ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00019917
Clodagh Gill, Sherwin O'Riordan Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 10/05/2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
In accordance with Section 41 of the Workplace Relations Act, and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The Complainant was employed as a teacher by the Respondent from 01/10/2016 until 12/02/2019.
This complaint was received by the Workplace Relations Commission on 19/02/2019.
Summary of Respondent’s Case:
The Complainant commenced employment with the Respondent on 7th January 2017 occupying the role of singing teacher. She worked approximately 9 hours per week teaching singing to students ranging in age from 6 to 18 years old.
The Respondent is a limited liability company. The Respondent operates a family run business which is managed by the two daughters of the Managing Director. The business operates a performing arts school for children and adolescents. It has grown to be quite a successful business over the course of the past number of years, but its long-term viability is very much dependent on maintaining an exceptionally high level of service. It is heavily dependent on its teachers and other employees to ensure that the reputation (and by association long term viability) of the business is protected.
In or around 10th January 2019 it was brought to the attention of EM that during the singing class taught by the Complainant, the Complainant offered students little or no opportunity to sing. EM herself noticed that the class was particularly quiet, she grew concerned that the 55 minutes of singing as guaranteed by the Respondent to students and their parents had not been provided EM communicated her concerns to her sister EV.
In or around 12th January 2019 EV developed her own concerns which were similar to those of EM in that 55 minutes of singing (or anything close to that level) was not been provided by the Complainant during her classes.
On 14th January 2019 the Respondent issued an email to the Complainant. This email stated that “the Respondent needed the singing room to be a room full of singing” and that “a quiet singing room is worrying”. On 16th January 2019 the Complainant responded to this email stating (in reference to the previous week’s classes) “I was sick and didn’t have my full voice, so I had to talk quietly”. The Complainant’s email also stated that “Anytime EV came into the class it was just after we had finished something and they were sitting again to move onto the next thing”. The Respondent became concerned that it had not at any point been notified of the Complainant’s alleged illness and that the Complainant had deemed it appropriate to provide sub-standard services without any notification to the Respondent.
EM and EV consulted with the Managing Director in respect of their concerns, which were perhaps heightened by virtue of the fact that during the classes of 10th and 12th January a number of students present were there on a “trial” basis before enrolling for the full term. To preserve the interests of the business, it was decided that the Complainant be placed on paid suspension pending investigation as to her conduct during her classes dated 10th January and 12th January 2019. This was communicated to the Complainant by way of correspondence dated 19th January 2019. The investigation was conducted by EM and EV and an investigation meeting was held between the Respondent and the Complainant on 25th January 2019. In addition, the Respondent consulted with students of the Complainant as to the subject matter of the classes held on 10th and 12th January 2019. These students confirmed to the Respondent that during certain classes of the Complainant no singing whatsoever had taken place.
As a result of its investigation findings, the Respondent engaged an independent third party to conduct a Disciplinary Hearing in respect of the Complainant’s conduct. The Disciplinary Hearing was held on 7th February 2019 wherein it was determined on the balance of probability that the evidence of EM and EV was preferred and that the work performed by the Complainant on the dates in question was not at the standard which would normally be expected.
The Respondent considered in detail the conduct of the Complainant and in particular the lack of evidence put forward during the disciplinary process that would in any way explain the quiet classes of 10th and 12th January 2019. On that basis, the Respondent having considered the matter, had no reasonable alternative but to terminate the Complainant’s employment in order to protect its business interests. The Notice of Termination issued to the Complainant on 12th February 2019 advising of the right of appeal.
The Complainant appealed the decision, on grounds that the Respondent failed to adhere to the principles of natural and constitutional justice and fair procedures. No further detail was given.
The Respondent wrote to the Complainant on 18th February 2019 stating:
“In the Notice of Termination dated 12th February 2019 you were asked to set out in detail the basis of your Appeal. The only detail you provided was a “failure to adhere to the principles of natural and constitutional justice and fair procedures. I have taken legal advice in respect of the procedures to be followed and the obligations on employers in respect of Disciplinary Procedures. I am not satisfied that there has been a failure to adhere to the principles of natural and constitutional justice and/or fair procedures to the extent that would warrant the over-turning of your dismissal.
You appeal is therefore rejected and the Notice of Termination dated 12th February 2019 stands”.
Section 6(1) of the Unfair Dismissals Act 1977 states that the dismissal of an employee shall be deemed, for the purposes of this Act, to be unfair dismissal unless having regard to all the circumstances, there were substantial grounds justifying the dismissal. Section 6(4) goes on to state that a dismissal shall not be deemed unfair where it results only or mainly from the conduct of the employee. Conduct is not a legally defined term and as such the employee’s conduct is a matter for the Workplace Relations Commission Adjudication Officer to determine. However, it is submitted that the business carried out by the Respondent is of a sensitive nature and largely dependent on consistency. It is fundamental that the Respondent be able to trust its teacher.
In the case of Frizelle v New Ross Credit Union Limited 1997 IE HC137, Flood J provided a list of premises which must be established to support an employer’s decision to terminate employment for misconduct. These are set out hereunder
1) the complaint must be a bona fide complaint unrelated to any other agenda of the employer/respondent.
2) where the individual(s) making the complaint is a person of or body of intermediate authority, it should state the complaint factually, clearly and fairly without any innuendo or hidden inference or conclusion.
3) the employee should be interviewed and his or her version of shared and furnished to a deciding authority contemporaneously with the complaint and again without comment.
4) the decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in light of the explanation offered.
5) the actual decision as to whether a dismissal should follow should be a decision proportionate to the gravity of the complaint and of the gravity an effect of the dismissal on the employee.
Firstly, and as recognised by the Complainant in her complaint form, up until 10th January 2019 there were no issues of note between the parties. The allegations made against the Complainant were completely unrelated to any other agenda. Secondly the nature of the complaint against the Complainant was communicated factually, clearly and fairly to the Complainant. Thirdly, the Complainant was interviewed and provided with the opportunity to share her version of the events leading to her dismissal. Fourthly, the decision of the managing director to terminate the Complainant’s employment was based on the balance of probabilities flowing from the evidence and taking into account the report of Mr MO’S. Finally, the decision to terminate the Complainant’s employment took into account the gravity of the complaint, the risk it posed to the Respondent’s business and also the ability of the Complainant to source alternative employment.
It is submitted that on the basis of the rationale set out by Flood J, the Respondent’s decision to terminate the Complainant’s employment is supported.
In the case of Looney and Co Limited v Looney UD 843/1984 the Employment Appeals Tribunal held that its responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged. The Tribunal identified that relevant considerations in assessing the employer’s reasonableness can include the following:
1. Whether the employee’s behaviour was deliberate
2. Whether the employer delayed its investigation
3. Whether the employee attempted to cover up the conduct, or denied it, or attempted to change his story during the employer’s investigation
4. Whether the employer’s rules expressed in the contract of employment or otherwise adverted to the wrong in question so that the employee knew what he was doing was a disciplinary measure
5. Whether the employee was able to explain his behaviour and
6. Whether the employee did not immediately refuse an allegation of dishonesty when put to him by his employer
In the within case it is clear that the conduct of the Complainant in attempting to cover up her conduct of 10th and 12th January 2019 constitutes dishonesty. The Complainant was aware from those dates that the service provided by her was in no way commensurate to the standard expected by students of the Respondent and by the Respondent. There are two possible scenarios which resulted in the eventual termination of the Complainant’s employment.
The first of these is that on the dates in question the Complainant was herself aware that she would not be in a position to carry out her duties in accordance with her contract and that the standards of teaching she would be in a position to offer fell short of what was expected. Rather than communicating her illness to the Respondent, the Complainant chose to attend for work and accept payment from the Respondent in circumstances where she had failed to perform her duties. In addition, the Complainant knowingly attended for work (where she would in close proximity with a number of children) in circumstances where she had a virus putting her students and the reputation of the Respondent at risk.
The second possible scenario to have resulted in the Complainant’s termination was that she was not in fact ill on the dates in question, and instead fabricated the virus referenced in her email of 16th January 2019. In either scenario it is quite clear that the Complainant has been dishonest with the Respondent to the extent that there were implications for its business.
Given the size of the Respondent Company and its Board, it regrettably does not have the resources to delegate or share the decision-making function. The Complainant in her complaint appears to take issue with decisions being made by the Managing Director. It is submitted that there is no other individual with the authority to make decisions on behalf of the Company. In her role, the Managing Director has a fiduciary duty to act in the best interests of the company and is required to make difficult decisions. While the Respondent sought at all times to ensure the Complainant was afforded due process and fair procedures, there are limitations with its decision-making function and that is simply the reality of the matter. It is completely inappropriate for the Complainant to expect that any allegations made against her simply be dropped by virtue of the fact that there was a dual function carried out by management of the Respondent.
The Respondent regrets that matters have deteriorated to the extent that they have. It operates a small family run business and relies heavily on its management and employees to ensure its commercial sustainability. The Complainant’s dismissal arose as a direct and wholly attributable result of her own conduct. The Respondent acted in as fair a manner as could reasonably have been expected, and taking all considerations into account, the termination of the Complainant’s employment ought to be deemed fair.
Summary of Complainant’s Case:
The Complainant made a very comprehensive reply to the submission submitted by the Respondent.The following is a summary of the most relevant points raised by the Complainant and is taken directly from her submission:
Incidents of 10th and 12th January -Management conveniently waited until the Saturday schools had finished to bring the exact same complaint. If there really was an issue on the 10th it could have been resolved easily via a discussion on the 10th or 11th, there was no reason to see if the same complaint happened on the 12th January – unless there was some strategic manoeuvre intended.
“I was recovering from a bout of Laryngitis over Christmas, I was in no way infectious but as a singer had to be careful of my voice until it was back to full strength as attempting to sing or speak loud on a weak voice can cause long term damage and my voice is my instrument and career. As an experienced concert singer and recorded artist, I am aware of what level I can use my voice. To say the respondent was not notified at any point is false, they responded to my email on the 16th January with “didn’t know you didn’t have your full voice, you just said you had a cough. We did hear you say you’d have no voice left by the end of Thursday”. I have worked before with little and even no voice on more than one occasion (a hazard of the job) and neither directors had an issue in the past as my work was always completed satisfactorily”.
“I felt that I was being targeted. My reasons for this are because I have seen them do this to other teachers in the past when I worked with them in the office. Also, there was an outstanding issue they had discussed with me in May 2018 when I was asked to attend a meeting. It transpired during this meeting that there was no issue with my work – in fact, they once again said how happy the children were in my classes and how I always go above and beyond in my classes. During the meeting it was revealed that they were uncomfortable with a few things relating to me. 1. that I was working on a performing arts event which they felt was in competition with them – which is was not, it was in fact the opposite and 2. That EV felt left out – she complained that another and myself were too pally and not including her in things. That meeting ended with no resolution as I told them I they are my bosses and I can’t help them if they feel paranoid or left out, I would do my best to make Evan feel more included if that’s how she felt”.
The facilitator has no documentary evidence that the directors spoke to any of the Students – they did not produce any questions asked or a list of names of students that were spoken to. He has just accepted what was said. The conclusion finished that disciplinary action should be taken regarding my performance in general.
I have since had the opportunity to speak to some parents of the children who the directors alleged confirmed their accusations and all have told me the same thing – my name was not mentioned to the children since I left, in fact they were wondering when I’d be back teaching. It leads me to wonder if the directors questioned the children at all, we will never know as there was account and no witnesses.
There are no grounds for dismissal. I have been the most consistent singing teacher that the Respondent has had for years. The Respondent has a reputation for going through several singing teachers, in fact – some of the older students were joking about this fact with EM when she came into my singing class one day last year to have an informal chat with the class. Clearly the 55 minutes of singing was of no concern then or many other times that the class has been interrupted by either of the two directors.
It is stated that it is fundamental that the respondent be able to trust its teachers. I refer back to the email from the directors of January 16th at 15.40 which states “we do trust you completely”. In this email their issue was that songs that they rejected from my plan were being taught, but I pointed out, their email about my plan was to allow me to teach some songs during the term but not for demonstration. The allegation of ‘no singing’ was never mentioned at this stage.
I wholeheartedly deny that there was any substandard teaching on 10th and 12th January, but even if there was that does not warrant dismissal.
The inaccurate reporting of the investigatory meeting also has tainted the whole process as this is what was presented to the supposedly “independent” 3rd party, along with unsubstantiated hearsay evidence from children.
The dismissal is totally disproportionate given my reputation and success with and since the Respondent started and before that with another school. This is a completely fabricated complaint blown out of all proportion.
The allegations were not communicated factually and fairly – firstly singing was quiet, then was the accusation that there was no singing, then it was that the wrong songs were sung. Only then when it became clear that I was not going to be bullied out of like several others, the allegations became more formal.
They held an investigatory meeting that was biased, unfairly and incorrectly recorded and in fact as I was addressing the issue I was interrupted by one of the directors and stopped from giving my side of the story – the notes taken were incomplete, incorrect, biased and not a true record of the meeting.
The decision was based on flawed information provided to and by the HR Consultant and indeed there was no backup of the questionable evidence obtained by the directors – there was no definition of the alleged questions asked, there was no independent 3rd party present to witness the responses and there was no record of which students were asked the questions. I did not receive a copy of the HR Consultant’s report as he had undertaken to do, I only received it with the dismissal notice. It appears that evidence offered by me and corroborated by another teacher was dismissed in favour of uncorroborated evidence offered by the directors.
There is no need for this to have progressed to this stage. If the directors had been unhappy with the singing on Thursday 10th of January all they had to do was pick up the phone to express this. They might even have enquired how my voice was will it be ok for Saturday etc? But as nothing was said between Thursday 10th and Saturday 12th, I followed the same plan with the Saturday schools believing it to be ok. There is clearly more to this allegation than simply an issue with singing in my class.
The consequence of this entire situation is that I have been fired from a job that I loved and was good at. The entire process has caused me considerable stress and not to mention the amount of time required to respond to each changing allegation. I am disappointed and hurt that I have been treated in such a way when I have given so much of my free time over the years helping with productions, casting, admin, chaperoning and more.
Findings and Conclusions:
The findings of the investigation conducted by the two directors were as follows:
1. Failure to observe company policies or procedures by failing to offer students adequate singing practice during classes where 55 minutes of singing is expected, by both those students and their parents.
2. Poor job performance and / or substandard work by failing to offer students adequate singing practice during classes where 55 minutes of singing is expected, by both those students and their parents.
3. Failure to act in the best interests of the company by failing to deliver what is guaranteed by the company in terms of singing classes for the first four weeks of term.
4. Insubordination by failing and / or refusing to conduct classes in accordance with company policies or procedures.
5. Serious breach of policies and procedures by failing to offer students adequate singing practice during classes where 55 minutes of singing is expected, by both those students and their parents.
6. Poor performance and/or substandard work by failing to offer students adequate singing practice during classes where 55 minutes of singing is expected, by both those students and their parents.
Is this not six different ways of saying the same thing?
By email dated 19th January 2019 the Complainant was invited to attend a meeting on either the 21st or 22nd January “to discuss the matter on an informal basis and to allow you to present your side of things”. This letter also states the following:
It appears that your alleged behaviour constitutes misconduct as set out in the Company Handbook under the following headings: -
1. Failure to observe Company policies or procedures.
2. Poor job performance and / or substandard work.
3. Failure to act in the best interests of the Company.
In addition, you should be aware that the allegations made may also constitute gross misconduct under the following headings: -
2. Serious breach of policies and procedures.
3. Poor performance and/ or substandard work.
These thee examples of alleged gross misconduct are almost the same as the examples of alleged misconduct – they must be one or the other – they cannot be both. There is little, if any scope, to discuss allegations of gross misconduct on an informal basis.
The allegations made to the Complainant at the aforementioned meeting were made by the two sisters who managed the Respondent organisation, these were the two sisters who conducted the investigation meeting on 25th January. The investigation should have been conducted by another person/s who would have had no previous involvement.
Turning to the HR Consultants meeting with the Complainant, it is noted that this is entitled as a Disciplinary Meeting. Whilst the two managers alleged that there was no singing heard the Complainant would contend that the singing was commented on by the Drama teacher as “that was lovely singing” – surely this was the invitation to the HR Consultant to interview the Drama Teacher as part of the investigation.
It is the contention of the Complainant that the HR Consultant said he would send a copy of his report to her for comment, this did not happen.
The HR Consultant, at the end of his report writes:
“I am recommending that the Managing Director consider what is the appropriate disciplinary sanction takes account of the performance of the Complainant at the Respondent school in a general sense in arriving at her decision”.
It is obvious that the Managing Director who made the decision to dismiss the Complainant was also the one to whom the Appeal was made, and it was she who considered the appeal and communicated her appeal decision to the Complainant.
The Respondent has cited the decision in Looney and Co Limited v Looney (UD 843/1984) that very clearly focusses on the acts of a reasonable employer.
Another similar case is that of Bunyan v United Dominion Trust  ILRM 224 in which the Irish EAT endorsed the view that:
“the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should have been dismissed. The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and /or concluded”.
As the Adjudication Officer in this instant case my job is to decide whether I consider the actions of the Respondent in dismissing the Complainant were the acts of a reasonable employer.
I conclude by finding in favour of the Complainant and deem her complaint under the Unfair Dismissals Act, 1967 as being well founded.
The Complainant has secured other employment but is not earning the amount she earned whilst employed by the Respondent.
CA – 00026384 – 002. – Complaint made under section 7 of the Terms of Employment (Information) Act, 1994.
The complainant states that she was issued with a contract of employment in September 2018 and points to the fact that she did not sign said contract.
There is no requirement under the Act for the Complainant to sign the statement issued by the Respondent.
The complaint submitted under the Terms of Employment (Information) Act, 1994 is not well founded and therefore fails.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA – 0026384 – 001 –Complaint made under section 8 of the Unfair Dismissals Act, 1967.
I order the Respondent to pay to the Complainant the sum of €6,000.
CA – 0026384 – 001 – Complaint made under section 7 of the Terms of Employment (Information) Act, 1994 – the complaint is not well founded and therefore fails.
The award compensation ordered should be made to the Complainant within 42 days from the date of this decision.
Dated: 29th May 2019
Workplace Relations Commission Adjudication Officer: Jim Dolan