ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00010131
Parties:
| Complainant | Respondent |
Anonymised Parties | Ms. A | An employer |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00013172-001 | 17/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00013172-002 | 17/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00013172-003 | 17/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00013172-004 | 17/08/2017 |
Date of Adjudication Hearing: 26/03/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute.
Background:
The Complainant in this case commenced employment on 01/09/2013 and was dismissed on 15/05/2017 following a period of absenteeism. |
Summary of Respondent’s Case:
The Complainant was engaged by the Respondent as assistant to the Editor in September 2013, this was a work from home position. In July 2016 an issue arose between the Complainant and another staff member wherein it was alleged that the Complainant persisted in sending a number of text messages to the other employee very late at night. The other staff member handed in her resignation on foot of this alleged harassment. It was also alleged that the Complainant was making phone calls very late at night to other staff members. Due to travel commitments, the Respondent company owner could not deal with the issue at that juncture. As a holding measure he placed both staff members on paid leave until his return. The Complainant asked for this to be confirmed in writing which the Respondent owner did informing the Complainant that she was being placed on ‘gardening leave’. The Complainant was due to return to work on 18/07/2016, she did not, the Respondent owner received a letter from the Complainant’s solicitor requesting facts on the suspension and alleging that the Complainant was being bullied by him. The Complainant did not return to work and submitted sick certs explaining her absence from 22/07/2016 until 23/02/2017. On 17/07/2016 the Respondent’s offices were broken into ad some confidential client information was removed. This necessitated an immediate change to passwords for the Respondent’s work systems. By email the Respondent owner wrote to the Complainant asking that she attend a meeting on 19/07/2016. He also advised that the matters at issue in relation to the Complainant were: 1. Gossiping 2. Late night calls and texts to other staff members 3. Insulting comments made by the Complainant about the Respondent owner’s partner and her son. The Complainant did not attend for this meeting and went on sick leave from 22nd July 2016 until February 2017. A set of claim papers were received by the WRC on 9TH September 2016 in which she made the following claims: a) That she had not received a contract of employment. b) That she had been the subject of bullying and harassment at work (in the context of an Industrial Relations claim). c) That she had been subjected to an unfair disciplinary sanction. The decision from the WRC awarded her €500 for the Respondent’s failure to issue her with a statement of particulars of employment (a contract) the remaining complaints failed. This decision was not appealed. The Respondent issued a draft contract of employment to the Complainant on 9th November 2016, this started an exchange of correspondence between the parties containing queries and responses in relation to the contract. During this period the Complainant remained on certified sick leave. By email dated 6th March 2017 the Complainant’s representative suggested that the Complainant would be available to attend a meeting on 13th March 2017. The Respondent would not be available on this date and by return sent a list of dates he would be available during March and April 2017. The Respondent also requested a certificate of fitness to return to work be supplied by the Complainant. The Respondent also asked for suggestions on as to how she would like to proceed with the renegotiation of her contract. By the start of April 2017 no response had been received from the Complainant who, at this stage had been absent for some five weeks, her last medical certificate had expired on 17th February 2017. On 5th April 2017 a letter inviting the Complainant to a disciplinary hearing on 25th April 2017 - the letter stated that the matter for concern was the Complainant’s ‘alleged failure to submit valid sickness certificates since 23rd February 2017 with no valid excuse/reason for same’. The letter then went onto state that ‘These matters are regarded as potentially gross misconduct which may result in the summary termination of your employment if you are unable to provide a satisfactory explanation to the matters put to you’. The Complainant failed to attend the meeting. The meeting was then rescheduled for 11th May 2017. The meeting was then held in the absence of the Complainant. A decision to dismiss the Complainant was made and this was communicated to the Complainant by letter dated 15th May 2017. By letter dated 17th May 2017 the Complainant appealed this decision. The appeal hearing took place on 29th May 2017, again the Complainant failed to attend. By letter dated 31st May 2017 the Complainant’s representative apologised for the Complainant’s non-attendance at the appeal hearing and requested that the appeal hearing be rescheduled. This could not be facilitated. Claim papers alleging inter alia Unfair Dismissal were received by the WRC on 17th August 2017. In summary: 1. The Complainant was absent from work without authorisation for almost six weeks with no justification for same. 2. The Complainant failed to attend Disciplinary hearings and failed to provide valid excuses for non-appearance at same. 3. Section 6 (1) of the Unfair Dismissals Act 1977 provides: ‘Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal’. 4. Section 6 (4) of the Unfair Dismissals Act 1977 provides: ‘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 ….
….
(b) the conduct of the employee It was further submitted that the sanction of dismissal was reasonable in all the circumstances and that the procedure followed was fair. It is submitted that the dismissal was within the range of reasonable responses that were available to a reasonable employer. 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 a contract of employment without notice because of misconduct by the other party’. Terms and Conditions of Employment. The Complainant was provided with a contract of employment and an employee handbook by email on 09/11/2016. The Complainant raised some issues in relation to the terms of the contract and would not engage with attempts to rectify these issues. In the circumstances it would be wholly unfair to find against the Respondent where the efforts of the Respondent to comply with the 1994 Act were frustrated by the actions of the Complainant. Industrial Relations Issue – Bullying & Harassment. No valid grievance was received in the currency of the Complainant’s employment. |
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Summary of Complainant’s Case:
1. The Complainant commenced employment with the Respondent on the 1st of September 2013. 2. The Complainant worked from home on a part time basis. The Complainant did not work to any specific hours but frequently had to meet publishing deadlines which meant that the Complainant frequently worked either throughout the course of the day or late at night. During her employment the Complainant had no cause to attend at the Respondent’s premises, for any reason. All her communications with the Respondent were by telephone or email. 3. It has been accepted by the Respondent that the Complainant did not have any Contract of Employment in writing. 4. In or about July 2016, arising out of a purported incident between the Complainant and Ms. A N Other (the details of which were never fully outlined to the Complainant – and which to date have not been fully outlined to the Complainant) the Complainant was placed on “gardening leave” by Mr. H. During this period, Mr. H threatened that he would be corresponding with the Respondent’s Solicitors in order to pursue disciplinary action against the Complainant. The Complainant was copied with correspondence purporting to be addressed to the Respondent’s Solicitor. (no such disciplinary action was forthcoming). It is submitted that no such Solicitor existed and that the threat issued to the Complainant was done merely to intimidate her. 5. Voluminous correspondence passed between Mr. H and the Complainant’s Solicitors which culminated in a complaint to the Workplace Relations Commission and which complaint was heard and determined by an Adjudication Officer. It was accepted during that hearing that the Complainant had not been issued with any written Contract of Employment. 6. Subsequent to the Adjudication Officer’s determination, the Complainant was furnished with a Contract of Employment by the Respondent. Notwithstanding the fact that Respondent accepted that the Complainant had not been previously furnished with a Contract of Employment it was nevertheless dated September 2014. It is submitted, having regard to the nature of the Complainant’s employment, the hours worked by her and the role which she had previously operated that the Contract of Employment was wholly unsuitable. 7. Subsequent to the determination, the Complainant was furnished with a Contract of Employment by the Respondent. Notwithstanding the fact that Respondent accepted that the Complainant had not been previously furnished with a Contract of Employment it was nevertheless dated September 2014. It is submitted, having regard to the nature of the Complainant’s employment, the hours worked by her and the role which she had previously operated that the Contract of Employment was wholly unsuitable. 8. The Complainant’s Solicitor wrote to the Respondent on the 8th of December 2016 to which there was no reply and consequently a further letter was sent on the 30th of January 2017. Mr. H responded to the correspondence on the 7th of February 2017 seeking “a return to work meeting” with the Complainant given her absences from work since July 2016. 9. Mr. H sent further email correspondence on the 8th of February 2017 and that email correspondence sought to dramatically alter the nature and terms of the Complainant’s employment. 10. Correspondence was sent to the Respondent’s Human Resources Advisors on the 15th of February 2017 and to Mr. H directly on same date. 11. Mr. H responded by way of email dated 23rd February 2017 apologising for a number of issues. Consequently further email correspondence was sent to Mr. H on the 6th of March 2017. 12. A response was sent by email by Mr. H on the 23rd of March 2017 complaining that the Complainant’s medical certificate had expired on the 23rd of February 2017 and that no further certificates had been furnished. Mr. H threatened disciplinary action. Mr. H initiated disciplinary proceedings pursuant to email correspondence addressed to Mackay Solicitors dated 5th April 2017. 13. It is submitted that Mr. H’s correspondence of 23rd March 2017 is extraordinary having regard to the correspondence from Mackay Solicitors of 30th January 2017. This was outlined to Mr. H in correspondence of 5th April 2017. The Complainant had asserted that she was fit to return to work and was eager to do so. In those circumstances it is not understood why disciplinary action was threatened and subsequently initiated. 14. Notwithstanding correspondence from Mackay Solicitors of 5th April 2017, Mr. H initiated a disciplinary action against the Complainant the same day. The Complainant was requested to attend at a meeting wherein the Respondent intended to pursue a disciplinary action against her. It should be noted that the Complainant was requested to attend at disciplinary hearing as opposed to an investigatory meeting. 15. Mackay Solicitors wrote to Mr. H on the 9th of May 2017 seeking an alternative time and date for the proposed disciplinary meeting and also seeking a substantive response to the correspondence of 15th February, 5th April and 5th May 2017. 16. Mr. H was informed on more than one occasion that the Complainant would have difficulties in attending at any meeting arranged for 10am due to her family circumstances. Notwithstanding numerous correspondence calling on Mr. H to reconvene a later meeting, a disciplinary hearing was convened for the 11th of May at 10am. 17. Correspondence was sent by Mackay Solicitors to Mr. H on the 9th of May calling upon him to reschedule that meeting. Mr. H rescheduled the meeting to a later time on the 11th of May 2017 but the correspondence was not seen by the Complainant’s Solicitor until the morning of the reconvened hearing. Urgent correspondence was sent by email to Mr. H on 11th May 2017 prior to the hearing of the disciplinary matter advising that the Complainant was unaware of the hearing date. Notwithstanding that correspondence, Mr. H, together with others, proceeded with the disciplinary hearing in absentia and a decision was made during the course of that meeting to dismiss the Complainant from her employment. The Respondent drafted a letter addressed to the Complainant dated the 17th of May 2017 but which correspondence was sent to Mackay Solicitors by email on the 15th of May 2017. It should be noted that contrary to Mr. H’s email of 15th May 2017 the correspondence was not sent by way of registered post. 18. Correspondence was sent by Mackay Solicitors to Ms. P initiating a grievance procedure against Mr. H and Mr. Q. No response was received to that correspondence. 19. It is submitted that an appeal was sent to the Respondent by post and by email on the 17th of May 2017. 20. Significant concerns were raised in relation to the proposal that Mr. H hear the Complainant’s appeal. An alternative Appeal Officer was appointed, namely a Cost Accountant, Mr. A. An appeal hearing was scheduled for 29th May 2017. 21. The Complainant did not attend at the appeal hearing. It is submitted that there were extenuating circumstances justifying the Complainant’s absence. The Complainant’s father had suffered a very serious illness which resulted in his hospitalisation in St. James’s Hospital whereupon the Complainant’s father underwent a number of very serious operations from which he ultimately died on 16th November 2017. The Complainant was unable to attend at the appeal hearing given that she was caring for her father who had fallen very ill at that stage and was not expected to survive. 22. Correspondence was sent to Mr A on the 31st of May 2017 outlining the reason why the Complainant failed to attend at the appeal hearing on the 29th of May. An alternative date was sought for an appeal of the Complainant’s case. 23. Mr. A refused to reconvene a date for the hearing of the Complainant’s appeal and was happy to uphold the decision to dismiss the Complainant from her employment. The reasons outlining the dismissal of the Complainant’s appeal were set out in correspondence from Mr. A dated 29th May 2017 and, which are submitted are grossly disingenuous having regard to the nature of the Complainant’s case. 24. It was submitted that the Complainant raised a number of significant issues concerning her ongoing employment with the Respondent. The concerns and issues addressed in that correspondence were not replied to in any substantive fashion or at all by the Respondent. 25. It was submitted, having regard to the reasons why the Complainant failed to attend at the appeal hearing that the decision to dismiss the Complainant from her employment and to refuse to reconvene the appeal hearing is deplorable. 26. The Complainant was never furnished with notes of either an investigatory or disciplinary meeting. 27. The decision to instigate disciplinary proceedings against the Complainant was fundamentally flawed in any event having regard to the fact that the Complainant had sought to return to work and therefore should have been under no further obligation to furnish sick certificates to the Respondent. 28. This crucial matter was not considered by any of the members of the Respondent Company or by Mr. A during the “appeal hearing”. 29. It should also be noted that throughout the course of the disciplinary process the Complainant was repeatedly denied her requests that her Solicitor attend any disciplinary meeting. The Complainant was invited to bring a trade union member or other employee notwithstanding the fact, as was well known by the Respondent, the Complainant was not a member of any trade union organisation and had no personal relationship with any employees given that she worked outside of the office at all times and had attended there only once during the course of her previous employment. 30. The Complainant, through the correspondence issued by her Solicitors on the 15th of February 2017, sought to raise a number of very valid and pertinent issues for consideration by the Respondent. The Respondent has singularly failed to respond to that correspondence at all. 31. The actions taken by the Respondent are totally contrary to the disciplinary rules and procedures as set out in the Company Handbook belatedly sent to the Complainant.
SUMMARY OF THE COMPLAINANT’S CASE IN THIS APPEAL
1. The ultimate sanction of dismissal was grossly disproportionate having regard to all of the circumstances in this case.
2. The Complainant’s entitlements to fair procedures and natural justice were not fully observed.
3. It is common case that if the procedures used to dismiss an employee are unfair then the dismissal is unfair.
4. The disciplinary process was grossly unfair. The decision maker had prejudged the outcome of the Complainant’s case prior to any hearing having taken place and did not afford the Complainant the right to fair procedures or natural justice. |
Findings and Conclusions:
In the case before the Employment Appeals Tribunal – Looney & Co v Looney (UD 843/1984) The Tribunal summarised as follows: “It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged”. As the Adjudication Officer in this instant case my decision must focus on the Respondent’s actions and decide, given all the circumstances, was the decision to terminate the Complainant’s employment fair or otherwise. I also must look at the process that was followed by the Respondent. Contained within the Company Handbook there is a list of 20 examples of Gross Misconduct. I believe the example being relied upon by the Respondent in this instant case is point n: Gross insubordination and /or continuing refusal to carry out legitimate instructions. In this instant case was the Complainant dismissed for not attending a Disciplinary meeting? Had she attended would the Respondent have dismissed her? Absenteeism from work does not constitute Gross Misconduct. In this instant case I have decided that the Complainant was unfairly dismissed however the fact that she failed to attend meetings as requested by the employer must be taken into consideration and in this regard I believe she has contributed 50% to her own dismissal. Complaint CA – 00013172 – 001 – Contract of Employment. The Complainant has already been awarded €500 at an earlier WRC hearing. Since that time the Respondent company have made attempts to issue the Complainant with a contract. The Complainant raised some issues in relation to terms and of the contract and would not engage with attempts to rectify these issues. As pointed out by the Respondent representative, the Complainant has frustrated all efforts by the Respondent and it is for these reasons the complaint fails. Complaint CA – 00013172 – 002 – Unfair Dismissal. As stated earlier I have decided that the Complainant was unfairly dismissed. It was noted at the hearing that the Complainant remained on state illness benefits to December 2017 when she commenced a new job. There is therefore no loss of earnings to be considered in this case. This being the case the maximum award is four weeks’ pay. My decision is that the Complainant contributed 50% towards her own dismissal, this reduces the award to two weeks’ pay. Complaint CA – 00013172 – 003 – Minimum Notice & Terms of Employment Act, 1973. The Complainant is entitled to two weeks’ pay in lieu of notice. Complaint CA – 00013172 – 004 – Complaint under the Industrial Relations Act. No grievance was received from the Complainant – complaint fails. |
Decision:
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Compensation to be awarded to the Complainant: Complaint CA – 00013172 – 002 – Unfair Dismissal – Two weeks’ pay - €807.54 Complaint CA – 00013172 – 003 – Minimum Notice & Terms of Employment Act, 1973 – Two weeks’ pay - €807.54 Total €1,615.08 This amount should be paid to the complainant within 10 working days of this decision / recommendation. |
Dated: 11 April 2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Unfair dismissal / absenteeism. |