Complainant

Respondent

Parties

Caitriona  Nic Aodha

Afs Wealth Management & Insurance Advisers Ltd

Representatives

  Self

Nicola Murphy, Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

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

CA-00065012-002

25/07/2024

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

CA-00065012-005

25/07/2024

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

CA-00065012-011

25/07/2024

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

CA-00065012-012

25/07/2024

The Complainant worked as a Financial Advisor for the Respondent from 01/10/2018 until her dismissal on 17/07/2024.  She submits that she was unfairly dismissed and submitted her complaint to the WRC on 25/07/2024.  She was paid an annual salary of €45,000.  The Complainant also submitted a number of other employment rights complaints to the WRC, including discrimination and notice.

The Respondent refutes that the Complainant was unfairly dismissed and submits that the dismissal was based solely on the Complainant’s conduct and behaviour. The Respondent denies all claims submitted by the Complainant. 

CA-0065012-002:  As the fact of dismissal was not in dispute the burden of proof rests with the Respondent.  Ms Vesper France gave evidence on affirmation on behalf of the Respondent.  She confirmed that she is the Head of the CEO’s Office.  She gave an overview of the business which was acquired in February 2022 and she worked for them on a contractual basis.  The Respondent currently employs 20 people and had 5 directors.  They provide a wealth management and financial planning service to internationally mobile clients.

Ms France outlined that the Complainant was contracted as a wealth advisor and her role was to provide financial advice to clients.  Ms France stated that she was going through the process of applying to be CEO and she hoped that the Complainant would take on the role of Head of Compliance.  This is a controlled function and  requires Central Bank approval. Ms France confirmed that the Complainant had no line management reporting to her.  Ms France confirmed that she had a good working relationship with the Complainant and she admired her in the role she was doing.   She thought that they would be the future of the company.

Ms France gave evidence that she had discussions with the Complainant in relation to the Head of Compliance role.  She also spoke to the Complainant about creating a role of office manager in April.  The Head of Compliance resigned in May and Ms France spoke to the Complainant about this role.  She offered to support the Complainant in her application for Central Bank approval.  The first application was submitted in August and the Central Bank required additional information.  This was sent back and this application was also returned to the Respondent.  Ms France outlined that the Respondent engaged the services of a consultant to advise on the Central Bank requirements.

Ms France gave evidence that she had a conversation about the role with the Complainant and she asked about the salary.  The Complainant expressed disappointment at the offer.  Ms France stated that she later went back to the Complainant with an enhanced package and at that point the Complainant stated that she was no longer interested in the role.  The application to the Central Bank was then withdrawn.

Ms France was asked to outline the details in relation to her own complaint about the Complainant.  Ms France stated the tipping point was when the Complainant stated that she (Ms France) left a sour taste in her mouth after the discussions about the new role. HR took over from that point.  She had two recorded Teams calls with the Complainant.  Ms France stated that the Complainant was hostile towards her and at one stage she appeared to be mimicking her and making comments about a colleague.  Ms France stated that the Complainant stated on the call that she wanted €25,000 in her bank account by the end of the week as a loyalty reward.   Around this time three other employees left and set up a rival business and taking some of their clients.  Ms France stated that she made a link between the request for €25,000 and clients moving to the rival business.

Ms France confirmed that her complaint arose from the Complainant’s behaviour at those two meetings.  Following these meetings Ms France became aware that the Complainant was contacting junior colleagues and alluding that their jobs were at risk and also making unkind comments about her.

Ms France gave evidence that she was astounded that her relationship with the Complainant had deteriorated.  The Complainant sent a text message to HR and the words “Final Countdown” were included.  She was also accused by the Complainant of not answering her questions.

Ms France stated that during the second meeting the Complainant asked if redundancy was an option.  This was not an option and Ms France stated that the two meetings were “tough  conversations”.  She thought that they would be working together.  Ms France confirmed that she made her complaint to the HR manager who was also on the Teams call.  She explained her concerns to her and also spoke to Mr France.  Ms France also confirmed that she looked at the employee handbook in relation to procedures to follow and as she was a Director of the parent company she wanted to be clear on the process and policies.  Following this she made a formal complaint.  Ms France confirmed that the document which was included in the Respondent’s book of documents was a copy of her formal complaint which was submitted on 07/02/2024.  Ms France confirmed that she outlined six examples of bullying behaviour she complained about. 

Ms France said that HR contacted her to clarify if she felt that the Complainant “may have something on me” as the request for €25,000 might be an extortion attempt. 

Ms France confirmed that after she submitted her complaint the CEO and HR engaged the services of an external HR company.  She did engage with them to clarify the sequence about how the complaint would be dealt with.

Ms France confirmed that she had no involvement in relation to how the complaint was dealt with.

Cross Examination – Ms Vesper France:

Ms France was cross examined by the Complainant.  She was asked what her understanding of the Complainant’s role was with the Respondent.  She stated that the role was to give financial advice to clients of the company.  Ms France confirmed that the role of a financial advisor with the company is to provide financial advice to expatriates and this involves the creation of a financial plan which would provide for their future financial needs.  The role also involves recommending particular solutions depending on the needs of the clients.

Ms France confirmed that the Complainant’s role was changed when she returned from sick leave.  She was allowed to take time to take on a book of clients and allowed to do this at her own pace and readiness.   Ms France could not recall if any Director left during that time.

Ms France confirmed that the position of Head of Compliance was filled and this occurred in April 2023.  Ms France was asked to clarify what she meant when she said in evidence that a “switch turned”.  Ms France clarified that she thought that she had a good working relationship with the Complainant and she also worked well with junior members of staff but after their meeting something changed.

Ms France was asked if she assisted in providing a character statement for the Complainant’s application to the Central Bank.  Ms France stated that the company is obliged to do a suitability assessment for the Central Bank application.  It was put to the witness that she sent her complaint to HR on 7th February which was 7 days after the meetings.  Ms France stated that she had spoken informally to the CEO and HR.  She submitted her complaint when she was asked to put it in writing.  Ms France was asked if there was any conflict of interest given that she is the wife of the CEO.  Ms France stated that she did not believe there was an such conflict of interest.

Ms France was asked who transcribed the Teams calls.  She confirmed that this is done through Teams itself. Ms France was asked to clarify her evidence that she thought there was a connection between the data theft and the Complainant’s demand for money.  She said that it occurred to her that there might be a potential link but that was all.  It was put to Ms France that she was making an allegation against the Complainant and she confirmed that she has not made any allegation.  Ms France was then asked why she thought it was relevant to mention the data theft and the demand for money.  Ms France confirmed that there had been a data theft and when the Complainant asked for €25,000 as she had shown loyalty she also referenced that she had not stolen data.

Ms France was asked if there was any evidence to support her view that the Complainant had made a demand for €25,000.  Ms France confirmed that this was documented in an email to the Complainant from HR and this email articulated that the  Complainant had spoken about this.  Ms France confirmed that the Complainant never submitted a request in writing.

Ms France was asked how she formed the view that the Complainant was no longer interested in the role of Head of Compliance.  Ms France outlined that part of the reason for the call on 15 January was to look at the next steps in relation to this.  However, the Complainant had indicated to the HR manager that she was not interested.  Ms France outlined that the Complainant was asked to confirm this in writing but she did not do so.

Ms France was asked if she had any role in relation to the suspension of the Complainant or the investigation of the complaints against the Complainant and she confirmed that she only had dealings in relation to her own interview and as part of her role in the CEO’s office she may have had to type some notes but otherwise she had no direct involvement in either process.

Ms France was asked if she ever sent the Complainant an email on behalf of Abbey Wealth from HR.  Ms France confirmed that she did and that she was authorised to do so.

Redirection:

Ms France was asked to clarify who was on the Teams call on 15/01/2024 and she confirmed that she was present along with the Complainant and the HR manager.  Ms France was asked to read the transcript at 0:20 and this read: “And sorry, any other offer that has been discussed previously has been rescinded…”    Ms France also confirmed that the email sent to the Complainant by HR on 11/01/2024  contained a reference to the Complainant’s request during a telephone call with HR for €25,000 for any role and for this to be paid by the end of that week.  Ms France also confirmed that the letter also noted that the Complainant confirmed that she no longer wished to pursue the PCF opportunity.

Ms France was asked what involvement she had in the investigation.  She confirmed that she took part in the process in relation to her complaint.  She responded to the HR company and discussed various points with them in relation to her complaint.

Evidence: Mr Victor France:

Mr Victor France gave evidence on oath on behalf of the Respondent.  Mr France confirmed that he is currently the Group Chief Executive for Abbey Wealth.  He is also a Director of another company.  At the time of the Complainant’s employment he was the CEO of AFS.  Mr France confirmed that he was not the Complainant’s line manager.  Mr France confirmed that the company has advisors in Ireland and in Spain.  He would have regular interactions with the Advisory Team and would also be involved in the social side of the employment.

Mr France gave evidence that he had a good relationship with the Complainant and she was doing a good job.  They were supportive of the Complainant in many ways.  Mr France confirmed that he received one major complaint in relation to the Complainant and this led to a number of other complaints he received from other employees.   Mr France was asked to outline the nature of the complaint he received from Ms E.  He gave evidence that he had attended a meeting and as he was walking back to the office he got a phone call from Ms E who asked him what was going wrong with the business.  She said that the Complainant told her that the business would go bust.  He said that she explained to her that while the data theft had an impact the business was strong.  Ms E also told him that she had a disturbing conversation with the Complainant. This conversation related to Ms E’s ectopic pregnancy.  This conversation involved comments about the choice between Ms E’s life and the baby’s life. Ms E was very upset by this.  Mr France stated that he could not understand why someone could have such a conversation with Ms E.  He confirmed that he was very angry as a result of this.  He felt that this was “an instantly sackable offence”.  He took advice from the Respondent’s HR partners and he was advised to suspend the Complainant and have an independent investigation.  He took their advice in relation to this process and he issued a letter of suspension to the Complainant on 21/01/2024.  Mr France also confirmed that this suspension was in line with the Respondent’s Disciplinary and Grievance policy.  Mr France confirmed that the Complainant was on full pay during the suspension.

Mr France outlined that he spoke with HR who engaged the services of an external HR company.  An external company was used as there would be a limited number of people available internally and he also wanted to ensure that the investigation was independent.  Mr France confirmed that he had no involvement in the investigation process.   He outlined that his perception was that the process was being followed and although he was interviewed as part of this process he made sure that he stayed completely out of it.

Cross Examination – Mr Victor France:

Mr France was asked if he recalled a number of emails sent to him by the Complainant during the months of April 2024 and July 2024.  Mr France confirmed that he probably received any emails sent to him but he would not recall each email unless there was something specific related to that email put to him.  It was put to Mr France that he sent the Complainant an email on 20/06/2024 in relation to the Complainant’s proposed return to work.  Mr France did not recall if he received a reply to this email.  Mr France was asked why there was no communication from him to the Complainant from 20/06/2024 until 08/07/2024.  Mr France stated that he could not recall why this was the case.  It was put to Mr France that the Complainant followed up with a letter 18 days later and that this seemed to be standard practice.  Mr France stated that he cannot explain the delays.  He noted that the  process seemed to have been delayed and he sent the Complainant’s letter to the people who were managing the process.

Mr France was asked to read an email from the Complainant which was sent to him, HR and the HR Company on 17/06/2024 at 12.24pm:

“Next week will mark a full 6 months since Victor France suspended me from employment on an allegation of bullying.  Disciplinary proceedings – suspension followed.

I have made countless attempts to engage with Victor France during this time, for an update on the investigation.  To date, it is my understanding that the investigation is yet to commence.

I have spoken with Ms M from (the HR Company) today and two weeks ago.  Ms M is awaiting instruction.

Over the last few months, when I have called Victor France, he has been rude and abrupt and hung up the call usually within a short few seconds of the call commencing.

I called Victor today and he has said “I’m not in the mood for this” and hung up the call.  He advised (HR Company) are dealing with it and hung up.

Ms M – as I understand you are the person in (HR Company) dealing with this matter (or pending instruction on the matter) can you please provide a formal update.

Towards the end of June, Victor France emailed me 2 emails “without prejudice”!!!  I have sought to engage following these emails, however no communication seems possible, as I have not had replies to mails and call last less than 30 seconds as he hangs up on the call without giving notice the call is ending.

All above action cannot be considered even remotely professional conduct of a CEO.  I would like notice for the record, WITH PREJUDICE.

I look forward to formally hearing from you by close of business on Friday 19th July, as almost 6 months have now passed (I believe more than sufficient time to have disciplinary investigations concluded).

Regards

(Complainant)

Mr France was then asked to read the email he sent to the Complainant on 17/07/2024 at 12.58:

“We have completed our internal review of your conduct while in your role prior to the reasons why you were suspended.  The decision is that you have committed gross misconduct and as such you will be dismissed immediately”.

It was put to Mr France that when he sent his email to the Complainant it had no signature, company logo just sent like that and he was asked if this was customary.  Mr France stated that this was the only time he ever had to send an email like that.  “The graveness of the reasons for dismissal were awful so there were no platitudes”.

It was put to Mr France that from the date of suspension to date of termination the Complainant made many attempts to engage and he said that she could not recall these..  Mr France stated that he was not in a position to respond as he was conflicted and he was letting the team get on with the process.  Mr France was asked why the HR team would not escalate to the CEO email from an employee who was suspended and then dismissed.  Mr France stated that the Complainant was sending emails to him and he was not involved in the process.

Mr France was asked if there was any employee in the HR department that could testify that the Complainant was given an opportunity to review the allegations made against him.  Mr France said that the HR person was no longer working for the Respondent.  It was put to Mr France that the Complainant got a phone call on 19/07/2024 from a Director who is related to Mr France.  Mr France stated that he was not consulted about that phone call.

Mr France was asked if he could clarify when the Complainant was presented with details of any of the conversations that took place as part of the investigation.  Mr France stated that this was up to the HR team and not him.  Mr France was asked when the Complainant was presented with details of the allegations made against him. Mr France said that he understood that the Complainant was spoken to by the investigator as part of the process.   Mr France stated that he was not the person who was running the process.

[Adjudication Officer Note:  at the hearing on 29/04/2025 Mr France stated that he wished to correct the record and state that he was incorrect in stating that he believed that the Complainant had met with the investigator.  He  accepted that he had no knowledge of this.]

Redirection – Mr Victor France:

Mr France was asked to clarify the point made that his decision to dismiss could potentially be a conflict of interest given that there was a family member involved.  He confirmed that if the person involved was not a family member he was confident that he would have made the same decision. This was a most serious matter regardless of who the employee was.

In a closing submission on behalf of the Respondent it was stated that the Complainant was dismissed for reasons of gross misconduct.  It was also noted that the Complainant made a  “demand” for a payment of €25,000.  It is the Respondent’s position that the Complainant contributed to her dismissal and there are a number of cases that involve employees who were successful in claims of unfair dismissal but had their compensation reduced to reflect the fact that their conduct had contributed to their dismissal.  The Respondent referred to the case of A PM/Complainant  V a Food Producer (ADJ-00023204) where it was held that the Complainant was unfairly dismissed but the Complainant’s conduct had contributed to the decision to dismiss him.  In that case the compensation awarded was reduced by 60%.  In the case of Mlynarski v Pianos Plus (UD 1294/2008) The Tribunal held that the Complainant was unfairly dismissed but the Complainant’s contribution to his own dismissal was such that the compensation awarded was a nil sum.

The Respondent also submits that the Complainant’s attempts to mitigate her loss fall short of what is required.  The Respondent notes that there were two occasions when the Complainant confirmed that she did not keep up the level of applications. The Respondent’s representative provided details of a recent job search for roles in the same industry and this showed that there were a significant number of vacancies.  The Complainant also confirmed in evidence that she reduced her efforts from November 2024 until mid-January 2025.  It is the Respondent’s position that the Complainant was not unfairly dismissed and the dismissal was undertaken in accordance with the Complainant’s contract of employment and the employee handbook.

The Respondent confirmed that in relation to possible redress the option of reinstatement could be considered.

CA-0065012-011:  This is a complaint seeking adjudication by the WRC Section 12 of the Minimum Notice & Terms of Employment Act, 1973.  It is the Complainant’s position that when she was dismissed by the Respondent she had 5 years and 9 months service. it was submitted on behalf of the Respondent that the notice period does not apply.  The Complainant’s contract of employment, in relevant part, states:

11.4  “”…. The Company may terminate the Employment without notice, or pay in lieu of notice, if you shall at any time:-

11.4.1. Be guilty of dishonesty or gross misconduct.

11.4.2.  {….]

 It is the Respondent’s position that as the Complainant was dismissed for gross misconduct the Complainant is not entitled to a payment for minimum notice.  This principle has been upheld in the WRC and in the case of Brendan Burke v Bretland Contracting Ltd. Bretland Construction (ADJ-00049539) it was held that when an employee is found guilty of gross misconduct they can have their employment terminated without notice and that the Complainant is not entitled to a payment.

The Complainant gave evidence on oath on the second day of the hearing.  She outlined that she commenced employment with the Respondent on 01/10/2018.  Her role was that of Financial Advisor.  On 25/01/2025 she was suspended from her employment with pay and she was dismissed on 17/07/2024.  Her salary was €45,000 and she was also in receipt of commission in relation to new business generated.  The Complainant outlined that she had two occasions of sick leave following the advice of her GP.  She was deemed unfit for work from May 2022 until July 2022 and again from November 2022 until February 2023.  From her return to work in February until her suspension in January 3034 she undertook a mixture of roles.  She was asked by Ms Vesper France if she would undertake the Head of Compliance role and she said that she would.  This required a Central Bank approval process and this commenced in July/July 2023.  She was previously asked by Ms France if she would take on the Office Manager role.  There was a lot of interaction with the Central Bank in relation to the approval process and additional information was required. 

On 3rd or 4th January 2024 the Complainant was asked to meet with Ms France.  She offered €50,000 for the Head of Compliance role.  The Complainant stated that she felt insulted by this offer as the industry standard was a starting salary of €75,000.  The Complainant stated that over the next three weeks she attended a lot of Team meetings at which she asked for clarification on many points.  She gave evidence that she never received any clarity.

The Complainant stated that on 24/01/2024 she asked for a meeting with the HR Representative as she wanted to file a grievance in relation to bullying by Ms France.  This was arranged for the following day, 25/01/2024.   The Complainant stated that at 8.59 am on 25/01/2024 she received an email form Mr Victor France to say that she was suspended.   At 09.01 am the Complainant stated that she was no longer able to access anything on her work laptop. The Complainant gave evidence that at 10.30 am on 25/01/2024 a taxi called to her residence seeking the return of the work laptop.  She was given a name that authorised this but it was not a person who was known to her so she did not give anything to the taxi driver.

The Complainant gave evidence that she contacted Mr France and the Board members and outlined in summary form what had happened to her.  The Complainant stated that she then assumed that the Respondent would follow due process.  The letter of suspension did state that it was not a disciplinary sanction.

The Complainant stated that she waited for a number of weeks and nothing further happened.  She contacted Mr France in relation to the allegations and she expected that she would have to attend a hearing to hear what the allegations were and be given an opportunity to respond to them.  The Complainant also stated that she did not receive any pay slips.  It was the Complainant’s evidence that she undertook regular follow up emails seeking clarity in relation to when she would have a meeting.  Copies of these were supplied by the Complainant to the WRC.

On 04/04/2024 the Complainant stated that she received a phone call from Mr France asking if she would come back to work.  She sought clarity in relation to the status of the allegations but did not receive anything.

On 20/06/2024 the Complainant received an email from Mr France in relation to her returning to work and also confirming that the HR company would be in touch in relation to the investigation.  There was no follow up in relation to these matters.  The Complainant sent another email on 08/07/2024 in relation to the investigation but got no update. 

The Complainant made further contact on 17/07/2024 at 12.24 noting that it was almost six months since she was suspended and was still awaiting a meeting to hear and discuss the allegations.  Following this she received an email from Mr Victor France at 12.58 which stated:

“We have completed our internal review of your conduct while in your role prior to the reasons why you were suspended. The decision is that you have committed gross misconduct and as such you will be dismissed immediately”.

The Complainant noted that this email contained no salutation or sign off and the company logo and signature was also omitted.  It was the Complainant’s evidence that she considered this to be most unprofessional.   The Complainant followed up to query when she could expect her payments and was told that it would be the end of the month.  On 19/07/2024 the Complainant received copies of relevant policies and a “supporting statement in regard to the disciplinary action currently underway”.  This email was from a Mr John France and the Complainant stated that in a telephone call with Mr John France she spoke to her about a “binding exit agreement” and a payment of €10,000.  The Complainant stated that she did not know Mr John France and asked for clarity in relation to what the payment was for.  She did not get a response to this query.

The Complainant stated that she wished to make it clear that she received details of the allegations on 17/07/2024 and this was the first time she received the specific allegation. The Complainant confirmed that this came from the Respondent’s HR section.

The Complainant stated that she submitted her complaints to the WRC the following week on 25/07/2024.  She stated that she lodged the complaints as she was not afforded due process and regardless of what the nature of the allegations were she was never given an opportunity to engage and provide a response.

In response to some questions from the Adjudication Officer the Complainant confirmed that she never met with a representative from the HR company engaged by the Respondent to investigate the allegations made against her.  The Complainant confirmed that she was never provided with any notes or minutes of meetings which the HR company held with other employees.  The Complainant stated that she never received any report in relation to the investigation undertaken by the HR company.  The Complainant also stated that she received a copy of the allegation made against her after her dismissal.  The Complainant also confirmed that she was never advised that she could be dismissed and she attended no meetings in relation to her dismissal.  The first she knew about it was when she received the email from Mr Victor France on 17/07/2024 at 12.58.

In relation to the Complainant’s attempts to mitigate her loss she confirmed that she started applying in  mid-August 2024 and she spent 6-7 hours per day looking.  She eased off in November 2024 as it was becoming soul destroying and she started again in mid-January 2025.  To date the Complainant stated that she has applied for approximately 2000 jobs and out of that she attended for 30 interviews but was not successful.  The Complainant confirmed that she is seeking roles in the financial sector and also other areas.

Cross Examination – The Complainant:

The Complainant was cross examined b Ms Nicola Murphy on behalf of the Respondent.  It was put to the Complainant that in her direct evidence she stated that the first time she was informed about the allegations was on 17/07/2024.  However, in an email she sent on 24/04/2024 she stated that she was aware of the allegations and she was asked why she included this.  The Complainant stated that she does not recall why she put that in the email and clarified that although she was aware of the allegations she was not provided with the precise details

It was put to the Complainant that demanding a €25,000 loyalty bonus to be paid within a week was not a proper way to conduct business.  The Complainant stated that it was incorrect to say that she demanded the payment.  She asked for it.  The Complainant was asked what she thought the payment was for.  The Complainant outlined that when her role was changed she did not have the capacity to earn commission.  All of her colleagues were earning substantial commission and she was unable to do so as her clients were taken off her.  The Complainant was asked if such a request was appropriate.  She said that she considered it a fair payment as she did not have any opportunity to earn commission.  She confirmed that her salary was €45,000.  It was put to the Complainant that a €25,000 payment was more that 50% of her salary.  The Complainant stated that if she was earning commission it would be higher than that figure.

The Complainant was asked if she was aware that the Respondent was dealing with alleged breaches of security at that time.  She confirmed that she was.  She was asked if she took this into consideration when requesting the payment of €25,000. The Complainant stated that the breaches of security had nothing to do with her and that was the Respondent’s issue to deal with.

It was put to the Complainant that Mr Victor France gave evidence on the first day of the hearing in relation to comments she made about another employee.  The Complainant stated that she never made the alleged comments.  The Complainant was asked if making such comments could be seen as gross misconduct and she said that they would.

It was put to the Complainant that she requested a meeting with HR on 24/01/2024 but the HR person was not aware of why she was making this request.  The Complainant stated that the email she sent to HR did not mention the reason but it was mentioned in a telephone call she had with HR.

In relation to the Complainant’s attempts to mitigate her loss she was asked how many jobs she applied for in the past week.  She stated that it would be in the region of 40 jobs.  The Complainant was asked to clarify what her position was in relation to applications after November 2024.  She stated that she cut back on applications as it was not feasible to spend so much time every day looking for jobs.  Overall the Complainant stated that she made significant efforts to seek employment but when she is asked why the job with the Respondent ended she tells the truth which is that she was dismissed for gross misconduct.  The Complainant was asked if she speaks negatively about the Respondent when she attends interviews.  She replied that this is not the case.  The Complainant also confirmed that she has spent a number of hours each day since January 2025 looking for jobs.

In a closing submission the Complainant stated that she was suspended by the Respondent on 25/01/2024 and she expected that they would follow due process.  She attempted to engage on a regular basis and got very little back.  She was never given an opportunity to discuss the allegations and she never met an investigation officer.  The Complainant felt that she was targeted by the Respondent’s family as she was considered an outsider.  They looked very favourably on her for a while and over the course of a few weeks they say that her personality changed.  This is not correct and the allegations made are not her.  The reality is that they applied no due process in dismissing her.

In relation to possible redress options the Complainant confirmed that compensation is the only possible option given the complete breakdown in the working relationship.

CA-0065012-005:  This complaint seeking adjudication by the WRC under Section 77  of the Employment Equality Act, 1998 was withdrawn at the hearing on 29/04/2025 as it was out of time.

CA-0065012-011:  This is a complaint seeking adjudication by the WRC Section 12 of the Minimum Notice & Terms of Employment Act, 1973.  It is the Complainant’s position that when she was dismissed by the Respondent she had 5 years and 9 months service.  Under the provisions of this Act she is entitled to four weeks’ notice.  The Complainant stated that she received no notice pay and is seeking this. 

CA-0065012-012:   This complaint seeking adjudication by the WRC under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 was withdrawn at the hearing on 29/04/2025.

CA-00065012-002:  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 guild of the accused of wrongdoing.  The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

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

There were  allegations against the Complainant and she was suspended for just over six months to facilitate an investigation by the Respondent.  There was a failure to provide the details of these allegations to the Complainant.  If the Respondent had an issue in relation to the allegations made against Complainant they had a duty to deal with this in a manner which respected the rights of the Complainant.   The decision to dismiss the Complainant without involvement in an investigation or disciplinary  process is not what a reasonable employer would be expected to do. It is the Respondent’s position that the Complainant was dismissed from her employment for reasons amounting to gross misconduct. 

The Complainant did not appeal this decision and she was not advised that she had a right to do so.  As there was no disciplinary hearing the Complainant was denied the opportunity to hear the details of the allegations, respond to these and cross examine any witnesses.

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”.

The outcome for the Complainant in this case was dismissal with immediate effect on 17/07/2024.  The Respondent failed to conduct a disciplinary hearing in line with the code or any of its own policies. 

Were the procedures followed by the Respondent fair?

In any disciplinary hearing an employee has the right to a fair and impartial determination of the issues concerned, which takes into account any representations made and any other relevant evidence. A right to fair procedures and natural justice is also implied into contracts of employment.  These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment.  The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process.  It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made.  While these rights may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters.  Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer. 

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

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

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

Overall, I find that there have been serious procedural flaws in relation to the investigation process and there was a complete absence of any procedure in relation to the disciplinary process.

As the Respondent had a HR function and had also engaged the services of an external HR company it is difficult to understand why these significant deficiencies were not recognised at any stage by the Respondent.

Where procedural deficiencies are identified these must be considered in line with section 6(1) of the Act which states that “having regard to all the circumstances.”  In that context I note the case of Elstone v CIE (High Court, 13 March 1989, unrep.) it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s. (6)1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

The case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result.”

In relation to the disciplinary procedure the Complainant’s contract of employment states at 14.2:

“The company has no formal disciplinary policy in place for employees in your position and will deal with disciplinary matters in a manner considered by the Company to be appropriate in the particular circumstances and in accordance with appliable law.  In the event that any such procedures or policies are formally put in place, said procedures or policies will be advised to you in writing”.

The Respondent’s disciplinary policy, which was only provided to the Complainant after her dismissal, states, in relevant parts, that:

·       “In all cases of discipline, the employee will have the right to a fair hearing.

·       The matter(s) will be fully and fairly investigated; you will be informed of the reason for the discipline and have full right to reply.

·       The Company will always strive to be balanced, not to pre-judge and to apply discipline in a consistent and honest manner.

·       In cases of serious misconduct, management will carry out a full investigation.  You may be suspended with pay pending a full investigation.

·       At all times throughout the disciplinary procedure you will have the right to express your views and to have a work colleague of your choice present if you so wish.  The presence of your witness (outlined above) may aid you in airing your views, ensuring you get a fair hearing.

·       The investigation process is a three-step process and will be carried out by three separate people and it will be in accordance with the principles of Natural Justice”.

This policy also provides detailed procedures in relation to a disciplinary investigation as well as four possible sanctions in cases of serios misconduct.  The policy also outlines the appeal procedure for the investigation and disciplinary process.

In considering the above points it is impossible to reconcile the Respondent’s position that the Complainant was not unfairly dismissed and the dismissal was undertaken in accordance with the Complainant’s contract of employment and the employee handbook.

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

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

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

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

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

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

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

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

Arising from the foregoing it follows that the Respondent has not dislodged the presumption that the dismissal was not unfair. The Respondent failed  to provide any evidence to the WRC or at the hearings to support its case that a  fair  and meticulous investigation was undertaken.  The Respondent did not dispute the fact that there was no disciplinary process invoked in the dismissal of the Complainant.

Having regard to the foregoing points and the totality of the evidence as presented, I find that no reasonable employer would have dismissed the Complainant in the circumstances. There was no fair and transparent  investigation into the allegations and there was no evidence to confirm that the Complainant had any involvement in the what the Respondent believed was a fair investigation.  There was no dispute that there was no disciplinary process in place.  At no stage was the Complainant made aware that a dismissal was a possibility.  This must be examined against the background where the Complainant was contacted by the CEO on 04/04/2024 and again on 20/06/2024 in relation to her returning to work.  The next contact from the CEO to the Complainant was a blunt email on 17/07/2024 to state that an internal review had found the Complainant guilty of gross misconduct and would be dismissed immediately.  This is not compatible with the CEO’s evidence that they had engaged the services of an external HR company to ensure that their process was independent and fair.

I find that the dismissal of the Complainant was unfair for the purposes of the Acts and the Complainant’s claim is well founded.

Regarding a remedy, objectively, this employment relationship is irretrievably broken, and as was confirmed at the hearing, re-engagement may be considered as an option by the Respondent but reinstatement and reengagement  are not viable options for the Complainant..

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 her loss. The Complainant provided evidence of her ongoing attempts to mitigate her loss.  She obtained no work to date despite attending at approximately 30 interviews and submitting in the region of 2000 applications. While she made efforts to mitigate her loss, I am satisfied that she approached this with the resolve that is set out in the case of the Employment Appeals Tribunal v Continental Administration Co Ltd (UD858/199) where it stated:  “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.  The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

I accept that the manner of her dismissal by the Respondent creates difficulties in seeking employment, but I do not accept that this is a complete barrier to the Complainant seeking to mitigate her loss. I note that the Respondent submits that the Complainant’s efforts were insufficient.  This is because the Complainant eased off her applications on two occasions due to the strenuous and futile efforts which she had been involved in.

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

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

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

The Complainant submitted that her gross pay from the Respondent was €45,000 or €865.00 per week.  This is not disputed.  Based on her weekly wage of €865.00 I estimate her loss for the period as €35,465.    

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

In the within  case that the Complainant had 5.8 years unbroken service with the Respondent. I find that the Complainant will have a prospective loss of rights with regards to any future redundancy situation that may arise, and I would put a value on this prospective loss at €7,500.  The Complainant has also incurred a pension benefit loss and I would put a value on this loss at €2,500.  The Complainant stated that she did include loss of commission in this complaint.  Therefore no details of this loss were available at the hearings.

Having regard to all the circumstances in this case, I find the appropriate compensatory sum to be €45,000.  This quantum takes cognisance of the two occasions the Complainant limited the efforts to mitigate her loss.

CA-0065012-005:  This complaint seeking adjudication by the WRC under Section 77  of the Employment Equality Act, 1998 was withdrawn at the hearing on 29/04/2025 as it was out of time.

CA-0065012-011: This is a complaint seeking adjudication by the WRC Section 12 of the Minimum Notice & Terms of Employment Act, 1973.  In view of the above finding that the Complainant was unfairly dismissed it follows that she is entitled to payment in lieu of notice.  The Complainant has worked for the Respondent for 5 years and nine months and is therefore entitled to four weeks’ pay of €3,460.

CA-0065012-012:   This complaint seeking adjudication by the WRC under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 was withdrawn at the hearing on 29/04/2025

CA-00065012-002:  I have decided that the Complainant was unfairly dismissed. I consider compensation in the sum of €45,000 for financial loss attributable to the Complainant’s unfair dismissal to be just and equitable having regard to all the circumstances. 

CA-0065012-005:  This complaint was withdrawn at the hearing on 29/04/2025.

CA-0065012-011: I have decided that this complaint is well founded and that the Complainant is entitled to the sum  of €3,460 which is equivalent to four weeks’ pay.

CA-0065012-012:  this complaint was withdrawn at the hearing on 29/04/2025.

Unfair dismissal.  Natural justice.  Fair procedures.