ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00010223
Parties:
| Complainant | Respondent |
Anonymised Parties | A cleaning operative | A contract cleaning company |
Representatives | Mr Leo Costello, Citizens Information Centre | Mr John Barry, Management Support Services (Ireland) Limited |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00013309-001 | 25/08/2017 |
Date of Adjudication Hearing: 29/11/2017
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969, this dispute has been assigned to me by the Director General. I conducted a hearing on November 29th 2017 and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The complainant is a Hungarian national and she commenced employment as a cleaner with the respondent company on June 6th 2012. She has been absent due to work-related stress since March 2016. At the time she went out sick, she was on an hourly rate of €10.00. She has brought a complaint under the Industrial Relations Act 1969, on the basis of her contention that her employer’s behaviour amounts to bullying and unfair treatment. |
Preliminary Issue:
In advance of the substantive hearing, Mr John Barry, for the respondent, raised the fact that this complaint was the subject of a hearing at the WRC on March 21st 2017. The complainant did not attend the hearing and the adjudicator found that the complaint failed. The complainant appealed to the Labour Court, but lodged her appeal more than the requisite 42 days after receipt of the adjudicator’s decision. The Court found that the complaint was out of time. Having requested that the matter be re-listed, the Court advised the complainant that she must make an application under section 44 of the Workplace Relations Act, seeking an extension of the time limit. A hearing on this matter was scheduled for October 6th 2017. The complainant sought an adjournment which was agreed to by the respondent and the hearing did not proceed. This hearing was then scheduled for November 29th 2017. The respondent argued that this claim has already been adjudicated on and cannot be re-heard. The complainant said that she was not on notice of the date of the hearing in August, as she had problems receiving correspondence due to some confusion in the post office about the exact letter box for her apartment. |
Decision on the Preliminary Issue:
This complaint has been submitted under the Industrial Relations Act 1969 and, on this basis, there is some scope for seeking a resolution with the collaboration of both parties. I am mindful of the finding of the Labour Court that the complainant did not submit an appeal on time and that this should be the end of the matter. However, having considered the submission of the complainant and having regard to the change of direction arising from the adjournment of the hearing of the preliminary matter in October 2017, I have decided that I will proceed to adjudicate on the substantive case. |
Summary of Complainant’s Case:
In her submission at the hearing, the complainant said that for the first three years of her employment, she had no issues with her job or how she was managed. She worked for around 40 hours each week and sometimes up to 70 hours in a number of office buildings where the respondent had cleaning contracts. Three payslips were produced in evidence which showed that the complainant worked 49, 54 and 59 hours respectively in October 2014, March 2015 and April 2015. In their submission, the respondent outlined the working hours of the complainant when she started working with them in June 2012: Contract 1: 3.5 hours per day Contract 2: 3 hours per day Contract 3: 2 hours per week In August 2015, the complainant started reporting to a different manager and it appears that relations between them was fractious from the start. The situation was exacerbated in December 2015 when the manager confronted the complainant and accused her of not cleaning the contract 2 unit for a number of days. The contracts manager said that she received an e mail on December 16th from the client there who was critical of the complainant’s work. The complainant said that she checked the unit on the day of this accusation and it was “bright and spotless exactly as she had left it the previous day.” On December 17th 2015, the complainant received a letter from the accounting administrator for the respondent, asking her to arrange a meeting with the contracts manager as soon as possible. The letter stated that the meeting was a disciplinary investigation into the standard of the complainant’s work in contract 2 and the “fact that the contracts manager can never find you on site.” At the hearing, the complainant said that she didn’t arrange a meeting, as she found it difficult to get cover so that she could travel to the respondent’s head office in Sandyford during her working hours. On Friday, January 8th 2016, the complainant received a e mail from the managing director, with the following instruction: “If I do not hear back from you with a time and date by Monday morning, please do not come into work next week. Please take this as a formal suspension of your work, if you cannot give us a time and date to meet next week.” A meeting with the managing director and the contracts manager took place on January 14th 2016. The complainant was accompanied by a Hungarian interpreter. The complainant said that the managing director accused her in an aggressive manner of not cleaning the contract 2 office unit to the same high standard that she had cleaned it in the past. The contracts manager complained that she did not answer her phone during working hours. The complainant said that contract 2 was a unit for which she had complete discretion with regard to the hours that she was meant to attend there. The managers showed her photos of areas of a building that they said were not properly cleaned. The complainant said that these areas were not part of the cleaning contract and she did not clean the areas shown in the photos. At the meeting, the complainant was informed that she had to be in attendance in contract 2 to carry out her cleaning duties between 7.00am and 10.30am. At the hearing, she said that the contracts manager called to the office at 10.30am on two or three occasions to check on her work and she felt humiliated by these visits. Following the meeting on January 14th 2016, the complainant received a written warning for the following reasons: Not responding to her supervisor; Not sticking to the correct cleaning schedules; Standards below the minimum requirements; Failure to attend the office for a meeting regarding the above matters. On February 23rd, she received a text message from the contracts manager asking her why she wasn’t in the contract 1 building that day. She replied that the contracts manager had instructed her by text message the previous evening to clean another building. The next day, another manager called her to ask her again why she wasn’t in the contract 1 building. She explained that the contracts manager had changed her schedule. In her submission, she said that the manager who phoned her was aggressive and angry on the phone. On March 8th, 2016, the complainant went out sick suffering from stress. On June 7th, she attended a meeting with management at which she was offered a job in a place she had worked before, but she couldn’t accept the role because of the strong smell of bleach in the building. She contends that she was not offered work in contract 2 because the contracts manager’s mother was working there. At the meeting, she said that the managing director was disrespectful and treated her very flippantly with the result that she was hurt and offended. She remained on sick leave. On October 3rd 2016, while she was on sick leave, the complainant was invited to another meeting. She attended again with a translator who asked for a copy of the mail from the client that the contracts manager said she received in December 2015, in which the client was critical of the complainant’s work. The managing director refused to show the complainant the e mail in which he stated the client requested a change of cleaner. The complainant believes that no such e mail was ever sent by the client. At the end of this meeting, the complainant said that she thought it would be better if she left the company with “some pay and a handshake.” She said that the managing director said that he would think about it; however on October 10th, she received a letter with a note of what occurred at the meeting the previous week. The letter appears to confirm that there was no e mail from the client in December 2015, but the contracts manager maintained that the client was critical of the complainant’s standard of cleaning. The letter ended with confirmation that there is a job for the complainant to return to, as soon as she is well enough. She remains out of work on unpaid sick leave. The complainant’s position is that from December 2015 until March 2016, the behaviour of managers in the company amounted to bullying and caused her to stay out of work due to stress. She claims that this conduct was unprovoked, persistent and offensive. She said that she was verbally abused, shouted at and excessively monitored and the manner in which she was issued with a written warning was threatening and undermined her good work over the previous years. |
Summary of Respondent’s Case:
In the previous section, we noted the contracts to which the complainant was assigned when she commenced employment in June 2012: Contract 1: 3.5 hours per day Contract 2: 3 hours per day Contract 3: 2 hours per week In May 2015, contract 1 was lost to a competitor and the complainant transferred to the new company with that work. She remained working for the respondent on other the contracts and she was also assigned to additional units to fill in for absent staff or to do specific assignments. Towards the end of 2015, the respondent found that there were problems with the standard of work carried out by the complainant. They also said that clients couldn’t find her in their units when she was meant to be working there. On December 17th, the complainant was requested to suggest a date for a disciplinary meeting and a meeting eventually took place on January 14th 2016. At the meeting, the complainant said that she did not answer her phone when the contracts manager phoned, on just one occasion, as the phone was on a charger. She said that she had discretion about her hours in contract 2, but that she would attend at the hours requested of 7.00am until 10.30am from now on. Finally, she questioned whether the photos shown to her at the meeting were the areas of a unit that she was meant to clean. In February 2016, the complainant was requested to fill in for a colleague on another contract; however, the client contacted the respondent to say that the complainant had not attended on February 22nd or 23rd. The complainant said that she had been asked to work on a different contract, and this was the reason she didn’t cover the temporary assignment. In late February, the complainant suffered from headaches and was absent from work. She has been absent continuously since March 8th 2016. On June 7th 2016, the complainant attended a meeting at the company’s head office, the purpose of which was to discuss a return to work. At the meeting, she informed the management that she had been suffering from stress which was related to her experiences at work. Her medical certs had no reference to stress. She also said that she did not want to work with her supervisor. As a result of this revelation, the complainant was assigned to a different supervisor. She did not return to work and on September 14th, she wrote to the respondent outlining her concerns about how the complaints about her work were dealt with. Another meeting took place on October 3rd, at which the complainant was again accompanied by an interpreter. She maintained that her absence was caused by stress at work and she claimed that her supervisor was constantly phoning her and sending text messages accusing her of not being on site and complaining about her work. She asked for a copy of the e mail from the client that the contracts manager said she received in December 2015. She also complained that the mother of the contracts manager had been assigned to contract 2, which was her unit. At the end of the meeting, the complainant suggested that one way of resolving matters was to make her redundant. However, in a subsequent e mail to the company, she said that she intended to make a complaint under the Employment Equality Act on the grounds that she was being discriminated against on the grounds of race. The reason for this contention was because she alleged that the contracts manager’s mother was given her work and this woman is a different nationality to her. On October 10th, the managing director wrote to the complainant and explained that the work on contract 2 was assigned to the mother of the contracts manager on a temporary basis while she, the complainant was out sick. In the letter, he confirmed that she would return to this unit as soon as she was fit to return to work. The company’s position is that they have made reasonable efforts to respond to the complainant’s grievance and to assist her to return to work. When she complained about her supervisor, she was offered the option of reporting to a different supervisor. When she complained about her work being given to another person, she was informed that she could return to that unit when she came back to work. The respondent said that it has to deal with complaints from clients in order to hold on to business, and these complaints were put to the complainant in accordance with the company’s disciplinary procedure and she was given an opportunity to address them. |
Findings and Conclusions:
I have given serious consideration to the submissions of both parties at the hearing. It appears that for the first three years that the complainant worked for the respondent, things went fine, she seemed to enjoy her job and she got on well with her supervisor. When her supervisor changed, the working environment seemed to change also; her work was criticised, she received constant phone calls about her whereabouts and ultimately, she received a verbal warning about the standard of her work. It appears that she accepted this verbal warning and, having clarified matters, intended to move on. Something changed however, and she went absent and said she has been suffering from stress. I cannot determine that the cause of the stress that the complainant says she is suffering is as a result of her difficulties at work. I have some concerns about the way in which the company’s supervisors communicate with their staff, by text message and phone calls, rather than being on site to deal with issues on a one to one basis. I also find it strange that an employee would be requested to arrange a disciplinary meeting, when this is always the responsibility of the employer. Leaving all this aside, it is clear that relations in the workplace have broken down and I note that at the hearing, the complainant said that she intended to resign. She has arrived at this position having heard that the respondent would like her to return to work, with an undertaking that she will not report to the supervisor with whom she has a difficult relationship. I accept that she has come to this decision after a lot of thought and with the support of her local Citizens Information Service. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
The complainant’s decision to resign enables her to move on to a new role with another employer and closes this matter for the respondent also. At the hearing, a payslip was submitted which shows that she earned €2,242 for the month of May 2015, but no evidence was presented of her earnings prior to when she went absent in March 2016. Having discussed the issues related to this complaint with both parties, it is my view that the most expeditious way to resolve matters is for the respondent to accept the complainant’s resignation and for her to be paid an amount equivalent to around two weeks’ wages. On this basis, I recommend that the respondent pay the complainant €1,000 in full and final settlement of her complaints. |
Dated: 5th April 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Stress, full and final settlement |