Complainant

Respondent

Parties

Lina Leliugiene

Derrycourt Cleaning Specialists Limited

Representatives

John Lynch BL

John Barry, Management Support Services (Ireland) Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00064682-001

10/07/2024

On November 14th 2022, arising from the transfer of the National Forensic Mental Health Service (NFMHS) to Portrane, north Dublin, the complainant transferred her employment to the respondent in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE).

The complainant was employed as a cleaning operative.  In May 2023, at the conclusion of a disciplinary investigation, she was issued with a final written warning.  The warning was for having a mobile phone in a restricted area of the NFMHS and for taking photographs in the facility.  A mobile phone is a contraband item on the NFMHS site and it is forbidden to bring a phone into the facility.  During the disciplinary investigation, the complainant said that she took the photographs due to frustration because staff working on other shifts weren’t completing their duties and were leaving the area in an unfinished state.  Before taking the photographs, the complainant didn’t bring these concerns to the attention of a manager.

On Monday, February 26th 2024, the complainant sent an email to one of the respondent’s area managers in which she alleged that a colleague, “AB,” was addicted to drugs and that she had forged documents.  The area manager sent the email to an assistant regional manager (ARM) who met the complainant on February 27th 2024 to discuss her concerns about AB.  The ARM then met AB and two other employees to discuss the complainant’s allegations.  The ARM concluded that the claims did not merit a formal investigation.

On Wednesday, February 28th, AB sent an email to an area manager claiming that, on Monday the 26th, the complainant accused her of orchestrating a plan with others to cause another employee to lose her job.  AB said also that the complainant gave her a piece of paper on which she had written intimidating remarks.  AB said that she was afraid of the complainant and that the experience was affecting her health.  On Thursday, February 29th, AB attended a meeting with a regional manager and a HR business partner at which she provided details about her grievance regarding the complainant’s conduct.  On March 3rd, the complainant was suspended pending a formal investigation into these allegations.

The complaint was absent due to illness and the investigation was postponed until she was better.  On April 10th 2024, she was requested to attend a meeting on Monday, April 15th.  Before the meeting, she was provided with copies of the following documents:

1.      The terms of reference for the investigation;

2.      The disciplinary procedure;

3.      A copy of AB’s complaint dated February 28th;

4.      A note of the February 29th meeting with AB, the area manager and the HR business partner;

5.      A copy of the note that the complainant gave to AB on February 26th;

6.      A copy of a complaint from another employee, “CD” regarding the complainant’s request to him to say that he did not make a statement about an employee, “EF” who was dismissed before the end of her probation.

The allegations set out in the letter of April 10th may be summarised as follows:

§  On February 26th, it is alleged that the complainant behaved inappropriately and in a manner that caused AB to feel intimidated and concerned.  

§  Also on February 26th, the complainant sent an email to an area manager and stated:  "Alex Hello. I want to ask. Because I can't understand how a person like (AB), who is addicted to strong drugs, can still work here after falsifying a lot of documents? (Name redacted) was demoted to cleaner for one signature!” 

§  The complainant discussed AB’s alleged drug use with colleagues and employees of the NFMHS.

§  The complainant accused AB of forging documents.

§  The complainant did not treat AB with dignity and respect.

§  It is alleged that the complainant interfered with an investigation by trying to coerce her colleague, CD, to withdraw a written statement.

The complainant was unable to attend the meeting planned for April 15th and it was held on the 17th.  The respondent’s healthcare regional manager, Mr Stephen Conway, was the chairperson and he was accompanied by a HR generalist.  The complainant decided not to be represented, but she was accompanied by a colleague who helped with translating.  At the meeting, the complainant contested the account given by CD of the alleged video call between them.  On April 22nd, Mr Conway followed up with CD and asked him about the video call.

On April 26th, the complainant was provided with a note of the meeting on April 17th.  A disciplinary hearing took place on May 2nd, hosted by an assistant regional manager, Ms Renata Karwot and a HR generalist who took notes.  The complainant attended again without representation, but she was accompanied by a colleague who assisted her with translating.  Ms Karwot decided that the complainant’s conduct in relation to AB was inappropriate and unacceptable and, on May 8th, she was dismissed.  In her letter of dismissal, Ms Karwot summarised her decision by saying,

“Your actions clearly displayed malicious intent and a complete disregard for the dignity and respect of your colleague…”

At a meeting on May 20th, the complainant appealed against the decision to dismiss her.  On May 23rd, the manager who heard the appeal, Ms Sue Harris, wrote to the complainant to inform her that the decision to dismiss her was not overturned.

In his submission, Mr Barry said that AB’s complaint about the conduct of the complainant was so serious that the complainant was suspended while an investigation was carried out.  The complainant was informed about the allegations, which were properly investigated.  Notes taken at a meeting with AB were given to the complainant and notes taken at the disciplinary investigation meeting were given to her for comment and correction.  The complainant was advised of her right to be represented, which she declined.  The investigating officer compiled a report, which was issued to the complainant.  The matter was then passed to a different manager who conducted the disciplinary hearing.

At the disciplinary hearing on May 2nd, the complainant again declined the right to be represented.  Her response to the allegations of misconduct were considered and before a decision was made, the complainant was provided with the notes of the meeting and invited to comment on or correct them.  It is the respondent’s position that Ms Karwot’s decision to dismiss the complainant was procedurally fair and correct, and in accordance with the respondent’s disciplinary procedure.

Mr Barry submitted that the complainant acted in a very serious manner by threatening another employee and by making false allegations about her, which could have undermined her character in the eyes of her colleagues and employees on the NFMHS site.  It is the respondent’s position that this conduct was reckless, but could also be considered to be malicious, deliberate and with the intention of damaging another person’s reputation.

In this regard the following facts were established:

§  The complainant accepted that she gave AB the post-it note which states, "What are you doing here?  You committed a crime. You forged documents!"

§  She accepted that she sent an email to an area manager in which she alleged that AB was a "dangerous drug user".

§  She accepted that she discussed this allegation with her colleagues and with an employee of the NFMHS.

§  She accepted that she and others approached individual employees, including one person in front of the director of nursing, and asked them if they made the complaints in relation to another employee, EF, who didn’t pass her probation.

§  She acknowledged her claims may have been sensationalised to gain attention because she was unhappy with how matters were dealt with following a meeting with employees and managers on November 8th 2023.

§  She did not deal with her concerns in a professional manner or through the company’s grievance procedure.

§  While she was suspended pending the investigation into her conduct, she spoke to CD on a video call and asked him to change a statement he made about EF.

The respondent’s position is that the complainant was dismissed due to her conduct and that her dismissal is encompassed by s.6 of the Unfair Dismissals Act 1977. 

Throughout the disciplinary process, the complainant defended her actions by claiming that the remarks she made about her colleague were true and that her conduct was justified.  The respondent investigated the concerns raised by the complainant and there was no evidence to substantiate her claims.  Even if her concerns had any legitimacy, it is the respondent’s position that her conduct was still inappropriate and unacceptable.

By her actions, the complainant showed a disregard for the respondent’s policy regarding the handling of grievances in the workplace.  Given that she had a written warning on her file, and that, as part of this warning, she had been reminded of the requirement to use the proper procedures, Mr Barry submitted that the decision to dismiss the complainant was within the range of reasonable responses.

Evidence of Mr Stephen Conway, Healthcare Regional Manager

Mr Conway is the regional manager with responsibility for the cleaning contract on the site of the NFMHS in Portrane.  As a facility for mentally ill patients and prisoners, Mr Conway said that Portrane has airport-like security for visitors and employees.  Mobile phones are on the list of items not permitted in the facility and, in May 2023, the complainant was issued with a written warning for having a phone on the premises and for using it to take photographs.  Mr Conway said that mobile phones were also banned in the Dundrum hospital, where the complainant worked until November 2022.

Mr Conway said that he was asked to conduct an investigation into AB’s complaint, which she submitted on February 28th 2024.  Two days previously, the complainant had sent an email to an area manager in which she alleged that AB was addicted to drugs and that she had forged documents.

Mr Conway said that a disciplinary investigation meeting took place on April 15th.  The complainant told Mr Conway that she didn’t need a representative.  Mr Conway said that he went through AB’s complaints with the complainant.

Mr Conway said that the complainant accepted that she gave AB a post-it note on which she wrote, "What are you doing here?  You committed a crime. You forged documents!"  He said that her reasons for giving AB this note contradicted each other.  She said that it was reminder to herself to speak to AB about an issue.  She said then that she was afraid of AB.  Finally, she said that she wanted to deal with issues not addressed at a meeting in November 2023.  Mr Conway said that this was a meeting about “low level operational issues” related to the cleaning of the facility.

The complainant accepted that, in the email to the area manager on February 26th 2024, she alleged that AB was addicted to strong drugs and that she had forged documents.  The complainant said that by “strong drugs,” she meant prescription drugs.  She said that AB gave her Tramadol tablets when she had a pain in her back and she had a bad reaction to the tablets and had to go to hospital.  The complainant engaged in gossip about AB as a drug-taker with her colleagues in Derrycourt, and with nurses in the NFMHS.

The complainant alleged that AB forged a document with the objective of getting another employee, EF, dismissed.  This related to a decision by the site manager not to keep EF on past her probation.  The complainant suggested that the notes of a meeting about this matter were forged.  Mr Conway said that the complainant accepted that she spoke to several of her colleagues, and to the dismissed employee, about this matter.  She claimed that she wanted to get justice.

Mr Conway said that, in his follow-up discussion with CD, he told him that, when the complainant was suspended, he had a phone call and a video call with her and that she asked him to say that a statement he made to a supervisor about EF was false.  CD said that he didn’t make a complaint about EF, but that he spoke to his supervisor, who wrote down what he said and he signed the statement.  EF sent Mr Conway copies of the WhatsApp messages from the complainant in which she asked him to change his statement.  Mr Conway said that, at his meeting with the complainant on April 15th, the complainant said that she believed that the statements were falsified and she said that she phoned CD to find out.

Concluding his direct evidence, Mr Conway said that the complainant had made a serious allegation that a colleague was a drug user and that this was very damaging to that employee.  She had accused this employee of falsifying documents, which is also a serious matter.  Mr Conway said that he had “massive concerns” about the conduct of the complainant and he recommended that her conduct was considered at a disciplinary hearing.

Cross-examining of Mr Conway

In response to cross-examining by Mr Lynch, for the complainant, Mr Conway said that the employees who formerly worked on the CMH site in Dundrum attended training for a day and a half, to support their transfer to the new facility in Portrane. 

Mr Conway said that, before an employee arrives at security on the NFMHS site, items such as phones can be placed in secure lockers.  Mr Conway said that he wasn’t involved in the issuing of the final written warning in May 2023.

Mr Lynch suggested to Mr Conway that the complainant was entitled to freedom from penalisation for making a protected disclosure.  Mr Conway replied that there is no requirement for an employee to take a photograph of an area that they think is dirty.

Evidence of the Assistant Regional Manager, Ms Renata Karwot

Ms Karwot said that she is responsible for clients outside Dublin and she had no involvement in the NFMHS in Portrane.  Ms Karwot answered questions put to her by Mr Barry regarding the complainant’s conduct.

Ms Karwot said that the complainant told her that she gave AB the post-it message so that she wouldn’t forget what she wanted to say to her when she met her.  Ms Karwot said that the complainant blamed AB for another employee losing her job.

At the disciplinary meeting, Ms Karwot said that the complainant said that she sensationalised the issue of AB taking drugs.  She said that she used Google translate to send the email to the area manager.  Ms Karwot said that she found it hard to understand that the complainant’s statement was mis-translated by Google.

The complainant accepted that she contacted a colleague, CD, while she was on suspension pending a disciplinary investigation.  Ms Karwot said that she tried to get the complainant to put herself “in the shoes” of AB.  The complainant said that on a video call with CD, she tried to coerce him into changing a statement he made about another employee.

Ms Karwot said that she concluded that the complainant’s actions were malicious and deliberate and intended to damage AB’s reputation.  She said that the complainant had no remorse and did not apologise for her actions.  Ms Karwot said that she could have raised a grievance, but instead, she took matters into her own hands. 

Mr Barry asked Ms Karwot if the complainant raised any concerns about the meeting with employees on November 8th 2023.  Ms Karwot said that the issues raised at this meeting were addressed, but that the complainant “chose to take extra actions.”  As a consequence, Ms Karwot said that she decided that her conduct, accusing a colleague of being a drug addict, accusing her of forging documents and spreading rumours about this employee, was very serious.

Ms Karwot said she took into consideration the fact that the complainant received a final written warning in May 2023.  In that letter, she was informed that any further misconduct in the following 12 months would lead to her dismissal.

Cross-examining of Ms Karwot

In response to questions from Mr Lynch, Ms Karwot said that the complainant was trying to damage AB.  Ms Karwot said that the complainant acknowledged that she sensationalised the issue of drug-taking to get attention. 

Mr Lynch asked Ms Karwot if the respondent has a policy about employees handing out medication.  Ms Karwot replied that no one forced the complainant to take the tablets offered to her by AB.

Ms Karwot said that, if the complainant had not received a final written warning in May 2023 for having a mobile phone on the site, she would not have been dismissed arising from the findings of the investigation into AB’s complaint.

Evidence of the Complainant, Ms Lina Leliugiene

In response to questions from Mr Lynch, the complainant said that she was dismissed because she sent an email about the behaviour of AB.  She said that she received a final written warning in May 2023 because “I brought a phone into the unit.”

The complainant said that she wanted to go back a bit.  She said, “we felt in fear of management because we were accused of not cleaning properly.”  She said that if she and her colleagues wanted to raise a concern about staff or patients, the impression was given that they were at fault.  She said that “we felt discriminated against because the weekend cleaners were not demanded to do work.”  She said that the place was untidy and not clean after the weekends.  She said that she often told her supervisor about places that were left dirty.  She said that she would “walk them around and ask them why I have to do the work of another person.” 

The complainant said that she explained her grievances many times to a supervisor and she left messages on a system.  She said that, for a long time, they had no email contact with supervisors.  She said that she still has a text message of the date when she asked for the email address of her supervisor.  She said that when she posted her message on the “Deputy” system, she noticed that her complaint about the lack of cleanliness of an area was deleted.  Not being able to provide the information led her to bringing her phone into the unit.  She said that she brought in the phone only after the patients had left.  She said that she was aware that it was “unlawful,” but she had to bring it in.

Mr Lynch asked the complainant about the incident with the Tramadol tablet.  The complainant said that she can’t remember the date that this occurred. 

The complainant raised a concern about a change in the manner of seeking approval to take holidays.  She said that, when she worked in Emerald, she had to look for approval four weeks in advance.  When she moved to the respondent, she said that she had to look for holidays for the whole year.  She said, “We’re not sure if we’ll get them or if they’ll be cancelled.

The complainant said that she booked holidays for September / October and one or two weeks beforehand, her supervisor asked her if she was still taking holidays.  He told her that they were short-staffed.  She said that she replied that she would let him know the following day, but she said that her holidays were declined.  She said that her holidays in December were refused six months in advance. 

The complainant said that she was communicating with her supervisor about this for a week.  On one of the days, she met AB at her locker and AB noticed that the complainant wasn’t well.  The complainant said that she told AB that it was the fault of the company.  She said that the holiday situation was causing her stress.  She had a bad pain in her back and she had to take medication.

The complainant said that AB told her that she had strong medication that she was taking.  She offered her the tablets instead of telling the complainant that she should go home and get her own medication.  She said that she trusted AB because she knew that she was studying to work as an ambulance technician.

A half an hour after their conversation, the complainant said that AB brought her a tablet.  She said that took the tablet and she immediately started to feel unwell and her colleagues said that she looked bad.  The complainant said that she had told AB that she took her own medication earlier in the day, but AB said that these tablets are “on a different spectrum” and that they were okay to take.

When she went on her break, the complainant said that she lost consciousness and her colleague, Mr Kritschgau, administered CPR.  She was taken by ambulance to Beaumont Hospital, where she was treated for a week.

Mr Lynch asked the complainant if she reported what happened to her employer.  She replied that the respondent didn’t record the incident anywhere.  She said that she tried to open an investigation into what happened.  She said that she saw AB giving medication to other employees.

The complainant agreed with Mr Lynch that she made a complaint about AB giving her the tablets.  She said that she was “laughed at” and that they concluded that it was normal behaviour to give medication to others.

Mr Lynch asked the complainant about what happened on February 26th 2024.  The complainant said that this was an ordinary working day.  AB had been absent for a few days and the complainant said that she thought that she wasn’t at work because of a conflict with a colleague.  She said that she heard that she was back.  During her first break, using Google translate, the complainant said that she wrote a note saying “Why are you here after committing such a crime?”  She said that she wanted to discuss this matter with the complainant after work.  The complainant said that she was busy and all she wanted to know was why her colleague, EF, was “gone from work.”  The complainant said that AB replied that EF was a bad cleaner and that she was rude and not communicative.  The complainant said that she told AB that she had to work and that she would talk about EF later.

On her long break that day, the complainant said that he sent the area manager an email about AB.

Mr Lynch said that the allegation put forward by the respondent is that the complainant discussed with others that AB was a drug user.  The complainant replied that she didn’t intentionally discuss AB’s drug use with anyone.  She said that “it’s just a habit that staff talk together.”  She said that the five employees who transferred from Emerald talk to each other.

During the short break, the complainant said that one of her colleagues told her a story about AB coming to work wearing a heavy jacket.  The same person said that AB undressed down to her underwear in one of the rooms.  After this incident, the complainant said, “we decided that AB was affected by strong medication.”

Mr Lynch asked the complainant about her allegation that AB had forged documents.  The complainant replied that she was trying to find out the truth about why her colleague, EF, had been dismissed.  She said that EF approached her and Mr Kritschgau looking for help.  She had suspicions that documents had been forged.  During the investigation into this matter, the complainant said that she suggested a person who should be interviewed, but she said that the management said that they would decide who to speak to.

Mr Lynch then asked the complainant about the allegation that she coerced another colleague, CD, to change his statement about EF.  Before she was suspended, the complainant said that she was making enquiries and she asked CD if he had written a letter “against” EF.  CD replied that he hadn’t and the complainant said that she asked him to confirm that in writing and he said that he would.

When she was suspended, the complainant said that “Unexpectedly, Piotr (Kritschgau) rang me in the morning and said that CD is nearby and he asked me to ask CD what I asked him for before.  Piotr handed his phone to CD to speak to me.”  The complainant said that she asked CD “to write the letter about what he said to me before.”  She said that CD replied that he would have to discuss the issue with the area manager.  When she didn’t hear back from CD, the complainant said that she sent him a reminder.  She said that he began to talk about different things and then she noticed that he changed his mind.

Cross-examining of the Complainant

Mr Barry said that he wanted to focus on the last point raised in the complainant’s evidence.  He asked her if she was involved in an investigation about statements made about the conduct of EF.

The complainant replied that, first EF “reached out to us for help” because she had doubts about letters being “honest or real.”  She said, “we started enquiring to see if people had written letters and they all said that they didn’t write the letters.”  The complainant said that “the similarity of the hand-writing in the letters made us question them.”

Mr Barry said that these were statements made by people during the course of an investigation into the conduct of EF.  The complainant said that she had a copy of the letters.  She said that she couldn’t remember what was in them.

Mr Barry said that the company’s position is that the statements that the complainant is referring to were statements taken during the course of an investigation that she wasn’t involved in.  The complainant replied that she “knew it wasn’t related to me but I was asked by another person to help.”

Mr Barry reminded the complainant that CD told her that he made a statement.  He said that the complainant sent a message to CD on WhatsApp to which she attached his statement and she asked him to confirm that he didn’t write that statement.  Before she was suspended, the complainant said that she asked CD if he wrote and signed “against” EF and he said no.  She said that she asked him to confirm that and he promised that he would.

Mr Barry raised the issue of the post-it note and he said that the complainant provided a number of explanations for what she wrote.  He asked her what the correct explanation is.  The complainant said that both explanations are correct.  She said that she wrote it down after she translated it on Google translate and then she handed the note to AB.  She said that she handed it to her to let her know that she wanted to discuss this with her, “but not just her.”

Mr Barry referred to the contents of the note: “What are you doing here?  You committed a crime.  You forged documents.”  The complainant repeated her earlier explanation and said that the terminology is new to her.

The complainant said that she had proof that AB had forged documents.  She said that she didn’t present this proof during the disciplinary investigation.  Mr Barry said that the complainant had three opportunities to produce this proof, at the disciplinary investigation, at the hearing and at the appeal.  The complainant replied that, “at no point did anyone ask me to produce this evidence.”

Mr Barry asked the complainant why she didn’t produce evidence that documents were forged, when her allegations that they were forged led to her dismissal.  The complainant repeated that she wasn’t asked for the documents.

Mr Barry referred to the complainant bringing her phone into the unit.  She said that she had no option and that she had to provide proof.

Mr Barry put it to the complainant that she knowingly broke the rules to prove a point because she felt that the supervisors weren’t listening to her.  The complainant replied that she was “forced to take these actions” because of her constant requests to management to deal with the weekend staff who weren’t doing their jobs.  She said that she wanted to follow the grievance procedure but she had no email address for the supervisor.

Mr Barry suggested to the complainant that she knew how to raise a grievance and that she had raised a grievance about AB in February 2024.  The complainant replied that that was after the issue about the phone.

Mr Barry referred to an issue that arose in January 2023, when it was discovered that the employees who transferred from Emerald Cleaning were on the wrong hourly rate of pay from the date of the transfer in November 2022.  They had been paid the overtime rate of €17.32 instead of the hourly rate of €11.55.  The complainant agreed that she had raised a grievance about this.  She said, “at the request of everyone, I sent an email to Stephen Conway about the wages.”  She said that the problem wasn’t resolved and the respondent didn’t increase the wages.

Mr Barry said that the complainant raised an issue about staff not being paid for certain work and that this was resolved.  The complainant said that she couldn’t remember what that was about.

The complainant agreed that she knew Mr Conway’s email address, but she said that his was the only email address that she had.  She then agreed that she knew the email address of the HR team.  In response to a question from Mr Barry about why she felt the need to take photographs instead of contacting a manager, the complainant said that she had to raise her concern with a supervisor first.  Mr Barry asked her why she didn’t escalate the problem to a higher level.

Mr Barry asked the complainant about her discussions with colleagues that drugs were affecting AB.  The complainant replied, yes, at that point, we realised what was making her behave that way.”  She said that she was concerned about AB and about the well-being of people around her.  Mr Barry asked the complainant if she raised a concern about AB’s behaviour and she said that she sent an email to the area manager and she spoke to him about it and to a lady from HR.

At the end of her evidence, the complainant said that she hasn’t worked since she was dismissed in May 2024.  She said that she is waiting to do a course and that she sent her CV to websites.  She applied for jobs in cleaning, packing and as a chef.

The Legal Framework

The basis of our approach to dismissal is at s.6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) which provides that:

“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.”

As Mr Barry pointed out at the hearing, s.6(4)(b) of the Act provides that,

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

From this, we understand that the burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  In the letter of dismissal dated May 8th 2024, the respondent’s assistant regional manager, Ms Karwot, explained the reason why the was dismissed:

§  The complainant accepted that she gave AB the post-it note and that the note was intimidating.

§  She accepted that she sent an email to an area manager in which she alleged that AB was a "dangerous drug user".  She claimed that AB’s conduct was inappropriate but she never raised a concern about it until she sent an email to the area manager on February 26th 2024.

§  She accepted that she discussed this allegation with her colleagues and that she had sent an email about AB to a manager in the NFMHS.

§  She accepted that she and others approached individual employees, including one person in front of the director of nursing, and asked them if they made the complaints in relation to another employee, EF, who didn’t pass her probation.

§  While she was suspended pending the investigation into her conduct, she asked CD to change a statement he made about EF.

Was it Reasonable to Dismiss the Complainant?

The reasonableness or otherwise of an employer’s decision to dismiss an employee was considered in 2012 in the Circuit Court appeal of the determination of the Employment Appeals Tribunal (EAT) in Allied Irish Bank plc v Purcell[1].  Mr Purcell was dismissed when he looked at the bank accounts of his colleagues and another person who was not a bank employee.  Setting out the approach of the Court to the process of reaching a decision on the appeal, Ms Justice Linnane referred to what is conventionally known as “the British Leyland test[2],” which requires the decision-maker to ask if it was reasonably open to the employer to make the decision it made.  Regarding how the test should be framed, Judge Linnane stated:

“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.”

It is not for me therefore, as the adjudicator in this matter, to consider if the complainant should have been dismissed, but to ask if it was reasonably open to her employer to make the decision they made, or if could they have made a different decision and applied a lesser sanction, or no sanction at all.  Based on the evidence presented to me, I must consider if the decision of the respondent was that of “a reasonable employer in those circumstances in that line of business.”[3]

The context of the difficult relationship between the complainant and her employer is the transfer of her employment from Emerald Facility Services to the respondent in November 2022.  It is apparent that, although the complainant’s terms and condition of employment were not affected by the transfer, the move to the new facility in Portrane presented certain challenges.  On a very basic level, the Portrane facility is new, the rooms are bigger, there are more bathrooms and the cleaning regime is different.  The complainant’s supervisor decided not to transfer, and she was reporting to a new supervisor.  In addition to these changes, a payroll error occurred for two months after the transfer in November 2022 that resulted in the transferred employees being overpaid.  The overpaid amount of around €2,000 was recouped by the respondent over the 12 months from January 2023.  

Coupled with these difficulties, the complainant said that she had an issue with the weekend staff, who, she claims, didn’t complete their work and left the unit for the day staff to clean.  I agree with the respondent that the complainant was wrong to take this matter into her own hands and to take photographs with her mobile phone.  I do not accept that she didn’t raise a grievance because she didn’t know her supervisor’s email address.  She had regular contact with her supervisor and she could have asked him for his email address.  The complainant’s decision to have her mobile phone in the facility was a serious breach of the security protocols.  She understood this when she was an employee of Emerald Facility Services on the Dundrum site.  The complainant’s assertion that she “was forced to take these actions” so that she could bring attention to her concerns about the weekend cleaners shows that she had a blatant disregard for the security procedures and that she wanted to escalate her grievance in a manner that suited her.  I note that the complainant did not appeal against the final written warning issued on May 12th 2023 in response to this incident.  It is my view that the warning was justified.

The complainant’s tendency to take matters into her own hands was repeated on February 26th 2024 when she acted in an intimidating manner towards her colleague “AB,” suggesting that she shouldn’t be at work and that she had committed a crime and forged documents.  On the same day, the complainant sent an email to an area manager in which she suggested that AB was a drug addict.  She made similar remarks to her colleagues and to employees of the NFMHS.  Apart from the very serious effect this had on AB, a considerable amount of management time was spent investigating these spurious allegations.  Throughout the investigation, the complainant did not accept responsibility for the damage caused by her conduct and she seemed to double down on her allegations and put the blame on everyone else.  Her attempt to influence the outcome of the investigation by trying to get CD to change a statement he made about an employee, EF, was an example of the complainant’s complete lack of respect for the respondent’s disciplinary process and was another example of her inability to follow the normal rules.

I have considered all the evidence and I am satisfied that there were substantial grounds for the dismissal of the complainant and that any reasonable employer in the same circumstances would have dismissed her.

Was the Procedure Fair?

On behalf of the complainant, Mr Lynch raised no issue about the procedure that ended with her dismissal.  I find that, in all respects, the procedure followed by the respondent was fair and consistent with the standard of fairness set out in the WRC Code of Practice on Grievance and Disciplinary Procedures in Statutory Instrument 146 of 2000 and in accordance with the respondent’s own disciplinary procedures.

I have found that the decision of the respondent to dismiss the complainant was reasonable and I also find that the process was fair.  Arising from these findings, I have decided that her complaint under the Unfair Dismissals Act is not well founded.

Dismissal, conduct