Workplace Relations Commission: Catering manager who was unfairly dismissed is awarded €28,400

The manager had a long-standing arrangement with the previous owner of the hotel whereby other members of staff would clock her in if she was running late for work, but it was common case that the manager worked a lot longer than she was contractually obligated on a regular basis and there was no issue with her performance.

Stating that the new owner of the hotel was entitled to ask that this long-standing clocking-in arrangement cease, Adjudication Officer Penelope McGrath BL found that the dismissal of the complainant was ‘ill-judged and unfair’, and not within the range of reasonable responses of a reasonable employer (distinguishing BOI v Reilly).

Background

The Complainant, a catering/food manager, worked in a hotel owned by the Respondent Company, and its predecessor since 2014. It was explained that the complainant had a good working relationship with the former owner of the hotel, who had ‘on occasion gone out of his way to ensure that her ability and enthusiasm to be at work was made easier’ – this included covering the expense of a car-parking spot in the city centre for the complainant. The complainant was also on a ‘good fixed salary whereas most of the employees were on an hourly rate with shift allocation’, which contributed to a ‘strained relationship’ with the operations manager, and it was common case that the complainant therefore had ‘unfettered access’ to the former owner – bypassing those more senior to her.

In the Workplace Relations Commission adjudication hearing, this was described as unusual and evidence of the trust and respect between the complainant and the former owner.

The respondent company took ownership of the hotel in late 2016/early 2017, and the former owner ‘had a big falling out’ with the new owner during the transfer of the business. It was noted by the Adjudication Officer that this had nothing to do with the complainant, who continued to work in the hotel. The complainant’s employment record was described as excellent, and there was ‘no issue with her performance, enthusiasm or willingness to roll up her sleeves and get on with the job’.

The complainant ‘very often saw her role as a Manager as meaning that she would have to demonstrate flexibility and be prepared to work longer hours’, and it was explained that for the three years that she worked at the hotel there was ‘a standing arrangement whereby if she got delayed coming into the workplace by reason of a childminding issue or because she had to purchase goods for the hotel then members of staff would clock her in as if she was there’. The complainant had a small child at home and had difficulty making the 7.30am start, and the ‘unorthodox practise of having others ring in her clock time’ was sanctioned by the former owner.

In the circumstances, the complainant was shocked when in July 2017, at a meeting with the CEO and the HR manager, she was advised that an issue of clocking irregularities had come to light, and she was immediately suspended from the workplace.

Workplace Relations Commission

The complainant brought claims seeking adjudication by the Workplace Relations Commission under:

• Section 8 of the Unfair Dismissals Act 1977; and
• Section 11 of the Minimum Notice & Terms of Employment Act 1973.

The complaints were heard by the Workplace Relations Commission pursuant to Section 41 of the Workplace Relations Act 2015.

In the Adjudication hearing, the HR manager ‘directly told’ the Adjudication Officer that the complainant always did her minimum shift hours and very often stayed ‘a lot longer than was contractually her obligation’. Furthermore, the complainant gave evidence that she was never corrected on the clocking practice described above, which she believed was primarily because she was such a valuable asset in the workplace.

The process by which the Complainant came to be fired included an investigation into her conduct, an investigation report, a disciplinary stage and a disciplinary decision and sanction imposed. There was also a full Appeal process – however the Adjudication officer noted that this was ‘conducted and concluded in such a way to effectively exclude the Complainant from the process’.

While the adjudication officer was critical of the complainant’s failure to inform her new employer of the clocking-in arrangement which had been sanctioned by the former owner, she was not satisfied that, taking all of the circumstances into account, that this was a dismissible offence. Stating that the respondent company was entitled to ask that the complainant’s clocking-in arrangement cease, the Adjudication Officer held that the respondent company’s dismissal of the complainant was ‘ill-judged and unfair’.

Distinguishing the present circumstances from those which would require application of the dicta of Justice Noonan in In the matter of the Governor and the Company of the Bank of Ireland v James Reilly, the Adjudication Officer held that the decision to dismiss was not ‘within the range of reasonable responses of a reasonable employer to the conduct concerned’ (as per Justice Noonan in Reilly).

Accepting the complainant’s evidence concerning her loss, the Adjudication Officer held that the Complainant was entitled to be paid Minimum Notice pursuant to the Acts having commenced work on the 1st of June 2015 and had her employment terminated on the 11th of August 2017. The rate of pay was €753.00 per week.

Pursuant to the Unfair Dismissals Acts 1977 – 2015, the complainant was awarded €28,400 compensation.

• by Seosamh Gráinséir for Irish Legal News