Workplace Relations Commission (WRC) - RECENT Decisions & judgements
Adjudication Reference: ADJ-00014839
Complainant is awarded €7,000 compensation for gross misconduct
This complaint is about a Deputy Manager who was employed from 16th October 2016 until 10th October 2017 in the residential unit catering for vulnerable young people.
She contends that she was unfairly dismissed for alleged gross misconduct on a substantive and procedural basis. The Respondent states that the Complainant does not have the required one year’s service to bring a claim under the Act. Without prejudice to this preliminary point, it is submitted that the Complainant was dismissed for gross misconduct in that she destroyed a handover document in order to remove any record of an incident which happened before her shift when one of the residents had water thrown over him.
The conduct to which the Complainant has admitted to, falls within the terms of gross misconduct. The nature of the conduct admitted the dismissal of the Complainant was within “the band of reasonable responses” open to the Respondent.
The Complainant states that she was informed during handover, that a member of staff and another young person had been involved in throwing water over another young person in order to get him up for school. The Complainant was shocked having discovered that the bed linen, pillows and young person’s top were soaked and informed the Manager that this could be deemed abuse. The Complainant was told by the manager not to mention the abuse word again. The Manager took the handover log, scribbled out mention of the water incident. Following this, the Complainant panicked and ripped up the log and replaced it with another one.
The Manager directed the Complainant and another staff member not to discuss the water incident and to take the young person out of the unit with no mention to the inspectors who were present on the premises at the time. The Complainant sought advice from the Services Director who having first advised her to file a complaint, then went on to suspend her and dismiss her for alleged gross misconduct.
The Complainant was called to a meeting on 9th October 2017 without being informed that her job was in jeopardy, only to be dismissed on the spot. The Complainant believes she was unfairly dismissed in circumstances where she had no part in the incident and her colleagues who were directly involved were given written warnings.
To conclude, the Complainant was dismissed for 3 issues: destruction of documentation in relation to the handover, failing to disclose to the inspectors there had been an incident and failure to follow management instruction to provide the resident with a complaint form. The lack of fair procedures throughout the process is very significant as the Complainant was not informed at any stage that her job was at risk, she was not allowed representation of her choice, and the same Manager who carried out the investigation, carried out the disciplinary meeting and effected the dismissal.
The Respondent raised a preliminary issue regarding the complainant’s right to avail of the provisions of the Act in relation to the continuous service requirements. The date of dismissal as contained in Section 1 of the Act provides that where prior notice is not given, the date of dismissal is deemed to be the date on which such notice would have expired, either in conformance with the provisions of the employee’s contract or the provisions of the Minimum Notice and Terms of Employment Act 1973. In accordance with the conclusion above, the complainant is entitled to rely on one week’s notice bringing her into eligibility to avail of the provisions of the Act.
The Complainant was unfairly dismissed and is deemed for compensation to be the appropriate remedy in circumstances where the Complainant has secured alternative employment and to return to the Respondent’s workplace would not be acceptable to either party. The Respondent is therefore required to pay the Complainant the sum of €7,000 compensation.
Complainant is awarded €2,000 compensation for the effects of discrimination
Adjudication Reference: ADJ-00014909
In this case, the Complainant applied for a position of a “Finance Assistant” with the Respondent and completed a first-round interview on 19th February 2018. She was subsequently called for a second-round interview on 22nd February 2018 during which she was informed by the Respondent that she has been unsuccessful. The Complainant lodged a Complaint Form with the WRC on 24th May 2018 alleging that she had been discriminated against by reason of her age in not getting a job.
The Complainant states that at this second interview she was asked a question by the Finance Manager, which she believes was ageist and inappropriate. The Complainant states that she was asked, “We are a very young team here at [location], how would you feel about that?” following an additional comment from the Finance Manager, “I’m going to ask a question, I probably shouldn’t be asking this but I’m going to ask it anyway.”
The Complainant’s general reply to the question was along the lines of, “I’m young at heart, I don’t look my age, I have a 24-year-old daughter, I am experienced at work and work well with all colleagues, regardless of age,”
The Complainant did receive feedback about her application and was informed by the Respondent that the interview panel felt she was “over qualified” for the position.
In cross examination, the Complainant stated that the question referred to was asked and she wrote the words down after the interview.
The Respondent provided a detailed written submission and denies the Complainant’s claim that she was discriminated against.
The Respondent contends that the ‘’Finance Assistant’’ role involves a significant amount of repetition of low-level mundane tasks such as daily bank and cash reconciliation, reviewing cash discrepancies in the tills and discrepancies as a result of credit card sales, filling cash machines, ensuring they are working correctly, arranging for the repair, ordering change for the cash machines when they run low, and debtor’s management. Of the initial 136 applicants for the role, nine were called for first round interviews. Three candidates were shortlisted for second and final interview.
The ages of these candidates were not known at the time of the recruitment process.
The Respondent has a detailed interview template informed by its corporate values and competencies which does not inform the specific questions for every interview, but which establishes a basis which is used by the interviewers. The Respondent believes the criteria used to assess candidates could not be said to be discriminatory either directly or indirectly on the age ground. A scoring matrix is also used to score and rank the candidates.
The interview panel for the second interview consisted of the Commercial Financial Manager, Ms A and the HR Business Partner, Ms B. It was put to the Complainant, inter alia, that she was likely to be over experienced for the role and it could struggle to hold her interest. The Complainant replied that she understood the role and that she would try to introduce more efficient systems to carry out the various tasks.
Following the interviews, the candidates were ranked using the assessment form. The Complainant was deemed not suitable for the role. The narrative on the assessment form read; “Overly qualified candidate; worried that the role is to administrative and monotonous to keep her challenged. Limited debtor’s requirement in role which is her key strength. Keep in mind for future financial roles.”.
The candidate listed third on the assessment form scored 26 out of a possible 35 points. The key advantage that Candidate 3 had over the Complainant was her directly relevant experience dealing with cash in a retail/service environment which was identified as a key responsibility of the Financial Assistant role.
Following the interview, the Respondent sent the Complainant some feedback, explaining that she was deemed to be over qualified for the role but that the Respondent would be positive towards her for any future more senior financial roles. When contacted with her feedback, the Respondent maintains that the Complainant agreed with the view that she was overly qualified for the role.
While it is denied that Ms A asked the alleged question of the Complainant, the Respondent accepts that during the second round interview a question using the word “young” was asked by one of the Ms A. The word was used in the context of explaining the culture of the Respondent’s business. The Respondent denies that any question was put to the Complainant with any intention or purpose of being discriminatory on the grounds of age.
The Respondent states that the Complainant’s age was not considered at any stage of the recruitment process and that they were keen to consider the Complainant for another more senior financial role in the business which was advertised subsequently.
In oral evidence Ms B stated that she recalled Ms A asking a question about culture and using the word young, but it was in the context of the open plan nature of the office and how the Complainant would feel working in such an environment. When it was put to Ms B that the Complainant was disappointed that she had not intervened when the alleged question was asked Ms B stated that she would have intervened if the question had been asked as alleged by the Complainant but the fact that she did not intervene indicates that the question was about the culture.
When asked what exactly she meant by young, Ms A stated that she should have just said, fast paced. She did not want it to sound discriminatory and it had no impact on the selection.
Section 6 of the Acts defines discrimination as follows:
"6.- (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where – (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection
(2) (in this Act referred to as the "discriminatory grounds") which – (i) exists…," and "(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are – (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground").
The Complainant has submitted that she was discriminated against because of her comparative age when she entered the competition for the Financial Assistant’s role. The Respondent contends that the recruitment process was fair and non-discriminatory.
Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the Claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.
It continued: “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.
The first task is to assess the evidence adduced, both documentary and oral, and decide if, on the balance of probabilities, a prima facie case of discrimination has been established. To determine whether the Complainant has established a prima facie case a three-tier test is employed:
First, the Complainant must establish that she is covered by the relevant discriminatory ground.
Second, she must establish that the specific treatment alleged has actually occurred.
Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.
With regard to the first test; it is apparent that the Complainant is somewhat along the employment age spectrum therefore this test is satisfied.
Test two revolves around the interview process, the questions asked at the interview and the subsequent decision of the interview panel in not selecting the Complainant for the post. The interview panel had an interview template to inform the questions to be asked of the candidates and follow-on questions stemmed from the answers given. From the evidence adduced, one of the interview panel brought the matter of age into the deliberations. Although there is some discrepancy between the parties of exactly how the matter was couched there is no doubt that the candidate was asked about how she would settle into a “young” workplace.
There is no reason why this question would be asked except to find out the Complainant’s view of her ability to carry out the role of Financial Assistant given her relative age. Whether conscious or unconscious this question indicates that age was a factor in the selection process, with a bias towards younger candidates. Therefore, the second test has been passed.
Test three; that she was not treated less favourably than a younger candidate comparator. The successful candidate came from a younger age group than the Complainant, so therefore the third test is passed.
As all three tests have been passed, it is found that a prima facie case of discrimination has been established.
In conclusion, the Complainant has established a prima facie case of discrimination on the grounds of Age and this has not been rebutted by the Respondent. The complaint is founded and the Respondent to pay the Complainant €2,000 in compensation for the effects of the discrimination.
Complainant is awarded €7,000 compensation for gross misconduct
This complaint is about a Deputy Manager who was employed from 16th October 2016 until 10th October 2017 in the residential unit catering for vulnerable young people.
She contends that she was unfairly dismissed for alleged gross misconduct on a substantive and procedural basis. The Respondent states that the Complainant does not have the required one year’s service to bring a claim under the Act. Without prejudice to this preliminary point, it is submitted that the Complainant was dismissed for gross misconduct in that she destroyed a handover document in order to remove any record of an incident which happened before her shift when one of the residents had water thrown over him.
The conduct to which the Complainant has admitted to, falls within the terms of gross misconduct. The nature of the conduct admitted the dismissal of the Complainant was within “the band of reasonable responses” open to the Respondent.
The Complainant states that she was informed during handover, that a member of staff and another young person had been involved in throwing water over another young person in order to get him up for school. The Complainant was shocked having discovered that the bed linen, pillows and young person’s top were soaked and informed the Manager that this could be deemed abuse. The Complainant was told by the manager not to mention the abuse word again. The Manager took the handover log, scribbled out mention of the water incident. Following this, the Complainant panicked and ripped up the log and replaced it with another one.
The Manager directed the Complainant and another staff member not to discuss the water incident and to take the young person out of the unit with no mention to the inspectors who were present on the premises at the time. The Complainant sought advice from the Services Director who having first advised her to file a complaint, then went on to suspend her and dismiss her for alleged gross misconduct.
The Complainant was called to a meeting on 9th October 2017 without being informed that her job was in jeopardy, only to be dismissed on the spot. The Complainant believes she was unfairly dismissed in circumstances where she had no part in the incident and her colleagues who were directly involved were given written warnings.
To conclude, the Complainant was dismissed for 3 issues: destruction of documentation in relation to the handover, failing to disclose to the inspectors there had been an incident and failure to follow management instruction to provide the resident with a complaint form. The lack of fair procedures throughout the process is very significant as the Complainant was not informed at any stage that her job was at risk, she was not allowed representation of her choice, and the same Manager who carried out the investigation, carried out the disciplinary meeting and effected the dismissal.
The Respondent raised a preliminary issue regarding the complainant’s right to avail of the provisions of the Act in relation to the continuous service requirements. The date of dismissal as contained in Section 1 of the Act provides that where prior notice is not given, the date of dismissal is deemed to be the date on which such notice would have expired, either in conformance with the provisions of the employee’s contract or the provisions of the Minimum Notice and Terms of Employment Act 1973. In accordance with the conclusion above, the complainant is entitled to rely on one week’s notice bringing her into eligibility to avail of the provisions of the Act.
The Complainant was unfairly dismissed and is deemed for compensation to be the appropriate remedy in circumstances where the Complainant has secured alternative employment and to return to the Respondent’s workplace would not be acceptable to either party. The Respondent is therefore required to pay the Complainant the sum of €7,000 compensation.
Complainant is awarded €2,000 compensation for the effects of discrimination
Adjudication Reference: ADJ-00014909
In this case, the Complainant applied for a position of a “Finance Assistant” with the Respondent and completed a first-round interview on 19th February 2018. She was subsequently called for a second-round interview on 22nd February 2018 during which she was informed by the Respondent that she has been unsuccessful. The Complainant lodged a Complaint Form with the WRC on 24th May 2018 alleging that she had been discriminated against by reason of her age in not getting a job.
The Complainant states that at this second interview she was asked a question by the Finance Manager, which she believes was ageist and inappropriate. The Complainant states that she was asked, “We are a very young team here at [location], how would you feel about that?” following an additional comment from the Finance Manager, “I’m going to ask a question, I probably shouldn’t be asking this but I’m going to ask it anyway.”
The Complainant’s general reply to the question was along the lines of, “I’m young at heart, I don’t look my age, I have a 24-year-old daughter, I am experienced at work and work well with all colleagues, regardless of age,”
The Complainant did receive feedback about her application and was informed by the Respondent that the interview panel felt she was “over qualified” for the position.
In cross examination, the Complainant stated that the question referred to was asked and she wrote the words down after the interview.
The Respondent provided a detailed written submission and denies the Complainant’s claim that she was discriminated against.
The Respondent contends that the ‘’Finance Assistant’’ role involves a significant amount of repetition of low-level mundane tasks such as daily bank and cash reconciliation, reviewing cash discrepancies in the tills and discrepancies as a result of credit card sales, filling cash machines, ensuring they are working correctly, arranging for the repair, ordering change for the cash machines when they run low, and debtor’s management. Of the initial 136 applicants for the role, nine were called for first round interviews. Three candidates were shortlisted for second and final interview.
The ages of these candidates were not known at the time of the recruitment process.
The Respondent has a detailed interview template informed by its corporate values and competencies which does not inform the specific questions for every interview, but which establishes a basis which is used by the interviewers. The Respondent believes the criteria used to assess candidates could not be said to be discriminatory either directly or indirectly on the age ground. A scoring matrix is also used to score and rank the candidates.
The interview panel for the second interview consisted of the Commercial Financial Manager, Ms A and the HR Business Partner, Ms B. It was put to the Complainant, inter alia, that she was likely to be over experienced for the role and it could struggle to hold her interest. The Complainant replied that she understood the role and that she would try to introduce more efficient systems to carry out the various tasks.
Following the interviews, the candidates were ranked using the assessment form. The Complainant was deemed not suitable for the role. The narrative on the assessment form read; “Overly qualified candidate; worried that the role is to administrative and monotonous to keep her challenged. Limited debtor’s requirement in role which is her key strength. Keep in mind for future financial roles.”.
The candidate listed third on the assessment form scored 26 out of a possible 35 points. The key advantage that Candidate 3 had over the Complainant was her directly relevant experience dealing with cash in a retail/service environment which was identified as a key responsibility of the Financial Assistant role.
Following the interview, the Respondent sent the Complainant some feedback, explaining that she was deemed to be over qualified for the role but that the Respondent would be positive towards her for any future more senior financial roles. When contacted with her feedback, the Respondent maintains that the Complainant agreed with the view that she was overly qualified for the role.
While it is denied that Ms A asked the alleged question of the Complainant, the Respondent accepts that during the second round interview a question using the word “young” was asked by one of the Ms A. The word was used in the context of explaining the culture of the Respondent’s business. The Respondent denies that any question was put to the Complainant with any intention or purpose of being discriminatory on the grounds of age.
The Respondent states that the Complainant’s age was not considered at any stage of the recruitment process and that they were keen to consider the Complainant for another more senior financial role in the business which was advertised subsequently.
In oral evidence Ms B stated that she recalled Ms A asking a question about culture and using the word young, but it was in the context of the open plan nature of the office and how the Complainant would feel working in such an environment. When it was put to Ms B that the Complainant was disappointed that she had not intervened when the alleged question was asked Ms B stated that she would have intervened if the question had been asked as alleged by the Complainant but the fact that she did not intervene indicates that the question was about the culture.
When asked what exactly she meant by young, Ms A stated that she should have just said, fast paced. She did not want it to sound discriminatory and it had no impact on the selection.
Section 6 of the Acts defines discrimination as follows:
"6.- (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where – (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection
(2) (in this Act referred to as the "discriminatory grounds") which – (i) exists…," and "(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are – (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground").
The Complainant has submitted that she was discriminated against because of her comparative age when she entered the competition for the Financial Assistant’s role. The Respondent contends that the recruitment process was fair and non-discriminatory.
Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the Claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.
It continued: “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.
The first task is to assess the evidence adduced, both documentary and oral, and decide if, on the balance of probabilities, a prima facie case of discrimination has been established. To determine whether the Complainant has established a prima facie case a three-tier test is employed:
First, the Complainant must establish that she is covered by the relevant discriminatory ground.
Second, she must establish that the specific treatment alleged has actually occurred.
Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.
With regard to the first test; it is apparent that the Complainant is somewhat along the employment age spectrum therefore this test is satisfied.
Test two revolves around the interview process, the questions asked at the interview and the subsequent decision of the interview panel in not selecting the Complainant for the post. The interview panel had an interview template to inform the questions to be asked of the candidates and follow-on questions stemmed from the answers given. From the evidence adduced, one of the interview panel brought the matter of age into the deliberations. Although there is some discrepancy between the parties of exactly how the matter was couched there is no doubt that the candidate was asked about how she would settle into a “young” workplace.
There is no reason why this question would be asked except to find out the Complainant’s view of her ability to carry out the role of Financial Assistant given her relative age. Whether conscious or unconscious this question indicates that age was a factor in the selection process, with a bias towards younger candidates. Therefore, the second test has been passed.
Test three; that she was not treated less favourably than a younger candidate comparator. The successful candidate came from a younger age group than the Complainant, so therefore the third test is passed.
As all three tests have been passed, it is found that a prima facie case of discrimination has been established.
In conclusion, the Complainant has established a prima facie case of discrimination on the grounds of Age and this has not been rebutted by the Respondent. The complaint is founded and the Respondent to pay the Complainant €2,000 in compensation for the effects of the discrimination.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
www.adarehrm.ie
- Advice on all Employment Law, Industrial Relations and HR queries or issues
- Review, Development and Implementation of Contracts of Employment and Employee Policies and Procedures
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment, Conducting Disciplinary Meetings
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
- Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development
www.adarehrm.ie
