In this month’s case law review, we take a look at some cases covering some topical areas for employers including; the importance of sensitively handling anxiety disorders in the workplace, the importance of fair procedures when considering dismissal and the risk for employers by failing to maintain proper working time records.
ADJ-00037167 A Bartender v. A Bar
Background
A Bartender who suffers from stress and anxiety with underlying depression accidentally received a voice message from her supervisor who had been ordered to “get rid” of her due to her Anxiety Disorder.
The Bartender Ms. Z. had been an employee of the Bar since 2019, and regularly opened and closed the premises as part of her duties. Ms Z had made her manager aware of the condition and the treatment she was receiving, and also aware of the fact that she was taking medication to manage the difficulties. The employee was advised at the time that her condition would not be disclosed and given assurances that accommodations would be made to facilitate her working.
Following Lock Down in 2021, the premises was reopening and a meeting was held. Ms. Z was advised that one day a week she would be closing the bar on her own. The employee expressed concern and outlined that she was feeling anxious about closing on her own and asked if security could be provided.
Ms. Z in her evidence stated that she finished work on the 13th August 2021 and advised her supervisor that she was feeling unwell, but was capable of opening the bar the following morning.
On the morning of the 14th Ms. Z., who was at work, sent a message to her supervisor that she was suffering from anxiety and possibly a panic attack and requesting someone to relieve her. As the employee was waiting for her relief, she received a voice note from her supervisor, which clearly was not meant for her.
"Well girl, [the claimant] is fucking killed with her nerves so she's over there in a panic attack now. So I have to go over and I'm waiting for one of the other girls to come in, in an hour or so, so it's extra hours for me and I can go home and have a wash and get ready...and come over to work tonight. So, I have to get rid of her now. Fucking hate doing it but [Mr. A] said "look, she has to go". So they're paying me extra to do it so just say like...that it's not really suiting her at the moment and when she gets better she can come back, her job is always here for her. Okay".
Ms. Z. had just finished listening to the voice note when the supervisor arrived and asked for a “private word” where she was told: "You're sick, you’re not suited to the job" – or "words to that effect”. The employee, at the hearing, stated that she felt "stress and humiliation" due to the incident and explained that resigning was the only option available to her.
Decision
The Adjudicating Officer outlined in the decision that “the tone and language of the message would reasonably be considered to be deeply offensive to the Complainant. Wording such as “so I have to get rid of her now. and {Manager Mr. A] said "Look, she has to go" would indicate that the intention was to dismiss the Complainant.”
In closing, the Adjudicator stated that “While in cases of constructive dismissal, there is usually an obligation on the Complainant to utilise the grievance procedures, in this case, due to the mental health difficulties of the Complainant, I accept that it was not possible for her to do so. I also note that there was little follow-up from the Respondent, in the context of their assertion that the Complainant would be available or welcome to come back to work if and when she recovered.”
The Adjudicator ordered the company to pay Ms. Z €10,000 in compensation for the effects of discrimination.
Points to Note
The Employment Equality Acts provide that there is a responsibility on an employer to make reasonable accommodations for an employee with a disability. However, in this case, it was found that the employer had provided reasonable accommodation in relation to Ms. Z.’s working hours but had constructively dismissed through the remarks made in relation to her disability.
Link: https://www.workplacerelations.ie/en/cases/2023/march/adj-00037167.html
School Secretary v Primary School [2023]
ADJ-00028138
Background
The background to this dispute relates to a period when the school principal was on extended leave and when she returned she discovered there were two categories of payments made to the Complainant that appeared to be unauthorised. The Complainant, who is secretary at the school, it is alleged paid herself increases that she was not entitled to and that were not sanctioned by the board of management.
The Schools position was that the Complainant had given herself unauthorised pay increases for the period January to June 2019 and overpayment of holiday pay amounting to an additional 2 weeks’ pay.
In an investigation of the matter the school principal concluded that the increases could not have happened by accident, and they amounted to misappropriation of school funds. It is alleged that the unauthorised payment was discovered when the principal returned to work in August 2019.
The Complainant in her evidence stated she believed that she was authorised by the assistant principal to process these payments. She had an unblemished record with the school for 14 years while employed as a school secretary.
Secondly, the employee claimed the process followed by the school that led to the Complainant being dismissed was fundamentally flawed. The school principal, in completing her report, arrived at a finding that the Complainant had in fact misappropriated funds. The claimant felt it was not an independent fact-finding investigation and it was hugely prejudicial to the Complainant’s defence.
The claimant stated the most senior teacher/manager in the school, in reaching such a conclusion before any disciplinary finding had been made, meant that she was denied the right to a fair hearing. Thus, the Board thereafter was acting on a prejudiced report and any decision that followed on from that report had to be flawed.
The Board concluded that the allegations of unauthorised payments had in fact been substantiated and this amounted to a breach of trust and confidence and constituted gross and serious misconduct. Having reached this conclusion, the appropriate sanction was a dismissal with immediate effect.
The Complainant was afforded the right to appeal the Board’s decision. The appeal was to an external independent professional. The appeal was not upheld.
The Board reiterated the decision to dismiss effective from the 9th of December 2019.
Outcome
In his decision the Adjudication Officer found “The Board does not appear to have addressed the Complainant’s grievance about the principal’s investigation being biased and prejudiced, that the deputy principal participated in that investigation; although she allegedly approved the salary increase; that the investigation report was one sided and made no reference to her account and explanations for receiving the payments. She also stated that the decision to suspend her was unfair and amounted to prejudice.”
The Adjudication officer continued and concluded that the investigation and disciplinary process was flawed as the investigation and fact-finding was not impartial and that the Board did not correct the flaws in the prejudice and negative findings in the principal’s report, that the decision to suspend was prejudicial, that the Board failed to give reasons why it did not accept any of the explanations provided by the Complainant and demonstrated that they had impartially engaged with her submission and evidence.
The process while it appears to have complied with SI 146/2000 (The code of practice on disciplinary and grievance procedures), did so only at a very high level and, was prejudiced. The decision arrived at therefore by the board is such that the Respondent must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal.
The Adjudication Officer awarded the Complainant the sum of €25,000 compensation arising from being unfairly dismissed.
Points to Note
In any Unfair Dismissal an Employer will only be determined to have fairly dismissed an employee if there was both a substantive reason for the dismissal and all aspects of fair procedures were afforded to the employee. The Workplace Relations Commission will forensically review any dismissal procedure to determine whether employee was deprived of their right to fair procedures as outlined in the code of practice.
https://www.workplacerelations.ie/en/cases/2023/february/adj-00028138.html
Andrea Baldacchino v C&C Retail Limited t/a Gino’s Gelato.
ADJ-00038853
Background
The employee is of Italian heritage and commenced his first job in Ireland with the Respondent on 14 September 2021 as a gelato maker. He received a letter of dismissal from the Respondent on 5 January 2022 where it stated, amongst other things, “Your employment shall be terminated effective 12-1-22.” The Worker submits that: (1) he did not get proper breaks in line with section 12 of the Organisation of Working Time Act (the 1997 Act); (2) He did not receive his statutory minimum notice under the Minimum Notice and Terms of Employment Act 1973 (the 1973 Act); and (3) he did not receive a copy of his terms of employment as outlined under section 3 of the Terms of Employment (information) Act 1994 (the 1994 Act).
The Employer, in denying all claims produced a witness who stated “that the position of gelato maker can be classed as an artisan skill. The witness said that the gelato maker usually dictates his/her own breaks, given the nature of the work and therefore if the Complainant did not avail of his breaks, it was not the fault of the Respondent.”
Further, the employer stated that all the employees were supplied with the statutory documentation, and she sent the Complainant’s terms and conditions, with another document, to the outlet where the Complainant worked. She accepted that she could not testify to the fact that the Complainant had seen the document, which was exhibited at the hearing.
Outcome
The WRC ordered the employer to pay the employee, €1,320 in compensation after finding he was subject to a “pattern of denial of breaks” while working without a statement of employment terms.
Points to Note
This case is a good reminder for all employers to keep detailed records of the hours each employee works each day and week and must also keep a record of any leave; rest periods and breaks employees take. This record-keeping is vital in any case where an employee is claiming not to have received the statutory rest periods as outlined in the Organisation of Working Time Act.
In addition, the Terms of Employment (Information) Act, 1994 (as amended) provides, among other matters, for the issue to employees of certain statements of terms of employment within the first 5 days and a full statement, if not already issued, within the first month of their employment.
Simple oversights can be costly mistakes in the WRC.
https://www.workplacerelations.ie/en/cases/2023/march/adj-00038853.html
