Complainant

Respondent

Parties

Michelle  Murray

Cagney Contract Cleaning t/a  Cagney Maintenance Service Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Robert Donnelly, B.L., instructed by Padraig Hyland & Co

 Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00062568-001

27/03/2024

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

CA-00062568-002

27/03/2024

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

CA-00062568-003

27/03/2024

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

CA-00062568-008

27/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062568-010

27/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00062568-011

27/03/2024

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

CA-00062568-014

27/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00062568-020

27/03/2024

The Complainant commenced employment with the Respondent on 10/04/2006.  She was a Client Services Manager and was paid €4,903.66 per month.  The Complainant was dismissed on 17/10/2023 following an investigation into various allegations made against her.  The Complainant submitted a number of complaints to the WRC on 27/03/2024 and 24/04/2024 in relation to alleged infringements of her employment rights.  The Respondent denies that the Complainant was unfairly dismissed and seeks to defend all the complaints made against it.

CA-00062568-001:  The Complainant gave evidence on oath.  She confirmed details of her start date and role with the Respondent. She outlined that the only details she received in relation to her terms and conditions was what was outlined in the offer of employment letter which she received prior to commencing employment.  The Complainant gave evidence that her hours of work were often in excess of 60 hours per week. She could be on site from 6.00am to 6.00pm or from 5.00am to 8.00pm depending on the business occurring in the centre.  This was a regular occurrence. She submitted her hours on a weekly basis by email to the Respondent’s office.  Her specific complaint is that she did not get breaks as set out in the relevant Employment Regulation Order (ERO).

Cross examination of Complainant:

The Complainant was cross examined by Mr Kyne on behalf of the Respondent.  It was put to the Complainant that she held the position as a Manager and she confirmed that her title was “Client Services Manager”.  It was also put to the Complainant that as a manager she was expected to manage her own hours and she confirmed that she was.  It was put to the Complainant that she “made the business decision” in relation to her hours of work and she agreed. It was put to the Complainant that she was paid for all her additional hours in 2019 and she confirmed that she was.  The Complainant also agreed that a lump sum payment was applied to her pension and she agreed.  It was put to the Complainant that the Respondent dealt with her additional hours in a fair and reasonable manner and the Complainant did not deny or affirm that it was.  It was put to the Complainant that in an email to her manager on 30/09/2019 she committed to a 39-hour week and she agreed that she did.  The Complainant agreed that she was in constant contact with the Respondent in relation to her working hours and she stated that she provided her hours on a weekly basis.    It was put to the Complainant that after her dismissal  the Respondent completed a reconciliation of her hours which she had submitted and she confirmed that while she received a payment she did not know what the basis of the calculations were.  It was put to the Complainant that as the Respondent paid her for all outstanding hours it was not clear what her complaint was.

In response to a question from the Adjudication Officer the Complainant confirmed that she did not have any figures to outline what she thought she was due or what hours were outstanding.

CA-00062568-002:  The Complainant gave evidence that she was concerned about her terms and conditions after she was suspended.  She requested a copy of her contract of employment and she never received this.  Although she held various positions with the Respondent she was informed that it was company policy not to issue revised contracts of employment.  The Complainant stated that she commenced employment with the Respondent in 2006 and she did not receive a contract of employment.  The Complainant stated in evidence that she was told that she would be working a 39-hour week from Monday to Friday.  The Complainant was asked about the position she held and if there were more terms and conditions associated with this role. She stated that the role was of high integrity and she had to manage a lot of staff and deal with staff related issues.  She also had a role in the hiring of staff and she would regularly be involved in assessing CV’s and contacting people. 

The Complainant confirmed that any staff employed in her area would be issued with contracts of employment.  The Complainant stated that she was not aware of any other employee who did not have a contract of employment.  The Complainant stated that she was surprised when she discovered that there was no contract of employment on file for her when she made her request in May 2023.  The Complainant stated that she requested a copy of this contract so that she could understand what her actual terms and conditions were.  The Complainant confirmed that up to the date of her dismissal she did not receive any details of her terms and conditions.

Cross examination of Complainant:

The Complainant was cross examined by Mr Kyne on behalf of the Respondent. It was put to the Complainant that she received a letter of offer from the Respondent dated 10/04/2006 and she confirmed that she did. The Complainant also confirmed that she had a copy of the company handbook.  It was put to the Complainant that the letter of 10/04/2024 contained all the necessary details of the terms and conditions relevant to her role and was largely in compliance with the legislation then in place.  This letter contained the following:

a)            the names of the employer and employee

b)            the address of the employer in the State

c)            The place of work

d)            The title of the job

e)            The date of commencement

f)            The rate of pay and pay intervals

g)            Hours of work

It was put to the Complainant that anything not contained in the letter of offer was covered in the employee handbook and the Complainant confirmed that she had read this document.  The Complainant confirmed that she was not aware of any other employee who did not have a contract of employment.

Re-Direction – The Complainant:

Under redirection the Complainant confirmed that her employment with the Respondent commenced in 2006. Since then she has taken on additional duties and her role has expanded. The Complainant was asked what changed in her terms and conditions when she moved to the site she was last working in. She outlined that this was a new contract and the events industry was a new area for the Respondent.  The changes to her duties included a larger area of work, she now had to work collaboratively with the centre management, there were specific requirements in terms of preparation for an event and this depended on the type of event, the number of staff and she was now involved in costings and audits.  The Complainant confirmed that she was never notified in writing about the changes to her duties and conditions of employment.

The Complainant outlined that the effect of these significant changes was that she had to take work home and that she had increased duties in terms of management of staff. She was the manager and had a core team of 7 and a team of 25-30 event staff.  The Complainant gave evidence that she received no assistance unless she asked another manger within the organisation.

The Complainant stated that prior to 2010 she worked in a static environment and the new environment was very different and was driven by events.  She did not receive any training in relation to taking on this new role.

CA-00062568-003:  The Complainant gave evidence  that she was never notified of any changes to her terms and conditions of employment.  She stated that she moved to the Client Site and was not provided with any details of her revised role. 

CA-00062568-008:

The Complainant gave evidence on oath at the hearing on  06/05/2025.  She outlined details of her employment history with the Respondent.  She worked from 2003 to 2023 as the Client Services Manager.  The Respondent had a portfolio of 40 sites and approximately 140 staff.  In 2010 the Respondent was the successful bidder for a new contract in Dublin City.  The Complainant became the Client Services Manager on that site.

The Complainant confirmed that for the duration of her employment there were no complaints made against her and she was not subjected to any disciplinary action.  The Complainant gave evidence that in the new site her role developed as the events industry was a new venture for the Respondent.  The Complainant had previous event experience and she worked well with the management team in the client site.  The Complainant stated that as this was a public/private partnership the Office of Public Works (OPW) set daily, weekly, fortnightly and monthly KPI’s.  These were overseen by the OPW and her role was to deliver the requests to meet these KPI’s.   The purpose of these KPI’s was to set a standard for the duration of the contract.  The Complainant was asked who oversaw the training.  She outlined that when the contract was awarded the KPI’s in relation to training were set in the Service Level Agreement (SLA).  The Respondent has no training programme and the Complainant gave evidence that she set up a training programme for this client site.  She confirmed that this was done under the authority given by the Respondent’s director and the CEO of the client site.  The Complainant gave evidence that during her time there she never failed an audit.  The Complainant was asked if there was any of the KPI’s relevant to the staff of the client site.  She explained that there were some SOP’s that crossed over and were relevant to all departments and there were some SOP’s specific to particular departments.   The Complainant stated that there was never any issues or problems identified.  The audits were done and there was references at the OPW quarterly meetings to the good work which was done on the client site.  The Complainant outlined that the terms of the SLA required the Respondent to have 50 trained staff ready and available depending on the size of the event taking place.

The Complainant gave evidence that her management style was good and she never had any complaints.  She regularly had requests from staff who were working on other sites to transfer to her site.  The Complainant confirmed that there were many long-term staff and she had a good relationship with all.  She would deal with most staff on a daily basis.  The Complainant confirmed that she was not a member of the Respondent’s Senior Management Team.

The Complainant was asked about the time she took off for family reasons.  She stated that she had two periods of time off in February 2023 and from March to May 2023.  She looked to reduce her hours  and work from home on occasions.  The Complainant confirmed that this was a verbal request which she made.  The Complainant also explained that she took Force Majure leave in February 2023 due to a change in family circumstances.  The Complainant stated that in seeking to reduce her hours she proposed a flexible approach and she did not require set days and she could organise to work around family circumstances.  The Complainant stated that Mr Curran did not feel that the proposal would work and he also did not want to set a precedent.  He remained unsure about how it could work out.  The Complainant stated that since she made the request nothing further happened.  She was on sick leave from 23/03/2023 until 04/05/2023 at the encouragement of Mr Curran.  The Complainant stated that there were no issues of concern brought to her attention at this time.

The Complainant outlined that in January 2023 the Respondent was dealing with a personal injury claim in the High Court.  This issue was going on for a number of years.  The Complainant gave evidence that her risk assessments and various reports were being relied upon by the Respondent in its defence of this claim.  She was asked by the Respondent and their insurers  to attend Court and she confirmed that she was happy to give evidence to assist the Respondent.  There were no concerns raised about her documentation and the facts in relation to that case were relying on her records including signed training records.  The outcome of the case was that settlement terms were agreed.

The Complainant gave further evidence that on the day of the High Court hearing she spoke with Mr Curran to say that she would be back at work on 04/05/2023.  He arranged for her to attend the company doctor on 28/04/2023.  As a result of this a report was sent to the Respondent.  Her return date was verbally confirmed and the Doctor’s report stated her return date as 04/05/2023 and also recommended flexibility in relation to her family circumstances.   The Complainant stated that as of 04/05/2023 she would have been out of work for six weeks.

The Complainant outlined that she returned to work on 04/05/2024 as planned.  She met with her deputy manager who seemed surprised to see her.  Mr Curran had failed to inform her deputy about her return date.  They went for coffee and the Complainant stated that she observed that her deputy was “distant”.  She was given an update on issues while she was out and in particular about one member of staff who had ongoing issues.  The Complainant clarified that she was previously involved in this issue and on the advice of HR she was advised to bring the two people together and see if she could find common ground and sort the matter out. One of the employees was not agreeable to this so it did not proceed.   The Complainant outlined that she was requested by Mr Curran to travel to his office for a meeting.  He said that he was not aware that she was back at work and this was the normal catch-up meeting which would take place after being off for a period of time.    The Complainant gave evidence that she was on annual leave for 23 days in January 2023 and in 2019 she took 8 weeks off for travelling reasons. The Complainant stated that she spoke with the client site manager and then she travelled to meet Mr Curran.  She observed that he was different to normal and she described him as being “hostile” and she did not get a good vibe.  Mr Curran went straight into the allegations against her and told her that there were a number of allegations including to the falsification of training records, taking people into a room to speak to them and using derogatory language about colleagues.   The Complainant stated that she was not provided with any evidence at this meeting and she felt ambushed and blindsided.  She was given no opportunity to defend herself and she was verbally suspended by Mr Curran and she was told not to speak with any of the Respondent’s staff or any staff on the client site.  The Complainant stated that she was shocked and upset at what had occurred and she had to travel 100km home after this.  The Complainant stated that she was not aware prior to the meeting of any of the allegations apart from the fact that she was aware Ms Sanchez had sent in  a complaint about the blue hair incident.  She did not get a copy of anything until 10th May 2023.  This letter did not provide copies of all the complaints.  The Complainant was asked what her thoughts were after the meeting on 04/05/2023 concluded.  She stated that she could not believe what was said but she was not told who said it or what it was about.  She was distraught leaving the meeting.  The Complainant confirmed that prior to 04/05/2023 she was never aware of anything and nothing was brought to her attention.    She was shocked to find out about these allegations and she was not aware of anything and if there was anything these could have been addressed in an informal manner.  The Complainant stated that it was her experience that things were usually dealt with in an informal manner and it was also her practice to try and deal with things in this manner.  The Complainant stated that if something was to be dealt with through the grievance procedure the employee would be asked to put the grievance in writing.

The Complainant stated that after the meeting with Mr Curran she received an email from HR on 05/05/2023.  The Complainant confirmed that the copy opened at the hearing was the letter. The Complainant stated that this was the first written account of the complaint.  The Complainant stated she did not know what the paragraph which referred to training records for Ms Sanchez was about.  The Complainant stated that she had to wait until the allegations were given to her before she made any request.  These were sent to her on 12/05/2023 from HR and she was invited to a meeting on 16/05/2023.  The allegations were unsigned and were from three staff members.  The Complainant noted that these allegations were all typed and it was her experience that if an employee had a grievance they would write it out themselves.  The Complainant confirmed that all the people who submitted complaints were employees of the Respondent.  The Complainant stated that she looked for a postponement of the meeting on 16/05/2023.  She had no access to information in order to defend herself.  This letter was the totality of the information she received.  Her request for an extension of time was granted and the then attended a meeting on 19/05/2023 with HR and a copy of the notes of this meeting was opened at the hearing.  The Complainant confirmed that at that stage there were a total of five complaints against her.  The Complainant stated that at the meeting she questioned why the reports were not signed and also why no staff from the client site were not being interviewed as part of the investigation.  The Respondent refused to deal with any staff from the client site.  The Complainant stated that one person refused to engage with the investigation as she left employment early January 2023.  The Complainant stated that this employee submitted a complaint stating that she was not fairly treated and that she was made feel anxious at work.  The Complainant was shocked to see what this employee wrote as she had provided this employee with a lot of support.  The Complainant felt that the purpose of this complaint was to support Ms Sanchez’s complaint.

In relation to the four allegations the Complainant stated that the first was from Ms Sanchez who said that she was not respected by her.  The Complainant outlined that she was contacted by staff from the client site to say that one of her staff had presented for work with blue colour in her hair and this was not allowed.  The Complainant stated that having a colour like this was against the  dress code.  The Complainant stated that she contacted the duty manager and supervisor in order to confirm that it was one of her team that had this blue colour.  It was confirmed to her that the person was Ms Sanchez.  The Complainant was confident that Ms Sanchez was aware of the policy as she had undergone induction training on two separate occasions.  The Complainant outlined that she contacted Ms Sanchez after it was confirmed who was responsible. Ms Sanchez confirmed that she had her hair-coloured blue and sent the Complainant a picture.  The Complainant advised Ms Sanchez that she would have to change it.  Ms Sanchez stated that she did not want to cause any problems.  The Complainant also stated that she contacted the duty manager to ask why Ms Sanchez was allowed on site and why the manager did not implement the policy .  The Complainant outlined that Ms Sanchez was upset and she left the site.  She sent a WhatsApp message to Ms Sanchez to say  that she would like to meet with her to discuss the incident.   Ms Sanchez did not meet and the Complainant was clear that she was the only one who tried to reach out to Ms Sanchez.  Ms Sanchez stated that she could not met as she was out of town and their schedules did not align. 

The Complainant was asked what grievance Ms Sanchez had against her.  The Complainant thought that her grievance was against the two managers from the client site who had brought the hair colour to the managers attention.  The Complainant stated that it was her intention to discuss this incident in an informal manner but there was no opportunity to do so.  She was on sick leave after this but she did inform Mr Curran about the incident.   The Complainant stated that she received no further update in relation to Ms Sanchez until she received a copy of her complaint form HR.  The Complainant stated that Ms Sanchez left on her own free will.  She could have returned as she was paid for the full day.  She decided not to come back and submitted her letter of resignation on 14/03/2023.  The Complainant stated that she had concerns about the content of the letter when she stated that her rights were not respected and she was not treated well by her manager.  The Complainant stated that Ms Sanchez stated that she decided to leave and the Complainant refutes any suggestion that she discriminated against Ms Sanchez in any way. The Complainant gave evidence that the Respondent’s employee handbook had a provision that employees were obliged to comply with any on-site policies and as Ms Sanchez had undergone the induction training this would have been pointed out to her.

The Complainant stated that her relationship with staff was good on 14/03/2023.  She had an open-door policy and she treated people respectfully.  She was always available to discuss any aspect of the day-to-day business. 

The Complainant confirmed that she attended an investigation meeting on 19/05/2023 and she tried to understand what it was about.  The Investigation was commenced by Ms O’Carroll from HR.  The Complainant believed that there were four complaints to be  investigated.  There were a number of other complaints and the Complainant confirmed that she asked that these also be investigated.  The Complainant stated that she requested that employees of the client site named in the complaints should be interviewed as part of the investigation.  The Complainant gave evidence that when she attended this meeting she outlined her concerns at the outset.  These included the manner in which the investigation was commenced, the three unsigned reports which were to be used in the investigation and that one employee had mentioned a number of people and this included a number of employees of the client site and this was the reason that she specifically asked Ms O’Carroll to follow this up with all the named employees.  The Complainant stated that she advised the investigator that she should be given all information before she was required to answer any questions. She stated that the investigator should also have all this information.  The Complainant clarified that the notes of the meeting recorded that she said that she wanted the investigation “to be fair and equal to everyone” and she clarified that that was the way she approached things and she wanted this investigation to be fair.  She confirmed that she had concerns because one individual had mentioned a lot of people and she felt that it was essential that Ms O’Carroll should follow all these up.

The Complainant confirmed that the only reports she seen out of the 20 people mentioned were from the Respondent’s staff.  Her concern was that there was a common thread running through the three unsigned reports.  The allegation of derogatory language used by her did not have any times or dates and there were no more that “stories”.  The Complainant was asked to clarify what she meant by the statement that “I am prepared to take this the full length of its course”.  She stated that she wanted to clear her good name and her character.  These allegations were attacking her and she could not defend herself.  The Complainant stated that she could only defend herself is she had access to the system where she could obtain more information.  The Complainant stated that this information would include risk assessments, method statements, her work diary and notes of meetings with the client site managers in relation to issues with one of the people who complained about her. 

The Complainant confirmed that training would continue when she was off as there was a training planner and schedule for the year and some  training was pre booked.  The Complainant stated that if she was given access to the system she could show that there was a consistent level of training  and the information could have clarified a lot of questions.  This information could also have been obtained by Ms O’Carroll but none of this was presented to her during the investigation.  It was the Complainant’s position that the Respondent wanted to control the narrative as this information could be used to defend the Complainant.

The Complainant outlined that following the meeting on 19/05/2023 Ms O’Carroll was to meet with the people mentioned on one of the complaints.  However, she only spoke to the Respondent’s employees and this was unfair.  The Complainant stated that the consequences of this was that she was dismissed from her employment and if the client staff were interviewed “we would not be here today” (in WRC).

The Complainant stated that she was informed by the then head of the HR department that the HR company, MSS, would be involved in the disciplinary process.  They never reached out to her to get documents that she could use to defend herself.  She did get the background report which was sent to MSS and this was compiled by Ms O’Carroll.  The Complainant felt that this report portrayed her in a bad light and it was very negative about her.  Given her length of service it was unfair that this report was confined to a six-month  period.  No former employees were interviewed and overall this was a disingenuous report.  The Complainant stated that this report outlined seven areas of concern.

The disciplinary hearing was conducted by Ms Tara Daly, MSS.   Her letter of 08/08/2023  inviting her to the disciplinary meeting on 18/08/2023 outlined nine allegations against her whereas the Respondent had listed seven allegations.  The Complainant said that she was concerned when she went to the disciplinary meeting as she was not portrayed in a fair manner by the Respondent.  She submitted a written report at that meeting.  The Complainant stated that at that meeting Ms Daly did not have a copy of the employee handbook and she adopted a structured approach to the meeting.  The Complainant was asked to review each of the allegations.  In relation to Allegation 1 (Tippex on training record) the Complainant stated that she was concerned because Ms Sanchez had an induction when she was reemployed.  She is no longer an employee and the Complainant believed that Ms Sanchez submitted this complaint as she knew that she made a mistake in relation to the hair colour.  This “triggered a series of reactions and created a frenzy”.  The Complainant confirmed that the induction was completed for Ms Sanchez and 10 other employees on 17 November.  The Complainant stated that this was the date Ms Sanchez completed her induction and she is aware of this from the Mega HR system.  The Complainant stated that the hard copy of the training document opened at the hearing had a date of 30/11/2022.  She confirmed that she did not alter this or any other document.  The Complainant stated that changing a date would have serious consequences for the SLA and KPI’s.  These documents were stored in a cabinet in her office and this office was accessed by managers, supervisor and team leaders.  The Complainant was asked about the statement that another employee (Ms L) witnessed her using Tippex.  The Complainant stated that this was “completely false” and that she did not change any training record.  This document was retrieved from the folder in the cabinet in the office.  The Complainant was asked what her response was to Ms Daly’s finding that she “deliberately provided fraudulent training documentation to the HR Department in Cagney’s cleaning”.  The Complainant stated that this finding was clearly untrue as she did not deliberately provide false information to the HR department.

In relation to the second allegation which was that she instructed employees to sign for training they had not completed,  the Complainant explained that training is done in four stages:  Induction, took box, Cagney Training such as manual handling, chemical training  and the fourth stage, which is Certified training, e.g., working at heights, use of ladders, first aid.  The Complainant stated that she did not know what training was referred to in this allegation.  At no time was it ever brought to her attention that employees were employees signing for training before it was completed.  The Complainant stated that she disagrees with Ms Daly’s finding that she was aware of the practice.  The Complainant stated that this finding is also untrue.  She never asked an employee to sign in advance and she is happy to stand over her training records. 

The Complainant was asked about the third allegation which was that she shouted at Ms Labriola.  The Complainant stated that Ms Labriola had made a significant number of complaints against her.  The Complainant stated that it must be noted that this employee worked for three months for the Respondent and given the period of time the Complainant was off the maximum amount of time this employee worked with the Complainant was 35 days.  The Complainant agreed that this complaint was not upheld.  The Complainant believes that many of the complaints by Ms Labriola were taken out of context due to the layout of the site and the working environment.

The Complainant was asked what her response was to the fourth allegation which was that she instructed an employee (CD) to lie to HR during an investigation. The Complainant gave evidence that the context of this was that another employee (AM) submitted a grievance against CD and the Complainant investigated this.  She could find no evidence to support this grievance and she advised the employee, AM, to go to HR.  The Complainant stated that she could not have verbally abused the employee on the 8th March in front of 3 people as she was in the Respondent’s head office and did not return to the site until about 3.50pm.  The Complainant stated that this was as important fact as two of the employees finished work at 3.00pm and the third was not working on that day.  The Complainant denied that she ever told CD to lie for anything.  The Complainant stated that she investigated the grievance and met with the relevant people in order to establish what happened.  There was a difference of opinion between both employees and she asked them to work professionally.  She did advise them to refer the matter to HR if they were unhappy but at no stage did she ask anyone to lie to HR.

The Complainant was asked about the allegation that she was shouting on the radio at colleagues.  The Complainant stated that she noticed that the individuals named in this complaint are the same as those named in the original statements.  She felt that these employees have collaborated together and that there was no factual evidence such as dates and times provided.  The Complainant stated that the radio system is owned by the client site and consists of 15-16 radios which are about 13 years old.  There was a business case made for their replacement in August 2022.  The Complainant gave evidence in relation to how these radios are operated.  While most had an earpiece there were some which did not and the voice on the handset would seem louder.  The Complainant stated that she never intentionally shouted down the radio and there was no evidence that she had done so.  There were no dates and times and all that was submitted was “just a sweeping statement”.  The Complainant stated that she disagrees with the finding that she shouted and if there was a clear allegation it would be easy to recall as each event has an ID.  The Complainant stated that you have to take into consideration the area where the person is working or based at the time the radio was in use.   The Complainant stated that she never took offence at anyone speaking to her over the radio. 

The Complainant was asked about the allegation that she tried to blame Ms Labriola that HR discovered breaches in working times for employees who were visa holders.   The Complainant stated that this never happened.  This Complainant was also made by Ms Labriola and she provided no evidence.  This complaint was not upheld.

The Complainant was asked about the complaint which alleges that she used derogatory nicknames and vulgar language when speaking about some employees.  The Complainant  stated that this complaint was also made by the same three individuals.  She is appalled at the use of the language described. The Complainant stated that she has worked on the site for 13 years and if it is alleged that she behaved in this way why was it never brought to her attention.  The Complainant stated that the behaviour complained of “it’s not who I am”.  The Complainant stated that she was horrified and disgusted when she read the allegation.  She denied that she ever conducted herself in that manner.  It is clear that the same three people have collaborated and backed each other up.  If the site employees were interviewed as part of the investigation they would have given evidence that that is not in her character to behave in the manner described.  The Complainant disputes the finding that this allegation is upheld.  There was no evidence and employees had many opportunities to highlight issues but no one did. The Complainant stated that all she has to confirm that she did not use this kind of language is her work and she provided the hearing with print outs of her WhatsApp conversations with colleagues and these clearly show that they had a good working relationship.

The Complainant was asked about the allegation that she changed hours on payroll to bypass overtime payments to employees.  This complaint was also made by Ms Labriola and there was no evidence of any employee not being paid correctly.  The Complainant stated that she had overall responsibility for ensuring the correct payments are made.  The Complainant clarified that the correct payments are - basic,  late shift, Sunday and overtime payments.

The Complainant stated that in relation to the allegations put forward by Ms Labriola she was the one who had the most to say and she was the one who worked the least amount of time with the Complainant.  The Complainant believes that she colluded with the other two employees when making these allegations.  The report made by Ms Labriola to Ms O’Connor had a lot of discrepancies and these were not followed up.

In relation to the conclusions made by Ms Daly the Complainant stated that Ms Daly believes that she is a dishonest person, that she falsified records and that she compromised the integrity of the company.  The investigation did not follow up on any of the discrepancies and the Complainant states that she totally disagrees with Ms Daly’s finding.  The Complainant stated that she worked on the client site for 13 years and the investigation only looked at the last 6 months of her work.  They could have reached out to many senior people in relation to her integrity but they failed to do so.  She was on leave on many occasions and if there were issues like these people could have spoken out but they did not do so.   The findings are unfair and unfounded.

The Complainant was asked if her continued employment was untenable.  She stated that if this entire matter was handled correctly from the offset and people were met and had a conversation all of this could have been sorted.  The Complainant stated that the Respondent did not deal with these grievances in line with their procedure.  The Complainant was told that once the decision was made she could not have a meeting with Mr Curran.  She was given no opportunity to defend herself.  She confirmed that she appealed the decision within the time frame outlined.

Her appeal was heard by Mr Barry.  The Complainant stated that Mr Barry came to the same conclusion as Ms Daly.  Mr Barry said that he gave her an opportunity to change her story.  The Complainant that all along she gave the facts and she had no reason to change these.  The Complainant stated that her references to “collusion” were the three unsigned reports and the similarities in the complaints. The Complainant was asked to clarify what she meant by the word “discredit” which was referenced in Mr Barry’s letter.  The Complainant stated that she sent an email to Ms Daly and HR in relation to the investigation and she felt that the report sent to Ms Daly by the Respondent was designed to discredit her.  This report talks about her in a very poor light and there is nothing positive noted despite the many things she done to assist the Respondent over the years.   The Complainant was read an extract from Mr Barry’s letter which said that she presented no evidence to support her view that the investigation or HR were out to discredit her or that the people who made complaints were conspiring against her.  The Complainant stated that the Respondent did not follow the grievance procedure.  She stated that a complaint is usually an informal process and a grievance is in writing and outlines days and dates in relation to what happened.  The Complainant stated that she believed the employees may have had a grievance but the procedure was not followed.  She also stated that these grievances were not given to her.  The Complainant stated that Mr Barry said that there was clear evidence of her unacceptable behaviour but she had not seen any of this evidence.  The Complainant stated that there were many different nationalities working for the Respondent and she has always treated the employees respectfully.  The Complainant also stated that she does not know what presentations HR obtained from the client site as part of the investigation.  The correct presentation is available but there was no evidence that they got it.  The Complainant said that she did not falsify any document and she did not use Tippex on any document and she has no knowledge of how it got on the document.  The Complainant confirmed that she still maintains that the behaviours complained of did not take place and there was no evidence produced that she did behave inappropriately.  The Complainant stated that she wanted to make it very clear that “I’m not changing my story, it is how it is and it did not happen”. 

The Complainant also gave evidence that during the appeal Mr Barry did not have access to the employee handbook.  She confirmed that she sent it to him on 6th November.  In relation to Mr Barry’s outcome the Complainant stated that she was informed by the client site that they were processing her exit.  She does not know how they were informed of this.

The Complainant stated that Mr Barry was very partial in his findings.  He undertook a character assassination of her and this is clear from his letter.  He took away her good name and character and he stated his opinion of how he found me.  The Complainant described this as disrespectful and hurtful. 

In relation to redress the Complainant stated that she is seeking to clear her good name and reputation and restore her character.   The WRC hearings were the only opportunity she got to speak.  Her livelihood was taken away after giving the company 100% at all times over the 17 years of her employment.  All her good work and name were taken away from her by the Respondent. 

The Complainant provided details of her calculations in relation to her mitigation of loss.

In response to questions from the Adjudication Officer the Complainant confirmed that she was paid in lieu of notice from October 2023 until 19 December 2023.  She worked one day per week from January 2024 until February 2025 and received €19,200.00 from this employment.  The Complainant outlined that she is in receipt of Carers Benefit and the reason she only worked one day per week was to avoid exceeding the earnings threshold to qualify for the Carers Benefit.

The Complainant also outlined that her loss of earnings was €35,770.92 and she had pension and bonus losses of €16,504.96.  The Complainant submitted that her salary prior to dismissal was €59,168.16 and if her complaint was successful she was seeking the maximum award from the WRC of 104 week which she calculated would be €118,336.32.

Cross examination of the Complainant:

The Complainant was cross examined by Mr Kyne on behalf of the Respondent. Mr Kyne stated that he would commence by dealing with the Complainant’s loss of earnings and mitigation of her loss. 

It was submitted on behalf of the Respondent that the Complainant’s  calculations were not correct.  As she was in receipt of Carer’s Benefit the maximum number of hours she could work in any week was 18.5.  Her daily pay while working for the Respondent was €227.50.  Mr Kyne noted that her actual loss, including bonus payment,  based on her availability for work was €25,387 and when her payment from carers benefit was deducted her loss was €6,187 and therefore the maximum award for a successful claim would be €12,400.

The Complainant was asked if she considered the training record for site induction to be a valuable document.  She confirmed that it was.  The Complainant was asked if this was a log of training why was Tippex used on it.  The Complainant stated that she did not know why it was Tippexed.  It was put to the Complainant that the COVID-19 training record was a photocopy of the original.  She was asked to confirm that it was completed in black ink and that the example of certain dots were in exactly the same place.  The Complainant confirmed that it was.   It was put to the Complainant that the quality of the print on the COVID-19 sheet is a copy of the Induction training sheet and she was asked if she could explain the similarity between the two documents.  The Complainant stated that in the Mega HR system there are records of the training kept by HR.  She stated that she does not know why the sheet was changed.  It was put to the Complainant that she was the only person who could have benefited from the change.  Ms Sanchez gave evidence that she did not receive induction training but it the Complainant who created the record.  The Complainant stated that she did not create that record.  The records in Mega HR are incorrect and don’t match up.  The Complainant stated that she disagreed with the suggestion that her credibility had been undermined.  She stated that she stands by the fact that she did not doctor the document.  She submitted the document to HR in good faith.

The Complainant was asked to elaborate on her meeting with Mr Curran seeking flexible working arrangements.  She stated that she looked to reduce her working week to four days and work from home on some of those days.  It was put to the Complainant that this was not Carer’s Leave.  She stated that she disagreed.  It was put to the Complainant that if she was granted carer’s leave she could only work two days per week.  She agreed that was the rule.

The Complainant was asked about the issue between two employees that she dealt with.  She stated that the issue first came to her attention in November 2022 and following this one of the employees went on three weeks leave. The issue was that the instructions he was receiving from his supervisor were causing difficulties.  These issues were just between the two named employees.

It was put to the Complainant that it was unlikely that a conspiracy could occur if two of the employees are not talking to each other.  The Complainant explained that one of the people was aware that she had reached out to HR but the comments were from the female employee involved in this incident.

It was put to the Complainant that when the blue hair incident arose there were difficulties between these two staff. The Complainant agreed that was the case.

The Complainant was asked if her entire defence was that there was a conspiracy against her and yet her evidence is that there were serious issues between two of them which were not resolved.  The Complainant stated that it was Ms L who had issues with her colleague. 

It was put to the Complainant that Ms Sanchez gave evidence that she did not know about the on-site procedures and she did not get the induction training.  The Complainant stated that could not be correct.  When she was rehired she was given a copy of the employee handbook and she did have induction training.  It was put to the Complainant that there was no valid record of Ms Sanchez’s induction training.  The Complainant stated that there was but the date was incorrect.

It was put to the Complainant that Ms Sanchez did not sign any document for induction training and she only signed a document for COVID-19 training.  The Complainant said that she disagreed.  The company did look for records and if it’s in dispute then the Respondent could look at all the records.

It was put to the Complainant that it was her evidence that the shouting on the radios was dependent on the radio and the environment.  People shouted at her and she did not complain.  She was asked if she accepted that it was the people who complained that perceived it as shouting.  The Complainant disagreed and said that it depends on what people say and how they say it.  The Complainant stated that she knows and understands the environment they are working in.

It was put to the Complainant that she dealt with employee grievances in an informal way.  She agreed and stated that she listened to both sides then applied work standards and encouraged a team effort.  The Complainant was asked if she would accept that such an approach would not be acceptable when dealing with the falsification of records.  The Complainant agreed that it would require a different approach but stated that she would have expected to have been asked about the document in the first instance.  The Complainant also agreed that when dealing with issues such as instructing someone to lie or making derogatory comments could not be dealt with informally.  The Complainant agreed that these were serious offences.

It was put to the Complainant that she was given an opportunity when she met Ms O’Carroll to have her say in relation to the complaints.  The Complainant agreed.   It was also put to the Complainant that she was told in advance what the issues were. There was a complaint also made about her behaviour and during the course of that investigation the false document issue came to light.  The Complainant disagreed.  She stated that the employees were not invited to put their complaints in writing.  It was put to the Complainant that the complaints were put in writing by Ms O’Carroll and then Ms Daly. The Complainant stated that the employees had a grievance and they should put it in writing.

The Complainant was asked if she, in any of her meetings, said that the attendance document was a monthly log.  The Complainant stated that it is a record of the monthly training delivered and during the meetings she answered the questions she was asked.  It was put to the Complainant that Mr O’Keeffe gave evidence that there was one sheet per day.  The Complainant disagreed and stated that Mr O’Keeffe did that for the training modules he delivered.

The Complainant was asked to clarify her evidence that there were a large number of issues raised by Ms Labriola but only a small number were investigated.  The Complainant stated that it was difficult to follow all her complaints.   The Complainant was asked if there was any other explanation for three people making these complaints.  The Complainant stated that these people were not present in the WRC to give their evidence.  It was put to the Complainant that they gave their evidence to Ms O’Carroll.  The Complainant disagreed and stated that they made their complaints in March 2023 and met with Ms O’Carroll in May 2023.  It was put to the Complainant that the opportunity to collaborate does not prove they collaborated.  The Complainant stated that there was very similar wording in each complaint. 

It was put to the Complainant that her claim of collusion is undermined by the fact that two employees were having difficulties and not allies.  In the absence of such a conspiracy the only logical conclusion is that they are telling the truth.  The Complainant stated that she does not accept that proposition.  The employee who had the most to say was the one with the least amount of service while the employee who worked the longest had the least amount to say.  This employee previously had opportunities to lodge a complaint but he did not do so.  It was put to the Complainant that when she was suspended there was a safe space created and Ms Sanchez’s complaint encouraged others to speak up.  The Complainant  disagreed and stated that there were multiple times she was away and those employees could have gone to any manager if they had a complaint.  The Complainant stated that prior to the blue hair incident they all had a good relationship, including Ms Sanchez.  The Complainant stated that it was clear to her that “it was Ms Sanchez saying that she was going to the Embassy that caused chaos”.

The Complainant was asked how Ms Sanchez’s complaint to HR could cause chaos.  The Complainant stated that Ms Sanchez informed the team that she was going to the Embassy to see about her rights.  Her action caused chaos in the team as Ms Labriola had allowed her on site with the hair colour.

It was put to the Complainant that her defence was not credible and her credibility has been compromised.  The Complainant stated that she disagreed.

Re-direction – the Complainant:

Under redirection the Complainant was asked about the carers leave application and she confirmed that nothing was agreed at that time.

The Complainant was asked if the Respondent was correct that the conspiracy was her only defence and she is saying that the truth is her defence.

CA-00062569-020:  The Complainant gave evidence that in February 2023 her circumstances changed as a result of a parent being hospitalised.  At that time she took force majeure and annual leave.  She returned to work on 27/02/2023 and asked Mr Curran, Managing Director, about reducing her hours of work to four days per week and to work two of those days at home.  This was to enable her to be closer to her parent

The Complainant gave evidence that this request was met with hesitation and Mr Curran did not think it would be a runner.  The Complainant spoke to the CEO of the centre where she was based and he was supportive of her reducing her working week.

The Complainant gave evidence that she attended a court hearing on 20/04/2023 to give evidence in a case involving the Respondent. She was a witness to a claim against the Respondent and her role in ensuring the proper completion and documentation of the risk assessment was pivotal in a settlement agreement.   At that hearing she spoke to Mr Curran and informed him that she would like to return to work and that she would have to re-evaluate her work.  She was asked to attend the company doctor for an assessment and the Complainant confirmed that she did.

The Complainant was asked to outline her request for  Carers Leave and she stated that she returned to work on 04/05/2023 and she had agreed to meet with Mr Curran on 05/05/2023.  She had a letter prepared but did not get an opportunity to present this.

The Complainant stated that she received no feedback in relation to her initial request and it was her intention to discuss this in more details with Mr Curran on 05/05/2023.  She was aware of the requirement to give six weeks’ notice of the intention to take this leave and she had hoped to take this leave from July 2023.

The Complainant stated that she felt that Mr Curran opposed her request from the time she first mentioned it to him.  She asked him to look at it on a case-by-case basis but she felt that she was not going to get anywhere with her request.

The Complainant gave evidence that this had a huge effect on her as her home circumstances had now changed.  The Complainant stated that she was entitled to Carers Leave and she took it after her subsequent dismissal by the Respondent.   The Complainant confirmed that this leave was necessary as she was required to provide essential care to a parent in what was a challenging situation.

The Complainant stated that from a personal perspective she felt undervalued and not appreciated by the Respondent after her years of dedication and commitment to the Respondent.  She felt unsupported in relation to her personal circumstances and she stated that she would be happy with a medium amount of flexibility.  The Complainant stated that the management on the client site were very supportive and she could see no reason why the Respondent would not be able to have another manager provide cover in order to facilitate her request.

Cross examination of Complainant:

The Complainant was cross examined by Mr Kyne on behalf of the Respondent.  The Complainant confirmed that she never posted the letter of application for Carers Leave.   It was put to the Complainant that her discussion with Mr Curran was only a “sounding out” and was one of a number of issues discussed with Mr Curran.  The Complainant stated that she did not remember this.  It was put to the Complainant that Mr Curran made a note of the meeting and this stated that she had requested a four-day week and that Mr Curran would review and revert.

It was put to the Complainant that she was offered paid leave by the Respondent and she confirmed that she was.  It was also put to the Complainant that when she attended the court case on 23/04/2023 she was on paid sick leave and she confirmed that was correct.  The Complainant also confirmed that she returned to work on 04/05/2023 and she attended the company doctor at the end of March 2023.  The Complainant stated that she was deemed fit to return to work on 04/05/2023.  The Complainant confirmed that she met Mr Curran on 04/05/2023 and that because of that meeting she was relieved of her duties due to issues which had emerged.  She confirmed that was correct.  The Complainant stated that she did not give the letter in relation to Carers Leave to Mr Curran as it was her intention to speak with him on 05/05/2023 in relation to this request.  The Complainant confirmed that she did not submit a formal application for Carers Leave.  It was put to the Complainant that in the absence of a formal request for Carers Leave the Respondent cannot be held responsible.  The Complainant agreed but clarified that Mr Curran was aware of her situation.  The Complainant stated that at her previous meetings with Mr Curran she referred to her request and he stated that he would revert but did not do so.

It was put to the Complainant that the referral to the company doctor was a form of support and the Complainant stated that the purpose of this referral was to help her understand the challenges facing her.  It was put to the Complainant that Mr Curran was trying to understand the ramifications of her request but his was overtaken by other events such as her suspension.  The Complainant stated that she indicated to Mr Curran on 20/03/2023 that it was her intention to work a four-day week and to work two of those days at home and to do so until she got the Carers Leave.  The Complainant also stated that she indicated to Mr Curran on 20/04/2023 that she would have to look at her position in the company and she was ready to return to work.  The company doctor asked the Respondent to be flexible in its approach to her. 

It was put to the Complainant that at that stage the issues which led to her suspension were now in train and it was not the pertinent juncture for which to consider her request.   The Complainant stated that she should have been given some indication.

It was put to the Complainant that her meeting with Mr Curran was a “catch-up” meeting following her return from sick leave.  The Complainant stated that she spoke to Mr Curran on 20/04/2023 and he was aware of her situation and it was her intention to submit her letter of request on 05/05/2023.  It was put to the Complainant that the reality was that she had raised the issue with Mr Curran and he said that he would consider it but other events overtook matters.

It was put to the Complainant that she stated her primary concern was to care for her parent and in that context her suspension helped her.  The Complainant stated that it meant she was available but the state of mind she was in was not good.

Re-direction – the Complainant:

Under redirection the Complainant was asked how clear she was in relation to her intentions about Carers Leave.  She stated that her communication was clear and Mr Curran knew that her personal circumstances had changed.    The Complainant confirmed that it was Mr Curran who asked her to attend the company doctor as he felt that she was in need of assistance due to being overwhelmed by having to provide care for her parent and she was also, allegedly, being over heavy with an employee in relation to an improvement plan.

The Complainant stated that the request from Mr Curran was made at a face-to-face meeting on 20/03/2023.  The outcome was that she fulfilled the role the following day and on 23/03/3023 she was on leave of absence.  The company doctor did not feel that her issues were work related and he signed her off to assist her care for her parent.

The Complainant was asked to clarify what was meant by stating that she was “upset and overwhelmed” and she clarified that there was an incident on 11/03/2023 and it was alleged that she had been “too heavy” when dealing with a particular employee.  The Complainant stated that she did not feel that she was overly hard or unprofessional.  The Complainant stated that she was referred because Mr Curran felt that she was overwhelmed due to the work incident and that she was under pressure from her changed family circumstances.

The Complainant stated that she was satisfied that she had communicated her circumstances to Mr Curran and in addition to this she spoke to the client manager who was supportive of her application.  In response to a question from the Adjudication Officer the Complainant explained that the manager on the client site would have to agree to her request and she had a professional relationship with this manager.  Her employer would have to approve her request.

Evidence of Mr Shane Curran:

Mr Shane Curran gave evidence on oath on behalf of the Respondent.  He confirmed that he is the Manging Director with the Respondent since 2018.  Mr Curran gave evidence that he had a good working relationship with the Complainant prior to 04/05/2023.  He worked with her since 2018 and she was always positive, mutually respectful and had vast industry experience.  Mr Curran confirmed that he always trusted her in the centre where she was based.

Mr Curran gave evidence that the centre where the Complainant worked as Site Manager was not their biggest site but was their “flagship contract involving a 5-star client”.  This would be seen as a VIP contract and it was essential to get their service there right.

Mr Curran stated that the Complainant performed exceptionally well in her role, ran the contract very well and ensured that the proper staffing levels were in place.  Mr Curran stated that he would describe the Complainant as a “stellar employee”. 

Mr Curran gave evidence that he got a telephone call from the Complainant in February 2023 after a parent became unwell.  She needed time to assess and address this parents’ changed needs.  The Complainant was due annual leave and Mr Curran told her to take force majeure leave which she did and when combined with annual leave she was out for about two weeks.

Mr Curran outlined that when the Complainant spoke with him on that telephone call he provided feedback to her in relation to the deputy manager and how well she performed while the Complainant was on leave.  He felt that the deputy manager may have lacked confidence and the told the Complainant that he and she would meet with this person and build a path to assist her confidence issues and provide guidance to her.  Mr Curran stated that he told the Complainant not to speak with the deputy manager until such time as they both could meet with her.

Mr Curran also gave evidence that there was a discussion with the Complainant in relation to leave.  He agreed to a four day per week but he could not recall a request to work two days per week from home.  Mr Curran said that he told the Complainant he would have to consider it and in this client site they were contractually bound to a level of service which included having a site manager.

Mr Curran confirmed that he did not refuse to countenance the Complainant’s request but that he would have to take it away and consider it.  Mr Curran confirmed that he has no recollection of a meeting with the Complainant on 20/03/2023.  Mr Curran also confirmed that he did not meet with the manager in the client site and that he was not present when the Complainant spoke with this manager.    Mr Curran stated that when he spoke with the Complainant on 27/03/2023 there was no discussion in relation to Carers Leave and he also stated that he does not recall having a conversation on the day of the court case.  Mr Curran confirmed that he had not reached any decision in relation to Carers Leave or a request for a four-day week.

Mr Curran then outlined what had happened in relation to the Complainant.  He explained that when the Complainant was on leave some employees were unhappy about the Complainant and there were issues in relation to the deputy manager who stated that she was reduced to tears by the Complainant and what she described sounded like a dressing down.  A number of other employees also raised concerns about the Complainant.

Mr Curran stated that it would not be normal to give a manager such leave and that he offered the Complainant some time out and provide support to her from the company doctor.  Mr Curran confirmed that he had previously offered similar support to another manager.

It was put to Mr Curran that the Complainant says that the disciplinary action taken against her was as a result of her request for a four-day week.  Mr Curran stated that this would be disingenuous.  Mr Curran was asked what might have happened to the Complainant’s request for Carers Leave had other events not occurred.  Mr Curran stated that the Complainant was a very important part of their contract in the client site and he would have to speak with the management from that client site and then look at what might be possible in terms of the availability of other managers as he was clear that there was no manager who could fill her shoes immediately.

Mr Curran was asked by the Adjudication Officer what the approval process was for Carers Leave and he outlined that he had never had to approve such a request and he was not sure of what was involved.

Cross examination of Mr Curran:

Mr Curran was cross examined by Mr Robert Donnelly, B.L. on behalf of the Complainant.  Mr Curran was asked to explain what the reference in his note of the telephone call of 27/02/2023that the Complainant was upset and overwhelmed in relation to her parents’ situation was.  Mr Curran stated that she explained what had happened and the purpose of her request for a four-day week was to look after her parent’s needs.  Mr Curran was asked what happened in relation to the “review and revert” note that he made.  Mr Curran stated that the Complainant’s position was too important and it would have taken time to consider it.  It was put to Mr Curran that he never actually reviewed the position.  Mr Curran stated that as the Complainant was suspended on 04/05/2023 so he could not review it. Mr Curran confirmed that the first time the Complainant mentioned her request to him was on 27/02/2023.

It was put to Mr Curran that his evidence was that the company had a policy but he was not aware of the policy.  Mr Curran stated that he would rely on HR to guide him as he was unsure and not familiar.  Mr Curran was asked when he forwarded the Complainant’s verbal request to HR and he stated that as he did not have a formal request he did not believe that he spoke to HR.

It was put to Mr Curran that he was saying that he was unfamiliar with the Carer’s Leave policy. Mr Curran stated that he was unaware of the exact details and would link with HR in cases like this.  Mr Curran was asked who reviewed the Complainant’s request with and he stated that he did not recall discussing it with anyone else as other events overtook matters.  Mr Curran agreed that the Complainant’s request was never concluded.  Mr Curran also confirmed that the events which he stated overtook matters commenced in March 2023 when he received a grievance in relation to the Complainant.

Under redirection Mr Curran agreed that he had a lot of demands from the Complainant and that these would create difficulties for the client site.  Mr Curran also agreed that her request required the approval of him and the client site manager.  Mr Curran confirmed that there was no one in the company who could immediately step in and take over from the Complainant.

Closing submission:

In a closing submission on behalf of the Complainant, Mr Donnelly stated that in relation to the overall complaints it is entirely possible that the absence of the Complainant for a six-week period allowed for a collusion among the employees.  One of the employees submitted seven complaints and she referenced a number of other employees in her complaints who also submitted complaints.  That clearly shows an element of collusion.

In relation to the alteration of the document the Complainant gave clear evidence that this document was stored in a cabinet in an office which was open and the document was available.

In the conclusions made by Ms Daly and Mr Barry there is a strong element of a personal attack in relation to the conduct of the Complainant.  The Complainant was at all times on the back foot as she had no access to documents and no access to staff on the client site  The evidence of the staff on the client site was never sought.

The end result of this conspiracy against the Complainant is that she was suspended and then unfairly dismissed.  The Respondent breached the employee handbook, the Complainant was forced out of her job and the Respondent refused to provide her with a contract of employment.  The Complainant has invested a lot of time and money in order to clear her good name.  She came to the WRC to tell the truth.

After 17 years of no complaints it is not possible or plausible for such allegations could be make against her.

The Respondent submits that not all the complaints submitted by the Complainant are relevant as the legislation does not apply to her.  The Respondent rejects all the complaints as being without foundation.  The Respondent outlined that the Complainant was employed as a manager in a large, modern facility and for which the Respondent was responsible for the provision of contract cleaning services.   The Complainant was manager in this centre since 2008 and was deemed to be a reliable and conscientious employee who did a demanding job well. 

CA-00062568-008:

Evidence – Ms Sylvia Sanchez:

Ms Sylvia Sanchez gave evidence on oath at the hearing on 17/12/2024.  She was assisted by a Spanish interpreter who took the Interpreter’s Oath.  Ms Sanchez gave evidence that she commenced employment with the Respondent in 2020 as a cleaning operative in one of the major client sites.  She left this role in 2022 but she returned later and took up a role with the Respondent.  At that stage she applied for a few hours work and Ms Murray (the Complainant) was happy to have her back.  Ms Sanchez stated that she always had a good relationship with Ms Murray.  Ms Sanchez stated that this relationship changed when Ms Murray spoke to her about an incident involving the colour she had put in her hair.  Ms Sanchez stated that she put a bit of a colour in her hair and then she attended work.  She was in the lift with two employees who were managers of the client site.  She observed them looking at her and she subsequently got a text from Ms Murray to send her a picture of the coloured hair as there was a complaint about it.  Ms Sanchez had a meeting with another manager and a colleague.  She received a message from Ms Murray to say that she could not continue working while her hair was like that.  The manager spoke to Ms Murray and Ms Sanchez stated that she had to go and get her hair done before she could resume work.  Ms Sanchez stated that she met the two managers who she had previously met in the lift and she asked them if they had an issue with her hair colour.  They confirmed to her that they did not.

Ms Sanchez stated that she did not know that she was not permitted to attend work with a colour in her hair.  She also stated that there were other colleagues who had colour and one in particular had purple and green colour in her hair.

Ms Sanchez was asked about the training record which showed that he attended an induction course at which she was informed about the policy of not having colour in one’s hair.  Ms Sanchez confirmed that she never attended such training and if she had she would not have dyed her hair.  Ms Sanchez was shown a training record and confirmed that it was her signature but she did not actually sign the attendance sheet and she felt that her signature was forged.  Ms Sanchez confirmed that she received Covid training and that she got an attendance sheet to sign and she recalled that this was given to her about a week after the training.  Ms Sanchez confirmed that the signature on the Covid attendance sheet was hers.

Ms Sanchez was asked to outline what happened after she met with her Team Lead.  She stated that she left the building and sent an email to HR about what had happened in relation to the colour in her hair.  She went to her embassy and explained to them what had occurred.  She was advised to contact the Respondent and see if there was a resolution.  Ms Sanchez stated that she spoke to a person in HR after she sent her email.  Ms Sanchez confirmed a copy of her email.  Ms Sanchez also confirmed that the note of the meeting held on 22/03/2023, which was referred to as her resignation meeting, was accurate.  Ms Sanchez clarified that she stated at this meeting that the Complainant would call to her sometime after a training session and ask her to sign an attendance sheet.

She stated that she felt that she was not well treated and got no support from HR.  She was offered no alternative at that time and she could not return to work if she did not change her hair colour.  Ms Sanchez stated that the Complainant could yell at colleagues and she observed this with one colleague whom she identified as Ms S.  She stated that she observed this colleague crying on a few occasions.  Ms Sanchez gave evidence that when she started the Complainant wanted her to work full time but she could not do so because of her studies.  When she refused to work full time the Complainant only gave her one shift and on another occasion she got a call to go a 12-hour shift which she could not do.  As a result of this Ms Sanchez felt that she got less hours despite the fact that there were additional hours available. 

Ms Sanchez confirmed that she was appointed as a Team Leader.  She said that this happened because she knew the area and others left the job because of the treatment they received from the Complainant.

Cross examination – Ms Silvia Sanchez:

Ms Sanchez was cross examined by Mr Donnelly, B.L., on behalf of the Complainant.  She confirmed that she was employed, left and then was re-employed by the Respondent.  Ms Sanchez confirmed that she done an induction on both occasions and was given a booklet.  She confirmed that she was familiar with the booklet.  Ms Sanchez confirmed that she was employed as a cleaner on both occasions and then appointed Team Leader in December 2022.  She outlined that she then had additional responsibilities for organising the workers and their shifts in addition to retaining her own role.

Ms Sanchez was asked what KPI’s were in place as part of her Team Leader role.  Ms Sanchez stated that she did not receive anything about this and her cleaning job was the same.  Ms Sanchez was asked if she needed to perform certain tasks in order to get paid a Team Leader bonus.  She confirmed that she never received that information.  Ms Sachez was asked what bonus she received for the role of Team Leader and she confirmed that her hourly rate of €13.00 increased to €14.00.  She confirmed that she did not receive any bonus or that there were any KPI’s in place for the role.

It was put to Ms Sanchez that she received additional training when she was reemployed.  She confirmed that she did and it was all on an App which was the same training that was in the booklet.  Ms Sanchez confirmed that this training was about the dress code and the use of cleaning products.  Ms Sanchez confirmed that she was aware of the dress code and she was supplied with a uniform.  Ms Sanchez was asked if the client site also had a dress code and she had stated that she was supplied with a uniform from the Respondent and she was paid by the Respondent.  She confirmed that the dress code which applied to her was that of the Respondent.

It was put to Ms Sanchez that in her direct evidence she stated that there was a little bit of colour in her hair.  She confirmed that there was a colour in some parts but not completely.  Ms Sanchez was shown the picture of her hair colour and  she confirmed that it was black and blue but not completely coloured.  She agreed that it could be described as “more than a little bit”.    

Ms Sanchez confirmed that on the day she presented with the hair colour she met two employees of the client site in the lift. She stated that there was a female and a male but was unsure of their names. She identified the female by her first name. Ms Sanchez stated that she had no conversation with these two people in the lift but she did approach them subsequently the female and asked the female if she had a problem with the colour in her hair and she said no. Ms Sanchez stated that she did not know which area these two people worked in but she knew that they were employees of the client site.  Ms Sanchez confirmed that they did not speak to her about her hair colour in her hair.  Ms Sanchez confirmed that she was never told who made the complaint about her hair colour and she only approached them after she got a call about it.  It was put to Ms Sanchez that at the meeting on 22/03/2023 she was reminded that she completed the site induction and training where it states that extreme hair colours are not allowed.  Ms Sanchez stated that she did not receive this training and never heard anything about hair colour.

It was put to Ms Sanchez that the attendance document dated 09/11/2022 and 17/11/2022 confirmed that she received the relevant documents.  This states on page 8: “no extreme artificial hair colour”.   Ms Sanchez said she accepted that was what the document states but she had no knowledge of this document and she did not receive any details about this policy.  It was put to Ms Sanchez that she was identified as having extreme hair colour by managers from the client site.  Ms Sanchez stated that she approached one of these afterwards and she said that she did not have any issue with her hair colour.  It was put to Ms Sanchez that she is aware that the Complainant received a complaint about her hair colour.  Ms Sanchez stated that she is aware but she was never told who made the complaint.  It was put to Ms Sanchez that she was aware that it was a manager from the client site.  Ms Sanchez stated that she assumed that the person in the lift was a manager but she is not aware of his position.

Ms Sanchez was asked how the Complainant got in touch with her in relation to her hair colour.  She confirmed that it was a WhatsApp message which said that there was a complaint about her hair.  A Team Lead contacted her to say that he got a phone call from the Complainant.  The Team Lead tried to help her cover up her hair but this did not work.  Ms Sanchez was asked what the complaint was and she stated that she only got the text message and she did not answer any call from the Complainant as she was mad and she was outside of work at that point.  She confirmed that she had no contact with the Complainant even though she made a second attempt to contact her.  Ms Sanchez also stated that the Complainant sent her a message and suggested that they have a meeting but she did not want to meet her as she was cross and tired of everything that was going on. 

Ms Sanchez stated that she had no problem with the people in the client site but she had a problem with the Complainant.  It was put to Ms Sanchez that this was personal.  She denied that was the case and as the Complainant was her manager that was why she had to report her concerns to HR.  Ms Sanchez stated that her relationship with the Complainant was always good before this incident but it was changed after she received the message from her about the hair colour.  It was put to Ms Sanchez that the Complainant held an investigation into this incident and she wanted to make contact with her.  Ms Sanchez confirmed that she sent her a text message but she did not reply as she did not want any further contact with her.  Ms Sanchez was asked what she done to help the Complainant resolve the issue.  She stated that she did not get in touch with her as she was “very mad”.

Ms Sanchez confirmed that she sent the Complainant a picture of her hair on 11/03/2023 after she tried to cover it up.  Ms Sanchez was asked to explain what she meant by the phrase “Since many cases are ignored and I know that Cagney Contract Cleaner is a serious company with values which are not granted to us”  which was at the end of her resignation letter dated 14/03/2023.   She stated that she had met a past employee who was mistreated by the Complainant but her complaint was ignored.  Ms Sanchez said that this was the only one she knew was ignored.  Ms Sanchez also asked was what the statement which said that values are not granted to us meant.  She stated that this was intended to refer to the Complainant who held a high position in the company and she had power.   Ms Sanchez confirmed that she drafted the letter to express her concerns and to say that she did not want to be there if the Complainant was there.  Ms Sanchez could not recall who she sent the letter to.  She also confirmed that the letter contained the phrase, “I decided to leave..”

Ms Sanchez was asked about the Respondent’s training records. She stated that the attendance sheet for COVID-19 training on 19/09/2023 was not in  her handwriting.  She confirmed that the signature on the attendance sheet for the site induction training seems to be the same as the COVID-19 page and this looks like a carbon copy.  Ms Sanchez confirmed that as a Team Leader she had no duties associated with the signing off of any documents.   It was put to Ms Sanchez that she signed multiple documents.  She stated that they would be presented with documents with their names already on it and asked to sign it.  It was put to Ms Sanchez that on the “ToolBox” system she could update her training records.  Ms Sanchez stated that she had no knowledge of this.  Ms Sanchez was asked if she was aware of the “next steps” once you sign off on the training records.  Ms Sanchz stated that she was not aware and she does not know where they go.  The Complainant is the only person who has access to them.  She never had any access to tools except the one used to clock in and clock out.  Ms Sanchez stated that she never received any training in relation to her Team Leader role.  She does not know what happens to these documents or who may have access to them.

It was put to Ms Sanchez that she stated that she received no training in relation to her Team Leader role and she confirmed that was correct.  She was asked how this affected her role as Team Leader and she stated that the Complainant based her decision to appoint her based on her experience.  Ms Sanchez confirmed that she had no access to upload any training records.

Redirection:

Ms Sanchez was asked why she signs the training record.  She stated that it is signed because you have done the course.  Ms Sanchez confirmed that the document she signed was the one with COVID-19 written on the top of it.   Ms Sanchez also confirmed that it was her signature on the site induction training sheet but she did not recall doing this course.

Ms Sanchez was asked what her understanding was of the text that she received from the Complainant in relation to her hair.  She stated that she was to go and fix her hair and come back and resume work.  Ms Sanchez stated that she did not accept this as she felt that it was against her rights. Ms  Sanchez was asked if the text message she received was given as an ultimatum and she confirmed that it was and that it was given by the Complainant.

In a follow up question Mr Donnelly, B.L., put it to Ms Sanchez that the record of the text messages show that on 11/3/2023 at 07.57 her text message to the Complainant was: “I can leave I don’t have any problem”.  This was immediately followed with a text which read:  “the important thing is that you don’t have a problem”.   The Complainant’s response was: “Your hair is lovely but I can’t allow this in [the site]  Do you think you can sort this out and come back to work later?”   Ms Sanchez was asked if she took this message as a request to leave work and she said that she did.  Ms Sanchez stated that she did not come back as she didn’t know what was going to happen next.

Evidence – Ms Nicole O’Carroll:

Ms Nicoll O’Carroll gave evidence on oath on behalf of the Respondent.  Ms O’Carroll confirmed that when employed by the Respondent she was a HR Generalist.  Ms O’Carroll confirmed that she was the investigator in this case.  This began when she received emails from Ms Sanchez and she met with her.  She had an issue in relation to how the Complainant dealt with the colour in her hair.  She had a resignation meeting with Ms Sanchez on 22/03/2023.  Ms Sanchez stated that she did not recognise the training records.  As a result of this she wondered if the training had taken place and she gathered the training records from the site.  Ms O’Carroll stated that these records were a cause for concern as it is an important part of their contractual arrangement with the client.  It is important that training is completed and she wondered if the record was valid.

Ms O’Carroll stated that Ms Sanchez made a number of very serious allegations and she was not sure if they all related to Ms Sanchez or a colleague.  Ms O’Carroll stated that when she observed a swipe of Tipp Ex on one of the training attendances sheets she wondered if the document was “doctored”. 

Ms O’Carroll stated that the Respondent’s induction is done using PowerPoint and this includes a slide in relation to hair colouring.  Ms O’Carroll stated that she checked other training records and COVID-19 training was done but no other training seemed to be done.  Ms O’Carroll explained that the training records are generated when the Complainant sends them to a nominated person at reception and these are then uploaded on the system.  Ms O’Carroll was not aware that MegaHr was used to store training records.  Ms O’Carroll stated that Ms Sanchez’s training record for COVID-19 matched but the induction training did not.  Ms O’Carroll confirmed that two other colleagues were met as part of the investigation arising from complaints made to the Team Lead.

Ms O’Carroll provided an overview of the investigation process and the accounts of the various meetings were confirmed.  At the first meeting the employee involved (SL) confirmed that she had cried after the Complainant took her into a room and gave out to her.  This employee also referred to a number of colleagues who had received similar treatment from the Complainant.  Ms O’Carroll confirmed that the significant details of the issues raised by this employee were accurately outlined in the 17 pages of notes arising the meeting of 08/05/2023.  A further meeting was held on 21/06/2023 with this employee and the notes of this meeting were submitted  and opened at the hearing.

Ms O’Carroll confirmed that her report was provided in the Respondent’s book of documents and this was also opened at the hearing.  She confirmed that her conclusions were:

·        There were a large number of reports that the Complainant was shouting at colleagues

·        There were reports of poor behaviour towards a deputy supervisor

·        There were numerous reports of training signed and not given

·        There were reports of vulgar and expletive language and name calling

·        There was a report that an instruction was given to an individual to lie in the investigation

·        Hours of work were transferred from one week to another to avoid paying overtime to an employee

·        There is clear fraudulent information provided in a grievance to mislead an investigation.

Ms O’Carroll clarified that the fraudulent information was the training record for Ms Sanchez.  Ms O’Carroll also confirmed that the Complainant was met on three occasions as part of the investigation and the Complainant stated that she did not agree with the findings.  Ms O’Carroll stated that the Complainant did not provide any evidence as she stated that she did not have an opportunity to do so.  Ms O’Carroll was asked if she tested the evidence or the accounts of the various witnesses.  She stated that she thought that the accounts given were credible.  Ms O’Carroll stated that when she gathered the evidence she gave it to the Complainant.  After completing her report she referred it to MSS.  Ms O’Carroll stated that the person from MSS (TD) wanted clarity on an aspect and she met her to provide this.  She confirmed that there was a note of this meeting included in the book of documents and she felt that this was an accurate account.

Ms O’Carroll confirmed that when she handed the report over to MSS and provided clarifications to TD she had no further involvement in this matter.   Ms O’Carroll stated that her role was purely fact finding and she was happy to stand over her findings.   Ms O’Carroll also confirmed that she was not aware that the Complainant had submitted an application for Carer’s Leave.

Cross examination: Ms Nicole O’Carroll:

Ms O’Carroll was cross examined by Mr Donnelly, B.L., on behalf of the Complainant.  She was asked how many complaints were made against the Complainant and Ms O’Carroll confirmed that there were five.  Of these,  one was not upheld due to lack of evidence and the rest were part of the investigation she undertook.  Ms O’Carroll confirmed that there were no complaints made by employee from the Client site.

It was put to Ms O’Carroll that the Complainant outlined her four concerns about the investigation in an email dated 25/05/2023.  These concerns were that when she resumed work on 04/05/2023 she was suspended immediately and she was not notified in advance of this and not listened to.  Secondly, she raised a concern about the damage these allegations would have on her professional career both from a company and client perspective.  Thirdly, she wanted a full and impartial investigation and that this should not only include the identified parties but also the clients and contractors.  Finally, the Complainant wanted the investigation concluded within a reasonable timeframe.  Ms O’Carroll stated that the planned meeting with the Complainant for 08/06/2023 did not proceed as the Complainant wanted all parties met before her meeting.  Ms O’Carroll confirmed that she got involved when Ms Sanchez submitted her resignation email and this raised concerns so she met with her to discuss these further.   Ms O’Carroll stated that she did not receive any complaint about the Complainant prior to this matter and she was not aware if any member of the Management Team had received any.  Ms O’Carroll confirmed that the note of the meeting with the Complainant on 19/05/2023 was accurate and that the Complainant did not wish to proceed until all the evidence was collected. 

Ms O’Carroll was asked if she was familiar with how the ToolBox system operated and she confirmed that she did not.  As far as she was aware this could only be accessed by the Manager or Deputy Manager.  The Deputy Manager would not have any access to the MegaHR system.  Ms O’Carroll confirmed that the training records for Ms Sanchez were from 2019 to 2023.  Ms O’Carroll also confirmed that she collected the induction and COVID-19 training records which were in a folder on the Complainant’s desk.  Ms O’Carroll stated that when she retrieved these she checked for  TippEx mark.   There was no TippEx on any other document.

Ms O’Carroll confirmed  that a handwriting expert was not engaged as part of the investigation and she did not ask any other member of staff about the TippEx.  Ms O’Carroll was asked what electronic training records were available.  She stated that the induction and COVID-19 records were.  Ms O’Carroll confirmed that Ms Sanchez stated that she signed one of the training documents.

Ms O’Carroll was asked to confirm that the person named in the meeting notes (AG) was the person from the client site who made the complaint about Ms Sanchez’s hair and she confirmed that he did.  Ms O’Carroll  confirmed that she did not provide this information to Mr Curran and he would only be aware from the report she submitted to MSS.

Ms O’Carroll also stated that she was based in the head office and would not be based on the client site.  The Complainant was the Respondent’s representative on the site.  There was no investigation meeting held on the client site.  Ms O’Carroll also confirmed that she followed the Respondent’s grievance procedure and this was brought to the attention of each staff member.  Ms O’Carroll confirmed that the Respondent’s Employee Handbook was updated in 2018 while she was employed there

Re-Direction:

Ms O’Carroll was asked if her report made any findings against the Complainant.  She stated that there was none and the purpose of the investigation was to obtain the facts.  Ms O’Carroll confirmed that she was not aware that the Complainant was conducting an investigation in relation to the incident involving Ms Sanchez hair colour.  Ms O’Carroll also confirmed that Mr Curran was not copied on any of the minutes of the meetings held as part of the investigation.  Ms O’Carroll confirmed that she was comfortable with all the evidence she collected and she confirmed that all of this was provided to the Complainant.                       

Closing submission:

In a closing submission on behalf of the Respondent Mr Kyne said that a number of things have been established.     

The Complainant was dismissed for cause as she produced a document which was supposed to be a record of something that did not happen.

The Complainant has damaged her own credibility and anything she said has to be viewed in that context. 

The only beneficiary from this altered document was the Complainant.

The Complainant maintained that two people who were at loggerheads conspired with others and HR in relation to the complaints.  There is no logical explanation as why these employees and HR would be involved in such a conspiracy.

The Complainant was afforded all her entitlements under fair procedures.  She was informed of the issues, allowed representation and given the right to appeal.

The Complainant made several statements about the Respondent not following the grievance procedure.  The reality is that the Complainant was involved in the disciplinary procedure and this was carried out fairly.

The derogatory name calling of colleagues is also a very serious matter.  The Respondent was entitled to discipline the Complainant for a breach of their policy.  The decision was reasonable in all the circumstances.

The Complainant also made references to her application for carers leave.  The fact is that what she was seeking was a flexible working arrangement.

It was submitted on behalf of the Respondent that as no employee from the client site made any complaint they were not required by the Respondent as witnesses. 

Overall, this was an entirely fair process and at no stage was the Complainant’s family circumstances, age, gender or application for any leave a factor in the decision to dismiss her.  

CA-00062568-001:  The Complainant is seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act 1946.  Her specific complaint is that she did not get breaks as set out in the relevant Employment Regulation Order (ERO).  She submits that she had to work more than 60 hours per week.  The complainant was unable to quantify her complaint.  I find that the complainant’s employment was not covered by the provisions of the ERO.  This complaint is not well founded.

CA-00062568-002:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994.  The Complainant became concerned about her terms and conditions after she was notified that she was under suspension.  When she requested  a copy of her contract of employment she was informed that there was none on file.  The Respondent submits that the letter of offer from the Respondent dated 10/04/2006 contained all the necessary details of the terms and conditions relevant to her role and was largely in compliance with the legislation then in place. 

While an employee does not have to get a contract of employment in writing they must be given a “written statement of terms of employment”.   It is an exceptional belief that an offer of employment can now be retrospectively deemed to comply with the legislation in relation to the terms and conditions of employment.  The fact is that the Respondent is non-compliant and I find that this complaint is well founded.   

An Adjudication Officer has jurisdiction under this Act to assess if the Respondent breached the Act by failing to provide the Complainant with a written statement of the terms of her employment as per s. 3 of the Act. 

The Terms of Employment (Information) Act imposes obligations on an employer and confers a corresponding right on a worker to have the basic terms of employment set out in writing in accordance with section 3 of the Act. The obligation to give an employee a written statement of terms of employment rests solely with the Respondent.  The Respondent failed to do so in this case.

The requirement to supply a written statement to an employee is an important one which provides the basis for an employee to have the clarity as required by the Act as regards his or her terms of employment.

As a result, I  find that this complaint is well founded.

In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.  Where a contravention of the Act occurs the Adjudication Officer must make an award that is just and equitable having regard to all the circumstances. It was not disputed that the Complainant was in receipt of an annual salary of €59,168.  Her weekly gross pay was €1,137.84.

In these circumstances and given the Complainant’s  tenure of employment I consider that an award of €4,500 to be just and reasonable having regard to all the circumstances.

CA-00062568-003:  The Complainant is seeking adjudication by the WRC under Section 7 of the Terms of Employment (Information) Act, 1994.  The Complainant’s evidence was that she was not provided with written notice of the changes to her terms and conditions of employment when she moved to client site.  The Respondent submits that there were no changes to her terms and conditions and therefore there was no requirement to notify the Complainant of any changes.  There was no evidence adduced that there were changes to the Complainant’s terms and conditions within the cognisable period, i.e., the six-month period prior to 27/03/2024.  I find that this complaint is not well founded.

CA-0002568-011:  The Complainant is seeking adjudication by the WRC under section 19 of the Carer’s Leave Act, 2001.   This act provided for the entitlement of an employee to avail of unpaid leave from his/her employment to enable him/her to personally provide full-time care and attention to a person who needs such care.  In order the apply for this leave the Act stipulates that the employee must give written notice to the employer no later than 6 weeks before the proposed commencement date.  This application must also specify the relevant dates, duration of the leave and the proposed manner to take the leave.  The act also requires an employee to provide a statement that the person to be cared for is a relevant person for the purposes of the Carer’s Leave Act, 2001 and that an application has been made to the Department of Social Protection.  There was no evidence provided that an application was made in the prescribed manner.  The Complainant confirmed in evidence that no written application was made.  In these circumstances I find that this complaint is not well founded.

CA-00062568-008:  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 require 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 guilt 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, supporting documents received and the oral evidence adduced at the hearings.  I have also considered the caselaw to which I have been directed by the parties.

The relevant facts:

There were seven allegations of a behavioural nature made against the Complainant and she was suspended with pay to facilitate an investigation by the Respondent.  The Respondent’s HR carried out an investigation.  During the investigation a document submitted by the Complainant was found to have been altered using Tippex and this was deemed to be a false document and was included in the investigation process.  Following the investigation it was found that the Complainant had a case to answer as six of the complaints were upheld. The Respondent engaged the services of an external HR company to review and make a recommendation in relation to a disciplinary sanction.  The recommendation was dismissal and a decision was made by the Respondent to dismiss the Complainant.  The Complainant lodged an appeal and this was heard by another representative of the external HR company.  The decision to dismiss was upheld. 

The Investigation:

The investigation was established without any terms of reference and relied on the complaints received to dictate the course of the enquiry.  The investigation interviewed nine people over the course of two days (24th and 25th May 2023).  The deputy site manager and team leads were also interviewed as part of the investigation.   Copies of the notes of all meetings were provided to the Complainant in advance of her meeting with the investigators. 

The investigation reached several conclusions.  The site manager (the Complainant) was shouting at colleagues both in person and on the radio system.  There was a finding that that the Complainant had displayed poor behaviour towards the deputy Site Supervisor and other employees.  There was also a conclusion that the Complainant used vulgar language and inappropriate name calling.  The Complainant was found to have instructed employees to lie to HR.  There was a finding that work hours were altered to avoid overtime payments.  Finally, there was significant finding that the Complainant provided fraudulent information with the intention of misleading the investigation.   The Complainant refuted all of these findings and continued to do so at the WRC hearings.

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 200 (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”.

Despite reservations about the structure of the investigation I am satisfied that it was carried out with due respect for the rights of the Complainant.  It would have been helpful if employees of the client site were interviewed and particularly in relation to the blue hair incident.  While I accept that these employees are not employed by the Respondent it would not be unusual in workplace investigations to invite contractors, members of the public or other personnel who may be in a position to assist the investigation.  It is my considered view that there were reasonable conclusions made by the investigation.  It is difficult to understand why the Complainant failed to maintain adequate training records given the relevance of these to the various and KPI’s to which she referred.

The Disciplinary Process:

The decision of an employer to dismiss an employee on the grounds of conduct is a decision which must be assessed within the “bank of reasonable responses” which are one to an employer.  There is a well-established principle that once the fact of misconduct has been established on the balance of probabilities; the employer then need only show that the decision to dismiss fell within the band of reasonable responses.  In this present case the dispute is whether or not there was misconduct by the Complainant.  The Respondent has no doubt that there was while the Complainant is equally firm that there was no misconduct on her part.

In relation to the substantive issue of gross misconduct, I have formed the view that it was a reasonable conclusion for the Respondent to reach in relation to the Complainant’s behaviour and issues associated with misleading training records.  The Respondent had placed an enormous level of trust in the Complainant.  She was the Respondent’s main representative on this client site.  This site was, as  described by the Managing Director, a  “flagship contract involving a 5-star client”.  This contract  was of great importance to the Respondent and it is not unreasonable that the Complainant would have carried out her duties in a manner commensurate with the degree of trust and level of responsibility she had.  While it was not disputed that the Complainant had an unblemished record it was vital that that pattern continued to ensure the successful implementation of the Respondent’s contractual obligations on the client site. 

Trust and confidence are essential in working relationships.   They are particularly relevant when the Complainant was the Respondent’s site manager.  As a result of the Complainant’s actions or inaction in relation to training records and allegations pertaining to interactions and conduct with employees the Respondent had an entitlement to lose confidence and trust in her.  I am of the view that any other employer faced with similar circumstances associated with this case would have acted in the same manner.  I conclude that the termination of the Complainant’s employment was within the range of sanctions that a reasonable employer might also apply having cognisance of the policies, evidence and facts of this case.  For the reasons outlined I find that the dismissal was substantially fair.

Were the procedures followed by the Respondent fair?

I must also consider whether the dismissal of the Complainant was procedurally 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 the Employment Appeals Tribunal (EAT) the case of Murphy v College Freight Ltd (UD867/2007) noted that a disciplinary procedure does not need to be “a counsel of perfection” but rather “they must be fair”. 

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 she or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

It follows then that in addition to the right to cross examine his or her accuser there is a further entitlement to be told of this right.  If an employee fails to ask for cross examination, they cannot be faulted for failing to ask.  Given the reservations expressed by the Complainant about some of the witness statements and her perception of some element of collusion in the formulation of the complaints it was essential that she was given an opportunity to cross examine the witnesses which were relied on by the Respondent in reaching its decision. I note that Ms O’Carroll gave direct evidence that she tested the evidence and accounts of the various witnesses during the investigation.  The Complainant was also denied to challenge the discrepancies she identified in the report which Ms Labriola provided to Ms O’Connor.  The failure of the Respondent to make provision for the same opportunity to the Complainant during the disciplinary process was erroneous.

Given that the outcome was that she was dismissed and her livelihood taken away it was incumbent on the Respondent to ensure that their procedures are fair and transparent. 

Overall, I find that there have been  procedural flaws in relation to the disciplinary process.  The failure to afford the Complainant the opportunity to directly challenge the reports which were relied on by the investigation and disciplinary process placed her at a disadvantage in terms of fair procedures and limited her ability to challenge the evidence directly.

For the reasons outlined I am not convinced that the Respondent’s disciplinary procedure was fair and  in compliance with the principles of natural justice. 

The Complainant exercised her right to appeal and this appeal was not upheld. 

In taking all the above matters into account I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts.  Therefore, I find that this complaint is well-founded.

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 compensation for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. She has given evidence that she is in receipt of Carer’s Benefit.  This commenced in January 2024 and she remains in receipt of this allowance.  I accept the Respondent’s submission that given the Complainant’s circumstances the maximum award for a successful claim would be in the region of €12,400. 

Contribution to Dismissal:

There is an obligation on an Adjudication Officer to consider the contribution by a Complainant to his or her dismissal and given the circumstances and evidence adduced in this case there is a requirement to do so.  I am satisfied that the Complainant contributed substantially to her dismissal.  There was a failure by the Complainant to ensure that she upheld the trust and confidence place in her by the Respondent as their sole representative on an important client site.  I find that the Complainant’s view that most of the complaints were part of a conspiracy was not substantiated.  I find that the Complainant’s failure to keep in tune with the workplace concerns is at variance with her view that she had a good working relationship with all her team.

Regarding a remedy, objectively, this employment relationship is irretrievably broken.  I do accept that a breach of trust has occurred in this case and reinstatement and re-engagement are not viable options.                                                                                                                                                                        

Having regard to the totality of all the evidence presented in this case, including the evidence regarding mitigation of loss and the Complainant’s contribution to her dismissal I award redress of €5,580 as just and equitable compensation for the unfair dismissal.

CA-00062568-010: This complaint seeking adjudication by the WRC under Section 77 of the Employment Equality Act, 1998 was withdrawn at the hearing on 06/05/2025

CA-00062568-011:  I have decided that this complaint seeking adjudication by the WRC under Section 19 of the Carer’s Leave Act, 2001 is not well founded.

CA-00062568-014:  This complaint seeking adjudication by the WRC under Section 7 of the Terms of Employment Information) Act, 1994 was withdrawn at the hearing on 06/05/2025.

CA-00062568-020: This is a complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer’s Leave Act, 2001.  It is the Complainant’s evidence that following changes to her family circumstances she intended to apply for a period of Carer’s Leave.  She initially mentioned this informally and felt that there was some opposition to this.  She had intended to formally apply when she met Mr Curran on 05/05/2024 and it was her intention to commence this in July 2024.  Due to other matters being discussed at this meeting she did not provide Mr Curran with the prepared letter of application.

Mr Curran was clear that due to the importance of the Complainant’s role he would have to carefully consider any such request.  This would also involve discussions with the client site due to contractual arrangements. 

The facts are that no formal application was submitted and consequently the Complainant was not refused Carer’s leave.  I accept that it may have been mentioned informally when she met Mr Curran while on sick leave.  In these circumstances I find that this complaint is not well founded.

CA-00062568-001:  I have decided that this complaint seeking adjudication by the Workplace Relations Commission (WRC) under Section 45A of the Industrial Relations Act 1946 is not well founded.

CA-00062568-002:  I have decided that this complaint seeking adjudication by the WRC under Section 7 of the Terms of Employment (information) Act, 1994 is well founded.   I consider that an award of €4,500 to be just and reasonable having regard to all the circumstances.

CA-00062568-003:  I have decided that this complaintseeking adjudication by the WRC under Section 7 of the Terms of Employment (Information) Act, 1994 is not well founded.

CA-00062568-008:  For the reasons outlined above I find that that the complainant was unfairly dismissed.  I award redress of €5,580 as just and equitable compensation for the unfair dismissal. 

CA-00062568-010:  This complaint seeking adjudication by the WRC under Section 77 of the Employment Equality Act, 1998 was withdrawn at the hearing on 06/05/2025.

CA-00062568-011:  I have decided that this complaint seeking adjudication by the WRC under Section 19 of the Carer’s Leave Act, 2001 is not well founded.

CA-00062568-014: This complaint seeking adjudication by the WRC under Section 7 of the Terms of Employment Information) Act, 1994 was withdrawn at the hearing on 06/05/2025.

CA-00062568-020:  I have decided that this complaint seeking adjudication by the WRC under Section 19 of the Carer’s Leave Act, 2001 is not well founded.

Carer’s Leave.  Terms and Conditions of Employment.  Unfair Dismissal.