UDD2538

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044000 (CA-00054477-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 4 March 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 27 August 2025.

The following is the Decision of the Court:

DECISION:

This is an appeal by Linda O’ Shea Farren (the Complainant) against Adjudication Officer’s Decision ADJ-00044000 CA-00054477-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim against her previous employer Contemporary Music Centre CLG (the Respondent) that she was unfairly dismissed. The Adjudication Officer held that she was unfairly dismissed and is entitled to redress of compensation of €55,000.

1 Background

The Complainant commenced employment with the Respondent in February 2017.  A formal investigation of allegations against the Complainant carried out by a third party on behalf of the Respondent, concluded in September 2022 that the Complainant did not have a case to answer.

The Complainant was dismissed by the Respondent on the same day that she was informed of the outcome of the investigation. The Respondent conceded both at first instance and on appeal to the Labour Court that the dismissal was unfair. The Complainant appealed the decision to the Court as she did not believe that compensation was the appropriate form of redress and was seeking re-instatement or re-engagement.

The Complainant lodged a complaint with the WRC on 12 January 2023.  The Adjudication Officer’s decision issued on 24 January 2024 and was appealed to the Court on 4 March 2024. The Labour Court held a case management hearing on 25 January 2025 and a hearing on 27 August 2025.  At the case management hearing the parties were afforded an opportunity to make a further submission dealing specifically with the issue of appropriate form of redress.

 As the fact of the dismissal being unfair was not in dispute and the Respondent accepted at the commencement of the hearing that the Complainant had not contributed to her dismissal the issues for the Court to consider were 1) the appropriate form of redress and 2) if that was compensation, the Complainant’s efforts to mitigate her loss.   

2 Summary of Complainant’s submission and evidence

 The Complainant submitted that in the circumstances of this case re-instatement was the appropriate form of redress. The Respondent accepted that the dismissal was unfair and that she had not contributed to her dismissal. They confirmed that no processes had been followed in coming to the decision to dismiss and did not dispute that the investigation into the complaints against her had found that she had no case to answer.    The Complainant in her submission submitted that the Respondent’s conduct in respect of her dismissal was high handed, unjustifiable and that they had wilfully, unfairly summarily dismissed her.  Under the heading “Even compensation at the highest level permissible under the UDA would not compensate or sufficiently vindicate LOSF”, the Complainant in her submission addressed the O’Siurd v. Bord Banistiochta, Gaelscoil Moshlolog 2024 IESC 38 case.  She drew the Courts attention to the statement in same at paragraph 102 which states “the inadequacy of financial compensation under the 1977 Act may be a factor in finding that re-engagement or reinstatement is the more appropriate remedy (see Reilly)”. In respect of the Complainant, it is nearly three years since her dismissal, and she has been unable to secure equivalent employment despite her best efforts.  The Complainant in her evidence to the Court stated that in the first two years following her dismissal she had secured a small number of standalone projects and her gross income from those projects was €1,100. Since September 2024 she had carried out some other small standalone projects and her income was €1,400 and since November 2024 she had secured a one-year part-time contract for services at a fee of €2,000 a month. It was the Complainant’s evidence that she worked successfully and harmoniously with her colleagues. It was her evidence that she believes her former colleagues would work harmoniously with her should she be reinstated.

The Complainant stated that the Respondent was continuing to act in a high-handed manner, and this was evidenced by their submissions to the Court. She disputed that she sent long emails as alleged by the Respondent

Under cross examination by Mr O Sullivan BL for the Respondent the Complainant stated that she believes that her role is still there albeit the programmes will have changed. It is her understanding that there are currently two people doing different parts of her role. She stated that if reinstated she could replace an existing member of staff if there were no vacancies.  The Complainant stated that in her first submission she had set out the following proposed solutions that she believed would assist if she was to be re-instated.

1)Answers in writing to some simple questions in relation to the Other Employment section of CMC’s Employee handbook would immediately resolve the matter from her perspective in a re-instatement context. The outstanding questions she was referring to were set out in a separate paragraph in her submission.

2)Apology in writing by CMC director Ms Fergurson for shouting at her etc, would immediately resolve the matter along with a copy being placed on her file.

3)Formal withdrawal in writing of accusation of deliberate escalation of the incident, including an apology by former CMC Board member Ms O’ leary with a copy of the apology placed on her file.

4)Formal withdrawal in writing of unsubstantiated allegations including an apology by Ms Hickey CMC Board member with a copy to be placed on her file.

5) Complainant against another manager two alternative possible solutions. A) a streamlined process along lines set out in her submission or B) the manager could provide the Complainant with a formal withdrawal in writing of the allegations made against the Complainant including an apology a copy of same to be placed on her employment file.

Under cross examination the Complainant stated that she no longer wants apologies, and she does not require the five actions listed above, unless the issues are not finished from her point of view. It was put to the Complainant that in her first submission to the Labour Court, she makes it clear that she does not have trust and confidence in the Respondent and that she makes constant references to gross waste of public funding. The Complainant accepted that was what was contained in her submission. She confirmed that she stood over her allegation of gross misconduct against Ms Ferguson and that she stood over her allegations of gross mismanagement, gross dereliction of duties, and gross waste of public funds.

The Complainant was asked how her return to work could be harmonious when she was making such allegations. She stated she was basing it on the letter from the Respondent to the Arts Council which stated that lessons had been learnt. She went on say that she could not understand why the board or Ms Ferguson would have a difficulty with her returning even though she had made allegations against them.

In terms of her mitigation of loss she confirmed that following her dismissal she went on two months prearranged holiday. It was put to her that there was a gap between 12 July 2023 and March 2024 in terms of job applications. The Complainants evidence was that not all job applications were in writing, in the area she works in jobs can become known by word of mouth and she had made it known she was available for work. She confirmed that during that period she had stood for election to certain offices, including public office. It was put to her by Mr O Sullivan BL that it was unreasonable that she had confined her research to Arts jobs and only applied for eight non-Arts jobs in the 2 year and eleven months period. He noted that although she was qualified as a solicitor she had not applied for any solicitor jobs. The Complainant confirmed that she had looked at solicitor type jobs in the not-for-profit sector, she also noted that her qualifications are not current.

3 Summary of Respondent’s submission

 Mr O’ Sullivan BL submitted on behalf of the Respondent that neither reinstatement nor re-engagement are appropriate and cited Redmond and Dismissal law in support of that position noting that it has been described as only suitable in exceptional circumstances and that it is not appropriate in a small enterprise. He opened Sheehan v Continental Administration Co. Ltd which he submitted set out at length why the EAT considered neither reinstatement nor re-engagement as being the appropriate remedy. The Respondent submitted that the Complainant was a senior employee, and an order of reinstatement or reengagement would create future friction. The Supreme Court in O’Siurd v. Bord Banistiochta, Gaelscoil Moshlolog 2024 IESC 38 held that the Labour Court and High Court erred in law in making orders of re-engagement. It stated that re-instatement can only properly be granted where the Court or tribunal has carefully assessed the interests of both parties to the arrangement. It went on to say it was wrong to view re-instatement as a punishment for wrongdoing by the employer. It spoke about fraught relationships and skill set changes. The Court would have to satisfy itself that the relationship would work going forward. It is the Respondent’s submission supported by the evidence of the Complainant relating to her five-point proposal and her confirmation of the allegations she is still making against named persons, that this is a relationship that cannot be repaired and therefore neither reinstatement nor reengagement are appropriate remedies.

4 Respondent’s witnesses

Ms Mc Hugh

The witness confirmed that she is on the Board since 2020 and was appointed Chair of the Board in early 2021. In respect of the Complainant, she confirmed that she had not been replaced but all roles have been restructured. The role the Complainant previously held no longer exists. The organisation has moved in a slightly different strategic direction. They had created a new communications post before her dismissal. The issue the Complainant was raising re IMO they considered to be resolved. The Respondent does not believe that the Complainants proposed solutions would work.   She is still raising issues and pursuing complaints against some individuals. The Boards preferred remedy is compensation. Resolutions of the accusations would be difficult, and it would be very difficult to rebuild fractured relationships after allegations of that nature.

Under cross examination from the Complainant the witness confirmed that the communication role was now more about digital technology and social media. The witness confirmed that the Respondent considered a number of the issues the Complainant was raising to be resolved and not requiring any further action. The witness was asked the basis on which she was deciding that re-instatement would not work.  The witness stated that her assessment of it not working is on the basis of the Complainants allegations and looking for apologies. She also had concerns about the Complainant linking in with staff and working with Board members and just could not see it working. She felt there was potential that some of the old issues could reignite. She accepted the Complainant’s statement that if she was reinstated, she would give it her best effort. In conclusion the witness stated that the issue of reinstatement was discussed at the Board level and compensation was identified as the preferred solution. The reason the dismissal happened so fast was that the situation in the workplace was deteriorating and she believes they would face the same challenges if the Complainant was re-instated.

5 Discussion and decision

The first issue for the Court to consider is the appropriate remedy. The Complainant is seeking re-instatement or re- engagement.  In O’Siurd v. Bord Banistiochta, Gaelscoil Moshlolog 2024 IESC 38 the Supreme Court at paragraph 102 noted

“The inadequacy of financial compensation under the 1977 act may be a factor in finding that reengagement or reinstatement is the more appropriate remedy (see Reilly). But it is only one such factor and one of limited significance, and if there are reasons making reengagement or reinstatement inappropriate remedy, then they must also be taken into account.”

The Complainant in her evidence-maintained allegations she was making against current staff members and indicated that she believed that those members would have no difficulty working with her harmoniously. In her submission she put forward five solutions which required that she receive apologies from various people in relation to issues that had occurred in the past. She went on to state that she was not now seeking apologies and believed that the trust between herself and the Respondent was not broken. The Respondent submitted the trust was broken and not repairable. One of their witnesses for the Respondent expressed concern that should the Complainant be reinstated issues that had been put to bed would be reignited. She did not share the Complainant’s view that there could be harmonious working relationships if the Complainant returned to the workplace. The Complainant in her submissions to the Court both oral and written made negative comments about the Respondent which clearly indicated that the manner in which she was dismissed by the Respondent is still a very live issue for her. This was further demonstrated by the language she used when describing the actions of the Respondent such as highhanded, wilful, unjustifiable, and in making allegations of gross mismanagement, gross dereliction of duty, gross waste of public funds against named individuals.

The Court does not share the Complainant’s optimism that she could work harmoniously with colleagues she was making allegations of that nature against. Taking all of the above into account the Court finds that neither reinstatement or reengagement are appropriate remedies in this case and that the appropriate remedy is compensation.

It is not disputed that, but for the dismissal, the Complainant would have earned the sum of €128,333 in the 2 years and 11 months since the termination up to end of August 2025.

The Complainant’s earnings since the termination amount to €2,500 for stand-alone music projects, plus, earnings of €2,000 per month for a 12-month part-time fixed-term contract.

The Court is satisfied that total financial loss attributable to the dismissal is the sum of €101,833 (€128,333 less €26,500).  This sum must, however, be assessed in the light of the provisions of Section 7(2) of the Acts in order to determine the compensation payable.

With regard to the provisions as set out in Section 7(2) of the Acts, the Court is satisfied that the dismissal of the Complainant was carried out in a manner which was entirely devoid of any process, fair or otherwise. The Court is further satisfied that no conduct on the part of the Complainant, as envisaged by subsection 2(f) of Section 7, contributed to the dismissal.

With regard to the duty to mitigate, as envisaged by Section 7(2)(c). The Court received substantial submissions detailing the measures adopted by the Complainant, together with counter submissions from the Respondent.  The Complainant’s submissions were further elaborated on in her direct evidence and extensively cross-examined by Counsel for the Respondent.

While the Complainant did make significant efforts to find work, the Court notes in particular that the Complainant chose to limit her search to the areas of, music (described by her a niche sector); the wider arts (which she describes as small and close-knit); and the non-profit sector generally.

The Court further notes that the Complainant is a qualified solicitor and practiced as a solicitor until the end of 2010.  Her employment experience in the music/arts sector was confined to her former employment for 5.5 years with the Respondent. The Complainant had a career spanning the private, public and voluntary sectors prior to her decision to focus her career on the arts sector.

Having regard to the above, the Court is satisfied that the total financial loss sum should be reduced by 30% to reflect the measures adopted by the Complainant to mitigate her loss. The Court therefore measure the compensation payable to the Complainant to be the sum of €71,283.

The appeal is upheld. The decision of the Adjudication Officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AM	______________________
15 October 2025	Deputy Chairman

Note:

Enquiries concerning this Decision should be in writing and addressed to Ms Áine Maunsell, Court Secretary.