Complainant

Respondent

Parties

Rachel  O'Reilly

Forenaghts Stud Farm Limited

Representatives

  Self

MP Guinness BL instructed by Byrne Wallace

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060216-001

22/11/2023

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

CA-00060216-002

22/11/2023

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

CA-00060216-003

22/11/2023

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

CA-00060216-005

22/11/2023

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

CA-00060216-006

22/11/2023

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

CA-00060216-007

22/11/2023

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

CA-00060216-009

22/11/2023

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

CA-00060216-010

22/11/2023

The Complainant worked as a stud hand which involved the day-to-day care of horses at the Respondent's stud. It was a part time position. She worked flexible hours but mainly on Monday and Friday of each week and some Wednesdays.  The Complainant commenced working at the stud in September 2019. On the 24 May 2023 an altercation took place between the Complainant, her mother who also worked for the Respondent and the stud manager. This was over the care of two horses.

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

The Complainant gross pay for the calendar year 2022 was €17,772.  This was accepted by both sides.

CA-00060216-001 

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 was 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 asserted that she did not sign it. She said she never saw the handbook that was produced by the Respondent at the hearing. 

CA-00060216-002 

This complaint was withdrawn at the hearing.

CA-00060216-003

This complaint was of unfair dismissal. The Complainant had more than 12 months service.

As regards mitigation of her losses arising from her dismissal, the Complainant advised that she was in fulltime education since September 2024.  She did apply for a ‘few jobs’ after her employment ended and she took up work experience with a local stud farm.  She had one interview for an administration job but decided full time education was her best option. 

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 the current work environment.

As regards the substantive complaint, Complainant's case was that she thoroughly enjoyed her work at the stud farm and the small team of staff with which she worked.  She submitted that she regarded them more as family than colleagues. She set out that the stud was very well run and an extremely happy environment to work in.  In March 2021 Ms. Caoimhe Doherty was appointed the stud manager and also took over as yard and racing manager.

A verbal altercation took place on the 24 May 2023 between the Complainant, her mother and the stud manager. The altercation arose in the context of two horses at the stud being euthanised. The Complainant stated that she was taken completely by surprise by the decision to do this and was physically upset.

The Complainant argued with the stud manager that the horses should not be put down. The Complainant's mother who also worked at the stud was involved in the argument. Tensions were raised and inappropriate language was used.  Without resolving the dispute, both parties went their separate ways still arguing over the decision to put down the horses.

The following day the Complainant received a letter that requested her to attend HR meeting the following day. The Complainant was very unwell following the verbal altercation and did not attend work or the HR meeting. 

On 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" .  The Complainant 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 email was sent to her by the stud manager with whom she had the altercation.

On the 15 June 2023 she had a second meeting with HR consultants. The Complainant was furnished with a number of statements from staff that were present on the day of the altercation in the stud yard. The Complainant noted the statement from the stud manager which set out that the parties had ‘a good working relationship’ and they ‘never had any issues. She is a great girl’. The Complainant submitted that this portrayed the good relationship which was present on the stud farm and that that her behaviour during the incident on the 24 May 2023 was out of character for her and was an emotional reaction to an upsetting topic.

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).

The speed at which her employment was terminated came as quite a shock to the Complainant and she was very unwell afterwards. 

The Complainant was given the right of appeal to the termination of her employment and she appealed the decision of the 22 June 2023. 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. Her appeal was upheld. The appealed decision-makers 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-00060216-005  This complaint was that the Complainant did not receive her statutory rights under the Minimum Notice and Terms of Employment Act 1973.

CA-00060216-006  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.

CA-00060216-007  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

CA-00060216-009  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-00060216-0010  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-00060063-009. 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-00060216-001 

The Respondents stud 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-00060216-003

The Respondent’s case was that the Complainant’s employment was terminated because of her behaviour towards the stud 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 with relevant professionals, but the Complainant did not agree with the decision.

It was accepted that the Complainant and her mother 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 spoke to Ms. Doherty in an aggressive tone. Ms. Doherty was embarrassed, humiliated and felt there was no respect for her. She was bullied and intimidated by the behaviour of the Complainant and her mother.

The summary findings of the internal investigation into the behaviour of the Complainant and her mother was

"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 instructions 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 an overly complicated process. 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 two 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 submitted that the Complainant was 100% responsible for her own termination. Her 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-00060216-005  The Respondent submitted that the Complainant did receive her statutory minimum period of notice or payment in lieu under the Minimum Notice and Terms of Employment Act 1973.

CA-00060216-006  The Respondent submitted that the Complainant did receive her statutory rights under the Minimum Notice and Terms of Employment Act 1973.

CA-00060216-007  The Respondent submitted that the Complainant did receive her statutory minimum period of notice or payment in lieu under the Minimum Notice and Terms of Employment Act 1973.

CA-00060216-009  The Respondent’s manager gave evidence that no member of staff was living on-site and due to the nature of the job, there were unexpected events which were part of the course in dealing with horses that involved waiting for a vet or a farrier to treat the horses. This was a last-minute event and could not be planned.

CA-00060216-010  The Respondent submitted that complaint was similar to CA-00060216-009

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

CA-00060216-001 

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 reflect same.

CA-00060216-002

This complaint was withdrawn at the hearing.

CA-00060216-003  

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 an 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 an unusual case in that the Respondent only had an investigation and 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 mother 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 Respondent’s own 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 and the Respondent’s own Disciplinary policy 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.

Therefore, 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)).

I accept that the Complainant’s health suffered after the termination of her employment while also noting that she had an underlying complaint pre the termination of her employment.   While the Complainant is at the stage of her life where going to college is a popular choice, her unavailability to take up replacement work must be taken into account in my award of compensation. 

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 €5,500 being just over 16 weeks salary at €337.54 per week.  This is in addition to any ex-gratia payment made to the Complainant in 2023.

CA-00060216-005  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-00060216-006  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-00060216-007  This complaint was a duplication of complaint CA-00060216-005.

CA-00060216-009 

The Complainant's contract of complement contained a clause headed ' additional work'. This set out that due to the nature of the employment, the 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 are 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(s) 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-00060216-0010 

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).

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

CA-00060216-001.  This complaint is well founded.  I award the complainant €100 compensation. 

CA-00060216-002.  This complaint was withdrawn at the hearing.

CA-00060216-003.   This complaint is well founded.  I award the complainant €5,500.00 compensation being just over 16 weeks’ wages. 

CA-00060216-005 and CA-00060216-006 and CA-00060216-007.  These complaints are not well founded.

CA-00060216-009 and CA-00060216-010.  These complaints are not well founded.

Summary dismissal.  Failure to follow procedures.  Reasonableness