a carryover of holidays has been claimed for 2014 and 2015. |
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I find that the holiday year 2014 runs from 1st April 2014 to 31st March 2015. I find that the holiday year 2015 runs from 1st April 2015 to 31st March 2016. I note that this complaint was presented to the Commission on 14th March 2017 therefore the period that may be investigated is 15th September 2015 to 14th March 2017. I find that these claims are outside allowable period for investigation. As per Sec 27 (2) of this Act I find that the claims are out of time and the Adjudicator does not have jurisdiction to deal with it. Decision:Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that I have decided that this claim fails. Dated: 9th April, 2018 Workplace Relations Commission Adjudication Officer: Eugene Hanly Key Words: |
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