EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Michelle Northey - Claimant UD996/2015
against
Nugent Foods Limited - Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2015
I certify that the Tribunal
(Division of the Tribunal)
Chairman: Ms M. Levey BL
Mr. J.O'Neill
Mr. M O'Reilly
heard this claim at Dublin on 24th August 2016, 10th November 2016, 11th November 2016, 16th January 2017 and 17th January 2017
Representation:
Claimant: Sharon Dillon Lyons B.L instructed by Cogan-Daly & Co, Solicitors,
Brighton House, 50 Terenure Road East, Rathgar, Dublin 6
Respondent: Kevin Callen B.L. instructed by Mr Shane O'Brien, Anthony Joyce, Solicitors, Oliver Bond Street, Dublin 8
This claim was heard with UD 995/2015 and UD 996/2015 and should be read in conjunction with same.
Respondent’s Case:
Background
The respondent took over the business in March 2015.
On or around the date of transfer, the respondent received all existing contracts of employment (the “file contract”) for all employees of the company. These contracts of employment were those issued to the employees by Company 1 and those which transferred to the respondent under Regulation 4 of S.I. 131 of 2003.
LRC Complaints
On the 19th June 2016, the Respondent received complaint forms from the LRC. These complaints were lodged by the MN and SO’D under the Terms of Employment (Information) Act 1994. The complaints forms issued to the Respondent by the LRC also contained the Claimants’ purported contracts of employment (the “LRC contracts”) and purported letters of offer of employment (the “LRC offer letters”).
The LRC complaints alleged that “changes were made to [the Claimants’] written statement[s] without notification”. The LRC complaints further detailed as follows:
- “As per my letter of employment, I am not required to work Sundays or bank holidays, but have been threatened with reduction of my contracted hours if I do not cooperate with their demands”.
- “When I approached MN2 on the Sunday work issue, she informed me that my future hours and employment would be affected by my inability to work on Sundays. The roster this week shows this very clearly and she completely ignored the conversation regarding my Sunday work, as these are part of my make up of hours.”
- “The workplace is being flooded by new staff with no experience or training despite cutting my entitled hours and I am at the loss hours that they are getting in my place and in turn loss of income”.
Initial Investigation Process and Suspension
On 12 July 2015, it was identified by the Respondent (i.e. MN2) that the contracts of employment and the letters of offer that were submitted to the LRC were not the same as those that the company had on record for the two claimants’. As the matter was to be investigated by the LRC, MN2 felt it was necessary to meet with the complainants on 13 July 2015 to clarify this matter so that there was no conflicting documentation at the LRC.
On 13 July 2015, MN2 met with SO’D and MN. Given that the meeting concerned a future LRC hearing, the Respondent ensured that both SO’D and MN were given the option to be accompanied at this meeting. Karen Nugent took minutes of these meetings. Both claimants outlined that the LRC contracts and LRC letters of employment had been issued to them by MN1 around the time they had commenced employment with Rustic Kitchen.
Later on 13 July 2015, MN2 met with MN1. MN1 was the Operations Manager and it was anticipated that she could shed light on the matter. Karen Nugent took minutes of this meeting. MN1 verified that the LRC contracts were issued by her to MN and SO’D. MN1 asserted that all employees received the LRC contract and that those employees could verify same.
MN1’s assertion that all employees received the LRC contract did not correspond with the contracts of employment that the Respondent had on file following the TUPE transfer process. Accordingly, MN2 met with six other staff members (Alison Keogh, Anna Tully, Imelda Griffin, Des Harford, Thomas Geoghegan, and Andrea Pina) on 13 July 2015 to clarify the matter. All six of these employees stated that they had never seen the LRC contract before. Karen Nugent took minutes of these meetings.
It was at this point that MN2 became concerned as two employees had submitted claims to the LRC on the basis that The respondent had breached their terms and conditions of employment (i.e. as per the LRC contract and letters of offer). There were notable difference between the file contracts and LRC contracts, notably the signature detail and dates of issue, in addition to considerable differences in respect of the terms and conditions of employment. In light of this, and in view of the fact that all three Claimants acknowledged that MN1 had issued the LRC contracts to MN and SO’D, MN2 deemed it necessary to suspend all three Claimants pending further investigation into the legitimacy of the LRC contract and the letters of employment. The concern to be investigated was whether or not these LRC documents were legitimate as opposed to fabricated for the purposes of taking a claim against The respondent on foot of an illegitimate document.
A letter confirming suspension was sent to each Claimant by email on Tuesday 14 July.
Formal Investigation:
(a) File Contract and LRC Contract - Document Comparison
The Respondent has carried out a review of the file contract as compared to the LRC contract and the following distinctions are evident:
- Signature: The LRC contract is neither signed by SO’D nor by the company. The LRC contract is signed by MN but it is not signed by the company. Conversely, the file contracts are signed by both Claimants, and also MN1 on behalf of the company.
- Employer Name: Both the LRC contract and the file contract contain the full name of the employer. However, the file contract goes on to specify the Company Registered Number, the Company VAT Number, and the names of the Company’s directors, none of which is detailed on the LRC contract.
- Employer Address: The LRC contract does not contain the full address of the employer, as required by the Terms of Employment (Information) Act. Conversely, the file contract contains the full address of the employer beneath the signatory section.
- Contractual Information: The file contract contains an opening paragraph entitled “contractual information”. This section specifies that staff are required to fill out a “brief introduction file form and a medical questionnaire. On completing these forms you will be issued with your contract which you must read, understand and sign off on.” The file contract goes on to specify above the signatory section as follows: “I have completed my medical and staff file form.” This requirement and these details are not specified on the LRC contract, notwithstanding the fact that the completion of the staff file form and medical questionnaire was a standard practice in the business.
- Salary/Wages: The LRC contract refers to “all full time and set hour part time staff are paid salary rather than hourly pay, to make the working week more effective for all. Part time and flexi staff are paid by the hour”. Conversely, the file contract states “all employees are required to work a back week. Wages are paid directly into your bank account each Friday.”
- Working Hours: The LRC contract states that opening hours are from “6am to 8pm Monday to Friday and from 6am to 2pm on Saturday… We do not open on Sundays or Bank Holidays. We do not open Christmas Eve, Christmas Day or St. Stephen’s Day”. Conversely, the file contract states that “the core hours of business are 5am to 8pm Monday to Saturday. We are closed on Sundays. The weekly roster is displayed in the staff canteen and in the office… Hour worked outside of rostered hours must be verified by David. Staff are required to arrive on time to commence work at the rostered time.” It is specifically noted that the file contract made no reference to the company being closed on public holidays.
- Breaks: The details of break entitlements are the same in both contracts, albeit written in reverse order. Both contracts refer to smoking breaks being permitted only during normal break times but in differing levels of detail.
- Sign-In System: The LRC contract specifies that there is a sign-in system in operation and that staff will only be paid in accordance with sign-in records. The file contract does not specify any requirements in respect of signing-in. It is noted that there was no sign-in system in operation at the date of transfer in March 2015.
- Annual Leave Entitlements: There is a big disparity in terms of annual leave entitlements in the contracts. In terms of annual leave, the file contract is quite brief and specifies that full time employees get “20 days per year” whereas part-time and flexi staff get “8% of worked hours”. The LRC contract specifies 8% for all employees, irrespective of status. The file contract goes on to specify that 1 week must be taken in both Spring and Autumn, 2 weeks must be taken in Summer, and that no holidays are permitted in December. However, whilst the LRC contract does specify that holidays are not permitted in December, it does not designate leave in line with the seasons. The LRC contract also details medical certificate requirements where an employee takes ill around their annual leave, which is not contained in the file contract.
- Sick Leave Entitlements: The file contract is very sparse in respect of sick leave, specifying that it is “at discretion of management and must be certified with doctor’s note”. It is unclear, but the discretionary element most likely refers to a “paid” sick leave entitlement. The LRC contract goes into a lot more detail in terms of notification requirements around sickness absence, but does not make any reference to any “discretionary” element.
- Additional Leave Entitlements: Both contracts contain similar provisions in respect of compassionate leave and maternity leave. However, the LRC contract contains an additional provision in respect of marriage leave which is not outlined in the file contract.
- Staff Training: Both contracts have very similar wording in respect of staff training with only minor differences in wording and structure.
- Terms of Notice: Both contracts contain similar provisions in respect of notice upon termination of the employment relationship.
- Probationary Periods: Both the LRC and file contracts specify a 3 calendar month probationary period. The LRC contract, however, specifies that probation may be extended by 6 months, whereas the file contract specifies that probation may be extended by 3 months only.
- Variation Clause: The LRC contract contains a variation clause whereby the company may “alter contractual and other terms and conditions by notifying the employee in advance and in writing”. There is no variation clause in the file contract.
- Other Information: The LRC contract contains an “other information” section which makes reference to “company disciplinary and grievance procedures” and “health and safety procedures and safety statement”. The file contract does not make reference to either a disciplinary and grievance procedure or to a health and safety procedure and statement. Indeed, there is no evidence of any such procedures/statements existing in the company when The respondent entered the business in March 2015. In addition, the LRC contract contains details on “uniforms” which are not detailed in the file contract.
(b) File Offer Letter and LRC Offer Letter - Document Comparison
The Respondent carried out a review of the file letters of employment as compared to the LRC letters of employment and the following distinctions are evident:
- All core details and employee specific details for all letters of employment on file for all employees, including SO’D, are written by hand. For example, the file letters contain handwritten detail in respect of the date, employee name, job title, rate of pay, and hours of work. Conversely, all such detail is in typed font on the LRC letters.
- SO’D has submitted two LRC letters of employment dated 04 November 2013 and 05 June 2014 respectively. However, there is a letter of employment on file for SO’D dated 30 October 2013.
- SO’D’s Staff File Form specifies her start date as 30 October 2013, which matches the file letter of employment.
- The job title on SO’D’s LRC letters of employment is “High Care Kitchen Assistant”. The job title on the file letter of employment is “Catering Assistant” which correlates with SO’D’s Staff File Form which similarly lists SO’D as a “Catering Ass”. It is submitted that this is strong proof of the legitimacy of the file letter of employment and of the illegitimacy of the LRC letter of employment.
- The LRC letter of employment specifies that MN is “full time permanent” on “40 hours per week”. However, employee statements, in addition to a review of working rosters, suggest that MN rarely worked a 40 hour week.
(c) Investigation Meetings with Other Staff Members - LRC Contracts
Over the period covering 15 July 2015 to 22 July 2015, the Respondent sought to formally meet with the same six staff members that had been met on 13 July 2015 in order to further investigate the contracts of employment issue, to seek to identify if they had received a contract and, if so, to identify what these contracts looked like. These staff members were Alison Keogh, Thomas Geoghegan, Des Harford, Imelda Griffin, Anna Tully and Andrea Pina. In addition, the Respondent met with Josann Joseph and Mateus Vilanova who were also employed on the date of TUPE transfer.
Five of the original six employees confirmed that they had never seen the LRC contract before. Josann Joseph and Mateus Vilanova also stated that they had never seen the LRC contract before. Indeed, several employees confirmed that they had signed the file contract and could verify their signatures on the file contracts that the company had on record.
However, Andrea Pina stated in a meeting on 21 July 2015 that she had received a contract of employment a year previously through the post from MN1. MN2 asked Andrea Pina to provide her with a copy of this contract and later that evening Andrea sent MN2 a picture of this contract via WhatsApp. This picture was of a contract that closely resembled the LRC contract. This did not tally with Andrea Pina’s previous meeting on 13 July 2015 at which she had stated that she had never seen the LRC contract before. Accordingly, MN2 met with Andrea Pina on 22 July 2015 to clarify the matter. In this meeting Andrea confirmed that she was issued with the LRC contract by MN1 on Monday 13 July 2015. Andrea noted that when she was issued with the contract, MN1 explained that Andrea needed this contract as there was no contract on file for Andrea and that if Andrea did not take this one then she could be dismissed by The respondent. Andrea went on to state that MN1 informed her to state that she had received the contract “last year” if anybody asked her.
Accordingly, all six employees ultimately reaffirmed that they had never received nor seen the LRC contract in addition to two further employees.
(d) Investigation Meetings with Other Staff Members - Additional Allegations
During the meetings with the aforementioned six employees, further allegations were brought to light.
- On 15 July 2015, Alison Keogh alleged that there were consistent discrepancies on the sign-in sheets, citing MN’s records in particular.
- On 16 July 2015, Thomas Geoghegan noted that there were regular discrepancies on the sign-in sheets. Thomas made these comments in respect of SO’D and MN. Thomas also alleged that over the month of December 2014, MN missed a lot of work due to an ankle/hip injury but was still listed on the roster each week as working. Thomas also alleged that “they [i.e. David O’Rourke and MN1] were also doing the same with Keelaghans in Ashbourne supplying them with produce from Rustic Kitchen without a docket and keeping the cash.” Thomas also alleged that C&N Meats had informed Thomas that David and Michelle personally owed C&N Meats cash payments and that C&N allegedly went on to state that David would accept cash payments from O’Neill’s which David would then to pay to C&N to settle his personal bill. It is noted that David O’Rourke is MN1’s partner. Thomas also alleged that “Blakes Brothers were getting between 10 and 18 Large lasagnas a week free from Rustic Kitchen to knock them off David and Michelle’s personal bill.”
- On 16 July 2015, Des Harford alleged that “David or Michelle didn’t really sign in… David and Michelle were late a lot and they would leave and come back during the working day.” Des went on to allege that “MN1 wasn’t afraid to bully people either and making nasty little comments. One of them was after you took over, I was due to be in at 6am on a Saturday, David was due to be off so I asked for a key. She gave me a key and said I want this back first thing Monday morning and don’t be using it to rob stuff over the weekend.” Des Hartford further alleged that “MN was signed in four or five hours before she turned up for work and sometimes she would be signed out an hour after she had left the premises.” Des Harford went on to allege that that both MN and SO’D made Anna Tully and Noeleen Galvin “cry from bullying them so much”. Des went on to state that “Christine McCarthy used to work in packing and requested to be moved to the low risk area to get her away from MN and SO’D.” Des alleged that “MN was robbing meals for her brother.” Des elaborated that orders for 20 to 30 meals would come in late and that Des ultimately was informed by Jason Northey that “they were for MN who gave them to her brother.” Des stated that he refused to continue making such meals from that point and was unsure if this alleged practice continued from then.
- On 16 July 2015, Imelda Griffin stated that she would regularly see that MN was signed in to work on the sign-in sheet even though she had not started work yet. Imelda went on to state that MN1 asked Imelda to “leave gaps in the [sign-in] book as MN had forgot to sign in even though she wasn’t at work”. Imelda stated that SO’D “was horrible to everyone” when she was accompanied by MN. Imelda was of the view that MN and SO’D would be “giving out” and were “just rude”. Imelda stated that SO’D “gave Noeleen a hard time but it didn’t affect her as much as Anna” as “Noeleen came over and worked in our side after a while”. Imelda stated that there was an “explosion” of an argument which then resulted in Noeleen resigning. Imelda alleged that MN bullied everyone and “she stormed around, she treated everyone so badly, she stopped speaking to me so many times, See treated Anna like dirt continuously giving out about her to me she told me every day that Anna was no good and had to recheck everything she did. She said Anna was too slow and she didn’t want to work with someone that couldn’t pull her weight.” Imelda stated that since SO’D and MN have been placed on paid suspension “there has been no shorts of dinners”. Imelda clarified this in that when SO’D and MN are working there is generally a need to make more dinners than have actually been placed on the order board for customers.
In view of the foregoing allegations from the staff members, an updated suspension letter was issued to the three claimants in respect of alleged bullying, alleged falsification of sign-in records, and alleged theft of meals (in respect of SO’D and MN) and alleged theft of cash/acting in competition (in respect of Michelle).
- On 20 July 2015, Anna Tully alleged that there were discrepancies on MN’s sign-in records and stated that “MN1 used to sign her in. You could see by the writing and MN wasn’t here and she was signed in.” Anna stated that Noeleen Galvin “said she had enough and never came back” after a meeting with “Michelle, MN and SO’D” during which there was “shouting and high pitched voices”. Anna stated that she felt bullied by both MN and SO’D and that “MN had days that she would bully you upset you roaring at you”. Anna went on to state that “there were little things that would happen that would make me nearly cry and I would go away and get myself together and not let them see they had upset me”. Anna stated that “MN and SO’D would also isolate me and they would be talking together and I would be left on my own.” Anna also stated that “MN would say that she didn’t want to work with me.” In respect of other members of staff, Anna stated that Christine McCarthy specifically requested to be moved away from the pack room due to bullying, but Anna did not specify who was responsible. Anna stated that Noeleen Galvin “said she had enough and never came back” after a meeting with “MN1, MN and SO’D” during which there was “shouting and high pitched voices” and after which “MN was visibly shaking with the anger.” Anna stated that Alison Keogh had encountered Joanna who was “crying” and who “locked herself in the toilet” after “MN and SO’D… had upset Joanna”. Anna stated that Joanna asked “why was MN so angry with her all the time”.
- On 21 July 2015, the Respondent met with Alison Keogh again on foot of Anna Tully’s assertion that Alison Keogh had encountered Joanna Markiewicz crying. Alison verified that she witnessed Joanna Markiewicz crying in the workplace but she was unaware as to why she may have been upset.
- On 21 July 2015, the Respondent met Joanna Markiewicz to hear her version of events. Alison verified that she witnessed Joanna Markiewicz crying in the workplace but she was unaware as to why she may have been upset. Joanna stated initially that she didn’t think it was “really bullying” but went on to state that MN and SO’D would undermine her work and making her “feel bad” and “treat her like she is stupid”. Joanna went on to state that “SO’D would have a bad attitude” and “every 3rd word out of her would be bad”. Joanna went on to state that she would overhear MN and SO’D speaking to each other in an angry fashion whilst using Joanna’s name a lot.
(e) Investigation Report
Following the investigation meetings with the relevant employees and having completed a review of the LRC and file documentation, MN2 compiled three separate Investigation Reports. These reports were sent to the three claimants and also to MKNU, Director of The respondent.
Formal Disciplinary Hearing Process
Following receipt and review of the Investigation Report, MKNU concluded that the matter required further investigating with the three claimants through a formal Disciplinary Hearing process. As there was no employee handbook in place prior to the date of transfer, the process was to be conducted in accordance with S.I. 146 of 2000.
In a formal invite letter dated 24 July 2015, the claimants were requested to attend a disciplinary hearing at the Rustic Kitchen premises and they were offered a choice between two dates: either Monday 27 July 2015 or Tuesday 28 July 2015.
On Sunday 26 July 2015, the Claimants confirmed that they would attend a hearing on 28 July 2015, but requested that the hearing be conducted at a neutral venue. It was agreed to conduct the hearing on 28 July 2015 and to conduct the hearing at the neutral venue of the Pillo Hotel in Ashbourne.
However, on 27 July 2015, the claimants requested an additional week to prepare for the hearing. It was agreed to reschedule the meeting and by correspondence on 27 July 2015 it was notified to the claimants that the hearing would be postponed by a further 24 hours to 29 July 2015 at the Pillo Hotel. It was clearly outlined in this correspondence that MKNU “will not be in a position to reschedule further. Accordingly, if you do not attend then the hearing will proceed in your absence”.
On 28 July 2015, the three claimants submitted medical certificates citing stress related illnesses. It was concluded that the claimants would not be attending the disciplinary hearing on 29 July 2015. MKNU wrote to the claimants on 28 July 2015 explaining that the hearing would be proceeding as scheduled and as previously notified. MKNU noted that if the stress was due to the ongoing investigative process then the only way this stress could be rectified would be through the completion of the disciplinary process. Accordingly, the claimants were offered four different options:
- They could attend the scheduled disciplinary hearing in person, or
- They could send a representative to speak on their behalf, or
- They could submit a written response to the allegations, or
- They could send a representative to submit their written responses on their behalf.
The claimants did not attend the hearing and, as per the rescheduled invite letter of 27 July 2015, the hearing proceeded in their absence. MKNU also had cause to doubt the genuine nature of the claimant’s alleged sickness for the following reasons:
- The fact that Michelle was sick in such close proximity to the disciplinary hearing was concerning considering there was no mention of stress at any point in the 2.5 weeks of suspension and in the claimants’ correspondences of 26 July 2015 and 27 July 2015.
- All three claimants happened to suffer from the same ailment at the same time, all of whom were connected to the same matters of concern under investigation.
- The claimants stated in correspondence on 27 July 2015 that they could attend a disciplinary
- hearing on 28 July 2015, albeit under duress. It is difficult to understand how the claimants could attend a hearing on 28 July 2015 but were too stressed to do so on 29 July 2015.
- It was particularly concerning that both MN1 and MN submitted a medical certificate on 28 July 2015 from Dr Seán Maguire of Manor Road Surgery but the two medical certificates were extremely different in terms of content and format. For example, the Surgery details and the patient details are in a completely different format, the details are handwritten on MN1’s certificate but typed on MN’s certificate, and MN1’s certificate was stamped whereas MN’s was not stamped.
Formal Disciplinary Hearing Outcome
It is submitted that the appropriate test when it comes to the fairness of dismissing an employee for misconduct reasons was set out by the EAT in Noritake (Ireland) Limited -v- Kenna (UD88/1983):
“1. Did the company believe that the employee misconducted himself as alleged?
- If so, did the company have reasonable grounds to sustain that belief?
- If so, was the penalty of dismissal proportionate to the alleged misconduct?”
Furthermore, it is submitted that the appropriate standard of proof is whether or not the decision to dismiss fell within the range of reasonable responses as set out by the EAT in Barry -v- Precision Software Ltd (UD624/2005) / [2007] 18 E.L.R. 190:
“It is not for the Tribunal to intrude into the Respondent’s managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal’s function is to decide whether the employer’s reaction and sanction came within the range of responses, which a reasonable employer might make.”
See also Bank of Ireland -v- Reilly [2015] IEHC 241 where Noonan J cited as follows:
“I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v Purcell [2012] E.L.R. 189, where she commented (at p.4):
…
“‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’
It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”
(a) Illegitimate Contracts & Letters of Employment / Fraudulent LRC Claims
- Did the company believe that the employee misconducted himself as alleged?
It was concluded by MKNU that MN1 had issued MN and SO’D with LRC contracts of employment and letter of offer based on their own assertions in the investigation meetings. It was believed that this was done for the purpose of asserting fraudulent terms and conditions against the company and to have same ratified, in addition to a claim for compensation, before a Rights Commissioner.
- If so, did the company have reasonable grounds to sustain that belief?
It was further concluded that these were illegitimate contracts of employment for the purposes of lodging fraudulent claims under the Terms of Employment (Information) Act 1994, on the following basis:
- Whilst MN1 asserted that all employees received these contracts, no other employee corroborated this assertion. On the contrary, any employee who had signed or received a contract of employment verified that their contract was the file contract of employment.
- There were no letters of employment on record that matched the format contained in the LRC letters of employment. The Company could only identify two letters of employment on file (probably due to the fact that MN1 “stripped” the computers) which belonged to two former employees: Scott Byrne and Sarah Reilly. It is notable that the file letters of employment for SO’D, Scott and Sarah have a lot of written detail, namely the date, employee’s name, job title, rate of pay, and hours of work. This gives a reasonable belief that they were the template that the company worked from. Conversely, all such detail is in typed font on the LRC letters with the only handwriting being the signatures.
- There were existing contracts of employment on file for MN and SO’D both of which were signed by the respective claimants and by MN1 on behalf of the company. Conversely, the LRC contracts were not signed by the Company.
- In the meetings on 13th July 2015, MN stated that she got the LRC contract of employment “when I started to work here” and when asked when she received the LRC contract SO’D replied “when I started working”. It does not make any logical sense for two different types of employment contract to be issued upon commencement of employment, particularly when all other employees received only one contract. This point also applies in respect of the letters of employment.
- The LRC Contract closely resembled a contract which was used in a company called Cuisine365 Limited which MN1 had previously been a director of. It is noted in this respect that MN1 stated on 13th July 2015 that she “brought contracts from the last company”.
- Andrea Pina stated that MN1 issued her with an LRC contract of employment on the very same day that Michelle was suspended over the LRC contracts issue.
- The central basis of MN and SO’D’s LRC claims arose from a request from The respondent to work on Sundays and public holidays. A significant and convenient difference between the LRC contracts and the file contracts was that the former expressly stated that the company was closed on public holidays, whereas the latter contained no such reference. Similarly, a significant and convenient difference between the LRC offer letters and the file offer letters was that the former expressly stated that the claimants would not work on public holidays or Sundays, whereas the latter letters were silent on this matter.
- In respect of SO’D, it is noted that the file letter of employment refers to her job title as “catering assistant”. SO’D’s file contract of employment makes express reference to a requirement to fill out a “brief introduction file form” known in the company as a Staff File Form. SO’D’s Staff File Form contains a similar job title of “catering ass”. This lends to the authenticity of the file letter of employment. Conversely, the LRC letter of employment refers to SO’D’s job title as “High Care Kitchen Assistant”, a job title that cannot be reconciled with any other documentation within the business.
- Whilst MN1 would not directly benefit from such claims being successful, it was reasonably believed that she assisted in lodging those fraudulent claims due to the fact that she issued the contracts and because she assisted in the lodging of the claims based on an analysis of the handwriting on the claim forms. It is also noted that MN is Michelle’s mother.
- The collusion aspect to the claims is supported by the fact that all three claimants were on sick leave on the date that the claims were lodged, suggesting they took sick leave for the purpose of preparing these LRC claims.
- If so, was the penalty of dismissal proportionate to the alleged misconduct?”
In the circumstances it was concluded that the three claimants had conspired to create these contracts in an effort to gain more preferable terms and conditions and to unilaterally force same upon the Respondent. Furthermore, the claimants sought to utilize these illegitimate contracts to secure an award of monies from the Rights Commissioner Service.
In the circumstances, a finding that this warranted dismissal as of itself must be deemed proportionate and within the range of reasonable responses that an employer might make.
Precedent / Legal Principles:
- Equity Will Not Permit a Statute to be Used as an Instrument of Fraud
- The Claimants sought to abuse statute by lodging a fraudulent claim.
- One Who Comes to Equity Must Come With Clean Hands
- Fanning v. University College Cork [2002] IEHC 85 where the High Court held that the “plaintiff has not come to equity with clean hands... In the circumstances this plaintiff has disentitled himself to the equitable reliefs he seeks in this case. In the result I therefore dismiss his case.”
- Ngwenya -v- Cardinal Newman Catholic Secondary School UK [2015] All ER (D) 83 (Jul)
- UK Case
- Employee was dismissed for having lodged a “malicious, vexatious or frivolous” race discrimination claim against the employer and because the claim was “in bad faith”.
- The dismissal was upheld as fair at the UK EAT
- “[t]he Employment Judge found that the reason [for dismissal] was the one given by the school: i.e. misconduct. He found that the conduct had been of such degree as to have destroyed the basis of the employer/employee relationship… As to the third issue, he found that, because of the nature of the Claimant’s acts and their effects, the school had been acting within the range of reasonable responses in dismissing him … An application for reconsideration of the Judgment was made by the Claimant to the Employment Judge, but was rejected later in December 2013.”
- HM Prison Service & Ors -v- Ibimidun [2008] IRLR 940
- UK case
- Similar to Ngwenya.
- Employee fairly dismissed for lodging “unreasonable, vexatious and unfounded” tribunal claims against employer.
(b) Falsified Sign-In Records and Payroll
- Did the company believe that the employee misconducted himself as alleged?
It was concluded by MKNU that all three claimants had engaged in the falsification of sign-in records and payroll.
- If so, did the company have reasonable grounds to sustain that belief?
- SO’D:
- Thomas Geoghegan clearly recounted incidents where SO’D would not have signed out in the evening, but the next morning someone else would have signed her out.
- There are discrepancies in handwriting style on the sign-in sheets. A strong example is the obvious discrepancy in handwriting style when you compare Tuesday 24 March 2015 to Wednesday 25 March 2015. On 24 March 2015 the handwriting is in a slanted joined-up style, with small writing, which matches SO’D’s signature on her file contract. However, on 25 March 2015 the handwriting is in a non-slanted style, with big writing, which does not seem to correspond in any way to 24 March 2015 or to the file contract.
- One writing style appears to correspond to the file contract whereas the second writing appears to correspond to SO’D’s Staff File Form. It is noted that the writing on SO’D’s staff file form appears to be extremely similar to MN1’s handwriting, as can be evidenced from the signed file contracts of employment.
- MN:
- There are at least two distinct writing styles on MN’s sign in records. A strong example is the obvious discrepancy in handwriting style when you compare Wednesday 29 April 2015 to Thursday 30 April 2015. It is noted that the writing on 29 April 2015 appears to be extremely similar to MN1’s handwriting, as can be evidenced from the signed file contracts of employment.
- Further examples would include Friday 20 March 2015 and Wednesday 18th March 2015, as compared to Thursday 19th March 2015 and Monday 16th March 2015.
- A number of employees have stated that MN was regularly signed in at times when she was not actually in work, namely Anna Tully, Des Harford, Thomas Geoghegan, and Alison Keogh. Furthermore, Imelda Griffin has stated that she was asked by MN1 to leave gaps in the sign-in book “as MN had forgot to sign in even though she wasn’t at work”.
- In respect of falsifying payroll,
- (a) MN was consistently paid for 40 hours each week. It is noted that the Staff Structure document asserts that MN was hourly paid at €10 per hour. In a meeting on 13th July 2015, MN1 verified that MN was hourly paid. Thus, to receive €400 gross, she must have worked 40 hours per week. However, her colleagues assert that she only worked “part time” or “three days per week” or “20 hours per week” (as per Des Harford, Alison Keogh, and Anna Tully). In addition, Staff rosters clearly demonstrate that MN hardly ever worked 40 hours per week and, in keeping with statements from fellow employees, it is clear that MN’s hours were part time.
- (b) In addition, three employees assert that MN was out sick for circa 5 weeks over the December 2014/January 2015 period but that she was still on the roster. Payslips show that MN was paid for this time, even though the company does not operate a sick pay scheme and no other employee to the company’s knowledge has benefitted in this way.
- It is noted that MN1, MN’s daughter, was in charge of payroll.
- There are at least two distinct writing styles on MN’s sign in records. A strong example is the obvious discrepancy in handwriting style when you compare Wednesday 29 April 2015 to Thursday 30 April 2015. It is noted that the writing on 29 April 2015 appears to be extremely similar to MN1’s handwriting, as can be evidenced from the signed file contracts of employment.
- MN1:
- As outlined above, it seems very clear that MN1 signed both SO’D and MN in for work. The most obvious examples are Wednesday 29th April 2015 for MN and Wednesday 25th March 2015. Furthermore, Anna Tully expressly stated that MN1 used to sign MN in, even though MN had not yet attended for work, and Imelda Griffin stated that she was expressly asked by MN1 to leave gaps in the sign-in book “as MN had forgot to sign in even though she wasn’t at work”.
- As outlined above, it appears clear that MN1 processed regularly weekly payments for her mother, MN, of €400 in circumstances where she was aware that MN had not worked 40 hours that week. This was the case notwithstanding the fact that Michelle confirmed on 13th July 2015 that MN was hourly paid and confirmed at the date of transfer via the Staff Structure document that MN was hourly paid.
- It is noted that Alison Keogh expressly stated that MN only started working close to 40 hours when the sign-in sheet was introduced. MN1 was in charge of rosters and thus increased her mother’s hours to the detriment of other employees who had their hours reduced.
- As outlined above, MN1 processed weekly payments for MN when MN was on sick leave. This was the case notwithstanding the fact that the company did not operate a sick pay scheme. It is also noted that MN was placed on the rosters as working even though she was not attending for work.
- It is noted that MN1, MN’s daughter, was in charge of payroll and rosters.
- It was concluded on the above grounds that all three employees were engaged in falsifying sign-in records. It was further concluded that both MN and MN1 were engaged in falsifying payroll.
- If so, was the penalty of dismissal proportionate to the alleged misconduct?”
It is submitted that falsifying payroll records is tantamount to theft. Employees are being paid more hours than they have actually earned and such conduct is no different than the employee stealing the misappropriated monies from the company. It is further noted that there is no general practice of manipulating sign-in sheets in the company as these were only introduced in March 2015 and the only employees found to have manipulated the system were the three claimants.
It is emphasized that MN1’s conduct is particularly severe in this respect. MN1 was the Operations Manager, was in charge of rosters, and was in charge of payroll. Therefore, she held a position of special trust. However, MN1 saw fit to abuse that trust and her position to the financial benefit of her mother, MN, her mother’s friend, SO’D, and to the financial detriment of others, through reducing the working hours of other employees to accommodate her mother.
Precedent:
- Grimes -v- Otis Elevator Group Ireland (UD292/1988) - completion of overtime sheets when the overtime was not actually worked would be in breach of trust.
(c) Theft and Misappropriation of Monies/Goods
- Did the company believe that the employee misconducted himself as alleged?
It was concluded by MKNU that MN and MN1 were guilty of the theft and misappropriation of monies and/or goods.
- If so, did the company have reasonable grounds to sustain that belief?
- Thomas Geoghegan expressly stated that he was offered €50 per week in cash by MN1 to deliver products to customers without a docket in return for cash payment. Thomas Geoghegan further stated that he was instructed to deliver this cash directly to MN1 only.
- It was concluded that MN had engaged in the theft of dinners/goods for her own consumption or for another’s consumption based on the express witness evidence from Des Harford in this respect. Des’ version of events is deemed highly credible given the specificity with which he could recall discussing dinners with Jason Northey, MN’s son. This version of events has gained support by the fact that there were “no shorts of dinners” when MN was placed on suspension, as highlighted by Imelda Griffin.
- If so, was the penalty of dismissal proportionate to the alleged misconduct?”
In the circumstances it was concluded that the MN1 had engaged in the theft of monies/goods through the supply of company products to customers in return for undocumented cash payments. Not only did this amount to theft, it also amounts to acting in competition and a breach of the duty of loyalty and fidelity. It further left Rustic Kitchen in danger of falling foul of the Revenue Commissioners through this questionable practice. It was further concluded that MN had engaged in the theft of company products.
Theft is well established as amounting to gross misconduct and a substantial grounds justifying dismissal.
Precedent:
- Masawi -v- Garryowen Supersave Limited (UD1623/2012) - “The proprietor gave evidence that in February 2012 a number of till irregularities involving the claimant came to his attention… In particular these irregularities concentrated on 17 March 2012 where the claimant had failed to scan a number of purchases made by customers… The claimant failed to scan a number of purchases made on 17 March 2012 and could not provide any satisfactory response for his actions. The Tribunal notes that no receipts were provided to the customers for these goods. In the view of the Tribunal the above circumstances amounted to gross misconduct.”
- Pacelli -v- Irish Distillers Ltd (UD 571/2001) / [2004] 15 ELR 25
- Mahon -v- Cummins Graphics Supplies Ltd (UD673/1989) - “In the opinion of the Tribunal the respondent was justified in losing confidence and trust in his employees on foot of a combination of the following: 1) complaints made about Mr Mahon by his colleague about the unauthorised removal of goods from company premises 2) the perception of Mr Cummins that products/stock was being removed from the premises 3) the incident in April 1989.”
- Murray -v- Michael Grant Ltd. (UD559/1987) - An employee making ‘secret profits’ was deemed to justify his dismissal.
- Brennan -v- Institute of Technology Carlow (UD281/2010) / [2012] E.L.R. 49 - “Similarly “gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature.”
(d) Bullying
- Did the company believe that the employee misconducted himself as alleged?
It was concluded that all three claimants were guilty of bullying behavior in the workplace.
- If so, did the company have reasonable grounds to sustain that belief?
- MN1 was accused of bullying by Des Harford. MN1 was also accused of being central to the resignation of Noeleen Galvin following a heated meeting with her and all three claimants. It is further noted that MN1 issued Andrea Pina with an illegitimate contract of employment on 13th July 2015 on the premise that if Andrea did not declare this as her contract then she would/could be fired. It is submitted that MN1 acted thus in order to ‘cover her tracks’ and to cover up her wrongdoings. This must also surely be deemed inappropriate behavior which, on top of everything else, demonstrates a pattern of workplace bullying.
- SO’D was accused of bullying by Des Harford, Joanna Markiewicz, Imelda Griffin and Anna Tully. Des Harford, Anna Tully and Imelda Griffin all accused SO’D of bullying a former employee (Noeleen Galvin), with Des Harford and Anna Tully also accusing SO’D of bullying a second former employee (Christine McCarthy).
- MN was accused of bullying by Des Harford, Joanna Markiewicz and Anna Tully. Imelda Griffin stated that MN “bullied everyone”. Des Harford, Anna Tully and Imelda Griffin all accused MN of bullying a former employee (Noeleen Galvin), with Des Harford and Anna Tully also accusing MN of bullying a second former employee (Christine McCarthy).
In the circumstances it was concluded that the three claimants had engaged in bullying behaviour. Workplace bullying is defined by S.I. 17 of 2002 as “repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work.” It is submitted that the actions of these three claimants certainly falls within the definition of workplace bullying.
- If so, was the penalty of dismissal proportionate to the alleged misconduct?”
The behavior in question was deemed repeated and inappropriate and it served to undermine the dignity of others at work. Indeed, it has been alleged by a number of employees that the behavior of the three claimants was directly responsible for two employees resigning from Rustic Kitchen (Noeleen Galvin and Christine McCarthy). It is therefore submitted that dismissal was proportionate to this individual misconduct as the bullying was so severe and persistent that it forced two employees out of their jobs. In the circumstances there was a genuine fear that if such persons were to return to the working environment that they would cause additional employees to quit their jobs. It is submitted that this was a substantial ground justifying dismissal.
Precedent:
- Quigley v. Complex Tooling and Moulding Limited [2008] IESC 44 - “…an employer owes a duty of care to his employees at common law not to permit bullying to take place. Both parties accepted the definition of “workplace bullying” at paragraph 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 (S.I. No. 17/2002)...”
(e) Acting in Competition
- Did the company believe that the employee misconducted himself as alleged?
It was concluded that all MN1 was guilty of acting in competition with Rustic Kitchen.
- If so, did the company have reasonable grounds to sustain that belief?
- Thomas Geoghegan accused MN1 of making under the table deliveries to a number of clients without a docket and for cash payments. It was further alleged that when Thomas refused to carry out these activities that Michelle instructed him to “leave the van and we will do it ourselves”
- MN1 was accused of informing Thomas Geoghegan during her suspension that The respondent would get its “comeuppance” and that the company would lose its “four biggest contracts”.
- Whilst not in the mind of MKNU at the time of the disciplinary process, it is noted that MN1 is currently a director of a company called Saaron Foods Limited. MN1’s partner and former employee of Rustic Kitchen, David O’Rourke, is the other director. Saaron Foods Limited works in the same industry as Rustic Kitchen and would be deemed a competitor. It is noteworthy that the application to register this company, together with its Constitution, was submitted to the CRO on 20th July 2015. Considering MN1 was placed on suspension on 13th July 2015 and the initial disciplinary hearing was scheduled for 28th July 2015, MN1 was clearly acting in competition with Rustic Kitchen whilst an employee.
- If so, was the penalty of dismissal proportionate to the alleged misconduct?”
In the circumstances it was concluded that MN1 had breached the duty of loyalty and fidelity owed by an employee due to her threat that the company would lose its four biggest contracts. The allegation that MN1 was acting in competition was ultimately proven to be true by the establishment of Saaron Foods Limited at a time when she was still employed by Rustic Kitchen. It is further submitted that the act of accepting cash payments and not disclosing same to the company was conduct justifying dismissal as it amounted to acting in competition, and accepting cash payments, whilst using the Respondent’s own products and equipment. This conduct not only amounts to acting in competition, but it also represented a danger to the company and its reputation, particularly when you consider the Revenue implications of same.
Precedent:
Acting in competition / breach of loyalty and fidelity was found to justify dismissal in
- Mulchrone -v- Feeney (UD1023/1982)
- Higgins -v- Aer Lingus (UD410/1986)
- Shortt -v- Smurfit Corrugated Ireland Ltd. (UD40/1986)
- Forder -v- AV Pound & Company Limited (UD927/2011) - “the Tribunal is satisfied that the Respondent had a reasonable belief that the claimant was guilty of the alleged misconduct. Dismissal was not disproportionate in the circumstances. The first three allegations constitute a breach of an employee’s duty of fidelity. This duty applies not only to establishing a competing business but also to the activities of an employee which might reasonably be considered to damage or constitute a danger to the employer’s business”.
Important cases on an employee’s duty of fidelity:
- McDermott -v- Kemeck (UD89/1995).
- Allied Irish Banks Plc & Ors. -V- Diamond & Ors. [2011] IEHC 505 - “However, even if not a fiduciary an employee owes a duty of fidelity to an employer as part of the mutual relationship at the heart of a contract of employment. That duty of fidelity prevents an employee, while still employed, from taking actions in competition with the employer concerned.”
In general, it is submitted that there was a reasonable belief that each claimant committed each alleged act of misconduct. It is further submitted that each act of misconduct as detailed above amounted to ‘gross misconduct’ and that dismissal was a proportionate sanction in accordance with section 6(4)(b) of the Unfair Dismissals Acts 1977-2015.
It is noted in this respect that the term ‘gross misconduct’ generally presupposes intentional and deliberate misconduct as per the EAT in Doyle -v- JJ Carron & Co Ltd. (UD236/1978) and Devlin -v- Player & Wills Ltd. (UD90/1978). It is submitted in this case that the three claimants deliberately and intentionally engaged in the misconduct in question, most notably in respect of lodging the fraudulent LRC claims, and it must be concluded on that basis that the conduct in question amounts to gross misconduct.
It is further and separately submitted that the totality of grounds for dismissal in respect of each claimant amounted to a breach of trust and confidence in the employment relationship and accordingly amounted to “substantial grounds justifying the dismissal” in accordance with section 6(6) of the Unfair Dismissals Acts 1977-2015.
Fair Procedure
From the outset, it is argued that a fair procedure was adopted at all stages. It is noted that at the time this process commenced, the Respondent did not have its own disciplinary procedure at this time. They had taken over the business in March 2015, some four months prior to the investigation process commencing. There was no disciplinary procedure in place in the transferor’s business at the date of transfer. Due to the uncertainty surrounding the fact that The respondent had only taken over the business in a caretaker capacity, they did not seek to introduce any new procedures until ownership of the business was resolved. As such, in conducting the process, the Respondent sought to apply the principles set out in S.I. 146 of 2000.
(a) Initial Investigation
It is noted from the outset that the three claimants did not receive advance notice of the initial investigation meeting. It is important to note that there was no disciplinary consideration at this point in time. The Respondent met with SO’D and MN simply to clarify which contract of employment they had received as the contracts the company retained on file for them did not correspond to the contracts that they had submitted to the LRC. Furthermore, this meeting was purely fact-finding in nature as evidenced by the signed minutes. Given that these meetings concerned a future LRC hearing, the Respondent ensured that SO’D and MN accompanied each other at these initial meetings.
It was only after SO’D and MN had stated that MN1 issued them with the LRC contracts that the Respondent met with MN1. Again this meeting was purely fact-finding and there was no disciplinary consideration in the Respondent’s mind at this time.
Given the pure fact-finding nature of this meeting, it is submitted that there was no breach of fair process during the investigation meetings on 13th July 2015. In that respect, we would refer to O'Brien -v- AON Insurance Managers (Dublin) Limited [2005] IEHC 3 where the High Court stated that “… it seems clear on all the authorities that that type of pure investigation which does not involve any findings is not a matter to which the rules of natural justice apply and is not a matter therefore which the courts should interfere with.”
See also Minnock v. Irish Casing Co. Ltd. and Stewart [2007] ELR 229, McLoughlin -v- Setanta Insurance Services Ltd [2011] IEHC 410
(b) Decision to Suspend
It was only after meeting with other employees about the nature of their contracts of employment that the Respondent became concerned. This concern arose because MN1 had stated that all employees had received the LRC contract whereas the six other employees questioned all stated that they had never seen that contract type before.
MN2 felt that a formal investigation into the validity of those contracts was therefore necessary. MN2 was concerned that if any fraudulent behavior had occurred then this could reoccur, especially when you consider that MN1 had access to the Respondent’s personnel files and computer files and particularly when you consider MN1’s statement that “we had stripped the computers when you took over”. It is submitted that this decision to suspend is in keeping with S.I. 146 of 2000 which specifies that “[a]n employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline.”
It is further submitted that the decision to suspend is in keeping with decisions of the High Court, such as the following excerpt from Bank of Ireland -v- Reilly [2015] IEHC 241:
“Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.”
The justification for suspending MN1 in particular can be evidenced by the statement from Andrea Pina that Michelle issued her with an illegitimate contract of employment following the initial investigation meeting on 13th July 2015.
The three claimants were verbally informed of their suspension on 13th July 2015 and written confirmation of the reasons for suspension was provided on 14th July 2015. Upon requests from the claimants to clarify the reasons for suspension, a clarifying letter of suspension was issued on 18th July 2015 which expanded upon the initial allegation in addition to highlighting fresh allegations that had been borne out of the investigation process with other staff members. This is keeping with principles of natural justice at the investigation stage, as per Minnock v. Irish Casing Co. Ltd. and Stewart [2007] ELR 229 and Joyce -v- The Board of Management of Colaiste Iognaid [2015] IEHC 809.
(c) Investigation Report
The Investigation Report was issued to the claimants by courier on Friday 24th July 2016. MN2 had attempted to send this via email on Thursday 23rd July 2016 but subsequently identified that these emails failed to send due to the file-size of the attachments.
The Investigation Report sets out the background to the process, the matters leading up to suspension, the remit of the investigation, details of meetings with the claimants and staff members, and the findings from the investigation. It is submitted that this report contained findings of fact only and simply specified what evidence was identified and whether or not each claimant had a case to answer in respect of the individual allegations. The Investigation Reports at no stage go beyond this remit and at no stage do the reports make any pre-determining findings of guilt.
Should the EAT be of the view that the Investigation Reports went beyond its pure fact finding remit and strayed into predetermintion, then it is submitted that the process was still fair in keeping with the High Court decision in Kelleher -v- An Post [2013] IEHC 328, where it was held that:
“When raising the issues of concern to him following his investigation, Mr Ryan was perfectly entitled to inform the plaintiff of the issues he considered to exist following his investigation. It must be recalled also that each time he did so he specifically offered the plaintiff an opportunity for his comments on the issues raised. It is quite clear that in so far as Mr Ryan had reached a view or opinion in relation to the issues, such a view or opinion was of a prima facie nature, capable of revision or amendment in the light of any response or submission that the plaintiff might choose to offer. That cannot be classified as an impermissible form of pre-judgment, predetermination or bias as alleged.”
It is noted that the investigation report specified that the claimants had the right to comment on the findings in the report. In addition, the claimants were invited to attend a subsequent disciplinary hearing and also to attend an appeal hearing. Therefore, whilst it is primarily submitted that the investigation did not contain any pre-judgement or predetermination, even if it had then this would not have made the process unfair in any event. It is noted that the High Court decision in respect of fair procedures in Kelleher was upheld by the Court of Appeal in Kelleher -v- An Post [2016] IECA 195.
(d) Disciplinary Hearing
The three claimants received a disciplinary invite letter on Friday 24th July 2015 which specified that MKNU would chair their individual disciplinary hearings. The invite letter clearly outlined the allegations against the employees, that they could be accompanied at the meeting, and the letter specified the potential range of sanctions should the allegations be proven.
- This correspondence proposed two separate dates for the hearing to be conducted in the Rustic Kitchen premises: Monday 27th July 2015 or Tuesday 28th July 2015.
- On Sunday 26th July 2015, each claimant sent a correspondence confirming that they would attend a hearing on 28th July 2015, but requested that the hearing be conducted at a neutral venue.
- MKNU confirmed that the hearings would take place on 28th July 2015 and arranged for the hearings to be conducted as per the claimant’s request at a neutral venue, namely the Pillo Hotel in Ashbourne.
- However, on 27th July 2015 each claimant requested additional time of one week to prepare for the hearing. Given that each claimant had received the reports and documentation on Friday 24th July 2015 and considering that they were on paid suspension from work, thus giving ample time to review the information, MKNU felt it unnecessary to reschedule the hearing date.
- However, in the interests of fairness, MKNU agreed to defer the hearing until Wednesday 29th July 2015 and confirmed same in writing on Monday 27th July 2015. This correspondence expressly stated that MKNU “will not be in a position to reschedule further. Accordingly, if you do not attend then the hearing will proceed in your absence”.
- It is noted at this stage that none of the claimants had mentioned any sickness in any correspondence throughout the two week investigation and, indeed, they did not make any reference to same in their individual correspondences on Sunday 26th July 2015 and Monday 27th July 2015.
- On Tuesday 28th July 2015, each claimant submitted a medical certificate specifying that they were suffering from stress.
- In keeping with his correspondence on Tuesday 28th July 2015, MKNU wrote to the claimants to confirm that the hearing was not being rescheduled and would proceed on 29th July 2015. The claimants were afforded the following options to engage in the process:
- The claimants could attend in person on 29 July 2015, or
- The claimants could send a representative to speak on their behalf, or
- The claimants could submit a written submission in response to the allegations, or
- The claimants could send a representative to submit he written submission on her behalf.
- In addition, MKNU was not of a mind to reschedule the hearings any further for the additional reason that he was concerned about the validity of the medical certificates for the following reason:
- The fact that all three claimants were sick in such close proximity to the disciplinary hearing considering there was no mention of stress at any point in the 2.5 weeks of suspension and in SO’D’s correspondences of 26th July 2015 and 27th July 2015.
- Each claimant happened to suffer from the same sickness at the same time.
- Each claimant stated in correspondence on 27th July 2015 that they could attend a disciplinary hearing on 28th July 2015, albeit under duress. Accordingly, MKNU found it difficult to accept that each claimant could attend a hearing on 28th July 2015 but were too stressed to do so on 29th July 2015.
- In respect of MN and MN1, they submitted two medical certificates from the same GP surgery but these certificates were completely different in their format and layout, thus raising concerns over their validity.
- It seemed clear that each claimant attributed their stress due to the ongoing disciplinary process (indeed SO’D’s certificate expressly stated as such). Accordingly, MKNU could not accept that delaying the process any further would have a beneficial impact on the alleged illnesses.
- Finally, it must be the case that any employee who is invited to a disciplinary hearing will be somewhat stressed about the ongoing process. This cannot of itself be a justifiable reason to defer the conduct of a hearing, particularly when you consider that such stress can only be resolved upon the conclusion of the formal process, rather than dragging it out.
In view of the above, it is submitted that the decision to proceed with the hearing on Wednesday 29th July 2015 was reasonable because
- the correspondence on 27th July 2015 clearly specified it would not be rescheduled further, and
- the claimants had ample time to prepare for the hearings in light of their paid suspension, and
- it cannot just be coincidence that all three claimants happened to suffer the same sickness condition at the same time, having not mentioned it previously, to the severe extent that they could not engage in the process, and
- the medical certificates in respect of MN1 and MN are extremely suspicious, and
- the claimants were given the opportunity to engage in the process through written submissions or through a representative.
The Respondent would also refer to the following excerpt from the High Court decision in Kelleher V An Post [2013] IEHC 328, where it was held that the claimant “was invited at every stage to give any responses or observations he wished, and he did so at length before his volte face on the 12th October 2011. He was afforded the opportunity of an oral first instance hearing which he at first indicated a wish for, but later declined. He was afforded an oral appeal hearing and a full opportunity to make both oral and written submissions. Taken in the round, this process was scrupulously fair.”
(e) Disciplinary Outcome
Should the EAT deem that the decision to proceed with the disciplinary hearing in absence was unfair then it is submitted that any such breach of fair process was cured and rectified by the disciplinary outcome itself and the right of appeal. In this respect it is noted that MKNU issued each claimant with two documents, (i) a disciplinary findings document and (ii) a letter of dismissal.
- The disciplinary findings document outlines MKNU’s consideration of the investigation report and supporting evidence. It goes on to reach findings of guilt in respect of the allegations with a detailed analysis of the relevant information.
- The letter of dismissal, on the other hand, does not contain any findings. Rather, it simply confirms that MKNU has decided to terminate employment based on the findings set out in the second document. In this respect it is noted that the letter of dismissal states as follows:
“You have the right to appeal this decision... If you wish to appeal then it is your decision as to whether or not the appeals person will receive my attached findings and conclusions in the course of the appeals process. If you do not wish for the appeals persons to receive my findings then they will only receive the Investigation Report and appendices, this letter, and your request to appeal. Therefore, you should specify in any appeal whether or not you wish for the findings to be disclosed, in addition to the full reasons as to why you believe the decision to dismiss is either too severe or inappropriate.”
It is therefore the case that the claimants could specify whether or not the appeals officer received the disciplinary hearing findings and, indeed, the claimants specified their wish that the appeals officer would not receive such findings. Therefore, any subsequent appeal would have been an entirely de novo hearing at which the appeals officer would have only received the initial investigation report, the letter confirming dismissal, and the claimants’ letters of appeal. Thus, if the EAT are of the view that there were procedural flaws at the disciplinary hearing stage then it is submitted that such flaws would have been entirely cured and rectified through the manner in which the appeals process would have been conducted and it could not be asserted that any alleged procedural flaw at the disciplinary stage irrevocably tainted any subsequent appeals process.
(f) Appeals Process
Having received notice from the claimants of their intention to appeal, the Respondent appointed an independent third party, Tom Conachy to conduct the appeal hearing process.
It is noted that the claimants initially indicated their intention to appeal and an appeal hearing was arranged for 14 August 2016. MN1 indicated that they could not attend the appeal hearing on that date as they were on holidays. MKNU identified that MN and MN1 had previously booked annual leave for this period but it is unclear if SO’D was on holidays at this time also.
In view of the claimants’ reasonable request, efforts to reschedule the hearing for September 2015 were made as the claimants indicated they would be unable to attend a hearing at an earlier date. Ultimately the claimants indicated that they would not be engaging in the appeals process as they felt that Tom Conachy was not sufficiently independent and that they would not receive a fair hearing. In this respect it is noted that the Respondent company’s accountants are OCC Accountants Ltd and Tom Conachy provides consultancy services for that accountancy firm. In that respect it is submitted that Tom Conachy was wholly independent of the Respondent company. Furthermore, Tom Conachy was delegated full authority to overturn, vary, or uphold the original decision. In addition, given Tom Conachy’s position as a Director of Taxation and his previous experience as Tax Director of Mazars and PWC, it is wholly perverse to suggest that he would not act fairly, impartially, professionally and independently in conducting the appeals process.
The Respondent would refer to the recent EAT decision in Pungor -v- MBCC Foods Ltd (UD584/2015) where it was determined as follows:
“The [employee]… was afforded the right of appeal, which she did not avail of. The [employee] has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.”
It is specifically noted that the EAT specified that an employee “has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally.” This obligation was also stressed by the EAT in Matyjasik V Carton Brothers (UD45/2009) as follows; “the Tribunal feels that there was an onus on the claimant to exhaust the company’s appeals process, and her trade union representative and her solicitor should have advised her of this.” The claimants in this case who noted on a number of occasions that they were seeking advices on their rights from competent persons have not satisfied this obligation and it is further submitted that the claimants cannot adduce any evidence which would absolve them from that obligation as
- the appeal hearing was being conducted by an independent third party, thus ensuring a fair hearing of the matters concerned, and
- the appeals officer would not have been privy to the findings of guilt from the disciplinary process, thus ensuring an entirely independent de novo hearing.
It is further noted that the claimants, in refusing to attend a hearing conducted by Tom Conachy, did not propose any alternative appeals officer or alternative means through which the hearing could progress. In that respect, it is noted that at no stage have these claimants made out their defense to the allegations to date and, indeed, the first time these defenses will be heard will be before the EAT.
Fair Process Precedent
Should the EAT deem that the decision to conduct the disciplinary hearing in the claimants’ absence was an unfair decision, the Respondent would submit that this does not necessarily render the dismissal unfair. In that respect, the Respondent would refer to section 6(1) of the 1977 Act which states as follows:
“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”
Specific emphasis is placed on the words “having regard to all the circumstances”. On a point of law, therefore, it cannot be the case that a procedural flaw alone can render a dismissal unfair as a court or tribunal must have regard to all the circumstances. In this respect we would refer to the decision of the EAT in Meath County Council -v- Creighton (UD11/1977):
“Does that employee, who has been proved beyond all doubt to be guilty of misconduct, have a right to claim compensation for an unfair dismissal merely because his employer failed to give him a hearing in accordance with natural justice? We think not.”
This view has been further endorsed by the Circuit Court in Elstone -v- CIE (13 March 1987, unreported):
“That the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of section 6(1), that regard must be had ‘to all the circumstances’, and not to one circumstance to the exclusion of all others.”
A similar sentiment was expressed by Ryan J in Hartnett V Advance Tyre Company Limited t/a Advance Pitstop [2013] IEHC 615 where it was noted that “[t]here may be cases where it can be said that there was a breach of fair procedures but that the overall evidence is so clear that it would be absurd to set aside a dismissal on the ground alone of a breach of fair procedures…”
Furthermore, in Shortt -v- Royal Liver Assurance Ltd. [2008] IEHC 332, Laffoy J clearly outlined that a central consideration to fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result”. In the circumstances, given the weight of evidence against the claimants and the severity of the misconduct, it is submitted that any purported breach of process did not imperil a fair result and, accordingly, the dismissal ought not to be deemed unfair.
The Respondent would also refer to the following previous EAT decisions where perceived procedural flaws did not render the dismissal unfair as a matter of law:
- Billingsley -v- Applus Car Testing Ltd. (UD17/2013) – In this case the regional manager conducted an investigation process. This manager recommended to the HR Manager that the claimant be dismissed on foot of the investigation. The HR Manager proceeded to dismiss the employee having never actually met with him. The EAT considered as follows: “The Tribunal has to decide whether the breach of fair procedures amounted to a fundamental breach so as to render the decision to dismiss to be unfair.” The EAT concluded that the dismissal was fair.
- McCarthy -v- O'Sullivan Bros DIY (UD800/1989) / [1991] ELR 44 - “It is well established that the procedural aspects of a dismissal have always been regarded by the Tribunal as important when deciding its fairness. As we have found that the claimant’s conduct was such that the respondent company was within its rights to summarily dismiss him, we are of the view that the facts in the procedures adopted by the respondent should not interfere with our determination that he was not unfairly dismissed.”
- Atkinson V Cope Foundation (UD483/2015) – “This division finds as a matter of fact and require it to be noted that the disciplinary procedures utilized by the Respondent and the manner in which it was applied fall far below acceptable standards…Notwithstanding the foregoing this division finds that the decision to dismiss, on balance, was within the range of reasonable responses and in the circumstances the dismissal is fair. The claim under the Unfair Dismissals Acts, 1977 to 2007 therefore fails.”
Employee Contribution Precedent:
Should the EAT deem that any perceived procedural flaw rendered the dismissal unfair as a matter of law then it is submitted that each claimant’s contribution to their dismissal is so significant that there ought to be no award of compensation.
- S.7(2) - “Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee…”
- Mlynarski -v- Pianos Plus (UD 1294/2008) - “The Tribunal finds that the dismissal of the claimant was procedurally unfair and therefore the dismissal was an unfair dismissal… The Tribunal determines that the claimant was unfairly dismissed … and finds that the claimant’s contribution to his own dismissal is such that the appropriate remedy is an award of compensation in a nil sum..”
- McClintock -v- HSE (UD1614-2010) - “this termination was caused by the actions of the employer in failing to apply the agreed procedures and thus constitutes an Unfair Dismissal. In considering the remedies under the Acts the Tribunal looked at the reasons for the actions of the employer that gave rise to the Dismissal. It was very clear from the evidence given to the Tribunal that the Claimant had used his position to obtain the fuel card from the person in charge of those cards… This person was in a subordinate position to the Claimant and would have had difficulty in refusing such a card to the latter. The Tribunal also accepts that the Claimant knew or ought to have known that he was not entitled to use this card for his own vehicle… In the circumstances the Tribunal deem that the most appropriate remedy would have been compensation but due to the facts outlined above it will make no award of compensation in this case.”
- White -v- Cadbury (Ireland) Ltd. (UD44/1979) - the claimant’s dismissal was deemed unfair due to a complete lack of fair procedures. However, the employee was awarded nil compensation due to his 100% contribution to his own dismissal.
Just and Equitable
- Section 7 of the Unfair Dismissal Acts specifies that any award of compensation will be “as is just and equitable having regard to all the circumstances”
- The principles already outlined above in respect of Employee Contribution are equally applicable here.
- However, any consideration of what is “just and equitable” must necessarily involve the maxims of equity.
- Equity Will Not Permit a Statute to be Used as an Instrument of Fraud - the Claimants sought to abuse statute by lodging a fraudulent claim.
- One Who Comes to Equity Must Come With Clean Hands
- Fanning v. University College Cork [2002] IEHC 85 where the High Court held that the “plaintiff has not come to equity with clean hands... In the circumstances this plaintiff has disentitled himself to the equitable reliefs he seeks in this case. In the result I therefore dismiss his case.”
- Considering that the employees were dismissed for lodging a fraudulent claim, it is submitted that they have not come to equity before the EAT with clean hands and therefore have disentitled themselves to equitable relief.
- It is further noted that MN1 was dismissed in part for acting in competition with Rustic Kitchen. It has subsequently come to light that MN1 set up a competitor company, Saaron Foods, whilst on suspension and this company is currently actively in competition with Rustic Kitchen. In any consideration, it could not possibly be just and equitable to award compensation to a claimant who was dismissed for acting in competition, who is currently actively in competition, and who would be in a position to use such compensation monies for the benefit of the competitor company.
Financial Loss and Mitigating Factors:
Should the EAT deem that the dismissals were unfair as a matter of law, and that some compensation ought to be awarded notwithstanding the claimants’ own contribution to their dismissal, then it is specifically noted that any award of compensation must be limited to financial loss:
- S.7(c)(ii):
“if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration …) as is just and equitable having regard to all the circumstances.”
- Stephens -v- Archaeological Development Services [2010] IEHC 540 - “…the parameters for an award by the tribunal remained strictly within the realm of financial loss and still do not encompass any scope for a claim under any heading in the law of torts, nor for the awarding of punitive or exemplary damages.”
- Brown v Community Drugs Team (UD1447/2014) - “In the circumstances of this case (and as already stated) the Tribunal finds that the Claimant was unfairly dismissed, having regard to the fact that he was not available for work as he was unwell and was in receipt of disability allowance. Accordingly the Tribunal rules that the claimant receive the [maximum] statutory compensation of four weeks’ salary namely €3,230.00 as per section 7 (c) (ii) of the Unfair Dismissals Act 1977 as amended.”
- Hussein -v- Kanes Autos Limited (UD992/2014) - “On the balance of probability the Tribunal is satisfied that the claimant was dismissed without any fair procedure. The Tribunal heard evidence in respect of the claimant’ efforts to mitigate his loss by seeking alternative employment and were not satisfied that he had made genuine efforts to find other employment. Therefore the Tribunal … affirms the award of €1,320.00.”
In view of the above, it is noted that MN1 formed her current company Saaron Foods Ltd whilst on paid suspension from Rustic Kitchen. It is therefore submitted that MN1 has been engaged in Saaron Foods Limited since her employment ended with Rustic Kitchen. Furthermore, it is noted that MN1 operates a separate business called Michelle’s Crazy Cakes from her home. This cake business has its own website (www.michellescrazycakes.com) which contains a product list with 33 different products detailed and the pricelist for such products ranges up to €120 per item. This business also has its own Facebook page (www.facebook.com/MichellesCrazyCakes). It is evident from the gallery of photos on both the website and the Facebook page that this is an extremely busy business which produces a lot of cakes and related products for customers. Indeed, on 10th May 2016, for example, the Facebook page contained the following message: “Sorry Folks, I’m not take any more orders for May 20th and 21st as I’m completely booked up. If orders can be taken on the 19th, I still have some spaces”.
Claimant’s Case:
All three claimants were employed in the prepared food industry by Company 1. MN1 started working with Rustic Kitchen Ltd in the capacity of Operations and Quality Assurance Manager in October 2012. That was a full time permanent post. Her mother, MN commenced work some weeks later in the role of a Shift Supervisor, also a full time permanent post. SO’D started work in November 2013 initially working on a part time basis and then securing a full time post as a Senior Catering Assistant.
The Claimants became aware, in the run up to March 2015, that an ownership or management change was possible when Mr James Nugent stared visiting the premises and asking employees questions in respect of the business. It is apparently pleaded by the Respondent that that alteration in business practice was in fact a Transfer of Undertakings situation which it is further claimed occurred in accordance with The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003). It is categorically the case that no information was provided to the claimants in respect of the transfer and although not a matter before this Tribunal the Respondents are in breach of duties as set out in Regulation 8 of the 2003 Regulations. It is the failure of the Respondents to provide the Claimants with clarity regarding the terms and conditions of their employment which provides the backdrop to the matters giving rise to the herein claims.
Following the transfer of the running of the business from Company 1 to the Respondents there was movement towards alteration in work practices and working hours. The Respondents were not aware of which working conditions applied to them and MN asked several times for a copy of her contract of employment. She was informed by MN2 that the contract was “with the solicitor” and would be forwarded to her. At that time the Respondent sought to introduce Sunday working hours. This was a unilateral alteration to the Respondents’ respective terms of employment. In fact MN was misled by MN2 in saying her contract of employment was not available implying it was under review. It was in fact the case, notwithstanding the failure of the Respondents to inform the Claimants of their rights in accordance with Regulation 8 of the 2003 Regulations, that the Respondents’ contracts of employment continued in force as per the effect of Regulation 4 of the 2003 Regulations. It is submitted that the Respondents sought to capitalise on the misunderstanding to introduce unilateral alterations to the existing working hours.
Following complaints with the Respondent in respect of Sunday and Bank Holiday hours MN2 informed MN and SO’D that their inability to work Sundays or Bank Holidays would affect the hours allocated to each claimant. Both claimant experienced a reduction in hours of work and following fruitless attempts to resolve the matter internally MN and SO’D brought complaints pursuant to the Terms of Employment (Information) Act, 1994. Those complaints were received by the Workplace Relations Commission on 19th June 2015.
The Respondent made no reply to those complaints and then on the 13th July 2015, MN2 conducted meetings with all three Claimants separately. Those meeting were all held without prior notice, in the Boardroom and were minuted by Karen Nugent who was also in attendance at all three meetings. The purported reason behind the meetings was to evaluate why it appeared that the contracts of employment submitted to the WRC with the above mentioned complaints differed from the contracts of employment MN2 asserted to hold on the Claimants’ respective files.
In the meeting with MN2, MN1 was threatened with suspension if she did not assist with encouraging the WRC complaints to be withdrawn. The minutes of that meeting were not a fair and accurate reflection of the matters discussed, MN1 refused to sign those minutes and was again threatened with suspension if she refused to sign the minutes.
The matter of conflicting contracts was relied on by the Respondents in their decisions to dismiss all three Claimants. It is the case that MN1 was involved in the drafting and signing of all employee contracts, including her own, as per her role. In October 2012, shortly after joining the newly established Rustic Kitchen, the Director of that company, Andrew Skelly, asked MN1 to draft template contracts of employment. Those templates were based on precedents MN1 had from previous employment in the catering industry. The template designed by MN1 was approved for use by Andrew Skelly.
The crux of issues discussed at the meetings held on 13th July 2015 was that they Claimants’ contracts submitted to the WRC were different from the contracts held on file by the Respondent. The Claimants have consistently stated that the contracts they submitted were those received from the previous company, Rustic Foods Limited. They complied fully with the queries put to them by the Respondent; they were and continue to be at a loss as to why there are different contracts retained on file than the contracts and letters of offer of employment which the Claimants hold. It is noted that this peculiarity, although brought to light by virtue of the WRC complaints referred to above, is not in fact of assistance to the substance of those complaints. That is to say the Claimants would have had no advantage under either contract in the adjudication of the complaints as articulated. In fact where the issue of changing contractual terms gave rise to the complaint the Claimants were at a detriment if in reliance of the version of the contract which was submitted to the WRC. That contract permitted the Respondent to “alter contractual and other terms and conditions by notifying the employee in advance and in writing”. There is no variation clause in the file contract.
It appears that if any issue arises in respect of multiple contracts of employment being issued by Rustic Foods Limited, that is strictly a matter as between that entity and the Respondent. There is no evidence that the Respondent put any queries in place to clarify the contracts of employment which issued.
The Claimants were escorted from the premises by MN2, in full view of their colleagues without any notice. MN1 had to arrange to meet a colleague later that day to collect her coat which she had no time to take before she was instructed to leave.
The Claimants were issued with letters the following day, 14th July, confirming they were on a period of paid suspension to permit an investigation. It is submitted that neither version of the contract as disputed allows for suspension in order to investigate matters prior to the instigation of a disciplinary process. It is further submitted that the nature of the investigation did not warrant the placement of the Claimants on suspension.
The Suspension
It is claimed by the Respondent that the nature of the investigation was such that it required the removal of the Claimants from the workplace for the duration of the investigation. Regard is had to the nature of the inquiry which at that juncture sought to evaluate the template contracts of employment issued to staff members. Further regard is had to the procedure in instigating the suspension. The Claimants were essentially frogmarched from the premises and it is submitted that this is indicative that the intention behind the suspension was to damage the employment relationship and undermine the mutual trust and confidence in that relationship.
In Gogay v Herts CC[1] the issue for consideration was whether the defendant local authority acted reasonably in suspending the claimant from her post in a residential home while they investigated an allegation concerning a child living in that home. The investigation concluded that there was no case to answer, but the claimant suffered psychiatric illness and loss of earnings as a result of her suspension. Hale LJ stated that the implied term of confidence and trust requires an employer, in the words of Lord Nicholls of Birkenhead in Malik:Hale LJ further went on to point out that Lord Steyn emphasised that the obligation applies:
“only where there is ‘no reasonable and proper cause’ for the employer’s conduct, and then only if the conduct is calculated to destroy or seriously damage the relationship…”
“not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract implicitly envisages…The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy of seriously damage the degree of trust and confidence the employer is reasonable entitled to have in his employer”.
- In the recent Irish case of The Governor and Company of the Bank of Ireland v Reilly[2] the High Court, per Noonan J., noted that the suspension of an employee is an extremely serious measure to take which has the potential to cause irreparable damage to the employee’s reputation and standing, even if the contract of employment provides for suspension unlike the present claims. The Court held;Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.”
‘The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v Trinity College Dublin [2003] 3 IR 157, there are two types of suspensions, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. In Mr. Reilly’s case, his evidence was that rumours and reports circulates about his ranging from possibly being involved in fraud to participation in a tiger kidnapping.
The Investigation
The investigation process was conducted by MN2. It is of course the case that MN2 was not an impartial party to the matters under investigation. She is a Director of the Respondent who was at the time of the investigation also answering claims made by two of the Claimants pursuant to the Terms of Information (Employment) Act 1994. The recent decision of the High Court in Conway v Health Service Executive[3] involved a successful application to restrain the HSE from taking steps in an investigation process against five psychiatric nurses in Mayo, on foot of complaints made following a television documentary which purported to show scenes of abuse at Áras Attracta, a HSE-run facility for people with intellectual disabilities, where the five were employed. In granting an injunction, Murphy J. expessed concern, inter alia, about the risk of injustice and contravention of the principle of nemo iudex in causa sua on the basis that in her view, the investigation committee appeared to hold three roles simultaneously:“They are the gatherers and collators of the evidence, they are the complainants of abuse and they are the judges of whether or not the abuse occurred.”
It is respectfully submitted that similar parallel roles prevented MN2 from conducting the investigation which did not contravene nemo iudex in causa sua.
It is further submitted that the investigation process itself was fundamentally flawed. It failed to establish parameters and was manifestly an exercise in gathering assertions which would cumulatively support the pre-determined decision to dismiss the Claimants. The decisions to suspend the Claimants was based, on the Respondents own representations, the necessity to investigate matters relating to the co-existing contracts of employment. The interviews conducted with staff members in relation to the contracts do not confine themselves to this inquiry but rather by a combination of inference and leading questions seek support in the growing allegations against the Claimants. Notwithstanding a lack of specific complaint or allegation, the investigation broadened to incorporate all and any alleged grievances concerning the Claimants. In as much as the investigation articulated terms of reference it is apparent that those terms were in flux throughout the investigative process to facilitate the collection of allegations against the Claimants and subsequently secure their collective dismissal.
In the case of McLoughlin v Setanta Insurance Services Ltd.[4] Laffoy J., in granting an injunction, expressed concerns that averments made by a member of the defendant’s H.R. team evidenced a situation whereby the defendant’s efforts to establish the facts went beyond a “pure investigation.” Laffoy J. noted that comments in the affidavit of the investigator bore “more of the hallmark of a reasoned determination against the plaintiff than merely an outline of why the invocation of the disciplinary process against the plaintiff was necessary”. She considered that this suggested prejudgment on the part of the person conducting the investigation.
In terms of the predetermined nature of this process reliance is placed on Smith v RSA Insurance,[5] the EAT held that it was “satisfied that from a very early stage in the investigation or perhaps even before it, the claimant’s fate was determined by the respondent. The respondent then went on a fact finding exercise to justify its predetermined decision.”
It is further submitted that at no time were any of the Claimants involved in the Investigation process. Accordingly extremely serious matters which imputed their reputations were never put to them. The basis of the investigation reports are entirely built on unilateral assertions and allegations, there is no potential for balanced conclusion in the process adopted.
It is further noted that the Respondent elected to operate, in the absence of a formal disciplinary procedure, within the confines of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, which requires that procedures adopted are in accordance with clause 6, which makes reference to complying with “the general principles of natural justice and fair procedures.”
The Disciplinary Process and the Dismissal
The Claimants’ received the investigation reports and appendices on Friday 24th July 2015. They were sent to the Claimants’ respective homes by delivery drivers who worked with the Claimants. By letter of even date the Claimants were invited to a disciplinary hearing on Monday 27th or Tuesday 28th July to take place in The respondent. The Claimants requested an alternative neutral venue and it was agreed that the meeting would take place on 28th July 2015. On the 27th July 2015, the claimants requested an additional week to prepare for the hearing. A further 24 hours was granted and the meeting was rescheduled for the 29th July 2015. The Claimants, in response to a unfathomed accelerated disciplinary process, became unwell and attended their respective GPs who certified that they were not in a position to engage with the meeting. The Claimants submitted medical certificates citing stress related illnesses to the Respondent. In response MKNU wrote to the explaining that the hearing would proceed. The hearing did then proceed in their absence. The Respondent has expressed groundless doubt as to the ability of the Claimants to participate in the disciplinary meeting. It is apparent that the Respondent did not accept the Claimants’ submitted medical certification. It is respectfully submitted that the outcome of the disciplinary meeting was already a fait accompli.
Furthermore that report makes unsupported findings of fact such as the alleged participation of MN1 in a competing company, a matter not relevant to the investigation nor ever put to that Claimant. The decisions also support very serious allegations in respect of bullying with dependence on hearsay evidence, no reference to the particulars of those allegations or the satisfaction of the statutory definition of bullying by those particulars. The disciplinary hearing contained egregious allegations of criminal conduct including theft and fraud. It cited information beyond the scope of the investigative report and relied on personal knowledge matters which the Claimants had no opportunity to respond to.
Notwithstanding the significant flaws within the disciplinary hearing it is further submitted that the findings lack clarity. There is sporadic reference to breach of trust in respect of some findings, a lack of conclusion entirely in respect of other findings and a summary finding of “the five allegations individually amounting to gross misconduct” in, for example, the meeting concerning MN1. Where no net finding of misconduct of any kind is stateable it is not clear if the author is asserting that each finding amounts to gross misconduct on a severable basis or if there cumulative effect supports the finding made.
Reference in regard to the above submission is made in the case of O'Leary v. An Post[6] a decision from 12th May 2016 where Keane J. granted an interlocutory mandatory injunction restraining An Post from conducting an appeal from its decision to dismiss an employee until the Respondent had specified the precise misconduct on which the decision was based, on the grounds that it was insufficient simply to state that it no longer trusted or had confidence in him. The Court stated;The Appeal
“It seems to me to follow ineluctably that, if the determination of the employer at the conclusion of such a process is that serious misconduct is made out, it should specify the misconduct so found. After all, if a person facing a disciplinary procedure has a basic entitlement to know the charges against him, then it must follow that a person who wishes to appeal an adverse determination in that regard is entitled to know what charges his employer has found to be made out. In that context, it cannot be sufficient for an employer to state only that it has lost trust and confidence in the employee concerned, as though that was in itself a finding of serious misconduct that the employee concerned could meaningfully appeal”.
The Claimants lodged an intention to appeal the dismissal and the Respondent arranged an appeal hearing for 14th August 2016, a date which coincided with MN1 and MN’s holiday which had been planned, and booked off with the Respondent, for some time. The Respondent suggested that an impartial third party would conduct the appeal hearing and the Claimants became aware, on foot of a very preliminary internet search, that the nominated person, Tom Conachy, in fact provides accountancy services to the Respondent company. The Claimants objected to the participation of a person with clear ties to the Respondent. By email dated 14th August 2015 MKNU confirmed that the appeal hearing would take place on the 1st September. That email further states that the Claimants’ P45s had not been processed in circumstances where there was “an ongoing appeals process”. Contrary to that representation the Respondent did then issue the P45s on 18th August 2016. The Claimants did not then attend the scheduled appeals hearing in circumstances where the dismissal had been ratified and had taken effect by way of the issuing of P45 certification and furthermore no efforts to secure a genuinely impartial third party had been made. Accordingly the Claimants’ had no faith with reference to the Respondent’s conduct throughout the process, that the appeal would be any meaningful consideration of the matter.
The nature of the accusation made against the Claimant was extremely serious in nature where the Claimants were accused of criminal acts. In Minnock .v. Irish Casing Company Limited [2007] 18 ELR 229 Clarke J. considered the issue of the different types of investigations which may be undertaken on behalf of an employer. He stated as follows:-At the other extreme there are inquiries which can make formal findings which may, for example, be part of a statutory process of the like in respect of which it does appear on the balance of authorities to be settled that the rules of natural justice do apply, and it may well be that in those circumstances the Court would need to consider whether it is appropriate to intervene by making an interlocutory order where a case has been established that there has been a significant flaw in the process.”
It is submitted that the investigation was not a purely fact finding mission and without prejudice to the foregoing, the above dicta does not absolve investigations from any observance of fundamental fair procedures. Minnock simply creates a spectrum where the nuances expected are proportionate to the issues under examination. There was a dearth of allocation of fair procedures of any kind where findings of fact were made in the Claimant’s case without any opportunity afforded to the Claimant to make representations in reaching those findings.
“… the range of preliminary inquiries that can be conducted may flow from one end of the scale where there is a pure investigation where no findings of any sort are made on behalf of the inquirer other than to determine whether there is sufficient evidence or materials to warrant a formal disciplinary process, and it seems clear on all the authorities that that type of pure investigation which does not involve any findings is not a matter to which the rules of natural justice apply and is not a matter therefore which the Court should interfere with. The fact that an employee may be obliged as a matter of his contract of employment to assist in any such investigation does not confer on the status of an inquiry which carries with it an obligation to act in accordance with the rules of natural justice.
Further regard is had to the case of Tim Maher v Irish Permanent Plc Maher v. Irish Permanent plc.[7], where the plaintiff was suspended pending the outcome of an investigation into alleged misconduct including sexual harassment. Laffoy J. said, inter alia, of the oral hearing which resulted in a decision to dismiss:“It was not made clear to the plaintiff until the morning of the hearing that he would be allowed legal representation, if he attended at the hearing. This was far too late given that the plaintiff resided in Killarney, his solicitor practised in Cork and the meeting was to be held in Limerick. It was also far too late given that the defendant had been notified two days earlier that the staff members would be represented at the hearing by a solicitor and counsel. The stance adopted by the defendant in relation to the meeting of 27 September 1996 in advance of that meeting imperilled a fair hearing and a fair result. In the absence of the plaintiff and his legal representative, the hearing was not a fair hearing because only one side of the story emerged and there was no one to rebut, or to attempt to rebut, that version. That one sided hearing could not and did not present a fair result. In my view, the blame for this cannot be ascribed to the plaintiff.” [Emphasis added].Financial Loss
- The Claimants sought to mitigate their loses immediately by securing alterative employment. MN2 commenced work with the Cracked Nut in 4th August 2016. Her losses continue where her present salary is lower than her previous salary. SO’D commenced employment with the Rotunda Hospital on 29th September 2015. She has no ongoing loss. MN Nugent has yet to secure alternate employment. Evidence of job searches will be adduced at the hearings of the within complaints.
- Conclusion
In conclusion it is respectfully submitted that that the following considerations support the Claimant’s application for compensation in light of the dismissal being unfair;
- That the Claimants were subjected to an accelerated disciplinary process following the Claimant’s instigation of proceedings asserting their statutory and contractual employment rights;
- That the Claimants were suspended without contractual authority or necessity;
- That the investigation was flawed in that it considered matters beyond its initial parameters;
- That the investigation failed to put crucial matters to the Claimants adequately or at all;
- That the investigation made findings notwithstanding its failure to consult the imputed parties for representation which might have informed those findings;
- That the disciplinary sanctions imposed at all levels were disproportionate;
- That the Claimants were was denied fair procedures at their disciplinary hearing in that no attendance was facilitated and no opportunity to adjourn the hearing was afforded which in particular consideration of the gravity of that stage of the process was a fundamental breach of the principles of natural justice;
- That the Claimant’s right to appeal the dismissal was frustrated by the finalisation of the actual dismissal in issuing the Claimants’ P45 documentation;
- That the Respondent did not comply the standards set down in S.I. No. 146 of 2000;
- That the sanction of termination of contract was unreasonable and disproportionate in all the circumstances;
- That the dismissal and underlying disciplinary sanctions were substantively and procedurally unfair;
- That the Respondent failed to act reasonably at all stages of the disciplinary process, in its dismissal of the Claimants.
- That the Respondent failed to act reasonably as per, Hennessy v Read & Write Shop Ltd UD 192/1978, in which the EAT stated that a test of reasonableness should be applied, inter alia, to “the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant...”
- In all the circumstances it is respectfully submitted that the dismissals and process upon which they were based were without reasonable cause or procedural fairness and were contrary to the 1977 Act.
Determination:
The procedures that were used were seriously flawed but the claimants by their non-engagement substantively diminished their claims.
Regardless of how the procedure is perceived, it is vital to engage in a process.
In the circumstances, the Tribunal awards this claimant (who is one of three claimants’), €21,000 (twenty-one thousand euro only) under the Unfair Dismissals Acts, 1977 to 2007
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)