ADJUDICATION OFFICER DECISION & RECOMMENDATION
Adjudication Reference: ADJ-00010250
An Accounts Administrator
A Tennis Club
Complaint and Dispute:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 01/12/2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 28th August 2017, the complainant referred a dispute and a complaint pursuant to the Workplace Relations Commission. They were scheduled for adjudication on the 1st December 2017. The complainant attended the adjudication. CMG Consultants represented the respondent and the Financial Controller, attended as a witness.
At the adjudication, it transpired that the complainant had made a detailed submission that had not been circulated. The respondent was given the opportunity to make a later written submission, which it did on the 2nd January 2018. The complainant submitted a written reply to this and the respondent addressed this submission on the 9th February 2018.
In accordance with Section 13 of the Industrial Relations Acts 1969and Section 41 of the Workplace Relations Act, 2015 following the referral of the dispute and complaint to me by the Director General, I inquired into the dispute and complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute and complaint.
The complainant worked for the respondent between the 12th September 2016 and the 13th June 2017. She was paid €673.08 per week. The complainant asserts that she was unfairly dismissed and that she was not provided with a statement of her terms of employment; the respondent denies the claims.
Summary of Complainant’s Case:
The complainant outlined that her employment commenced on the 12th September 2016 and her role was that of accounts assistant. She outlined that she did not get a contract. There were errors in the document exhibited by the respondent as the probation period ends on a date before she started work. It was a 37.5-hour week and not, as stated, a 40-hour week. The last page refers to a named woman, who covered an earlier period of maternity leave for the same permanent employee.
The complainant outlined that she had worked three hours of overtime in June 2017 as the accounts department was short-staffed. On the 13th June 2017, she emailed seeking payment for this overtime and the General Manager asked her into a meeting. He started shouting at her saying he was sick of her. He had never been particularly nice to her. He said that she needed approval for overtime and she replied that she had worked overtime without permission before. She also said that she had not been given the contract he referred to. While the complainant had seen it on the Financial Controller’s desk, he never handed to her. The General Manager then showed her the contract. The General Manager told the complainant that he wanted her to leave and confirmed that he was firing her. The complainant then had 17 days left on her contract and this was not the right way to end it.
The complainant described the General Manager as being unpleasant over the months and the Financial Controller would interject. The Financial Controller was sick on the 13th June 2017 so not present for the incident. The General Manager was very dismissive and would stop her finishing what she was saying. She explained that she had to go to an interview but he would not listen to her. The complainant said that colleagues informed her that the General Manager had come out of his office and asked, “where the f*** is [the complainant]”.
The complainant said that she was fired on a Tuesday and had an interview for another role on the Thursday. She took this job. It was a part-time job for three days per week and she was paid less. She started work on the 26th June 2017. The General Manager had refused to give her a reference and would only say that she had worked there.
The complainant outlined that there had been an incident where she had signed receipt of €500 but this money could not be found. She had passed the money to a colleague, who went on annual leave. They looked everywhere for the money and it subsequently turned up on her desk. A colleague later told her that there were other incidents with petty cash and monies going missing. The General Manager had said that there would be a formal meeting about the €500 but this never took place. The complainant said that the handling of the money was not in accordance with the procedures and this issue was brushed aside. She said that the conversation with the General Manager regarding the €500 euro took place during the week she was fired. She had never raised the petty cash issue with the General Manager and had only raised it the Honorary Secretary.
The complainant said she tried to ring the Financial Controller after her dismissal, but he never returned her call. She also rang the Honorary Secretary and asked to meet him. At their meeting, the complainant raised her dismissal and the money issue with him and said that she was fired because of the money issue. The complainant later emailed the Honorary Secretary, who emailed back to say that he was referring it to the General Manager.
In reply to the respondent, the complainant said she did not receive a copy of the contract exhibited and it was for the employer to supply it to her. She had excellent attendance and was sick on one occasion. This was not recorded on her file as it was swotted away by the General Manager. She was late a couple of times due to issues with public transport. Otherwise, her attendance was excellent. The respondent had not addressed in evidence how she was fired and they had an opportunity to respond to how it happened. They failed to do so and instead relied on the contract. She would not have signed a contract containing such errors and would have immediately pointed them out to the respondent.
Summary of Respondent’s Case:
The respondent outlined that the events did not occur as set out by the complainant. The money was found and no allegation was made against the complainant. There had been an error. The respondent disputed that an unfair dismissal had occurred. The complainant was engaged on a fixed term contract until June 2017. She accepted this fact in evidence and acknowledged that the contract had been on the General Manager’s desk. The respondent submitted that the contract clearly existed.
The respondent submitted that the Financial Controller had handed the complainant the contract on the 30th September 2016 and they acknowledged the errors contained therein. The respondent had supplied the signed contract to the complainant as required.
The respondent submitted that the complainant’s employment was terminated in line with clause 7 of the contract, i.e. with one week’s notice. This occurred on the 13th June 2017 and she was paid until the 20th June 2017. The respondent had complied with the contract and the Minimum Notice and Terms of Employment Act. The General Manager decided to dismiss the complainant because of the overtime issue and because of her time and attendance. The respondent denies that there was shouting or bad language.
The respondent submitted that there were emails regarding complainant’s start date and that her contract was for a fixed term. The complainant has acknowledged that the contract existed as she had seen it on a desk. It was given to the complainant on the 30th September 2016, who had raised no issue about the errors. The errors did not dispute the fact that the contract was issued. The respondent asserted that a contract was provided in compliance with the Act and signed by the employer. On this basis, the adjudication should find in favour of the respondent. It submitted that there was no value in raking the coals on the attendance issue. The General Manager was the most senior executive and had authority to dismiss. These decisions were not for officers and the board.
In written submissions, the respondent indicated that it received the complainant’s submissions three days after the adjudication. It stated that the complainant’s employment was terminated in accordance with the contract of employment and she was paid the notice due. It refuted the allegations that the General Manager had ill-treated the complainant and she did not submit a grievance during her employment. It strenuously denied the allegations of misappropriation.
Findings and Conclusions:
The complainant commenced employment with the respondent on the 12th September 2016. She worked in the accounts department and reported to the General Manager and Financial Controller. It is not in dispute that her contract of employment covered the maternity leave of a permanent employee and was due to end on the 30th June 2017. The complainant’s last day in employment was the 13th June 2017 and she was paid one week’s notice. The complainant commenced alternative employment in a part-time role on the 26th June 2017. Much of the other facts in this case are in dispute.
This is a dispute referred pursuant to the Industrial Relations Act. The General Manager’s written statement refers to the complainant’s behaviour and the overtime issue. The respondent further refers to time and attendance. As the respondent was not relying on the expiry of the fixed term contract, it must show grounds for the dismissal. It is well settled that an employer is obliged to apply its own disciplinary or dismissal procedure in terminating an employee’s employment, including during a period of probation or before the employee falls within the scope of the Unfair Dismissals Act (see Irish Postmasters Union -v- A Worker AD 115). In this case, there is no evidence of a process or adherence to any disciplinary or dismissal procedure. I find, therefore, that the respondent unfairly dismissed the complainant. Given that this is an Industrial Relations matter and in circumstances where the complainant commenced part-time employment on the 26th June 2017, I recommend redress of €500.
There is a complete contradiction in evidence between the parties as to whether a statement of the complainant’s terms of employment was furnished to her at the commencement of her employment. I resolve this conflict by considering what the parties at this time. I note that the contract and associated Schedules require the employee to sign in three places; there is no complainant signature at any point. While many documents have typos, I note the significant errors in this document, for example the name of the employee and the date the probation period is to end. Where a document contains such significant errors, I would expect these points to be corrected by either the respondent or the complainant at the time the document was handed over. Surely, the first thing the complainant would have said on being given the contract was that her surname was spelt incorrectly. There and then, the missing letter ‘n’ would have been inserted. For these reasons, I resolve this conflict in evidence in the complainant’s favour.
In considering redress, I note that the complainant worked for the respondent for some nine months. The contract was material at the time of her dismissal as it incorporated the employee handbook into her contract of employment, including the disciplinary procedure. Taking these factors into account, I award redress of €2,000.
Recommendation and Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
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 Act.
I find that the respondent unfairly dismissed the complainant and pursuant to the Industrial Relations Act, I recommend that the respondent pay to the complainant redress of €500.
I find that the complaint made pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €2,000.
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Industrial Relations Act / unfair dismissal
Terms of Employment (Information) Act