The Complainant, Ms Cowen, was employed by Apleona HSG Ltd., ‘the Respondent’, as a Cleaner from December 2016 to June 2019. Following her dismissal, the Complainant lodged a complaint under the Unfair Dismissals Act with the Workplace Relations Commission. The complaint was upheld by an Adjudication Officer, who awarded compensation of €2,544. The Complainant then appealed the quantum awarded.

Prior to an incident in May 2019, there had been difficulties with the Complainant’s work performance and attitude. When challenged about the quality of her work, the Complainant acted as if her cleaning was superior. Other staff indicated that they did not wish to work with her as her attitude was difficult. Her behaviour and outbursts were also directed at supervisors. The Respondent submitted that the Complainant said that she had too much work to do, but also cleaned areas assigned to other staff. There was also an issue with time-keeping. The Respondent added further that the Complainant became aggressive whenever she was challenged.

Shortly prior to her dismissal, the Complainant was approached by a supervisor regarding the fact that she was cleaning an area cleaned by another member of staff that day. The Complainant became agitated and she kicked her cleaning trolley with such force that it travelled into an elevator and caused damage to the opposite door. This was witnessed by other staff but was, initially, denied by the Complainant. She later admitted her behaviour. This was not an unusual occurrence and supervisors had to ensure that they would have other staff present due to the Complainant’s behaviour.

Another incident then arose whereby the Complainant was vacuuming an area that was not part of her duties. When approached by her supervisor, the Complainant became agitated, began waving the vacuum cleaner in a threatening manner and was shouting. The Respondent’s Contracts Manager was then called. He suspended the Complainant and issued a letter of suspension. The Complainant returned to work the same day and the Contracts Manager had to request that she leave.

The Complainant responded by letter to the suspension acknowledging the two incidents, albeit with a less aggressive slant on events. The Complainant was invited to attend an investigation meeting, which took place on the 28th of May 2019. At the meeting, various statements by other staff were discussed with her. The Complainant’s attitude was that she would decide what areas to clean. She admitted to knowingly ignoring instructions. She admitted that she raised her voice on occasions but refused to admit that this was an aggressive act.

In June 2019, the Respondent issued an investigation report, in which disciplinary action was recommended. A disciplinary meeting took place during which the Complainant referred to a personality clash with her supervisor, which appeared to relate solely to the fact that her supervisor made repeated attempts to get the job done correctly. Thereafter, the Complainant was told that she was being summarily dismissed. She was offered the opportunity to appeal but she did not do so.

The Respondent was of the view that there were substantial grounds justifying the dismissal, while acknowledging that there were procedural flaws. The Respondent also opined that the Complainant was compensated adequately by the Adjudication Officer.

The Complainant submitted that her actions arose out of understandable frustration and concern about her treatment by the Respondent. The Complainant suffered severe knee pain due to being on her feet for 16 hours per day. When she required sick leave, as a consequence, for a period of 6 weeks in March-April 2018, she received a total of €759.96 from Aploena and €457.90 from the Department of Social Protection. She applied for knee injury expenses of €749.74 but was told that she did not qualify as her injury was not caused by a prescribed disease developed due to the nature of insurable employment. On returning to work, the Complainant’s request, backed by a Doctor’s recommendation, to work a single shift rather than a split shift was not accommodated.

When the Complainant’s father died in May 2018, she asked her supervisor for details of bereavement leave and was told that she would enquire. When the Complainant raised the matter again a few days later, the supervisor appeared not to know of the Complainant’s bereavement. This was disrespectful and insulting. The Complainant provided the Court with an extensive list of her daily tasks. In addition to these daily tasks, in early 2019 the supervisor began making unreasonable demands for the Complainant to take on a range of additional tasks. These events all led to the Complainant feeling undervalued and unappreciated.

The Labour Court noted that the Complainant was not advised of her right to representation during the investigation; that the Investigator considered his own statement as part of the investigation; that the Investigator went beyond the scope of the original matters raised in the investigation process and that he recommended a sanction, thus failing to maintain the necessary separation between the investigative and disciplinary processes.

The Labour Court took the view that these are not trivial or inconsequential matters, to which might be added the related concerns at the imprecision of charges put to the Complainant and the acknowledgment by the Respondent that a lesser penalty than dismissal was not considered. Therefore, it was clear that there was a total failure of process such that the Respondent cannot prove to the satisfaction of the Court that the dismissal was fair.

The Court considered that the appropriate redress is that of compensation. In giving figures for her losses to the Court, the Complainant took account of social welfare payments. However, in accordance with s.7 of the Act, these are disregarded by the Court. In light of her actual losses due to the dismissal, the serious and commendable attempts to mitigate same and taking account of her contribution to her dismissal, the Court considered that a compensation payment to the Complainant by the Respondent of €5,000 is warranted for her unfair dismissal.
https://www.workplacerelations.ie/en/cases/2021/october/udd2167.html