Complainant

Respondent

Parties

Rebecca  Conlan

Forenaghts Stud Farm Limited

Representatives

  Self

MP Guinness BL instructed by Byrne Wallace Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060063-001

15/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060063-002

15/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060063-003

15/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00060063-004

15/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060063-006

15/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060063-007

15/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060063-008

15/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060063-009

15/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060063-010

15/11/2023

The Complainant worked as a stud farm hand which involved in the day-to-day care of horses at the Respondent's stud farm. It was a full-time position. The Complainant commenced working at the stud farm in September 2019. On the 24 May 2023 an altercation took place between the Complainant's, her daughter, and the stud farm manager. This was over the care of two horses.

An investigation took place and ultimately the Complainant was dismissed were from her employment on the 19 June 2023.

The Complainant gross pay was €562.72. Her hours of work varied and she submitted she worked 35 hours per week plus every second weekend.

CA-00060063-001  This complaint related to the failure of the Respondent to notify the Complainant in advance of her starting and finishing times as required under Section 17 (1) of the Organisation of Working Time Act 1997.

The Complainant's case was that she had to work regularly outside her rostered hours of 8.00 AM to 4.00 PM. She did not receive advance notice of when she needed to work beyond 4.00 PM.  This occurred more regularly during the busy time on the stud farm when she had to work late to accommodate and vet or farrier who was running late to attend a horse. Sometimes she was requested to work an early morning before 8.00 AM but would only receive notification the night before.  This impacted her family life especially at the weekends.

Under cross examination, the Complainant accepted that the nature of the job did involve unexpected events and she did accept that the Respondent was flexible with her working hours and facilitated giving her time off or align her to come to work late.

CA-00060063-002  This complaint related to the failure of the Complainant to receive a statement in writing on her terms of employment under the Terms of Employment (Information) Act 1994.

The Complainant's case is that she did not receive the statement in writing of her terms of employment and she never received an Employment Handbook. She stated there was no HR department and was not aware there was even an Employment Handbook.

Under cross examination, the Complainant did accept that she was provided with a contract of employment, but she stated she did not sign it because there was an error on it. She said she never saw the handbook that was produced by the Respondent at the hearing. 

CA-00060063-003

This complaint was withdrawn at the hearing.

CA-00060063-004.  This complaint was of unfair dismissal. The Complainant had more than 12 months service.

At the second hearing date 21 January 2025, the Complainant advised that she was still unemployed and had not taken up new employment since the termination of her employment on 19 June 2023. She advised that she had graduated from Griffiths College from a part-time course which was held over the months January to October 2024. The courses held online in the evenings between 6 PM and 8:30 PM three times a week.

The Complainant gave evidence that she applied for around 25 jobs and this involved applying for two to three jobs a week, maybe less during the time when she was attending the college course.  She submitted screen shots of the job applications.  She explained that she was looking for a full-time contract as she could not afford to work part-time only. She is in receipt of social welfare jobseeker’s allowance. She said she applied for lots of different types of jobs, but because of her age and the fact she doesn't have a degree she didn't get a job offer.

Under cross examination it was put to the Complainant that she did not satisfy the burden on her to mitigate her loss and that it was difficult to accept that she could not find employment in today’s work environment.

As regards the substantive case, the Complainant's case was that her job is her passion and she really enjoyed working with horses. She had a good relationship with all her colleagues and there were never any issue complaints. In March 2021 Ms. Caoimhe Doherty appointed the stud farm manager and also took over as yard and racing manager.

A verbal altercation took place on the 24 May 2023 between the Complainant and the stud manager. The altercation arose in the context of two horses in the stud being euthanised. The Complainant stated that she was taken completely by surprise on the decision to do this and was upset. The Complainant argued with the stud manager that the horses should not be put down. The Complainant's daughter who also worked at the stud farm on a part time basis was involved in the argument. Tensions were raised and inappropriate language was used. The Complainant refused to carry out instruction as regards another horse. The parties walked away from each other still disputing the decision to put down the horses.

The following morning the Complainant approached the stud farm manager to try to resolve the dispute. Later that morning she was handed a letter that requested her to attend HR meeting the following day. This took the Complainant by surprise.

The following day 26 May 2023 in a meeting with HR, the Complainant was informed that she her actions were being investigated.

On the following Monday, 29 May 2023 she was provided letter stating that she was suspended with pay and that there would be a formal investigation into the complaints. The letter set out "due to the seriousness of the matter, you are suspended from your duties with immediate effect on full pay to allow the company to carry out a formal investigation into alleged gross misconduct following that incident”.  She was requested to leave the property immediately and not speak to any staff.

On 2 June 2023 she received an email requesting her to attend an investigation meeting on 7 June 2023 with a HR consultant. The emails were sent by the stud farm manager to the Complainant.

On the 15 June 2023 there was a second meeting with HR consultants. The Complainant was furnished with a number of statements from staff that were present on the day in the stud yard. The Complainant relied on this statement from the vet who witnessed the altercation. She described the Complainant’s demeanour on the day as "upset but remaining calm during the incident". This investigation meeting caused the Complainant to be stressed and upset.

On Monday, 19 June 2023 Complainant received a letter from the Respondent by post.  This letter on set out as follows:

After careful consideration of all the circumstances, the facts outlined in the statements, in addition to the recommendation of ' misconduct' from the HR investigators; the company has decided to summarily dismiss you from your employment for gross misconduct for the following reasons:

The employee is guilty of serious misconduct (inappropriate behaviour and conduct) at the workplace, (including verbal or psychological abuse to staff or clientele).

This came as quite a shock to the Complainant. The Complainant was given the right to appeal the decision and she made her appeal on 22 June 2003. Her appeal was on the basis that her actions on the day did not warrant a gross misconduct and that proper procedures were not followed.

The Complainant received the outcome of her appeal on the 10 November 2023. The appeal was upheld. The appealed decision-maker set out in his correspondence

"it is apparent that the employers stud manager was involved in the incident on the 24 May 2023 and may have been involved in the ultimate decision to dismiss the employee. Such a dual involvement may very well give the appearance that the ultimate decision was tainted and contrary to natural justice".

The Complainant received no further communication from the Respondent.

CA-00060063-006  This complaint was that the Complainant did not receive her statutory minimum period of notice or payment in lieu of the Minimum Notice and Terms of Employment Act 1973.

CA-00060063-007  This complaint was that the Complainant did not receive her statutory rights under the Minimum Notice and Terms of Employment Act 1973.

CA-00060063-008  This complaint was that the Complainant did not receive her statutory minimum period of notice or payment in lieu of the Minimum Notice and Terms of Employment Act 1973.

CA-00060063-009  This complaint was that the Complainant did not receive her weekly rest periods under Section 13 of the Organisation of Working Time At 1997.

The Complainant's case was that she did not get a weekly rest period for certain weeks. She was employed on a demanding schedule that required her to work 12 consecutive days consisting of Monday through to Friday with the following Saturday and Sunday and requiring her to attend work on the following Monday and worked through to Friday before getting the weekend off. This pattern is repeated every other weekend. The Complainant submitted that this demanding schedule resulted in insufficient rest periods and impacted negatively on her work life balance.

CA-00060063-0010  This complaint was that the Complainant was not notified in advance of any additional hours under Section 17(2) of the Organisation of Working Time At 1997.  This complaint was similar to CA-00060063-001. The Complainant explained that there were many times when she was asked on the spot to stay for a late or a farrier to arrive to attend to a horse in need.

CA-00060063-001 

The Respondents case was that due to the nature of the job, there were unexpected events which was part of the course in dealing with horses that involved waiting for a vet or a farrier. This is a last-minute event and could not be planned.

CA-00060063-002

The Respondents manager gave evidence that before her engagement, there was a contract of employment in place for all of the employees. During her tenure, she updated and gave new contract to the employees. This took place in 2022. She said that the employee handbook was kept in the canteen.

CA-00060063-004

The Respondent’s case was that the Complainant’s employment was terminated because of her behaviour towards her manager Ms. Doherty. She challenged and abused Ms Doherty verbally in front of a vet and other members of staff as she did not agree with the decision taken to euthanise two mares. This decision was taken by Ms Doherty after consultation, but the Complainant did not agree with the decision.

It was accepted that the Complainant and her daughter reacted badly to the decision to euthanise the mares. It was submitted that their behaviour was simply unacceptable. The decision was met with loud and angry responses, the use of swear words, disrespectful comments and allegations of gross incompetence directed at Ms Doherty. The Complainant also refused to carry out reasonable instructions and spoke to Ms Doherty in an aggressive tone. Ms Doherty was embarrassed, humiliated and there was no respect for her. She was bullied and intimidated by the behaviour of the Complainant and her daughter.

The summary findings of the internal investigation into the behaviour of the Complainant and her daughter were "based on our investigation into the above incident, we find that the behaviour of two employees at the centre of the investigation was tantamount to misconduct. The finding was deemed to be consistent with the Employee Terms and Conditions of Employment as set out in the respective employee contracts - Termination without Notice. In addition, in respect of the Complainant, she was found to have breached her contract based on her disobeying a lawful instruction of management.”

The Respondent accepted that there was no separate disciplinary process following the investigation. It submitted that the Respondent had a small number of staff and did not have overly complicated processes. The Respondent could not tolerate a situation where the Manager of the Stud was verbally abused, undermined and challenged on the decisions she made following her engagement with relevant professionals regarding the mares. The Respondent accepted that in terms of fair procedures there should have been a separate disciplinary process. However, it submitted that the outcome would not have changed as there was a fundamental breakdown in the relationship between the Complainant and her manager Ms. Doherty and within such a small team it was not possible to consider a lesser sanction. It is submitted that the Complainant was 100% responsible for her own termination.  It submitted that the Complainant’s behaviour was simply outrageous, in that she challenged, shouted, abused and threatened her manager in front of a vet and other members of staff. The challenge was in relation to an informed decision by her manager to have the two mares euthanised with the approval of the vet and other extremely experienced professionals whom she had engaged with in relation to the decision.

CA-00060063-006  The Respondent submitted that the Complainant did receive her statutory minimum period of notice or payment in lieu of the Minimum Notice and Terms of Employment Act 1973.

CA-00060063-007  The Respondent submitted that the Complainant did receive her statutory rights under the Minimum Notice and Terms of Employment Act 1973.

CA-00060063-008  The Respondent submitted that the Complainant did receive her statutory minimum period of notice or payment in lieu of the Minimum Notice and Terms of Employment Act 1973.

CA-00060063-009  The Respondent’s manager gave evidence that no member of staff was living on-site and the work at the weekends were on a reduced hours basis and staff were in and out quickly of the yard. She explained that during the breeding season, the yard was at its busiest.

CA-00060063-0010  The Respondent submitted that complaint was similar to CA-00060063-001

CA-00060063-001 

The Complainant's contract of complement contained a clause headed ' additional work'. This set out that due to the nature of the employment, an employee was required to work weekends on a rota system and to work a rota system for nightly feeding and also to be available for loading and unloading horses for transport outside of normal working hours. These hours were paid at a rate of time and a half.

I am satisfied that the Complainant was provided with a roster and had knowledge of her start and finish time in general.  The Respondent pointed out that any additional hours worked were due to unforeseen circumstances beyond the employer’s control, e.g., delayed vet or farrier attending to a horse that needed treatment.

Both sides indicated that there was flexibility in the workplace as regards working hours and on the basis of same, I am satisfied that the notification of change in working hours in such circumstances comes within the definition of Section 17 (4):

“A notification to an employee….. shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work, or as the case may be, to work the said additional hours at those times.”

Accordingly, I find that the Respondent did not breach Section 17 of the Act.

CA-00060063-002 

I have reviewed the contract of employment and note that the following requirements of section 3 of the Terms of Employment (Information) Act 1994 were not contained therein:

3 (ga) that the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section

3(k) any terms or conditions relating to—

(ii) pensions and pension schemes,

While this is a technical breach, it is nevertheless a breach of the legislation and my award reflects same.

CA-00060063-003

This complaint was withdrawn at the hearing.

CA-00060063-004  

As dismissal was not in dispute the burden of proof was on the Respondent to show that the dismissal was not unfair.

Section 6 (1) of the Unfair Dismissal Act 1977 contains the general overriding proposition that the dismissal of an employee is deemed to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying dismissal.

Subsection (6) further provides that, in determining whether the dismissal was unfair or not, it will be for the employer to show that there were substantial grounds justifying the dismissal. The burden of proof is on the employer.

Section 6(7) sets out

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

Ms. Justice Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, set out (at p. 4):

‘Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

“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.”

The general approach taken in relation to cases of dismissals for conduct was set out in Hennessy v Read & Write Shop Ltd UD 192/1978 (reproduced in Madden and Kerr, Unfair Dismissal: Cases and Commentary (2nd ed., 1996), p.317):

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to

1. the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

2. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

This requires the adjudication officer to consider whether the employee was made aware of all allegations and complaints that formed the basis of the proposed dismissal, whether the employee had adequate opportunity to deny the allegations or explain the circumstances before the decision to dismiss was taken, whether the employer believed that the employee had conducted himself or herself as alleged, whether the employer had reasonable grounds to sustain that belief and, if so, whether the penalty of dismissal was proportionate to the alleged misconduct.

This is a most unusual case in that the Respondent did not have a separate disciplinary hearing into the complaint against the Complainant (whether in writing or in person) and the Respondent's internal appeal found in favour of the Complainant. 

Despite this, the Respondent maintained that the Complainant was responsible for her own dismissal and she was not invited back to work and the termination of her employment remained in place. 

Having considered the evidence presented to me, I can recognise the stressful situation it was for both the Complainant, her daughter and the manager of the stud yard on the date the incident occurred.  All parties felt they were doing the right thing.  All witnesses came across as credible and had the best interests of the horses at heart.  

However, if by the Respondent's own procedures, the termination has been internally found to be unfair, my decision will not come as a surprise.

The Internal Discipline Policy and Procedure set out

"The Stud emphasises the importance of understanding that disciplinary action, where necessary, should be exercised in a fair and reasonable manner having regard to the rights and responsibilities of all the parties concerned."

The Labour Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.

I find that the procedures adopted by the Respondent in the termination of the Complainant’s employment were seriously flawed. She was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000 in that no disciplinary process was held.

Leaving aside the breach of fair procedures in the failure to follow its own disciplinary procedure, even taking the verbal altercation between the Complainant and her manager at its highest, I do not accept that the conduct of the Complainant was such that warranted her dismissal.

I find that the dismissal of the Complainant was unfair.

In regard to redress, I find that compensation is the most appropriate in the circumstances. I note that the Complainant incurred financial loss attributable to the dismissal.

Section 7 (1) (c) sets out that "if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss as is just and equitable having regard to all of the circumstances".

In calculating compensation, I am required to consider the Complainant’s attempts to mitigate her losses following her dismissal. Having regard to the totality of the evidence presented, I do not accept that the Complainant did enough to mitigate her loss and find that she did not act reasonably in all the circumstances (Section 7 (2) (c)). Also, not all the explanations as to her inability to find work such as needing full time work were linked to her dismissal pursuant to Section 7 (2) (b). As was set out by the Labour Court in Smith v Leddy UDD 74/2019 I expected to see “evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”.   I was not provided sufficient evidence of this.

Having regard to the totality of the evidence presented, the evidence regarding mitigation and the serious flaws in the procedures adopted by the Respondent in the summary termination of the Complainant's employment, I award the Complainant the sum of €9,000.00 being just over 16 weeks salary.  This is in addition to any ex-gratia payment paid to the Complainant at the time of her dismissal.

CA-00060063-006  This complaint was that the Complainant did not receive her statutory minimum period of notice or payment in lieu under the Minimum Notice and Terms of Employment Act 1973.

As the Complainant had been continuous service with the employer for more than two years but less than five years, she was entitled two weeks minimum notice.

The letter of 19 June 2023, the Respondent set out

You are the referral dismissed with immediate effect from Monday, 19 June 2023. You are not entitled to notice or pay in lieu of notice. However, as a gesture of goodwill from management, at its sole discretion, you will be paid an equivalent amount equal to two months gross salary/wages to assist you while seeking further employment.

I am satisfied that the Complainant received more than the minimum notice she was entitled to under the 1973 Act.

CA-00060063-007  The Second Schedule of the Minimum Notice and Terms of Employment Act 1973 sets out the rights of an employee during the period of notice. As the Complainant was paid in lieu of notice in excess of the minimum notice she was entitled to, the requirements under this section have been complied with by the Respondent.

CA-00060063-008  This complaint was a duplication of complaint CA-00060063-006.

CA-00060063-009  This complaint was that the Complainant did not receive her weekly rest periods.

The Organisation of Working Time Act 1997 sets out as regards weekly rest periods.

13.—(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee’s contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:

(i) Declare the complaint was or was not well founded;

(ii) Require the Employer to comply with the relevant provision;

(iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

The responsibility falls upon the Respondent to manage the roster in a way that ensured that the Complainant received one rest day within each week.  This did not occur.

In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the Court of Justice of the European Union made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.  The Respondent advised that this rota and work practice has been changed. 

In light of the above evidence, I am satisfied that this complaint is well founded and I award the Complainant €3,500.00 in compensation being just over 6 weeks wages. 

CA-00060063-0010  This complaint was that the Complainant did not receive her notification in advance of additional hours.  Both sides indicated that there was flexibility in the workplace as regards working hours and on the basis of same, I am satisfied that the notification of change in working hours in such circumstances comes within the definition of Section 17 (4).

CA-00060063-001 

This complaint is not well founded.

CA-00060063-002 

This complaint is well founded and I award the Complainant €100 for breach of this legislation.

CA-00060063-003

This complaint was withdrawn at the hearing.

CA-00060063-004  

This complaint is well founded and I award the Complainant the sum of €9,000.00 being just over 16 weeks salary.  This is in addition to any ex-gratia payment paid to the Complainant at the time of her dismissal.

CA-00060063-006 

This complaint is not well founded.

CA-00060063-007 

This complaint is not well founded.

CA-00060063-009 

This complaint is well founded and I award the Complainant €3,500.00 in compensation being just over 6 weeks wages. 

CA-00060063-0010  This complaint is not well founded. 

Unfair dismissal.  No disciplinary procedure.  Breach of fair procedures. Disproportionate outcome.