Complainant

Respondent

Parties

Karen  Mc Hale

Mayo University Hospital

Representatives

Michael Francis Forde, B.L., instructed by  Aileen Feely, J.V. Geary Solicitors

Rory Kavanagh, Employee Relations Department

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-00065665-001

28/08/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant gave evidence under oath.  Cross examination was facilitated.

The complainant submitted that she was left with no alternative but to resign from her position based on the treatment she received from her employer. The complainant submitted that she became aware that a complaint was made about her through the employer’s grievance procedure when one of her staff members returned from a period of leave. She was instructed by her line manager to undertake the return-to-work interview. During that interview the staff member indicated to her that as she was no doubt aware he had made a complaint against her. The complainant submitted that she was unaware of a complaint having been taken against her.  She sought a copy of the complaint, but the respondent did not give it to her, instead she was instructed  to attend mediation to resolve the complaint.

She stated that when she attended the mediation, the mediator expressed surprise that she was not aware of what the complaint against her was and sought to have a copy of it provided to her. The complainant was not successful in getting a copy of the complaint against her at that stage. At the same time a number of staff in the respondent organisation received an upgrade. Their union instructed them that they were not to be supervised by somebody of the same grade. The complainant was of the same grade.  She was then bypassed in the reporting structure.

The complainant submitted that this resulted in her staff not reporting to her but instead reporting to her line manager who would then give the complainant the information that she was required to provide to the management by way of weekly management information reports. Ultimately this situation led to the complainant going out on certified sick leave. She was still not aware of the complaints made against her, and her staff refused to report to her. She was offered two alternative positions; one was a position she had undertaken as a clerical officer some six years previously and the other was a demotion. At this point she was a Grade Four officer.  She submitted that she felt that she was being bullied into accepting one of these positions and that management was very much siding with the staff member who made the grievance against her. The complainant submitted that the pressure left her completely isolated and unable to complete her duties to the level and standard that she felt should be achieved.

The complainant submitted that she felt the situation was intolerable and that she was being asked to accept toxic behaviour on the part of the respondent. She felt that she could not rely on the grievance procedure as she had been involved in a grievance procedure that was going on for too long and had not afforded her basic rights.  She resigned from her position on 17 March 2024.

The complainant cited 3 cases in support of her decision regarding her non-reliance on the grievance procedure. Bridgehall Taverns v Bridget Walsh, Cassidy v Bank of Ireland (ADJ-00034191), and Rehab v Roberts (UDD 2026).  In each of those cases, the respondents took too long to process grievance procedures, and it was considered by the decision maker that the complainant was not obliged to resort to the grievance procedure when submitting a constructive unfair dismissal case.

The complainant noted that she was finally provided with some information regarding the complaint made about her some two months after she had resigned from her position.

The complainant is seeking compensation and noted that although she considered seeking reinstatement, she was not satisfied that, if returned to that position which she had occupied previously, it would resolve matters.

In her evidence the complainant noted that she felt increasingly isolated in the job and frustrated with the respondent’s lack of response to her queries for a copy of the complaint against her. She felt that this was compounded by the union’s direction to its staff not to report to people at the same grade. She stated that she sought alternative employment immediately after having resigned and she was employed on maternity leave cover from 25 March 2024 to 2 May 2025. Since that time, she has been employed on a part time basis.

Limited cross examination took place, with the complainant confirming facts that she had presented.

The complainant confirmed that she had worked for 23 years and had only 17 years left to qualify for a full pension.  She also stated that she would not receive a pension gratuity on retirement.

The respondent submitted that the complainant did not exhaust all avenues open to resolve her grievances internally before resigning. Therefore, she was not unfairly dismissed.

The respondent confirmed that they did not provide a copy of the complaint made against her to the complainant at any stage during her employment.

The respondent noted that it was open to the option of reinstatement.

The respondent accepted that it did not provide the complainant with a copy of the complaints made against her although it preceded to investigate the complaint, starting out with mediation. The respondent did not contest the fact that the complainant did not have sight of the complaint when she was instructed to take part in workplace mediation.

The case of Re: Haughey [1971] IR 217, outlined basic principles of administrative law to be followed in Ireland. Those principles include being provided with the case being made out against you and having the opportunity to rebut that case. Those fundamental principles appear not to have been built into the respondent’s grievance procedure and were not offered to the complainant in relation to the complaint made against her. The complainant submitted that the grievance procedure is fundamentally flawed in this regard. 

The complainant submitted that she did not consider invoking the grievance procedure as she had lost all trust in it, the respondent was either not following it properly or at all.  In the circumstances of this case, where a complaint was made against an individual and that individual was not provided with the details of the complaint nor the opportunity to rebut the allegations made against her, I am satisfied that a reasonable employer would conclude that the grievance procedure is flawed. 

The argument put forward by the respondent is that the complainant should have resorted to a fundamentally flawed grievance procedure before submitting her resignation. I am satisfied that a reasonable employer who had concluded that the grievance procedure was fundamentally flawed would not, and should not, require an employee to take a reference under such a grievance procedure. Having regard to her repeated attempts to have sight of the complaint against her or to have more than a brief overview of it, I'm satisfied that she was left with no option other than to resign in all the circumstances. 

Therefore, I find that the complainant was unfairly dismissed.

The respondent submitted that it is open to reinstatement, but the complainant submitted that although she considered this option, she believes that reinstatement would simply be too difficult given the passing of time and the difficulties she encountered with the respondent when trying to access the grievance procedure from her perspective.  The was no evidence provided by the respondent that it had revisited its procedures or that the fundamental principles regarding a person being able to consider allegations against her in full had been addressed. Indeed, there appears to have been some suggestion at the hearing that there were additional complaints made against the complainant which were not shown to her at all.  In the circumstances and having considered the matter, I am satisfied that reinstatement is not an option which should be imposed upon the parties in all the circumstances of this case.

It was agreed between the parties at the hearing that the complainant was earning €48,500 per annum.  The complainant noted that she had earned €39,000 working a maternity cover contract since her resignation, and that this left her with a shortfall of €8,500 over the 12-month period since her resignation.  She stated that she was employed since then but that her weekly ongoing loss amounted to €574.69.  Her loss of pension entitlement/lump sum was noted and the complainant submitted that compensation in the range of 12 to 18 months’ salary was considered appropriate.

The parties were asked for additional comment on the matter of financial loss and mitigation in post-hearing submissions.

The respondent suggested that the complainant had not demonstrated that she had tried to minimise her financial loss, however, obtaining a maternity cover position almost immediately would seem to indicate otherwise. She resigned on 17 March 2024 and started the maternity cover position on 25 March 2024.  Since the end of that contract, the complainant has taken on a 12-hour weekly contract with one employer and has started an additional 20-hour contract (since August 2025) with another employer, holding down both positions concurrently.  This further undermines the respondent’s suggestion that the complainant has not demonstrated that she was trying to mitigate her financial loss.

From the information provided in response to post-hearing requests to the parties for additional information, it appears that the pension built up by the complainant is preserved for her to draw down upon retirement.  However, this does not appear to be the case for the lumpsum of approximately €41,831.

The complainant indicated that she was seeking alternative employment following the end of the maternity leave cover and although she found a part-time position shortly afterwards, she had an ongoing loss of €574.69 per week.  The respondent did not cross examine the complainant on this matter.  Therefore, I am satisfied that this loss has been established.  The respondents suggestion that she wasn’t seeking to further minimise her loss is not borne out as the complainant found additional employment from August 2025 for a further 20 hours per week.  This leaves an ongoing shortfall of seven hours per week, roughly equating to €167.40.

In the circumstances outlined above, the complainants’ financial loss amounts to the following:

Loss of Lump Sum : €41,831

Loss to August 2025 : 20 weeks @ €574.69 = €11,493.80

Ongoing loss of 7 hours : €167.40 @32 weeks = €5,356.80

I therefore direct that the respondent pays €58,681.60 to the complainant in respect of the unfair dismissal.

Having regard to all the written and oral evidence presented in relation to this case, my decision is that the complainant was unfairly dismissed.  I direct the respondent to pay €58,681.60 to the complainant in respect of the unfair dismissal.

Constructive unfair dismissal – principles of natural justice and fairness breached – unfair dismissal established – award of compensation.