ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00033468
Parties:
| Worker | Employer |
Anonymised Parties | Accounts assistant | An outsourcing company |
Representatives | Self | Ruairi De Burca De Burca Solicitors |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00044280-001 | 24/05/2021 |
Date of Adjudication Hearing: 26/08/2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following 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.
This matter was heard by way of a Remote Hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designates the Workplace Relations Commission (WRC) as a body empowered to hold remote hearings. The worker presented her own case and the employer was represented by Mr Ruairi De Burca, De Burca Solicitors. The employer furnished a written submission.
Background:
The issue in dispute is the alleged unfair dismissal of the worker by the employer. The employment commenced on 19/10/2020 and ended on 08/03/2021. The worker was paid €618.75 gross per week and worked 37.5 hours. She submitted her complaint to the WRC on 25/05/2021. |
Summary of Worker’s Case:
The worker commenced employment on 19/10/2020 as an accounts assistant. This was a permanent position and she was looking forward to having a permanent job so that she would become eligible for a mortgage. She was never given a contract of employment and was not aware that she was undergoing a probationary period. Part of her role involved sending invoices to clients. There was a process around this whereby these invoices were sent to the client’s QS to sign off. On 08/03/2021 the worker sent an invoice to the client’s accountant. She received an immediate reply which stated: “I don’t get what’s so difficult about this procedure”. The worker replied: “Happy F…ing Monday to you too”. The client then sent an e mail to their QS stating not to use the employer again. The employer’s managing director then called into the workers office and asked he if she had sent an e mail to the client stating: “Happy F…ing Monday to you too”. She confirmed that she had. She was then instructed to leave the office immediately and advised that she would receive pay in lieu of notice. She was deleting some personal files from her computer and she was screamed at by the managing director. She was told that this e mail was sent to one of their biggest clients. The worker said that she felt like a criminal and that the situation was degrading towards her. She had no previous disciplinary warnings and had no notice that her contract would be coming to an end in this manner. The worker submits that she highlighted issues with the TWSS and PUP schemes and how the employer was applying those. The managing director responded to her concerns by shrugging his shoulders. She believes that her dismissal was also linked to this matter. The worker accepts that her e-mail was inappropriate, and she should not have sent it. As a result of her dismissal her career has stopped and her aspiration to obtain mortgage approval has also diminished. She did not appeal her dismissal due to her understanding of the friendship between the Managing Director and the person assigned to hear the appeal. |
Summary of Employer’s Case:
The employer is a provider of agency workers to various clients. Approximately 80% of their workers are supplied to the construction industry. They could have approximately 100 staff on sites and 8 full time staff in their office. The managing director had a performance review meeting on 05/03/2021. This was the Friday prior to the incident on Monday 08/03/2021. The reason he conducted this review was that there was a deterioration in the worker’s performance over the previous two months. There was no week where her work was correct. This work involved the processing of invoices and also payroll duties. There was also an issue in relation to an e mail the worker sent to a client. This involved response which included an attempted pun based on the client’s surname. The client did not appreciate this banter. On 08/03/2021 the employer was alerted to a most serious incident involving one of their major clients. The worker sent an e mail to this client with the words: “Happy F…ing Monday to you too”. This e-mail led to a sequence of events which resulted in the client stating that they would not use the respondent’s services due to the lack of professional courtesy which the worker had shown towards them. The employer’s managing director was made aware to the situation and he was concerned that the worker would damage other client’s relationships. The employer asked the worker if she sent the e-mail and she confirmed that she did. The managing director decided to dismiss the worker with immediate effect and to pay her contractual notice of one week. This decision was communicated in writing later that evening. That letter outlined the rationale for the dismissal and the appeal process that she should follow if she wished to appeal the decision. The worker did not utilise her right to appeal. The employer submits that the dismissal of the worker was proportionate, and fair given the circumstances. There is no doubt that this incident constituted gross misconduct. In addition to this the contract of employment provided a discretionary right to terminate the workers employment for whatever reason elected by the employer during her probationary period. The employer also submits that the allegations made by the worker in relation to the TWSS and PUP are without foundation and the employer has had no issues with Revenue in relation to its application of any of these schemes. |
Findings and Conclusions:
The worker in this case did not have the requisite service to be covered by the protections of the Unfair Dismissals Act. The fact of dismissal is not in dispute. The facts which led to the dismissal are not in dispute. It is the employers position that the contract of employment provided a discretionary right to terminate the workers employment “for whatever reason elected by the Respondent during the probationary period notwithstanding that the behaviour constituted gross misconduct.” The employer also submits that the fact that the worker was afforded a right of appeal is an illustration of their application of fair procedures. The employer also submits that it is standard practice in industrial relations matters that internal procedures should be exhausted prior to a complaint being submitted to the WRC. Notwithstanding this argument the employer submitted that the worker had been treated fairly and was paid in lieu of notice. Her dismissal was proportionate, and fair given the circumstances. The worker accepts that she should not have sent the e-mail but did not expect to be dismissed immediately. She had no previous disciplinary action and she had no prior notice that dismissal was likely. The Labour Court has found consistently that employers are required to afford due process to employees before a decision to dismiss is taken, even if the employees concerned are not covered by the Unfair Dismissals legislation. Probationary periods are a feature of contracts of employment and this allows a period of time during which the employer can evaluate the worker’s suitability. It is clear that where an employer provides that the standard disciplinary procedure doesn’t apply during the probationary period, employees still have a right to fair procedures in the event of their employment being terminated. In the case of Glenpatrick Watercoolers Ltd., [LRC21028] the Labour Court held that “even where a company’s standard disciplinary procedure is stated not to apply during probation, the requirements of the Code of Practice on Grievance and Disciplinary Procedures apply, and the employer has an obligation to act fairly during the probationary period”. The general principles outlined in this code include: · “That details of any allegations or complaints are put to the employee concerned · That the employee concerned is given the opportunity to respond fully to any such allegations or complaints · That the employee concerned is given the opportunity to avail of the right to be represented during the procedure · That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances”. I note that the contract of employment submitted by the employer outlines the circumstances where the contract may be terminated without prior notice. One such provision is where the employee “shall be guilty of any grave misconduct gross default or wilful neglect in the discharge of here duties hereunder or in connection with or affecting the business …” A recent decision of the Court of Appeal in the case of O’Donovan v Over-C Technology Limited and Over-C Limited [2001] IECA 37 provides unequivocal clarity in relation to the dismissal of an employee during a period of probation. Mr Justice Costello noted: “in my judgement, the trial judge failed to give adequate weight to the fact that the termination occurred during the probationary period. That is a critical fact of this case. During a period of probation, both parties are – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other”. The Court of Appeal did not accept that a right to fair procedures can be implied during a probationary period (for anything other than misconduct) as to do so would negate the whole process of a probationary period. The Court of Appeal cited the principle endorsed in the Maha Lingham v Health Service Executive [2005] IESC 89, that a dismissal by reason of an allegation of misconduct attracts the right to fair procedures, whereas “a dismissal in the absence of an allegation of improper conduct does not attract such a right”. The Court of Appeal decision make it clear that “an employer can terminate for any reason or no reason, provided adequate notice is given. This applies whether or not the dismissal occurs during the probationary period” and “the principles of natural justice apply to cases involving dismissal for misconduct, but to termination on other grounds”. In this case the employer clearly outlines that the dismissal occurred entirely because “the complainant’s behaviour constituted gross misconduct”. It is clear from the evidence and submission of the employer that they felt entitled to make an immediate determination of an on-the-spot dismissal. There was no process involved and it is clear that this was a reaction to the situation which was presented. Given this scenario I find that the employer failed to adhere to the principles of natural justice. I note that the worker has not gained employment since her dismissal. The worker did not provide any evidence of her attempts to seek employment mitigate her loss. It is well established in cases of unfair dismissal that a worker has a duty to mitigate their loss by taking diligent steps to secure suitable alternative employment. In the EAT decision, Sheehan v Continental Administration Co Ltd [UD858/1999] the EAT held as follows: “A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work… The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitable employed in seeking to mitigate his loss”. I have been requested to investigate a Trade Dispute in relation to the conclusion of the employment of the worker on 08/03/2021. I have undertaken this investigation in accordance with Section 13 of the Industrial Relations Act, 1969. I have considered the written and oral submissions received in relation to this dispute. I find that the decision to dismiss the worker was proportionate in the circumstances. However, the absence of any procedures renders this dismissal unfair. It is also my finding that the worker made a momentous contribution to her dismissal. I must also consider that she failed to utilise the appeal procedure and did not provide the hearing with any evidence of her attempts to secure suitable alternative employment. The worker is seeking compensation and taking into account the above findings I am recommending that the employer pay the worker the sum of €600.00. I am also recommending that the employer promptly reviews its disciplinary procedures to take account of the provisions of S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have concluded that the dismissal of the worker was unfair. She contributed to her dismissal. I recommend that the employer pay the worker the sum of €600.00 in full and final settlement of this dispute. I am also recommending that the employer revise its disciplinary procedures to take account of the provisions of S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures. |
Dated:
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Unfair dismissal. Probation. Gross misconduct. |