ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008750
Complaint:
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-00011539-001 | 24/05/2017 |
Date of Adjudication Hearing: 09/01/2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with 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 was employed by the Respondent as a General Operative. She commenced in the employment on 10th July 2006. The complainant was paid €10.59 gross per hour. The complainant was dismissed with effect from 4th May 2017. The complainant contends she was unfairly dismissed and is seeking compensation in that regard. |
Summary of Respondent’s Case:
The respondent’s case is that the complainant was not unfairly dismissed. The respondent’s position is that a number of disciplinary issues had arisen in 2015 and 2016 and that the complainant had received a number of verbal and written warnings as a result. The respondent stated that the disciplinary processes related to the complainant taking unauthorised breaks, the complainant’s attitude towards her colleagues and supervisors, her failure to carry out the required technical checks in her position and further complaints against her relating to bullying and harassment. The respondent stated that the complainant was placed on a final written warning in September 2016 relating to another disciplinary process which was not appealed. The respondent contends that the circumstances which led to the dismissal of the complainant occurred on 6th December 2016. The respondent contends that the complainant was allegedly party to/responsible for the circulation of rumours that a male colleague had sent x rated text messages and/or pictures of himself to a female colleague. The respondent stated that the male in question had said to the female in question that he had heard that she was telling everyone in the workplace that he had sent such pictures and text messages to her. The female in question, who knew there was no truth in this rumour as she had received no such text messages or pictures, had seen her male colleague speaking with the complainant moments earlier and asked him if it was the complainant who had said that to him. The respondent contends that the alleged recipient of these text messages and pictures subsequently lodged a complaint against the complainant on the basis that the complainant had been spreading rumours about her and in relation to how she had been treated by the complainant in the course of her work. The respondent stated that it attempted to arrange an investigation meeting in relation to the issues but this process was delayed temporarily as the complainant was absent on certified sick leave from 9th December 2016. The complainant was subsequently referred to an occupational health physician who stated that the complainant was fit to engage in the investigation process. The respondent stated that disciplinary investigation meetings took place on 16th and 21st February 2017. The respondent contends that the complainant alleged that she had heard of the rumours from two other staff members and that she had informed her male colleague what was being said about him as he was her friend and she was watching out for him. The Respondent’s position is that this was subsequently proven not to be the case and that the complainant was most likely the instigator of the rumours. The Respondent then arranged a disciplinary meeting which took place on 5th April 2017. The Respondent stated that the actions of the complainant in relation to spreading rumours about colleagues is in contravention of its Dignity and Respect at Work Policy. The respondent also stated that, as there was a live final written warning in place, it believed its decision to dismiss the complainant was fair and reasonable. The complainant was notified of her dismissal on 6th April 2017 and was given four weeks’ notice. The effective date of the dismissal was 4th May 2017. The Respondent stated that the dismissal was appealed by the complainant and an appeal meeting took place on Friday 21st April 2017. The Respondent stated that the complainant, having been advised by her representative, apologised and asked that she be given one more chance. The Respondent stated that it considered the appeal but given the seriousness of the complainant’s actions and the fact that there was a final written warning in place it upheld its original decision to dismiss the complainant. In relation to the complainant’s knowledge of the procedures that existed throughout her employment, the respondent stated in evidence that the complainant had undertaken a structured Induction training course when she commenced her employment in 2006. The respondent stated that the complainant was aware of the staff handbook and other procedures and had signed to confirm her understanding in relation to them on the completion of the induction training. The respondent acknowledged that new procedures were launched and distributed to all staff in May 2017 but the complainant was no longer in its employment at that time. The Respondent referred to a number of cases in support of its position; UD/192/1978 Hennessy v Read & Write Shop Ltd which applied a reasonableness test to the dismissal of an employee, UD88/1983 Noritake (Ireland) Ltd v Kenna which dealt with whether the employer believed the employee was guilty of misconduct, if the employer had reasonable grounds to sustain that belief and if the sanction of dismissal was proportionate to the alleged misconduct. The Respondent also contended that the dismissal of the complainant was a “last straw” dismissal and referred to UD572/1990 Donnelly v Arklow Pottery Ltd in that regard. |
Summary of Complainant’s Case:
The complainant stated that she has been unfairly dismissed. The complainant’s position is that she was dismissed for making a “fake complaint” and while she was on sick leave. The complainant stated that it was a lie that she took breaks without permission. The complainant contends that she was not aware that she had been given a final written warning in relation to previous incidents. The complainant stated that she apologised for her actions and had asked to be given one last chance. The complainant also contends that she was never provided with a staff handbook or the appropriate procedures while in the employment. |
Findings and Conclusions:
The complainant did not supply written submissions in relation to her complaint nor was she represented at the adjudication hearing. As the respondent was legally represented and supplied extensive written submissions, I gave the complainant an opportunity to submit a response to the respondent’s initial submissions and to submit any additional information that she felt was appropriate. The complainant was also asked to submit written clarification from the Department of Social Protection in relation to the type of payments she receives. The complainant did not submit any response or any additional information in relation to her complaint. The respondent submitted a supplemental submission on 24th January 2018 which was copied to the complainant. The complainant has not responded to the respondent’s supplemental submission, has not submitted the required information and has made no further contact with the Workplace Relations Commission (WRC). In relation to the complaint of alleged unfair dismissal I find as follows: The complainant was subject to a number of disciplinary processes in 2015 and 2016 which resulted in the issuing of verbal and written warnings to her. She received a final written warning in September 2016 in relation to complaints that were made relating to a number of issues including complaints of bullying and harassment within the workplace. The Respondent stated that in December 2016, a complaint was made against the complainant in relation to an accusation that she had been party to or responsible for rumours relating to her colleagues and x rated pictures and text messages that were supposedly sent from a male to a female within the workplace. The alleged recipient of these messages, who had stated she had not received any such items, raised a grievance against the complainant in relation to what had happened and in relation to how the complainant had treated her over a long period of time. The complainant also submitted a complaint that her female colleague had received preferential treatment in the workplace. I find that the respondent carried out a thorough process in relation to the investigation and disciplinary meetings. The complainant had denied spreading the rumours and said that she herself had heard them from two other colleagues. The respondent then established that it had not occurred as claimed by the complainant an on balance it found that it was the complainant who had instigated the rumours in question. The Law: Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows: 6(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, In the instant case, the respondent conducted a thorough and detailed disciplinary process in line with its policies and procedures relating to the conduct of the complainant. The disciplinary meeting took place on 5th April 2017 and the complainant was notified of her dismissal verbally on the 6th April 2017 and was given four weeks’ notice of her dismissal. The complainant attended her Doctor on 7th April 2017 and was certified unfit for work until 7th May 2017. The complainant previously stated that she had been dismissed while absent on certified sick leave but had been found medically fit to engage in the investigation process and continued to engage in the disciplinary process. The complainant then appealed the decision to dismiss her and an appeal hearing took place on 21st April 2017. The appeal was conducted by two senior members of the management team. I have reviewed the handwritten notes of the appeal hearing. The complainant apologised for what had happened and asked that she be given one more chance. The Operations Director is noted to have said to the complainant at the appeal hearing that she had learned nothing throughout the process, that she did not deserve a chance and that he was upholding the dismissal. The decision to dismiss the complainant from her employment was communicated to the complainant the day after the disciplinary hearing. The complainant was then told at the appeal hearing that the dismissal was being upheld for the reasons stated. While it could be argued that the initial decision to dismiss was communicated somewhat quickly to the complainant, I am of the view that it was inappropriate that the person conducting the appeal would convey a decision at the appeal hearing. I find, therefore, that there was an element of procedural unfairness in the appeal process. Despite the deficiencies of the appeal hearing, I have given careful consideration to the substantive complaint of unfair dismissal. The complainant had already been subject to a disciplinary process for bullying and harassment and had accepted that she was guilty of such behaviour. I do not accept the argument that she was unaware that she had a final written warning in place as it was communicated to her on 16th September 2016 and she did not appeal that warning. The respondent received a complaint in relation to the incidents that occurred in December 2016 and ultimately the complainant accepted her behaviour, had apologised and requested that she be given another chance. I find that the complainant was on notice since September 2016 that further inappropriate behaviour on her part would lead to disciplinary action by the respondent. The complainant continued to engage in such behaviour which ultimately led to her dismissal. In all the circumstances of this case I find that the respondent acted reasonably in dismissing the complainant. |
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.
Having considered the written and verbal submissions of the parties and the evidence adduced at the adjudication hearing, I declare that the complaint of alleged unfair dismissal is not well founded. |
Dated: 11/04/2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Alleged unfair dismissal, disciplinary procedures. |