ADJUDICATION OFFICER DECISION & RECOMMENDATION
Adjudication Reference: ADJ-00022718
Parties:
| Complainant | Respondent |
Anonymised Parties | An accounts assistant | A healthcare provider |
Representatives | Self. | Local management. |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00029577-001 | 08/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00029577-002 | 08/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00029577-003 | 08/07/2019 |
Date of Adjudication Hearing: 25/08/2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, , and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant was employed as an account’s assistant by the Respondent, her employment commenced on 1st November 2018 and ended on 1st February 2019. The Complainant was paid a salary of €36,000 per annum. This complaint was received by the Workplace Relations Commission on 8th July 2019 and was made in three parts, these are as follows: CA – 00029577 – 001 - A complaint of unfair dismissal submitted under the Industrial Relations Acts. CA – 00029577 – 002 – A complaint relating to Bullying and Harassment procedures submitted under section 13 of the Industrial Relations Act, 1969. CA – 00029577 – 003 – a complaint submitted under section 77 of the Employment Equality Act, 1998. The hearing of the complaints took place in Lansdowne House, Dublin on 25th August 2020. |
Summary of Complainant’s Case:
CA – 00029577 – 001 - A complaint of unfair dismissal submitted under the Industrial Relations Acts. The Complainant contends that on the day of her dismissal no reason for her dismissal was provided to her. Contained within a letter dated 28th January 2019 from the Head of Finance the following is stated:
“We recognize and appreciate the efforts you invested in your position during your probationary period. Regrettably, your results have not met company expectations. This letter has been written to advise you that your employment with (Respondent names) is terminated effective today 28.01.2019.”
The Complainant also contends that she was employed for the wrong reasons and that the interview process and employment was a ‘set – up’. It was also alleged by the Complainant that her colleagues were avoiding communication with her. During her period of employment, the Complainant maintains that she acted professionally and was friendly with them.
CA – 00029577 – 002 – A complaint relating to Bullying and Harassment procedures submitted under section 13 of the Industrial Relations Act, 1969.
The Complainant contends that she was not provided with procedures in relation to bullying and harassment and what the Employers policy was in respect of same.
CA – 00029577 – 003 – a complaint submitted under section 77 of the Employment Equality Act, 1998. The Complainant contends that she was discriminated against on the grounds of Gender, Civil Status, Religion, Age and Race. The alleged discrimination against the Complainant was took the shape of harassment and Other. In relation to the accusations the Complainant mentioned the following:
· She was employed on a salary lower than some of her colleagues. · Working conditions – she was allocated a smaller desk than her colleagues. · No training was provided to her in some areas e.g. Sage · Exclusion – she was not asked to attend certain meetings. · Undefined role · She had to rely on her own initiative in certain areas. · Poor introduction to shareholders.
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Summary of Respondent’s Case:
The Respondent presented a submission on the day of the hearing. This submission included the following: 1. By issuing a contract of employment and employee handbook to the Complainant she was fully aware of the existence of a probationary period of employment. 2. The Respondent draws attention to the fact that the Unfair Dismissals Acts do not apply if the dismissal at an early stage in employment while an employee is on probation or undergoing training provided that: a) The contract of employment is in writing b) The probation or training lasts for one year or less and is specified within the contract. The contract of employment states as follows: A probationary period of six months will apply from the date of commencement during which time one weeks’ notice in writing or payment in lieu may terminate your employment. The probationary period may be extended at the company’s discretion, but will not, in any case exceed twelve months. Termination of this agreement within the probationary period shall be at the discretion of the company. Industrial Relations Issue. There was no complaint made during or prior to the Complainant’s employment with the Respondent. The Respondent has a grievance policy which all employees have access to and details of same are contained in the Employee Handbook. Therefore, in the situation where no grievance has been raised this mischievous complaint should be struck out. Discrimination / Equality. The Respondent is a multi – cultural organisation with 29 nationalities working for them, for this reason the Respondent disputes any claim of discrimination surrounding Gender, Age, Civil Status, Race and Religion. The Respondent is an Equal Opportunities Company. Any claim made by the Complainant regarding harassment in the workplace is untrue. The Respondent has a zero tolerance approach to bullying in the workplace. At no time during employment did the Complainant avail of the grievance policy nor did she raise a query with her line manager or the HR personnel. In relation to the other allegations made by the Complainant the Respondent issued a job description that fully describes the duties of an accounts assistant. With regard to allegations regarding isolation and exclusion the Respondent states that within teams’ meetings are often arranged to discuss tasks and projects they are currently working on, there is no requirement for other team members to attend. This should not be viewed as isolation and exclusion. In relation to any claim taken under Discrimination / Equality grounds the Respondent asks that such allegations are struck out in accordance with procedures. Subsequent to the Complainant’s exit from the business she has applied for a role within the Respondent’s Finance Department and as such that action would dismiss all allegations made within her lengthy documentation.
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Findings and Conclusions:
The Respondent presented a submission on the day of the hearing. The rules of the Workplace Relations Commission clearly state that submissions should be sent to the WRC three weeks before the date of the hearing. The Complainant was asked if she required any time to read the submission, this would include an adjournment of the hearing, she relied that she did not need an adjournment and was willing to proceed with the hearing. The Complainant’s conduct throughout the hearing of the complaint left a lot to be desired and she was reminded on more than one occasion that she had to behave and stop being so disruptive.
CA – 00029577 – 001 - A complaint of unfair dismissal submitted under the Industrial Relations Acts. In Grant Thornton v A Worker (LCR 21543) the claimant submitted a complaint to the Labour Court under section 20(1) of the Industrial Relations Acts 1946 to 2015 in respect of the decision of the Employer to dismiss her during her probationary period and agreed to be bound by the Court’s recommendation. The Employer submitted it was entitled to dismiss her under her contract of employment as she had not satisfactorily completed he probationary period. The Court found that the Employer failed to adhere to the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000) before the decision to dismiss the employee was taken. In coming to that conclusion, the Court had regard to the following: while the claimant was invited to attend a probation meeting the decision to dismiss had been taken prior to the meeting; the claimant was not afforded the opportunity to be accompanied at the meeting; and no appeal procedure was available to the claimant in respect to the decision to dismiss her. The Court was also critical of the fact that the claimant’s contract of employment purported to provide that normal disciplinary procedures did not apply during the probationary period, noting that the Code of Practice applied in all circumstances where an employee was at risk of having his/her employment terminated. The Court recommended that the claimant be paid €1,500 in compensation in full and final settlement of the claim before it. The similarities between the case quoted and the instant case are evident. Procedurally the dismissal of the Employee in the instant case was flawed and I now recommend that compensation of an amount equal to four weeks pay is made to the Employee. I calculate this figure to be €2,769.23. CA – 00029577 – 002 – A complaint relating to Bullying and Harassment procedures submitted under section 13 of the Industrial Relations Act, 1969.
At no stage did the Complainant raise this matter internally and failed to utilise the internal grievance procedure.
For this reason, I find that the complaint as presented fails.
CA – 00029577 – 003 – a complaint submitted under section 77 of the Employment Equality Act, 1998.
The Complainant has made a number of assertions. In Valpeters v Melbury Developments Limited [2010] ELR 64. The Labour Court emphatically stated the following:
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires the Complainant must first establish the facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
In the instant case the Complainant has made a number of assertions but has failed to supply any credible evidence in support of these assertions.
The complaint as presented under section 77 of the Employment Equality Act 1998 is not well founded.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA – 00029577 – 001 - A complaint of unfair dismissal submitted under the Industrial Relations Acts. Procedurally the dismissal of the Employee in the instant case was flawed and I now recommend that compensation of an amount equal to four weeks’ pay is made to the Employee. I calculate this figure to be €2,769.23. CA – 00029577 – 002 – A complaint relating to Bullying and Harassment procedures submitted under section 13 of the Industrial Relations Act, 1969.
I find that the complaint as presented fails.
CA – 00029577 – 003 – a complaint submitted under section 77 of the Employment Equality Act, 1998
The complaint as presented under section 77 of the Employment Equality Act 1998 is not well founded.
Compensation recommended should be paid within 42 days from the date of this Recommendation / Decision.
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Dated: 24th September 2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Industrial Relations Acts; Employment Equality Act, 1998. |