Complainant awarded €2,500 for unfair dismissal based on failure to substantiate decision
Key Learnings:
Fair and Transparent Process
Ensure the disciplinary process is open and transparent. Communicate clearly with the employee about the allegations, evidence, and the rationale behind any decisions made. Record every step of the investigation meticulously.
Proportionality in Sanctions
Apply the principle of proportionality in disciplinary actions, especially for long-serving employees with a clean record. Carefully evaluate whether dismissal is the appropriate response or if other, less severe sanctions would suffice, and provide a clear rationale for the chosen action.
Thorough Documentation of Decision-Making
Keep detailed records of the decision-making process, including the reasoning behind the dismissal, consideration of all mitigating factors, and why dismissal was chosen over other sanctions. Ensure that those involved in the decision can provide testimony and evidence if needed.
Consideration of Mitigating Factors
Take special care to consider how factors such as disabilities or other personal circumstances may have affected the employee’s behavior. Document how these factors were considered in the decision-making process to demonstrate a balanced approach.
Involvement of Relevant Parties
Ensure that all decision-makers involved in the disciplinary action are present during hearings and can justify their decisions. Their absence could lead to claims of unfair dismissal, even if the process itself is fair.
Training for Management
Provide training for managers on handling disciplinary actions, especially in complex cases involving disabilities or mental health issues. Proper training helps prevent procedural errors that could result in findings of unfair dismissal.
Background:
The Complainant, whose special needs were known to the Organisation, argued that these needs played a significant role in her uncharacteristic behaviour, specifically the theft from a cloakroom. The main issue was not whether a sanction was warranted, but whether Dismissal, a harsh penalty, was a proportionate response. It was highlighted that while Employers have some discretion, it must be exercised within the bounds of proportionality. The Employer needed to explain to the Adjudicator why they chose Dismissal over less severe options, considering the serious impact on the Complainant’s life. The Complainant admitted her wrongdoing but questioned the fairness of the sanction, pointing out her special needs and the negative effect of a disruptive relocation on her mental health.
The Respondent maintained that theft, which undermines the fundamental trust in an employment relationship, justified dismissal. They argued that the Complainant’s actions had irreparably damaged the trust essential for continuing employment. The investigation was thorough, and the Union Representative agreed that the process was fair. The appeal also fully considered the relevant issues. The Respondent claimed their decision was within a reasonable range, even if the Adjudicator might have reached a different conclusion.
Summary of Complainant ’s Case:
The Complainant has special needs that should be considered in light of the Organisation’s purpose and the mitigating factors that contributed to her uncharacteristic behaviour.
The main issue is not whether a sanction was necessary, but whether Dismissal, a severe penalty, was reasonably justified according to the principle of proportionality.
While it’s understood that a reasonable Employer operates within a range of acceptable decisions, this range is not so broad as to violate proportionality.
This means that a reasonable Employer must explain to this Adjudicator why they chose this particular sanction, outline the options they considered, and justify why the most severe penalty was chosen. If this evidence is not provided and cross-examined, and the burden of proof lies with the Employer to show the dismissal was fair, how can it be said that this burden has been met?
The Complainant acknowledges her wrongdoing but strongly disputes that the sanction was proportionate and reasonable given the circumstances. She has unique needs, which is why she was placed in this Organisation. Her transfer to another location was highly disruptive and negatively impacted her mental health.
Requests to move her back were ignored, worsening her perception of the situation. While this doesn’t excuse her behaviour, it does provide important context.
Summary of Respondent’s Case:
The Respondent adhered to fair procedures throughout the process.
Theft is unacceptable, and an Employer must be able to trust their Employee. The Complainant’s actions strike at the core of the employment relationship, shattering the trust and confidence necessary for the contract to continue. The employment relationship is no longer sustainable.
This matter has been investigated thoroughly and fairly. The Union Representative cannot dispute the fairness of the process, and the appeal has fully considered what the Adjudicator is now being asked to overturn.
The Respondent acted within a reasonable range of responses. While another Employer might have acted differently, the fact remains that the sanction, given the theft, fell within the bounds of reasonableness. It is difficult to conclude otherwise, and since that standard has been met, the Adjudicator must rule in favour of the Respondent and determine that the decision was fair.
Findings and Conclusions:
The Respondent does not wish to return to her former Employer. She had been employed there since August 20, 1996.
She admitted to attempting to steal from colleagues by searching through their belongings in the cloakroom.
Mitigating factors include her mental health at the time, her intellectual capacity, and her difficulties adjusting to a new work environment, where she had previously expressed struggles.
The Respondent’s mission is to support people with disabilities in leading fulfilling lives.
The Employer had not provided direct evidence to the Tribunal from those who made the dismissal decision. The managers who attended only shared their opinions on why the decision was made.
A second hearing was scheduled to allow the decision-makers to testify, but they did not attend.
The Complainant agrees that a consequence, such as a final warning, was warranted, but believes dismissal was excessive. She argues that she deserved a second chance, given her long, previously spotless record since 1996 and the fact that this incident was out of character.
While theft typically justifies dismissal, the principle of proportionality should be considered here. The Complainant has a disability and had raised concerns about struggling with the new work environment before the incident. The Employer did not provide evidence on whether her disability played a role.
The Complainant acknowledges that theft is a serious and wrongful act. While the dismissal process may appear fair, the absence of key decision-makers to explain their reasoning makes the dismissal technically unfair. However, her attempted theft must be considered when determining appropriate redress. Reinstating or reengaging her would compromise the necessary trust in the employment relationship.
The dismissal is deemed unfair primarily due to procedural issues, though the severity of the sanction remains in question, not the act of theft itself. Therefore, only limited compensation is appropriate. The Complainant recognizes that her actions were wrong, and theft fundamentally breaches the trust essential in employment.
Given the unfairness of the dismissal due to procedural shortcomings, but also taking into account the Employee’s conduct, the Adjudicator awarded €2,500 in compensation.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that the Adjudicator make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that Adjudicator make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The Complainant knew her actions were wrong. Theft of colleagues’ belongings is serious. Although the managers who made the decision did not attend the hearing, the process appeared fair. However, their absence means the decision is technically compromised, making the dismissal seem unfair.
Given the theft, reinstating the Employee would damage Employer trust. Re-engagement is not viable as theft fractures the employment relationship. The case primarily concerns the fairness of the dismissal process rather than the theft itself. A small compensation is appropriate, considering the Employee’s disability and the wrongdoing.
Therefore, the Adjudicator found the dismissal was unfair. Considering all circumstances, including the Employee’s conduct, they awarded €2500 in compensation.
Complainant’s deducted allowance to be repaid following mishandling of grievance process
Key Learnings:
Detailed Job Descriptions
Clearly define the specific duties and responsibilities in job descriptions, particularly when they relate to additional allowances or compensation.
Clear Communication of Allowances
Ensure that any allowances or compensation are documented and communicated with clarity, specifying their nature and the conditions under which they may be altered or terminated.
Consultation Before Deductions
Consult with employees before making any deductions from their pay, especially those related to previous agreements or allowances, to explain the reasons and facilitate necessary discussions.
Timely Appeal or Clarification
Address any ambiguity or disputes regarding adjudication decisions promptly by seeking clarification or filing an appeal, rather than making unilateral decisions that could lead to further issues.
Adherence to Grievance Procedures
Follow established grievance procedures rigorously to handle any employee complaints or disputes.
Background:
In June 2020, the Complainant complained about her 2005 reassignment to the IPMS System, where they had received an Acting Grade 5 Allowance until April 2008. Even after the system was implemented and the allowance stopped, they continued similar duties and received a Training Allowance, which was abruptly terminated in January 2022. Additionally, €27,677.92 was deducted from their back pay without prior notice. The Complainant’s grievance was mishandled, leaving them without resolution. They requested reinstatement of the allowance, reimbursement of the deduction, and compensation for stress, which they felt was retaliatory.
The Employer argued that the claim arose from a WRC recommendation in October 2021, which reinstated her Acting Grade V allowance from 2008 and upgraded them to Grade V. The employer then stopped the Training Allowance, claiming it was no longer necessary after the Grade V regrading. The Complainant had been receiving this allowance for duties at a higher grade, but the Employer stated that similar allowances end when a permanent upgrade is made. The Complainant’s grievance, filed in October 2022, was not upheld at either Stage 1 or 2. The Employer asserted that they has been properly compensated since 2008, with back pay issued in May 2022, and that the WRC and Job Evaluation Scheme recommendations were followed.
Summary of Complainant ’s Case:
The Complainant previously raised a complaint in June 2020 about being assigned to the IPMS System project in May 2005. Initially, they were a Clerical Officer and received an Acting Grade 5 Allowance until April 2008, when the IPMS system was implemented. After April 2008, the Employer stopped the Acting Allowance but continued to employ them in the Systems Department, where they also provided IPMS training and received a Training Allowance of €1,848 annually.
In January 2022, the Employer ended her Training Allowance without notice or agreement. This allowance, approved yearly by their line manager, had been paid for 14 years. Additionally, the Employer incorrectly deducted this allowance from a back payment of €27,677.92 due to the Complainant from a successful WRC case. The Adjudicator had previously recommended reinstating the Acting Grade 5 Allowance from 2008 but did not address the Training Allowance, which was a separate issue.
The Complainant’s grievance process was mishandled. The Stage 1 Hearing was on December 12, 2022, and the Stage 1 decision was issued the next day. They appealed this decision to the HR Manager on December 20, 2022, but was redirected to the Head of HR at another hospital for Stage 2. Despite a Zoom hearing on February 2, 2023, no decision was made or communicated.
The Complainant felt victimized by the Employer’s actions, questioning the lack of consultation and disregard for their own grievance procedures. They were seeking reinstatement of the Training Allowance, a refund of the deducted amount, acknowledgment of the Employer’s inappropriate actions, and compensation for the stress and frustration caused by the mishandling of their case.
Summary of Respondent’s Case:
The Complainant had previously been recommended for an upgrade and retrospection in October 2021. However, the Employer deducted the IT training allowance from the Complainant without consultation, and the Complainant is now seeking repayment of that allowance.
In 2021, the Complainant filed a claim with the WRC for remuneration related to their work at a Grade V level, following the end of their acting Grade V allowance in 2008. The WRC’s recommendation on October 20, 2021, stated that the Complainant was entitled to have their Acting Grade V allowance reinstated from 2008 until their position was regularized, based on relevant circular terms.
At the same time, the Complainant had applied for a job evaluation under the Employer’s scheme, which resulted in an upgrade to Grade V as of October 19, 2021. The evaluation included details of their training role.
The Complainant had received a training allowance for their higher-grade duties, but this allowance was not paid from 2005 to 2008 when they received the acting Grade V allowance. Similar to how acting allowances are withdrawn once a permanent position is achieved, the training allowance was removed after her Grade V upgrade was implemented. The HR Manager informed the Complainant of this change on February 17, 2022.
The Complainant filed a grievance in October 2022, but it was not upheld at stages 1 and 2. The Employer believes that since 2008, the worker has been properly compensated and received the appropriate back pay in May 2022, with both the WRC and Job Evaluation Scheme recommendations fully implemented.
Findings and Conclusions:
The Adjudicator reviewed all relevant submissions from the parties involved.
The main issue is that after a favourable adjudication for the Complainant, the Employer deducted an amount from the worker’s arrears that corresponded to a training allowance previously paid and stopped this allowance altogether. The Employer claimed that the training allowance was meant to compensate for the worker’s lower Grade 3 salary compared to the Grade 5 role. However, there was no evidence that the Complainant was informed about this compensation arrangement.
The Employer should have sought clarification or appealed the adjudication recommendation instead of making a significant deduction unilaterally. Proper engagement with the Complainant before making such deductions would have allowed for any necessary clarifications or appeals. It was unreasonable for the Employer to assume the worker would know how the recommendation would be implemented.
The Employer must clearly define the duties included in the worker’s contract. The generic job description provided did not clearly include training duties, which seemed to be a significant part of the Complainant’s role and possibly factored into the job evaluation. The decision to upgrade the worker’s position likely assumed training was a key part of the role, not a temporary responsibility.
The Employer argued that this was the only administrative position with a training allowance and that continuing it would be unusual. However, since the allowance was previously applied, it should continue as long as the Complainant performs the training duties. If the Employer wishes to stop the training requirement, they can cease the allowance once the Complainant is reassigned to a Grade V role without training duties, eliminating the anomaly.
The grievance process was handled poorly, and the Employer has apologized for this.
Therefore, the Adjudicator recommended that the Complainant be reimbursed for the deducted amount related to the training allowance and that the allowance continue as long as the Complainant performs training duties.
Decision:
Section 13 of the Industrial Relations Act 1969 required the Adjudicator make a recommendation in relation to the dispute.
They recommended that the Complainant be paid the amount deducted from their arrears in relation to the training allowance and that, for as long as they are required to carry out the training function, the allowance continue to apply. This recommendation is in full and final settlement of the dispute.