Complainant

Respondent

Parties

Janine  Halpin

Primark Limited Penneys

Complainant

Respondent

Anonymised Parties

Representatives

Greg Caffrey Mandate Trade Union

Michael McGrath Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065368-001

13/08/2024

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

CA-00065368-002

13/08/2024

The Complainant commenced employment on 2nd September 2022, as a retail assistant in the respondent’s new store in Tallaght and worked as a retail assistant for the duration of her brief employment. The complainants’ contract was for 20-24 hours per week. Employment ended on 5th June 2024.

This complaint was received by the Workplace Relations Commission on 13th August 2024.

Mandate Trade Union submits, The Investigation, Disciplinary and Appeal Processes were flawed, which we believe were fundamentally unfair, did not comply with fair procedures, natural justice & evidence relied upon by the Employer was obtained, retained, recirculated and processed in an unlawful manner breeching the Data Protection Act 2008 & article 6 of the GDPR regulations when all the circumstances of the case are considered.

Background:

Ms. Halpin, was employed as a Retail Colleague with Primark Limited - Penneys since 8th of August 2022. Ms. Halpin was contracted to work 20 - 24 hours per week a Band C contract at a rate of 13. 65 per hour receiving 327. 60 gross pay per week for the role as Retail Colleague at Penneys Tallaght.

On the 17th of May 2024 at 10.00am, her start time Ms Halpin was accosted by Mr. Alan Doyle Assistant Manager at the clock-card station and presented with a sealed envelope and advised she had a meeting with himself at 10. 30, to investigate (a) Alleged breach of Dignity & Respect at work policy. (b) Alleged rudeness or conduct likely to cause offence to fellow colleagues. (c) Making inappropriate comments or offensive comments about the company, management or work colleagues on social networking sites.

Just a period of 30 minutes notice was given for the investigation meeting, this is in contravention to a well-practiced & established minimum notice period of 24 hours for such meetings held under Penneys Disciplinary Policy, & within the Retail Industry, This provided insufficient time for our member to organise local representation &/or consult with her Trade Union, which unfairly limited her right to examine the allegations against her & the identity of her accuser/s, in order to mount a reasonable & credible defence in line with fair procedures & natural justice as prescribed within Company Policy & S1146/2000, which tilt the scales of fairness in an unfair manner.

The scope & references points within the investigation are beyond the realms of the workplace as the items investigated were discussed in the virtual world in a WhatsApp group chat in which participants are only accepted by invitation with encrypted messages for the solely intended purposes of the members of the group chat.

At the investigation meeting on the 17th of May 2024 chaired by Mr. Alan Doyle Assistant Manager with notes taken by Ms. Emma Mulvey Team Manager, Ms Halpin attended the investigation meeting alone & under duress, at the investigation meeting Ms Halpin was not presented with details of the allegations, & not provided with the printed evidence the Employer later relied upon, Ms Halpin was also questioned regarding her personal mobile phone number & the personal mobile phone numbers of other members within a WhatsApp group. Ms Halpin was not provided with any information on the source of the allegations and who was making the allegations against her despite repeated requests throughout the processes. The minutes of this investigation meeting demonstrate how the investigation was not conducted fairly and not conducted lawfully as the evidence the employer later relied upon was used & obtained without our members knowledge &/or consent which deems it was obtained, retained & processed by the Employer in an unlawful manner under the Data Protection Act 2008 & GDPR general regulations which we regard as a contravention of the act.

On the 20th of May 2024 Ms Halpin received a letter inviting her to a disciplinary hearing on the 24th of May 2024 at 10. 30am signed by Ms. Caroline Mc Carthy, People & Culture Manager Mary St. Disciplinary Officer, also advising of the investigations outcome deemed our member did breach the company's policies and recommended a disciplinary process be commenced. Allegation C did not appear within the Disciplinary Meeting letter, no investigation outcome was provided on allegation C.

On the 5th of June 2024 Ms Halpin received a letter of Dismissal for reasons of gross misconduct with no entitlement of notice signed by Ms. Mccarthy.

On the 10th of June 2024 Mandate Trade Union wrote to Mr. Andrew Murray Regional Manager on behalf of Ms Halpin to appeal the sanction of dismissal.

On the 3rd of July 2024 an appeal hearing was held, on the 18th of July 2024 Mr. Murray wrote to Ms Halpin advising her appeal grounds had not been upheld citing (a) Breach of the Dignity and Respect at work policy (b) Rudeness or conduct likely to cause offence to customers or fellow employees. Therefore, the disciplinary sanction of dismissal contained within the dismissal letter is upheld ending internal processes.

On the 13th of August 2024 Mandate Trade Union submitted a complaint to the Workplace Relations Commission online portal on behalf of Ms Halpin.

Union Position:

It is submitted that Penneys the Employer did not afford Ms. Halpin Fair Procedures by way of Natural Justice in line with the stipulations set out in S1146/2000.

The Employer unlawfully dismissed Ms Halpin in contravention of the Unfair Dismissal Act 1977.

 The Employer Unfairly Dismissed Ms Halpin without Minimum Notice in contravention to the Minimum Notice & Terms of Employment Act, 1973.

The Employer did not conduct a fair investigation as Ms Halpin was summoned to an investigation meeting providing just 30 minutes notice, rendering it impossible to organise representation and a reasonable timeframe to examine the allegations presented, the source of the allegations & the identity of her accuser/s in order to mount a reasonable & creditable defence.

The Employer did not respond to allegation C outlined in the investigation letter.

The investigation officer repeatedly & incorrectly determined that the 052 madness WhatsApp group chat was a "Work Group Chat" this is not the case as the Employer did not create nor administer this group chat.

The investigation officer determined the investigation move to a disciplinary process, which oversteps the scope of the investigation as the scope of his role was to investigate the allegations which circumvents the boundaries of impartiality.

The employer repeatedly failed to provide critical information on the source/s of the allegations, when the allegations were received, who received them & when the alleged victim was interviewed & the context of that interview, rendering it practically impossible to cross examine any witnesses pertaining to the allegations & witness statements.

The sanction of Dismissal is disproportionate, as the investigative, disciplinary & appeal process have no jurisdiction within the confines of the workplace &/or extension of the workplace as the allegations occurred in private encrypted messages in a virtual world beyond the workplace in which the Employer has no jurisdiction.

Ms Halpin was not on duty & was not within the workplace at the date & time the allegations relate to.

The Employer only disclosed it had received a complaint through its Speak-Up Policy when the appeal outcome letter was issued, however the source of the allegations & the identity of Ms. Halpin's accuser/s remain unknown.

 The employer failed to comply with its obligations under the Data Protection Act 2018, GDPR Article 6 as evidence provided was obtained, retained, processed & redistributed without our members knowledge &/or consent contravening her statutory rights provided for within the legislation.

The Employers data protection hub failed to provide our member with an adequate response regarding a complaint she raised on the 10th of June 2024.

Ms Halpin had to pursue her Data Access Request through the Data Protection Commissioners Office on the 25th of June 2024.

It is submitted Ms. Halpin's case has similarities on previous rulings such as the Company acted unreasonably in their determination of a Disciplinary Sanction in this case, in particular given their failure to afford the Complainant the Principles of Natural Justice and Fair Procedures throughout the process. An understanding of how far this right goes and what it means can be gleaned from some of the decided cases.

In Gallagher v Revenue Commissioner ([1991] 2 1. R. 370), Morris J. in the High Court quoted with approval Henchy J. s decision in Kiely v Minister for Social Welfare ([1977] 1. R. 267).

"Of one thing I feel certain, that natural Justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi alteram partem means that both parties must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth eliciting process of a confrontation which is inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross examination. The dispensation of Justice, in order to achieve its ends, must be even-handed in form as well as in content."

 The Labour Court in LCR22162 Silicon & Software Systems v A Worker stated:

"The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also, that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice".

The Frizelle v New Ross Credit Union Ltd. High Court Judgement stated:

"The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. " And put very simply, principles of natural Justice must be unequivocally applied. " And This is a claim for relief for unfair dismissal by the Plaintiff against the Defendant in which the said principles are germane"

For all the reasons submitted and set out above we respectfully request that this Unfair Dismissal Hearing declares this case is well founded and finds Ms. Halpin was unfairly dismissed by Penneys by not affording fair procedures in line with natural justice, in determining and instructing Penneys that all calculable payments within the reference period 5th of June 2024 - 30th of September 2024 owed to Ms. Halpin are returned, Ms Halpin losses are calculated from the 5th June 2024 to 30th of September 2024 at 13.65 per hour x 24 hours per week = 327. 60 per week + 1 week minimum notice totalling 4258. 80.

·        The Complainant was dismissed for Gross Misconduct from her employment with the Respondent on 5 June 2024. The complainant was dismissed for a) Breach of Dignity and Respect Policy (b) Rudeness or conduct likely to cause offense to fellow colleagues.

·        At the time the Complainant was on a live final written warning for; (a) Breach of Dignity and Respect Policy (b) Unreasonable refusal of a legitimate Management Instruction (c) Rudeness or conduct likely to cause offense to fellow colleagues.

·        A thorough process was undertaken by the respondent to ensure maximum fairness and transparency was afforded to the Complainant and in accordance with fair procedures and natural justice, her actions were deemed to constitute gross misconduct.

·        The Complainant has a total of 1 year and 10 months service at the time of her dismissal.

Background to the Complainant

The Complainant commenced employment on 2nd September 2022, as a retail assistant in the respondent’s new store in Tallaght and worked as a retail assistant for the duration of her brief employment. The complainants’ contract was for 20-24 hours per week.

Background to the claim

·        On 12 October 2023, the Complainant was issued with a Final Written Warning for: (a) Breach of Dignity and Respect Policy (b) Unreasonable refusal of a legitimate of a Management Instruction (c) Rudeness or conduct likely to cause offense to fellow colleagues. This sanction was not appealed. 

·        The complainant admitted to using foul language towards a member of management and refusing to use follow a management instruction when asked to either clock out or go back to the salesfloor to complete her shift.

·        In the Final Written Warning which was issued the Complainant was informed; “You are to be under no illusion that any further breaches of company policies may ultimately lead to your dismissal.”

Staff WhatsApp group

·        A WhatsApp group called ‘052 Madness’ (052 refers to the Store Number for the Tallaght Store) was brough to the attention of management through the company ‘Speak Up’ policy. An employee was so concerned with the content of the messages which references fellow staff members that it was raised to the respondent. The Speak up Policy states; If any colleague working at any level of the Company becomes aware of anything they believe to be inappropriate, improper, dishonest, illegal or dangerous, we want them to come forward and express their concerns.

·        There were over 50 people in the WhatsApp group. Screenshots of the group chat were given to management as they showed extremely concerning messages of threatening behaviour. The person stated they were extremely disturbed and concerned for the safety of the people in the store. The person requested to remain anonymous for their own safety following the nature of the messages.

·        For the purpose of clarity, the Complainant has at no stage denied that she was responsible for any of the specific texts/messages for which she was ultimately dismissed.

·        On 17 May 2024 the complainant was invited to an investigation meeting which took place on 17th May 2024. The Complainant was offered but declined representation. The meeting was chaired by Alan Doyle, Assistant Manager.

·        The Complainant was shown the WhatsApp conversation. The Complainant did not dispute that she was the author of the text. The Complainant was first shown the following message which she had sent; ‘Little scrotes not taken you back’ . [time 12.23.]

·        The Complainant was asked of what she was referring to company management who didn’t overturn the appeal of a colleague who was dismissed. The Complainant responded in the investigation meeting’ ‘Yeah, I don’t know who it was that didn’t take her back, could be head office’

·        The Complainant was then shown the message from another employee which stated, ‘Gonna skull drag Anna when I see her. This referred to a member of management. The Complainant quote replied to this message stating; ‘I hope she get the shits for the next year’ with two crying laughing emojis[time 12.31]

·        The Complainant was also shown a further message where the Complainant had quoted the response to her message with a ‘beaver/rodent’ emoji and 4 ‘crying laughing emojis’ [Time 12.36]

·        When asked if she felt that it was appropriate to send these types of messages on a group with a large number of her colleagues on it she did not see it as inappropriate. The Complainant agreed that the group was with her ‘work mates’/’A load of my colleagues’.

·        It was noted in the meeting that the Complainant was on a live final written warning for A) Breach of dignity and respect policy, B) Unreasonable refusal of a legitimate management instruction and C) rudeness of conduct likely to cause offence to fellow colleagues. When asked if she understood that the messages could be seen as a breach of the Dignity and Respect policy she replied ‘No’. when asked if she could understand that those words could cause offense to colleagues she stated ‘ Nope, no ones names mentioned.’

·        On 20 May 2024, the Complainant was invited to a disciplinary meeting

·         Friday 24 May 2024, the Complainant attended a disciplinary meeting. The meeting was chaired by Caroline McCarthey People & Culture Manager. The Complainant was represented by a shop steward.

·        The Complainant at the outset was provided with a copy of the relevant WhatsApp messages. The meeting was adjourned to give the Complainant time to review.

·        With respect to the message the Complainant directly replied to her ex-colleague ‘Sophie’ in relation to her failing to overturn her disciplinary appeal in which the Complainant stated ‘little scrotes not taking you back’ the Complainant stated it was not in relation to the company but in relation to ‘Sophies’ personal life.

·        When the Complainant was asked to comment on her directly replying to the message from Sophie ‘Gonna skull drag her when I see her’ with ‘‘hope she gets the shits for a year’ and laughing emojis, the Complainant stated it was not directed at anybody.

·        When asked to explain the Complainant replying to a further message of Sophies (who was replying to the Complainant’s message) with ‘little beaver, an emoji of a rat / beaver and 4 laughing emojis the Complainant stated that she just found it funny.

·        The Complainant at stages in the meeting suggested that the messages were a show of support for her colleague Sophie. It was pointed out to her that other colleagues had sent messages of support which were of a different nature, i.e. wishing her well.

·        Within the meeting the Complainant did agree that she had read and accepted the Dignity and Respect at Work policy.

·        On 5 June 2024, the Complainant attended an outcome meeting. The Complainant was provided with the letter of dismissal. The dismissal letter summarised the key points from the disciplinary process and outlined the rationale for dismissal. The Complainant, who was already on a final written warning for similar behaviour was dismissed for gross misconduct for ‘Breach of Dignity and Respect policy, Rudeness or conduct likely to cause offence to Customer or fellow employees.’

·        The Complainant appealed the decision by letter dated 10 June 2024.

·        The appeal hearing took place on 3 July 2024. The appeal was heard by Andrew Murray, Area Manager. The Complainant was represented by Greg Caffrey, Mandate official.

·        The outcome of the appeal was that the original decision to Dismiss the Complainant was upheld. The Appeal outcome summarised the grounds of appeal and set out the rationale for upholding the original decision.

‘As part of my investigation into your appeal, I have taken account of the representations made by you at our meeting which included:

1. You stated the evidence the company used during the investigation and disciplinary procedure was unlawful.

2. You were not informed of who your accuser was.

3. You stated you were brought to investigation for 3 reasons and were disciplined for 2 of those.

4. You did not have the right to natural justice.

·        I have taken time to consider the above and confirm the following:

1. You stated in our meeting you were not given an opportunity to know who your accuser was. I can confirm the person who brought this to our attention did so through our Speak up policy and wished to remain anonymous due to the threatening comments within the group chat. At your investigation and disciplinary hearings, it was explained to you that this person wished to remain anonymous.

2. You were afforded the opportunity to review all the comments made in the group chat and your confirmed to management in both your investigation and disciplinary meeting that you did in fact make these comments. Therefore, it does not impact the investigation nor was it unlawful that you do not know who shared the information with the store.

3. The purpose of the investigation is to investigate alleged breaches and following investigation, based on the evidence the investigating officer will decide what issues to bring forward to Disciplinary. This is normal that having considered what has been said and the evidence that a decision may be made to only refer certain issues. This shows to me that full consideration was given to the decision.

4. You were invited to an investigation in writing and afforded right to representation. All evidence and notes were shared with you. You were formally invited in writing to disciplinary hearing and the case against you was outlined fully. You were afforded the right to representation. You were given opportunity to respond and your questions were answered at all stages of the process. You were also afforded right of appeal. You have been afforded the rights of natural justice.

I have noted that if this was an isolated incident you would potentially have been issued a Final Written Warning, however, you were in fact already on a Final Written Warning for (a) Breach of Dignity and Respect at work policy (b) Rudeness or conduct likely to cause offence to customers or fellow employees. Taking all the circumstances into account and that this decision is in line with incidents similar in nature, I confirm that I am upholding the decision made by Ms. McCarthy in her letter dated, 5th June 2024 to dismiss you from the company for: (a) Breach of the Dignity and Respect at work policy (b) Rudeness or conduct likely to cause offence to customers or fellow employees.’

Respondent’s Position

·        Dismissal as a result of Complainant’s conduct.

·        The Complainant in the present case has fully admitted to being the author of the Whatsapp messages in the ‘052 Madness’ Tallaght store Whatsapp group. 

·        The Complainant has agreed that the group is full of her workmates and colleagues. The messages can also be forwarded multiple times widely outside the ‘group’ increasing the number of those who have read them exponentially.

·        The Complainant has agreed that she is aware of and has read the dignity and respect at work policy.

·        The Complainant was previously given a final written warning, which was live at the time of her dismissal, for breaching that policy and for rudeness or conduct likely to cause offence to fellow colleagues.

·        In accordance with the Unfair Dismissals Acts 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.

·        As the Complainant has admitted to authoring the messages the respondent following the investigation and disciplinary process consider that such behaviour was of a level which warranted dismissal for gross misconduct.

·        The nature of the messages which were sent and exchanged in a group with over fifty individuals the vast majority of who were work colleagues were offensive, intimidating, rude, disrespectful.

·        It is important to be clear that the Complainant has not conceded or admitted that the messages were in any way inappropriate.

·        The Complainant has submitted various uncredible explanations as to the meaning of messages she sent in direct contradiction to their obvious and intended subject. As the Complainant has not recognised that the behaviour was wrong and that the conduct was unacceptable the company had no assurance that there would not be any repeat of the behaviour.

·        The Complainant was employed in the store for a period of 20 months. Within that short time the Complainant was involved in two serious incident involving Breaches of the Dignity at work policy, the second of which resulted in her dismissal. It is not reasonable to expect the company to maintain the Complainant in employment given her repeated disregard for the dignity of her colleagues.

·        The respondent has an obligation under the Safety Health and Welfare at Work Act 2005 to provide a safe working environment for all their colleagues. The respondent therefore has an obligation to address such behaviour as the Complainant has demonstrated to ensure that conversations, exchanges or comments which are degrading, offensive, humiliating, threatening or intimidating are not tolerated. For the purpose of clarity, the manager who was the subject of the Complainant’s comments both in the incident which lead to her being provided with a final written warning AND the manager who was named in the Whatsapp exchange have resigned their employment with the company as a result of the behaviour displayed by the Complainant. The Complainant behaviour was extremely serious despite her explanations. The word sent and the effect of the message speak for themselves.

·        The company disciplinary policy contains a non-exhaustive list of examples of gross misconduct which explicitly includes;

• Rudeness or conduct likely to cause offence to customers or fellow employees

• Breach of Dignity and Respect at Work Policy.

·        It is clear that the Complainant’s actions constituted gross misconduct such the dismissal was warranted. Sanction of dismissal reasonable for employer in the circumstances

·        In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows:

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

·        It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such the company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place.

Trust and confidence destroyed.

·        The actions of the Complainant destroyed the company’s trust and confidence in her and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated that: “[The Complainant’s actions] destroyed the respondent’s trust and confidence in the Complainant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”

Fair Procedures.

·        In relation to the procedures used to implement this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Complainant was informed in advance as to the nature of the allegation against her. She was afforded the right to representation. She was further provided with a fair and impartial hearing, at which she was given every opportunity to respond to the allegations against her. All the evidence in its entirety was considered, including the Complainant’s representations before any decision was made or action taken. In light of all of the above, the respondent is confident that the dismissal of the Complainant was procedurally fair in all respects.

No dispute over facts.

·        Importantly, there is no dispute over the substantive facts in the case. The Complainant has not disputed or denied that she was the author of the messages and comments. 100% contribution to her dismissal

·        The respondent contends that the actions of the Complainant contributed wholly to her dismissal. Accordingly, it is the respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions.

·        Claim under the Minimum Notice Acts. The Complainant was summarily dismissed for gross misconduct such that there is no requirement to provide pay in lieu of notice. The Complainant termination date was effective 5 June 2024 as was communicated to her in the letter of dismissal. ‘I hereby confirm that you are being dismissed with effect from today's date. As your dismissal is by reason of gross misconduct no entitlement to notice arises.

I have carefully considered all evidence as presented at the hearing and also considered the submissions presented by both parties. I now make the following comments:

General Data Protection Regulations.

There were arguments presented primarily by the Complainant’s representative in relation to these Regulations and the possible breaches of such regulations. The complainant’s representative has stated:

“The minutes of this investigation meeting demonstrate how the investigation was not conducted fairly and not conducted lawfully as the evidence the employer later relied upon was used & obtained without our members knowledge &/or consent which deems it was obtained, retained & processed by the Employer in an unlawful manner under the Data Protection Act 2008 & GDPR general regulations which we regard as a contravention of the act.”

As an adjudication officer in the Workplace Relations Commission, I have no jurisdiction to consider alleged breaches of GDPR, any such complaints on this subject should be addressed to the Office of the Data Protection Commissioner.

The respondent’s representative has quoted the case of Looney & Co. Ltd v Looney, UD 843/1984:

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

This clearly summarises the duties of the adjudication officer. Basically, there are two questions that must be answered:

1.      Was the decision to dismiss a decision that a reasonable employer would make?

2.      Were the correct procedures applied and followed?

In the instant case the complainant was employed for approximately 20 months prior to the incident that led to her dismissal. At the time of her dismissal the complainant had already been issued with a Final Written Warning on 12th October 2023, this warning was issued for the following reasons:

(a) Breach of Dignity and Respect Policy

(b) Unreasonable refusal of a legitimate Management Instruction

(c) Rudeness or conduct likely to cause offense to fellow colleagues

The letter also contained the following text:

“This letter is to be regarded as a Final Written Warning. The company would strongly urge you to take the matter very seriously. Your adherence to the company policies will be kept under review and we must advise you that a failure to improve in relation to this matter may result in further disciplinary action being taken against you.

You are to be under no illusion that any further breaches of company policies may ultimately lead to your dismissal.

This warning will remain active in your personnel file for a period of 12 months. With adherence to the company policies and procedures over the next 12 months, this warning will become inactive on your file”.

There is no ambiguity in this letter, it is not open to interpretation.

The Procedures followed.

I am happy that the respondent followed procedure with the exception of only providing 30 minutes notice of an investigation meeting that the complainant was instructed to attend. This lack of notice turns the invitation to an investigation meeting into an ambush.

Due to this fact I am concluding that this flaw results in my finding that the complaint as presented is well found however I also conclude that the complainant has contributed 70% to her own dismissal.

The complainant’s representative has stated the following in relation to the loss incurred by her:

Ms Halpin losses are calculated from the 5th June 2024 to 30th of September 2024 at 13.65 per hour x 24 hours per week = 327. 60 per week + 1-week minimum notice totalling 4258. 80.

I now order the respondent to pay compensation to the complainant of €1,277.64 (€4258.80 x 30%).

Such compensation should be paid within 42 days from the date of this decision.

Due to this fact I am concluding that this flaw results in my finding that the complaint as presented is well found however I also conclude that the complainant has contributed 70% to her own dismissal.

I now order the respondent to pay compensation to the complainant of €1,277.64 (€4258.80 x 30%).

Unfair Dismissal