Complainant

Respondent

Parties

Karen  Kinsella

Project Tile Design Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Eamon Devoy, Bolt-on Skills (Ireland)

Hugh Hegarty, Peninsula Business Services

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068684-001

17/01/2025

The Complainant commenced employment with the Respondent on 11/03/2019 as an Accounts Administrator.  She was employed on a 22.5-hour week and her gross weekly pay was €285.75.  The Complainant was dismissed on 31/12/2024 for breaches of the Respondent’s harassment Policy and procedures which incorporated bullying prevention and resolution.  She submitted her complaint of unfair dismissal to the WRC on 17/01/2025.

The Respondent submits that the dismissal of the Complainant was substantially justified and procedurally fair and proportionate in the circumstances.

As the fact of dismissal was not in dispute the burden of proof rests with the Respondent.

Evidence: Mr Simon Keane, Investigator:

Mr Simon Keane gave evidence on oath on behalf of the Respondent.  Mr Keane outlined that he is the Company Manager.  He was the person who was appointed by the Respondent to conduct the investigation into the complaint.  Mr Keane outlined the background to the investigation.  He held a Sales Team meeting on 03/10/2024 and during this meeting an employee, Ms A raised an issue and stated that she had been treated in an unacceptable manner by the Complainant on 30/09/2024.

Mr Keane met with Ms A the following day and she decided that she wished to have this matter dealt with formally.  Mr Keane was appointed as the investigator and terms of reference were issued to the Complainant on 21/10/2024. He took advice from the Respondent’s HR advisors and then met with Ms A and advised the Complainant about the investigation. The Complainant was invited to an investigation meeting on 23/10/2024 and this was subsequently held on 06/11/2024.  The Complainant had a representative in attendance.  Mr Keane outlined that as a result of the complaint from Ms A there were references to a number of other employees who were also interviewed as part of the investigation.  All the witnesses signed off on their meeting minutes.  All of the details contained in these statements were given to the Complainant.  Mr Keane confirmed that he issued an outcome letter to the Complainant on 11/12/2024.  Mr Keane gave evidence that as a result of his investigation he decided that the five complaints were all substantiated.  Mr Keane stated that he had no further involvement in the matter.

Cross examination: Mr Simon Keane, Investigator:

Mr Keane was cross examined by Mr Devoy on behalf of the Complainant.  Mr Keane confirmed that the complaint arose from a comment made by Ms A at the team meeting on 30/09/2024.  Mr Keane stated that he cut off any discussion.  Mr Keane also confirmed that some of those present at that meeting later became witnesses in the investigation.

It was put to Mr Keane that there were five procedures in the company, and he was asked if Ms A was referred to the grievance procedure.  Mr Keane said that she was not.  It was put to Mr Keane that the starting point for a formal investigation according to the Respondent’s policy is that the complaint must be in writing.  Mr Keane said that Ms A put her complaint in writing at the meeting on 10/10/2024.  Mr Keane was asked what happened when he met Ms A the day after 30/09/2024.  He confirmed that he spoke to Ms A to see if she wanted to have her complaint dealt with informally or formally.  She decided that she wanted a formal investigation.  This was not document, and it was a very short conversation.

In response to a question from the Adjudication Officer Mr Keane confirmed that there was no written complaint submitted in advance of the investigation commencing.  

Mr Keane was asked to confirm that he issued the outcome letter to the Complainant on 11/12/2024 and he confirmed that he did.  It was put to the Complainant that he noted in that letter that the Complainant “… will be subject to appropriate action as per company policy and procedure, as there is a further case to answer”.  He confirmed that was included in the letter.  Mr Keane was asked why he refused to clarify for the Complainant on two occasions what this meant.  Mr Keane stated that this was a disciplinary case after the conclusion of the investigation.

It was put to Mr Keane that he stated in the letter that the Complainant had 5 days to appeal the outcome of the investigation.  He agreed.  It was put to Mr Keane that the Complainant received the report on 11/12/2024 just as she was leaving for home, and she queried why this was the case.  Mr Keane felt that this was sufficient time.  It was put to Mr Keane that the five days should have been five working days and not including the day she received the report and as a result of this she was denied the five days and then she was asked on 17/12/2024 to attend a disciplinary meeting on 19/12/2024.

Evidence: Mr Colm McDaid, Disciplinary Officer:

Mr Colm McDaid gave evidence on oath on behalf of the Respondent.  He confirmed that he is the Managing Director of the company.  He set this company up in 2004 and currently employs 18 people.  Their main business in the supply of tiles to the building industry.

Mr McDaid gave evidence that he has worked closely with the Complainant.  She was in the role of Office Administrator.  This role involved dealing with and creating invoices.  He believes that they had a good system in place to process payments.

Mr McDaid gave evidence that he was told by Mr Keane that Ms A raised a complaint at the team meeting, and this had to be looked into.  He advised Mr Keane to do whatever needed to be done and to utilise the services of their HR company.

Mr McDaid said that he became involved when the investigation report was completed.  He became aware that there was an initial incident and the report dealt with a number of incidents.  He was the only person in the company who could carry out the disciplinary process as others were involved in the investigation process.

Mr McDaid gave evidence that in preparation for the disciplinary hearing to consulted with the HR company who provided a template.  He had never undertaken a disciplinary process before.  Mr McDaid said that he wrote to the Complainant and invited her to a disciplinary meeting.  He arranged for this meeting to be held off site. He also arranged for a minute taker to be present at the hearing.  The Complainant attended and was accompanied by Mr Devoy.  Mr McDaid stated that he followed the process and brought the meeting to a conclusion.  Following the meeting he was asked by the Complainant to make a decision quickly.

Mr McDaid stated that having considered the report, statements and the company culture he felt that the Complainant’s behaviour warranted dismissal.  He was shocked at the number of incidents.  Mr McDaid also stated that he did consider other option such as suspension.  Mr McDaid confirmed that he issued the letter of dismissal to the Complainant on 31/12/2024.  Mr McDaid gave evidence that the Complainant was advised of her right to appeal, and she submitted her appeal on 02/01/2025.  Mr McDaid stated that he tried to source an external person to hear the appeal.  He contacted four people and none of these were willing to take it on.  Mr McDaid stated that they received a letter from the WRC on 21/01/2025 notifying them that the Complainant had submitted a complaint of unfair dismissal. 

Mr McDaid gave evidence that they did not progress the appeal hearing after that time, and they did not advise or update the Complainant in relation to this.

Cross examination: Mr Colm McDaid – Disciplinary Officer:

It was put to Mr McDaid that he sent a letter to the Complainant on 17/12/2024 which was day 4 of her 5-day window of appeal inviting her to a disciplinary meeting on 19/12/2024.  Mr McDaid confirmed that he sent the letter.  Mr McDaid was asked if he would accept that he refused to allow the Complainant’s representative to make any preliminary points at the disciplinary hearing.  Mr McDaid stated that he allowed the representative to make an opening statement.  Mr McDaid denied that he refused to allow the representative to speak and stated that he considered it an open meeting.  It was put to Mr McDaid that the Complainant’s representative made a note of his response at the meeting which was “The time for preliminary matters is over, I wrote to you yesterday and I got no response since then.  If there are matters to raise you can do so afterwards”. 

It was put to Mr McDaid that the company had total disregard for any representations on behalf of the Complainant.  Mr McDaid stated that he did not think so and he followed the company handbook when he conducted the meeting.   Mr McDaid was asked if he had regard to the WRC and HSA Code of Practice.  He confirmed that he did.

Mr McDaid was asked if his letter of dismissal made any reference to the Complainant being allowed to cross examine any witness.  Mr McDaid said that there was none.  Mr McDaid was asked if she was advised that she was entitled to bring witnesses.  He confirmed that he did.  Mr McDaid was asked where this was done, and he clarified that he did not do so.  Mr McDaid was asked if he was aware that the Complainant was told that as part of the investigation process, she was not to communicate with any other employee in the company while this was taking place.  Mr McDaid did not provide any clarity in relation to this question.  Mr McDaid was asked if he read the investigation report and he confirmed that he did.  It was put to Mr McDaid that during the Complainant’s meeting with the investigator on 06/11/2024 she was told by the investigator that Ms B told him that the Complainant had spoken to her.  The Complainant was asked by the investigator if she accepted that “… you have spoken or attempted to speak to any other colleague or witness”.  Mr McDaid said that he noted that.  Mr McDaid was asked if in view of that comment he was aware that the Complainant was not allowed to speak with any of her colleagues.   Mr McDaid did not express any view on this.

In relation to his reasoning for dismissal Mr McDaid was asked how the incident of 10/06/2024 could have constituted bullying.  Mr McDaid stated that financial matters relation to Ms A should not be discussed in an open plan office.  Mr McDaid was asked if the Respondent took any action in relation to this incident and he confirmed that he was not aware of any. 

Mr McDaid was asked by the Adjudication Officer to review this incident in terms of the bullying definitions in the Respondent’s policy and if this incident fell within any of these definitions.  Mr McDaid stated that discussing the matter in an open office was wrong.

The Complainant was asked about the second incident which occurred on 30/09/2024 and why he considered this bullying.  Mr McDaid stated that the apology from the Complainant shows that she was aware that this was wrong.  Mr McDaid stated that he considered this to be bullying as the Complainant did not have to speak to the two people involved.  If there was an error in an order this can be changed.  Mr McDaid confirmed that the Complainant was not spoken to about this incident as it only arose during the course of the investigation.  Mr McDaid also confirmed that an employee was spoken to about this, but the Complainant was not.  It was put to Mr McDaid that the reality was that this incident was ignored at the time and then was included in the investigation.  Mr McDaid said that he did not agree.

In relation to the third incident which took place on 07/10/2024 Mr McDaid was asked if he considered this to be bullying and he confirmed that he did.  He stated that his reason for this was that the employee involved felt that she should not have been spoken to in that manner by the Complainant.

Mr McDaid was asked if he would accept that in order to justify a dismissal of an employee over an incident it must have been brought to the persons attention at the time.  Mr McDaid stated that in this case he was dealing with repeated and inappropriate behaviour.

Mr McDaid was asked if the Complainant was ever questioned about bullying and he stated that he was not aware that she was.

In relation to the fourth incident which occurred some 3-4 months previously, Mr McDaid was asked if there was a complaint made at that time.  Mr McDaid confirmed that no complaint was made at that time.  Mr McDaid confirmed that this was first raised by Ms D.  Mr McDaid confirmed that Ms D raised this during the investigation.

In relation to point 5 of the letter of dismissal which stated that the Complainant had breached the dignity and respect at work policy Mr McDaid was asked to explain this.  He clarified that in this case there was repeated inappropriate behaviour and there was a total of four incidents.

It was put to Mr McDaid that in each of the four incidents there were business transactions between employees and there was no action taken by the Respondent in relation to any of these.  Mr McDaid stated that there was repeated inappropriate behaviour by the Complainant.

It was put to Mr McDaid that the Complainant’s representative wrote to him before he made the decision to dismiss, and this letter brought to his attention the Code of practice on grievance and disciplinary procedures.  Mr McDaid said that he received this and that he had regard to the Code.

It was put to Mr McDaid that the code states that the employee is given the opportunity to respond fully to any allegation or complaints and the Complainant was not given this opportunity.  Mr McDaid said that she was given the opportunity during the disciplinary hearing, and he noted that she read out a letter.  It was then put to Mr McDaid that the code also states that the employee concerned in entitled to a fair and impartial trial, that the allegations or complaints are set out in writing and that the employee is given the opportunity to confront or question witnesses.  Mr McDaid did not agree.   It was also put to Mr McDaid that the code states that an attempt should be made to resolve issues on an informal or private basis and the Complainant was denied this right.  Mr McDaid stated that the formal process had begun.  

Mr McDaid was asked if he attended the Respondent’s Christmas Party in 2024 and confirmed that he did.  He was asked if he observed the Complainant the employee who made the initial complaint dancing together.  Mr McDaid said that he left early.  It was put to Mr McDaid that not only were they dancing together but they also travelled home in the same taxi, and this is not what would happen if people were not getting on.  It was put to Mr McDaid that the Respondent made no attempt to assist the two employees reconcile their differences.  Mr McDaid agreed.  Mr McDaid was then asked if this event occurred in September 2024, why did we arrive at a disciplinary hearing on 19th December 2024 and why did it drag on so long.  Mr McDaid stated that at the disciplinary hearing on 19/12/2024 the Complainant indicated that she wanted a speedy answer.  Mr McDaid said that he went into the office over the Christmas period to finalise the matter.

It was put to Mr McDaid that the Code of Practice makes a clear distinction between bullying and harassment.  He was asked if the Complainant was told that she was being accused of bullying and he confirmed that she was, but he was unable to recall when this happened.

Mr McDaid was asked if he acquainted himself with the Health and Safety Authority Bullying Code of Practice and he confirmed that he had not.  Mr Devoy stated that the definition in the code clearly states what is not bullying:  “An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once-off incident, is not considered bullying”.  Mr McDaid said that he had read the statements and it was clear that this case was about repeated inappropriate behaviour.  He had done some research on the definition of bulling before undertaking this process.

Mr McDaid was asked if he was saying that he read the witness statements and took them into account. These were people’s opinions in relation to inappropriate behaviour.  Mr McDaid stated that he was presented with a file, and he considered the totality of what was presented to him.

Mr McDaid was asked if the Complainant was given the right to appeal in his letter of dismissal.  He confirmed that she was and that she was given five days to do so.  It was put to Mr McDaid that the Complainant lodged her appeal after three days and that he failed to organise an appeal.  Mr McDaid stated that he made contact with four separate individuals outside the company and none of them were available to hear the appeal.  Mr McDaid stated that they did their best to organise the appeal and when they received a letter from the WRC at the end of January 2025 containing the Complainant’s referral, they did not progress the matter any further.

Mr McDaid was asked by the Adjudication Officer to confirm that the Complainant was not given any opportunity to cross examine any of the witnesses.  He confirmed that was correct.  Mr McDaid agreed that the Complainant could not be faulted for the failure to have the appeal.  Mr McDaid confirmed that he had done some on-line disciplinary training with their HR company.

Under re direction it was put to Mr McDaid that there was a lot of mention of the Code of Practice S.I. 146/200 during his cross examination.  He was asked how he ensured that the process was fair.  Mr McDaid stated that he constantly sought legal advice from their HR company.

Mr McDaid was asked what the incident on 09/06/2024 involved.  He stated that when Ms A was giving her evidence at the investigation, she mentioned a previous incident which took place on 09/06/2024.  This was how it emerged, and Ms A’s supervisor had to speak with the Complainant to tell her that any issues should be discussed with her, and she would then link with Ms A.  Mr McDaid was asked if he could clarify the incident of 30/09/2024.  Mr McDaid stated that this was when the Complainant came to Ms A’s desk and spoke to her about the cash box.  She was previously told that any issues should be discussed with Ms A’s supervisor.

Mr McDaid was asked how he reached his decision to dismiss the Complainant.  He stated that he looked at each of the incidents independently and then when he saw the totality of the repeated and inappropriate behaviour he concluded that a dismissal was warranted.

It is the Respondent’s position that the preferred remedy is compensation should the dismissal be deemed an unfair dismissal.   The Respondent believes that the employment relation ship is irrevocably damaged.

The Complainant did not give evidence in this case as the burden of proof rests with the Respondent.  A written submission was provided on her behalf.  It was submitted on behalf of the Complainant that the dismissal was unfair for a number of reasons:

·       The Respondent departed from its own procedures when the process commenced.  As this was a flawed process then all decisions consequentially reached were all flawed. The procedures in place are designed to be followed by all parties so as to ensure fair procedures and to confirm to the principles of natural justice.

·       The terms of reference indicated that the Respondent’s “Personal Harassment Policy & Procedures” would be followed.  The Respondent “jumbles all three policies” and in doing so ignored the Code of Practice.

·       The stated reason for dismissal was bullying.  The company did not have a specific bullying policy in relation to bullying as referenced in the WRC and HSA Code of Practice. 

·       The Complainant was the victim of wrongdoing at every level by the Respondent despite the fact that they were advised in advance of the dismissal of their obligation to conform to the WRC/HSA Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work.

·       The Respondent also did not adhere to the provisions and principles of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/200 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000.  Specifically, the Complainant was denied:

1.     The opportunity to respond fully to any allegations and complaints

2.     The right to a fair and impartial determination of the issues and the taking into account of any representation made by or on behalf of the Complainant

3.     The complaints were not set out in writing and that these should be given to the Complainant and that the Complainant be allowed to confront or question any witnesses

4.     The Complainant was denied an attempt to resolve the grievance on an informal basis.

A number of legal precedents were also included as part of the Complainant’s submission.

There was a further submission in relation to the Respondent’s reliance on the case of Frizelle v New Ross Credit Union Ltd [1977] IEHC 137.  This complaint which was investigated by the Respondent was not a bona fide complaint.  There were no formal procedures to outline how a complaint should be set out.  The procedures were ignored by Ms A and her manager who allowed the initial complaint to be raised at a team meeting and some of those present subsequently became witnesses.  There was no note or minute of the meeting where Ms A decided on a formal course of action but never committed her complaint in writing which is a specific requirement and this confirms that it was not a bona fide complaint.

The decision to dismiss the Complainant is flawed on both substantive and procedural grounds.  The dismissal was not proportionate the gravity of the complaint.

In relation to mitigation of loss it was submitted on behalf of the Complainant that she has made some attempts.  There are two difficulties.  The first is that she does not have a reference from a previous employer and secondly, she is only available to work 20 hours per week, similar to what she worked for the Respondent, and it is proving difficult to find jobs with that amount of hours.  The Complainant has applied to about 10 companies and only had one interview to date.  The was unsuccessful in this application.  The Complainant’s representative agreed to provide details of the applications after the hearing.  This documentation was received and showed a total of 10 applications and  one unsuccessful  interview.

CA-00068684-001:  This is a complaint of unfair dismissal seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977.  The fact of dismissal is not in dispute in this case. 

The applicable law, Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states as follows:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

a)      Without prejudice to the generality of subsection (1) of this section 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 one or more of the following:

b)      the capability, competence or qualification of the employee for performing work of the kind which she was employed by the employer to do,

c)       the conduct of the employee,

d)      the redundancy of the employee, and

e)       the employee being unable to work or continue to work in the position she held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the Respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of these sections of the Act requires me to consider whether or not the Respondent’s decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances.  As the Adjudication Officer in this case, it is not my responsibility to establish the guilt or innocence of the Complainant in relation to the events which occurred.  The Employment Appeals Tribunal (EAT) in the case ofLooney and Co Ltd v Looney UD 843/1984provides a valuable summary in relation to the role:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudicator is to assess what a reasonable employer, in the Respondent’s position and circumstances, might have done.  This is the standard by which the Respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied.

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrongdoing.  The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

I have carefully considered the submissions received and evidence presented by both parties at the hearing. 

There was an allegation against the Complainant and an investigation was established by the Respondent.  It is clear than an initial undocumented complaint developed into a total of five complaints. There was a failure to obtain a written statement from any of the people who had complaints and then provide the details of these allegations to the Complainant.  It is not acceptable to convert the notes of individual meetings with the investigator as a replacement for an actual written complaint.  It is also noteworthy that the notes of the meeting with Ms A specifically state “I would like these minutes to be my statement concerning my complaint”.   This confirms that Ms A did not submit any written statement prior to the investigation.  The notes of the meeting appear to have been compiled by the investigator.

A meeting with another witness, Ms B was held on 21/10/2024 (actual note states 2021).  This note of the meeting is given the heading “Statement from ‘Ms B’ 21/10/2021”.   This note or ”Statement” appears to have been compiled by the investigator as this was Ms B’s meeting with the investigator.

There was a meeting with a Mr A on 21/10/2024 and the note of this meeting states that it is “Minutes of meeting with ‘Mr A’ 21/10/2021”.    The minutes conclude with the following sentence “The above is an accurate account of the statement that I gave to Simon Keane on Monday 21st October 2024 during the investigation into the complaint by Ms A against [the Complainant}”.   It is clear from this note that Mr A never provided a written statement.

There was also a meeting with a Ms C on 21/10/2024 and the note of this meeting is headed “Statement [Ms C] 21/10/2024”.  There was no statement provided by Ms C prior to her meeting with the investigator.

There was a meeting with a Ms D on 24/10/2024 as part of the investigation.  The minutes of this meeting end as follows:  I confirm the above is an accurate account of the statement that I gave to Simon Keane on Thursday 24th October 2024 during the investigation into the complaint by Ms A against [the Complainant]”.   Ms D did not provide any written complaint in advance of this meeting.  The minutes of this meeting also appear to have been compiled by the investigator.

If the Respondent had an issue in relation to the allegations made against Complainant, they had a duty to deal with this in a manner which respected the rights of the Complainant.   The report of the investigation clarifies that at the meeting with the investigator all of the witnesses “provided a witness statement” at their meeting.  I find that this does not accurately reflect the position.  These witnesses may gave given a verbal account of their recollections and, in the absence of any written complaint, the investigator converted these into actual witness statements rather than notes or minutes of his meeting with these witnesses.  The Respondent’s grievance policy is explicit when it states “… if you wish your grievance to be formally recorded and investigated then your grievance must be submitted in writing”.   Arising from the foregoing the fact is that the Respondent commenced a formal investigation without having a grievance submitted in writing.  The Respondent’s view that an investigation meeting note, minute or other such title can serve as a substitute for a written grievance is a flawed perception, not only of their own policy, but also of the right of an employee to an objective investigation process.  Once a Respondent invokes a particular policy it is duty bound to adhere to the principles and procedures outlined.

It is not acceptable that the Respondent can seek to rationalise the manner in which it conducted its affairs as being fair and impartial while at the same time ignoring their own policies and procedures and also those outlined in the various codes of practice. 

The decision to dismiss the Complainant without proper and fair involvement by her in an investigation or disciplinary process is not what a reasonable employer would be expected to do.

The Complainant did appeal this decision but there was no appeal hearing organised by the Respondent.  In an unfair dismissal case, it can often be a fatal flaw if an employee fails to appeal the decision.  The same proposition must apply when an employer fails to conduct an appeal which was properly submitted.

The Labour Court in T.E. Laboratories Ltd v Jakub Mikolajczyk  [2019] 30 E.L.R. 198 stated that the guidelines in relation to disciplinary investigations in the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures)(Declaration) Order 2000 (S.I. 146 of 2000) are “not without reason” and are so that “facts can be separated from suspicion and rumour and explanations can be offered by anybody who could, potentially, be facing a disciplinary process”.

The outcome for the Complainant in this case was dismissal with immediate effect on 31/12/2024.  The Respondent failed to conduct a disciplinary hearing in line with the code or any of its own policies. 

Were the procedures followed by the Respondent fair?

In any disciplinary hearing an employee has the right to a fair and impartial determination of the issues concerned, which takes into account any representations made and any other relevant evidence. A right to fair procedures and natural justice is also implied into contracts of employment.  These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment.  The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process. 

It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made.  While these rights may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters.  Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer. 

In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures.  In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first Respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

 I note the Respondent submitted that “the right to cross examination in the workplace is only in rarest and extreme of circumstances”.  In that context it submits that the case of Mooney v An Post ([1998] E.L.R.) is relevant.   What is also relevant is the case In the Supreme Court case, Zalewski v. Adjudication Officer and WRC [2021] IESC 24 the Court was critical of the fact that there was not express provision for cross examination in the Workplace Relations Act, 2015 although it occurred in practice.  It held that this was a fundamental aspect of constitutional fair procedures.  The Court emphasised the benefits of cross-examination as a core part of fair procedures:

“As long ago as Re Haughey, these features of court proceedings, and in particular, the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination … was one of the rights without which no party could hope to make any adequate defence of his good name.’”

The Respondent has a duty to ensure that their procedures are fair and transparent.  The Complainant was entitled to have time to prepare her case and to consult with a representative if she so decided. 

Overall, I find that there have been serious procedural flaws in relation to the investigation and disciplinary process.

The Respondent’s obligation to implement the procedures in accordance with the principles of Natural Justice also needs to be considered.  The decision of the Court of Appeal in Iarnród Éireann v McKelvey [2018] IECA 346 gives clear guidance on the precise employee rights when an employee is faced with allegations of gross misconduct.  Mr McKelvey had been accused of fraudulently using a fuel card.  Although the case concerned the right to legal representation in a disciplinary case, which was subsequently adjudicated upon in the Supreme Court, the Court of Appeal took the opportunity to positively reaffirm and identify the precise rights to which Mr McKelvey was entitled as part of fair procedures in a formal disciplinary procedure:

(i)                  “His right to know the nature of the complaint/allegation against him.

(ii)                His right to know the procedure to be followed in the course of the investigation.

(iii)               His right to know the potential implications of the complaint/allegation should it be established, i.e., the sanction/sanctions that might be imposed.

(iv)               His right to be heard in relation to the complaint/allegation and to make representations in relation thereto.

(v)                 His right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses.

(vi)               His right to call witnesses in support of his stated position.”

The Complainant in this case was entitled to these same rights.

Arising from the foregoing it follows that the Respondent has not dislodged the presumption that the dismissal was not unfair. The Respondent failed to provide any evidence to the WRC or at the hearings to support its case that a fair and meticulous investigation was undertaken.  There were no statements of complaint submitted in the first instance and it is a flawed process to substitute notes or minutes of an investigation meeting for a formal complaint.

Following on from the rights as outlined in the Code of Practice and the McKelvey case above the Complainant’s right to a fair process during the disciplinary hearing was vetoed by the Respondent.  The evidence from the Respondent was that a template was followed.

Having regard to the foregoing points and the totality of the evidence as presented, I find that no reasonable employer would have dismissed the Complainant in the circumstances. There was no fair investigation into the allegations. I find that the dismissal of the Complainant was unfair for the purposes of the Acts and the Complainant’s claim is well founded.

Regarding a remedy, objectively, this employment relationship was not ended on the basis of a lack of trust and confidence.  On a without prejudice basis, it was confirmed at the hearing that compensation or re-engagement may be considered as an option by the Respondent, but reinstatement is the preferred option for the Complainant. The Respondent subsequently advised the WRC that they had reconsidered its position and submitted that if the dismissal was found to be unfair compensation would now be their preferred option.

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal

(1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) 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 (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

The Complainant submitted that she is seeking reengagement for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence to the WRC on mitigation of her loss. The Complainant provided evidence of her ongoing attempts to mitigate her loss.  She obtained no work to date despite applying for 10 job applications and having one interview.  While she made efforts to mitigate her loss, I am satisfied that she has not approached this with the resolve that is set out in the case of the Employment Appeals Tribunal v Continental Administration Co Ltd (UD858/199) where it stated: “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.  The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

I accept that the manner of her dismissal by the Respondent creates difficulties in seeking employment, but I do not accept that this is a complete barrier to the Complainant seeking to mitigate her loss. I also note that due to her personal circumstances she is confined to seeking part-time work.  I note that the Respondent submits that the Complainant’s efforts were insufficient and that three applications were submitted on the morning of the hearing within a three-minute period.   The Respondent submits that if the Complainant did not make reasonable attempts to mitigate her loss than then any compensation must be limited to four weeks.

The Complainant’s obligation to mitigate her loss is set out in Section 7(2) (c) of the Unfair Dismissals Act and this is taken into consideration in any case when deciding on compensation.

For the sake of completeness, the obligation on the employee in Section 7(2)(c) is only one of six tests that are set out in that section and that Section 7(2) (c) does not have a greater primacy than any of the others.  These five tests are already set out above.

It follows from the foregoing extract from the Act [Section 7(2)] that in considering compensation, regard must be had to all of subsection of Section 7 and these tests are not confined to the efforts of the Complainant to mitigate her loss. In this case I find that the Respondent did not meet the tests set out in subsections (a), (c), (d) and (e).  There was no right to fair procedures.

The Complainant submitted that her gross pay from the Respondent was €285.75 per week.  This is not disputed. 

Section 7(3) of the Act allows me to consider “…any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2014, or in relation to superannuation.”  

In the within case that the Complainant had 5.9 years unbroken service with the Respondent.

Having found that the Complainant was unfairly dismissed, I must now consider the remedy and note that the Complainant is seeking re-instatement. 

I have given very serious consideration to re-instatement.  I note the Complainant has accepted that her behaviour was not appropriate and tendered an apology.  I cannot accept that a verbal interaction with colleagues can be the basis for an employer to lose faith in an employee with an unblemished record and who performed her duties in a satisfactory manner for over five years. 

The Complainant was not dismissed on the grounds that her behaviour was “criminal or quasi-criminal in nature”[Desmond Brennan v Institute of Technology Carlow, UD281/2000] such as assault, fraud or theft.  In such circumstances it would be categorical that the bond of trust between the parties would have collapsed.  The event on the 30/09/2024 and other events which were advanced during the investigation, were unfortunate, but I do not believe the Complainant should have lost her job as a result.  Due to the nature of the Complainant’s role, it is possible that the bond of trust can be restored to the extent that a professional working relationship can be established.

I do find that the Complainant contributed to the situation she found herself in.  I accept that she participated constructively in the investigation and disciplinary process.

The Respondent is directed to re-engage the Complainant in her previous role as from the date of this decision.  The period from the date of her unfair dismissal to the date of her re-engagement shall be regarded as a period of unpaid suspension.

CA-00068684-001: I have decided that the complaint of unfair dismissal is well founded.  I decide that the Complainant should be re-engaged in her previous role from the date of this decision.  The period from the date of her unfair dismissal to the date of his re-engagement shall be regarded as unpaid suspension.

Unfair dismissal.  Reengagement.  Procedure.