FACTS
The claimant was employed as a general operative with the respondent company whose role it was to attend to cleaning duties. Relations between the claimant and her employers became strained over alleged shortcomings in her work relating to time keeping and her refusal to fully comply with cleaning instructions. Despite having received a number of letters from her employers, the contents of which highlighted grievances with the standard of the claimants work, it is alleged that the claimant was still refusing to perform her work.
The claimant refuted the allegations made against her and also lodged a formal grievance against her supervisor. Crucially, no formal grievance investigation was initiated by the respondents. The claimant subsequently absented herself from work on health grounds and spent three weeks in hospital unbeknownst to her employers and any efforts made by her employers to communicate with her during this time proved fruitless.
Her employers wrote to her expressing concern that she had failed to make contact and stated that it was believed that she had assumed a position elsewhere in the interim. She was afforded a three week period in which to make contact with her employers otherwise it would be assumed that she was no longer interested in working for the company. The claimant countered this by saying she had never received any communications from her employers. A P45 subsequently issued to the claimant without a covering letter from her employers.
DETERMINATION
The tribunal decided that the dismissal was unfair and the claimant was awarded the sum of €7,000.00 in compensation. This decision was based on the following;
* The Tribunal was not satisfied that the respondent took sufficient steps to address the grievance raised by the claimant or to have the claimant medically assessed.
* The Tribunal considered that the respondent is a big company and did not discharge its responsibilities properly. It stated that the employer needed to tell the claimant to improve and make it clear to her that her job was in danger.
* The Tribunal stated that if the respondent believed the claimant was working elsewhere, it could have asked her to collect her P45 rather than sending it to her.
LEGAL REVIEW
The Tribunal in this case considered that the respondent had failed to discharge its responsibilities properly when faced with a grievance from an employee. The Tribunal decision makes clear that a high threshold exists, especially for large companies who must have procedures and policies implemented to deal with grievances in a manner that accords with the concept of procedural fairness.
While the requirements of procedural justice will vary from case to case, it is clear from case law on point that if an employer acts in a manner that is procedurally unfair, the dismissal itself will be taken to be unfair. In Caulfield v Verbatim Ltd UD 938/93 it was stated that regardless of the guilt or otherwise of the claimant the procedures used by the company to effect the decision to dismiss must be open and transparent.
Warnings are a necessity in order to show that fair procedures were followed. While there is no particular format set out for a warning, it should be clear and unequivocal and the employee should be made fully aware of the cause of the complaint whether it be in his/her conduct, lack of competence or other reason with the consequences clearly spelt out to the employee in the event that the warning is not heeded. The employee must also be given a reasonable time and opportunity to improve.
This decision makes it clear that employers should ensure that grievance procedures and policies are set out in employee contracts of employment and a clear and transparent manner and furnished to employees at the outset of contractual relations.
CONCLUSION
Employers should be fully conversant with grievance procedures and these should be clearly set out in contracts of employment furnished to employees. If a company believes that an employee on sick pay has obtained employment elsewhere, it must adopt fair procedures in approaching the matter and at all times give the employee in question the opportunity to have a fair and impartial determination of the issues concerned and the right to make representations. Employers who ignore these basic procedural requirements will likely be found to have unfairly dismissed the employee.
Full decision:
http://bit.ly/rVlKfs
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