ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008368
Parties:
| Complainant | Respondent |
Anonymised Parties | An Assistant Director of Studies | An English Language School |
Complaint(s):
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-00011014-001 | 27/04/2017 |
Date of Adjudication Hearing: 11/12/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced employment as Assistant Director of Studies with the Respondent, an English Language School, on 19th April 2016. His gross pay was €13.00 per hour and he worked between 15 and 30 hours per week. The Complainant was dismissed on 24th March 2017. The Complainant alleges that his dismissal was due to his union membership.
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Summary of Respondent’s Case:
The Respondent provided a written submission. The Respondent denies that the dismissal of the Complainant had anything to do with his membership of a trade union.
The Respondent is an English Language School that has been in operation for over seven year. The Respondent submits that the English Language Training sector is highly regulated. The Respondent is cognisant of its duties and obligations under Irish law and in particular the regulations governing the operation of the Interim List of Eligible Programmes.
The Respondent submits that the Complainant was employed on a probationary basis in April 2016. In July 2016, he was formally appointed a teacher and allocated dedicated hours.
From an early stage, according to the Respondent, the Complainant displayed an unwillingness to adhere to college regulations, to engage constructively with college management and entered into almost immediately a campaign of resistance. The Complainant felt that the rules that he should adhere to are the rules set by himself rather than those set by the college or indeed even more seriously the regulations laid down governing the Interim List of Eligible Programmes.
The Respondent provided a written summary of events leading up to the dismissal of the Complainant.
The Complainant failed to deliver lesson plans in the form required by the college and his plans were not up to the standard required by the college. He failed to attend obligatory twice monthly meetings. On two occasions the Complainant allowed an entire class leave more than 15 minutes before time, a breach of the regulations governing the industry.
In February, the Complainant sent an email suggesting a student could take his class as he was taking leave that day. The college was concerned that the Complainant could consider one of his students a suitable replacement. In February, the Complainant took his class on an unauthorised "field trip". A meeting was arranged with the Complainant to discuss the matter but he did not turn up. In early March, another incident arose regarding a field trip. The Director of Studies tried to meet with the Complainant again to discuss the matter but the Complainant went to considerable lengths to avoid the meeting.
On 21st March 2017, the Respondent submits that the Complainant did not turn up for work. Although the Complainant had sent an email to the Director of Studies alerting him to his absence the Director was on leave and the Complainant would have received an "out of office" reply. The Complainant failed to tell anyone else about his absence.
As a result of the incident of 21st March 2017 the Respondent sought a meeting with the Complainant. The Complainant refused to travel so the Respondent agreed to go to the Complainant's place of work, only to find that the Complainant had already left, leaving his class off early. The Respondent assumes this was done to avoid the meeting.
On 23rd March a meeting took place between the Complainant and the director and Assistant Director to discuss the situation. The Respondent submits that the Complainant's attitude was contentious, non-cooperative, very aggressive and personally insulting to the Director and Assistant Director. His accounts were deemed to be unreliable and inconsistent. The Complainant was advised that no more hours would be available to him with the college as of 23rd March 2017, although he was nonetheless paid for 24th March 2017.
The Director of Studies gave oral evidence at the hearing during which he stated that the Complainant was confrontational and wished to have things his own way. In cross examination, he agreed that the Complainant had no warnings against him when he was dismissed.
The Assistant Director of studies also gave evidence in which she stated that the Complainant was continually rude to hear and shouted at the top of his lungs into her face. She also stated that lesson plans are crucial and that if the college was removed from the ILAP list they could just, "close their doors". In cross examination, the Assistant Director stated that no note had been left at the desk by the Complainant to explain his absence on 20th Match 2017.
Another Director who had witnessed the meeting of 23rd March gave evidence that the Complainant had raised his voice at this meeting and had an aggressive stance, sticking his finger out at the Assistant Director.
In response to questions the Director of Studies stated that the Complainant was dismissed because he was not meeting his duties and responsibilities. He absolutely denied the dismissal was linked to the Complainant's union membership and only discovered he was a member of a union when he approached the Assistant Director, after his dismissal, as he wanted to talk to other teachers about the union. The Director denied he had any knowledge of the Complainant's union activity.
In summary, the Respondent submits that the dismissal was necessary and justified and was a result of the Complainant's own actions and in no way related to some purported claim of his membership of a trade union. In fact, the Respondent was unaware of the Complainant's membership of a trade union until after he had been dismissed.
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Summary of Complainant’s Case:
The Complainant submits that he was summoned to a meeting with the Director of Studies on 23rd March 2017. He had not been informed as to the purpose of the meeting nor was he advised to invite a representative or colleague. At this meeting the Complainant was dismissed from his role from the college. The Complainant submits hat he had not disciplinary warnings against him nor had he been engaged in any form of disciplinary process up to that point. No warnings had been given to him for any aspect of his performance or behaviour. Despite many requests the Complainant was never given a written explanation for his dismissal.
The Complainant had joined Unite the Union as he was concerned about conditions of employment within the college. He subsequently approached several other teachers in the college asking them to attend a union meeting on 14th March 2017 and encouraging them to join the union. It was following the Complainant's attempts to encourage his colleagues to join the union that he was dismissed. Attempts by Unite to discuss this matter with the college were not successful so the union was left with no option but to refer the matter to the WRC.
The Complainant gave oral evidence during which he stated that he had never had a black mark put against him in 50 years of teaching. He said the college was not well run and he had gone out to try and get improved facilities for the students which did not go down well with the authorities.
In response to cross examination questions the Complainant stated that he had definitely left a note with a note at the front desk warning that he would be absent on 20th March. He also stated that he had forgotten about the meeting arranged in February and that is why he had failed to turn up for it.
In response to some further questions the Complainant stated that he had joined the union in the first week of February and had handed out flyers to teachers about the union sometime thereafter. He had not placed the flyers on noticeboards.
The Complainant also stated that he did not think the college authorities were aware of his union membership, or that he was not sure they were aware.
In closing the Complaint stated that it is hard to believe that on such a small campus people would not be aware that leaflets had been handed to teachers and that management would not have been aware that the Complainant was distributing them.
The Complainant re-iterated that up to February 2017 no issues had been raised with the Complainant, no written or formal warnings. It was only when he joined a union that a slew of allegations was thrown at him. The Complainant also put forward that the English Language Teaching sector is notoriously anti-union.
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Findings and Conclusions:
The Complainant had less than 12 month’s continuous employment. It was alleged that he was dismissed for membership of a trade union. This became the substantive argument on the Complainant’s part. In these circumstances, I find that it is not a requirement to have 12 months’ continuous service. Therefore, I find that I have jurisdiction to hear this case.
From the evidence adduced it is clear there was a less than harmonious relationship between the Complainant and the Respondent. Whatever the reason for this it is clear to me that the dismissal of the Complainant was bereft of fair procedure; he was invited to a meeting without proper notice being given to him that this meeting might lead to the termination of his employment; he was not given an opportunity to prepare properly for this meeting nor was he given any opportunity to appeal the outcome of the meeting. It should be noted that up to his dismissal the Complainant had no formal warnings on his record.
Notwithstanding the above, the question that must be answered in this case is; was the dismissal because of the Complainant's membership of a trade union or was it for some other reason.
On the balance of probabilities, I find that the Respondent did not dismiss the Complainant because of his union membership but because of the behavioural and performance issues referred to above. I accept the Respondent's assertion that they only became aware of the Complainant's union membership after he had been dismissed. The Complainant himself testified that the Respondent was probably not aware of his union membership at the time of his dismissal.
This being the case, despite the lack of proper procedures, the complaint cannot succeed.
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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.
The complaint is not upheld. |
Dated: 6.4.18
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Union membership, fair procedures |