ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00040451
Parties:
| Employee | Employer |
Anonymised Parties | A Manager | A Heritage Trust |
Representatives | Self-Represented | Not present |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00051717-001 | 15/07/2022 |
Date of Adjudication Hearing: 13/02/2023
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
Background:
The Employee submitted a complaint that she was dismissed without just cause, due process and fair procedure following complaints she made against a Board Member for holding and pushing her by the arm to move her along at meetings. |
Summary of Employees Case:
The Employee was employed from October 4th 2021 to June 9th 2022. The Employee made a complaint to her Employer of inappropriate physical contact by a member of the Board and didn’t want it to become “a thing” at work. The Employee was invited to a meeting where disclosure of Board information was discussed in relation to GDPR and concerns were raised about private emails being used relating to company business. The Employee attended a meeting where a legacy Board member, who did serve on some sub committees was present. The Employee was requested to attend a meeting which purpose was vague and she had to rearrange due to personal time off. She subsequently received a letter of termination of her employment. The Employee advised that the situation where the physical contact occurred was a “high pressure situation” and she had been taken by the arm and moved along twice and grabbed by the arm at another event. The Employee stated she was very upset by these actions and went to her GP who placed her on medication and put her on sick leave. The Employee advised the actions of the Employer were a breach of their procedures and she was denied fair due process. The Employee advised she was on either sick leave or attending college until she took up a new position and had not therefore been available for work. |
Summary of Employer’s Case:
The Employer was notified of the Hearing and their Representative advised in writing they would not be attending the Hearing. |
Findings and Conclusions:
This dispute was referred to the WRC under the Industrial Relations Act 1969. The Employer did not attend the hearing so the Adjudicator accepts the undisputed facts as presented by the Employee Note; (the Employer pre hearing correspondence is referred to below). While the Unfair Dismissals acts requires an Employee to have twelve months service to pursue a claim for unfair dismissal (except for certain exemptions) the Industrial Relations Acts have no such requirements. The Employee set out a series of events which she maintained she was inappropriately touched in the arms physically by a male member of the Board at two meetings “to move her along”. She also maintained that because of raising a complaint about this physical contact she was dismissed without good reason or fair procedures. In a submission in advance of the Hearing the Adjudicator received correspondence from the Employer which showed that on August 11th 2022 the Employee wrote to the Employer and she declined to take up an offer from the Employer to have her dispute heard in an appeal process, she stated, “ After much discussion with my Solicitor and following advice from my GP I have come to the decision to decline the offer of an appeal.” She further stated “it would be unwise for my overall well-being and mental health to participate in the appeal process with the Board”. The Employee also requested in that correspondence that the Board stop communicating with her “so she could close this stressful chapter of her life”. Based on the uncontested evidence of the Employee I find she made complaints to the Employer of inappropriate physical contact by a Board member. The Adjudicator has no doubt that the cause of the Employees dismissal were related to the lodging of these complaints and fell far short of the standards which would normally be expected of a reasonable employer. The Employee was not notified that the meeting she was asked to attend was a disciplinary meeting, she was not warned that her employment was in jeopardy and she was not afforded an opportunity to have a representative present with her. She was afforded the opportunity of an appeal but this was to be heard by Board Members when her allegations were against a Board Member. Therefore, the Adjudicator is satisfied that she was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000 and was denied natural justice. It is clear to the Adjudicator that the Employee was dismissed from her employment arising from her initiating her complaints. Notwithstanding that the Employee did not have the requisite service to be covered by the Unfair Dismissals Act, an Employee is entitled to fair procedures before being dismissed. There is also an obligation on an Employee to complete a grievance/appeal process and in this case the Employee chose not to do so, for her stated reasons and following legal and medical advice. The Adjudicator sought to stablish the losses experienced by the Employee upon termination of here employment in June 2022, who advised she was on illness benefit for two months, then attended a third level course following the termination of her employment. She subsequently took up employment as a Teacher in mid Sept 2022.
Precedent would suggest that internal mechanisms to address workplace disputes should be fully utilised by parties before external assistance is sought to resolve matters. In the circumstances of this case, it is highly regrettably that the Employee chose not to avail of internal mechanisms (despite its limitations) in place to address her complaints before taking the decision to resign her employment. While the option of recommending the Employee finalise the appeal process exists to me to recommend, I see no benefit to either party to recommend this course of action as the Employee’s employment has ceased and she has moved on to a new employment.
I have considered prior decisions in similar situations and while the non-use of the appeal mechanism would normally result in a recommendation in favour of an Employer, in the particular circumstances of this complaint where the Employee had initiated a grievance of inappropriate physical contact, had no previous warnings, had an expectation to continue in her employment until she lodged her complaints and the non-appearance at the Hearing by the Employer to put forward any case in their defense, I consider 5000 Euros to be the appropriate compensation in this case. However, this amount should be reduced by 50% due to the Employee declining to accept the offer of an appeal hearing. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I Recommend the Employee be paid 2,500 Euros compensation for the termination of her employment and in full and final settlement of all issues associated with her employment. |
Dated: 2nd March 2023
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Unfair dismissal |