ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00023653
A Catering Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 05/12/2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
An earlier complaint, CA -000302218 -001 was withdrawn at hearing.
This case started life in August 2019 as a claim under Payment of Wages Act 1991 and The Industrial relations Act, 1969. The Employer did not respond to the invitation to communicate an objection under Industrial Relations Act 1969 and the case proceeded to hearing on both complaints.
On commencement of the hearing and following engagement with the Respondent, the complainant withdrew the case under the Payment of Wages Act, 1991. The claim under Industrial relations continued.
The Employer excused themselves from engaging on this aspect of the case and instead left a paper record of chronology in the case.
Summary of Claimant’s Case:
The claimant in the case worked as a Full time Chef from 6 August 2018 until his Dismissal on 10 July 2019. The claimant is aware that he is statute barred rom making a complaint in accordance with Unfair Dismissals Legislation, but wants his case heard under the Industrial relations Act to address submitted unfair procedures which pertained to his Dismissal.
The Claimant had made earlier complaints for notice, and wages but withdrew this claim at hearing in the presence of the respondent.
The Union, on behalf of the claimant outlined that the claimant had performed well in his employment, which was unblemished. The employment was based on a Client site. At the beginning of July 2019, the Head Chef, Mr A, informed the claimant that an unnamed member of the client staff had made a complaint about him.
This complaint was furnished to the Human Resource Dept. Some days later, the claimant attended a meeting with Mr A and another Manager. He was not advised that this was an Investigation or offered a representative. At this meeting, he was informed that there were two complainants and the nature of these complaints. He had also been removed from Front of House duties for a period of one week. The Complaints lodged in June 2019 referred to events of March 2019.
The Claimant denied the allegations. Some days later July 8,2019, the claimant attended a meeting with the HR Manager, Ms A, and Mr A he was not advised of the purpose of the meeting. However, he denied the allegations at the meeting and was subsequently dismissed.
The claimant was requested to work over 9 and 10 July and did so. He appealed the decision taken to dismiss him to the Owner of the Company, Mr B. The grounds of appeal were:
1. You feel the allegations are unfounded
2. You feel that there is no proof of wrongdoings
3. You feel that it was a misunderstanding between staff
The appeal was held on 24 July and the decision to dismiss remained unaltered.
“You did not provide further evidence for me to investigate. On the probability that we were issued with 3 complaints and you have no evidence to prove the allegations were untrue, the company would rely on probability “
The claimant contended that he did not deserve to lose his job. He was denied fair procedures and representation. The Union sought compensation for the stated monetary loss experienced by the claimant before he found new work in October 2019.
The Claimant addressed the hearing and outlined that an email had been submitted by his co-worker (the client base) in the canteen in February 2019 which put him in a negative light. The matter was first brought to his attention in June 2019. He denied the allegations and learned that there was now a second complaint. In a meeting with his Manager, Mr A, lasting 10 minutes he was. the claimant sought to clarify that his priority was to maintain a tidy work station was given a false assurance that everything would be alright.
The Claimant contended that the comments had been taken totally out of context. He was not the person depicted in the email commentary and he was not heard when he denied all allegations. Instead he was met by MR A involved in all processes, where he was given an assurance that things would be ok. He believed that his good character had been taken away from him and wanted an opportunity to clear his name.
Summary of Employer ’s Case:
The Employer submitted a bullet pointed statement in response to the claim. They did not attend this aspect of the hearing.
Neither party presented copies of the Company Procedures.
Findings and Conclusions:
CA -00030218-002 Industrial Relations Dispute
I have given some consideration to the Union presentation in support of the claimant. I have also considered the claimants presentation to the hearing. I did not have the benefit of a reciprocal presentation from the Employer in this case. The Employer had not objected to the hearing in the case and I believe that the approach of actual vacation adopted on the day to be unhelpful to the case. I appreciate that attendance at hearing is voluntary, however, at the heart of this case is an unresolved issue and it would have helped me a lot if both parties had decided to stay to outline their version of events.
I have read the claimant submission and the respondent statement, and I have considered all.
Firstly, I accept that the claimant was unimpeded in his work until the end of June 2019. He was placed by the Employer on a valuable base and he appears to have worked without incident.
The complaints which then came to life, apparently with the aid of the client base receptionist were formally denied by the claimant. I have seen these complaints and the Introductory letter from the Receptionist. I am unclear just what role this person had as her note to the employer stated:
“Just a quick note to explain that two of my colleagues contacted me re (the claimant) being suggestive and speaking out of turn to them, and they were afraid to go for their breaks. I took it on myself to go and speak with him personally and basically told him to stop ……. “
I found this reported approach unusual from an employment perspective, given that the client reception ship was not the claimants line manager. The Employer has clearly elevated her to the status of witness but she herself describes herself as a conduit for the complaints .
I could not establish details of an invitation to an investigation of the complaints. Instead, I found a signed copy of “Minutes from Investigation Meeting “. I note that the claimant disputed knowing both complainants and it was unclear to me what outcome if any followed this “investigation “as there is no evidence of the complainants being interviewed.
The Claimant submitted that what followed in his case is that he had been assured by Mr A that his job had been saved and he was to engage with Human Resources. I accept that he did not receive the invitation to the Disciplinary Hearing in real time to ensure adequate preparation or representation.
The signed notes of the Meeting conveyed that there was to be a follow up meeting. I found a certain inconsistency in the recording of this key meeting as the word Disciplinary was not in sight.
I found the claimant to be credible when he outlined that his Manager had informed him that his job had been saved. I found his approach extremely naïve in seeking to attend a Disciplinary Hearing and Appeal Hearing alone. I understand that he placed a high weighting on an earlier assurance by Mr A, nonetheless, by July 4, he ought to have realised the severity of his circumstances.
The Code of Practice governing grievance and Disciplinary matters in SI 146 /2000 outlines how a reasonable employer is expected to preside over fair procedures, due process and natural justice.
Unfortunately, in this case, I have identified a very broad chasm in what happened in terms of these headline issues and what ought to have happened in accordance with SI 146/2000.
The Claimant was clearly mis led by the employer who appeared to have placed considerable weighting on what the clients had to say in an email over what a direct employee said. I was not happy with the lack of balance in the approach adopted here. The Claimant did not provide a statement to the investigation. I accept that he was pressed to apologise to the complainants and nothing further transpired. All this in the face of his persistent denial of the allegations.
It was not lost on me that there was an inordinate delay between events complained of and action to complain taken. It is reasonable to perceive the complaints, while serious in nature to be historical in content.
I have identified a complete breakdown in trust between the Employer and the Claimant. The primary relationship here was employer and employee and much more should have been done to reflect that by the Employer who appeared at least to prioritise a commercial reputation over the employee relationship. The Employer had a duty of care to maintain the claimant in a safe workplace not one populated by false assurances, thread bare and flimsy procedures. He should have been treated much better.
On the Claimants side, I found that he failed to appreciate the enormity of the circumstances he found himself in and misplaced his trust to his detriment.
I have found a complete lack of fair procedures in this case. The Claimant was not heard, and the outcome seemed pre-determined from the outset. The claimant was not provided with a fair opportunity to be heard and prove his version of events. The Employer acted overly hastily and against their own employee. It seemed that dismissal was the only active consideration , yet measures short of dismissal were hinted at the “ Disciplinary Meeting “ and prior to that .
I have found merit in the Dispute.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have found merit in this Dispute.
Considering the clear absence of fair procedures, in addition to the assurances given that the claimants job was safe when it clear was not, I have identified that Mr A, as Manager was present at fact finding stage, investigation and Disciplinary processes. This was unfair, unreasonable and contrary to fair procedures.
I am satisfied that the claimant suffered extreme disappointment and detriment in the aftermath of his Dismissal which was precipitous. I have found the outcome to have been largely predetermined.
The employment is now over and not redeemable. The Claimant has found new work I believe that compensation is the most suitable remedy in this case and I award the claimant €6,000 compensation for the breach in fair procedures and breakdown in trust between him and his former employer.
I recommend that the Employer in this case implement a Guidance Document for handling of complaints concerning employees placed on a Client base which should be shared by both the client base and the host employer within 4 weeks of this decision.
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Fair Procedures in an employment under 12 months duration