Complainant

Respondent

Parties

Madalena  Palmeira O'Grady

Wh Smith Ireland ltd Wh Smith Ireland Ltd

Representatives

Orla Murphy B.L. instructed by Arthur Cox LLP

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-00069399-001

19/02/2025

The complainant worked for the respondent at its Dublin Airport shop.

She gave her evidence on oath. The interpreter affirmed.

On November 17th, 2023, she says that she was physically struck by a supervisor who then reported that the complainant had hit her. A manager took the side of the supervisor and criticised her and then asked her to sign a statement but as it was false she did not do so.

Nothing further was done but the supervisor was sent away for two months. When she returned in February 2024, she tried to report another incident of assault. On this second occasion she reported this to Gardaí.

She then made a complaint under the Grievance Procedure followed by an appeal. Her situation did not improve. The manager in this procedure claimed later it  was never completed by her, but she says that it was, as was an appeal.

After she submitted a medical certificate for stress this manager claimed she was irrational and insisted she do another medical. This continued for weeks until she discovered this was against the company’s employee handbook guidelines. The medical never took place.

She  continued to complain about the situation.

On June 17th, 2024, her annual leave information was removed from the company computer to suggest that she had been on unauthorised absence.  After she returned from an agreed week’s holidays,  two managers insisted she sign a document without proper explanation. They were surprised that she could prove she did have holidays.

She  was escorted from the premises three times. The first time because she was upset and trying to make a complaint, then later her work-pass was removed, and she was escorted off the premises  without good reason and under stressful conditions.

She says that a manager made false statements against her.

In October the company brought three complaints against her which she contested. These were not properly investigated. The witness statements amount to opinions only. After a year of bad treatment and finally on account of these false complaints she was unfairly dismissed on January 7th, 2025.

She does not know why she was dismissed, as her work had been very good. She believes she was punished for making a complaint and prior to any investigation.

She has not been able to find work since due to the circumstances of her termination with the respondent . She has applied for about ten jobs.

The complainant outlined her dissatisfaction with the investigation. She says that the person conducting the investigation did not speak English.

In response to questions about whether she had receive notification of the rearranged Disciplinary Meeting in January she does not remember whether she saw it, or if she did when that might have been.

The complainant ’s employment as a Sales Assistant with the respondent commenced on 14 April 2022.

Two of her colleagues made separate complaints against her under the Dignity at Work Policy. Ms. Zelazna complained that the complainant  physically hit her with a ladder, attempted to hit her with a trolley, stood on her shoes, made threatening comments towards her, and repeatedly spoke poorly about her to other colleagues

Mr. Gary Sands, complained that the complainant  repeatedly called him a liar, refused to work with him, and intentionally made him feel uncomfortable in the workplace

On September 23rd,  2024, the company met the complainant to notify her that there would be an investigation into the complaints. She  was also placed on paid leave for the duration of investigation.

In response she acted inappropriately and in a threatening manner towards colleagues. She also urged patrons in neighbouring businesses to ‘boycott’ the Respondent. This became the third complaint. The complainant  was ultimately escorted from the premises by the Dublin Airport Police.

All three complaints were subject of an internal investigation.

The complainant  was dismissed for gross misconduct on January 8th, 2025, following a full and fair disciplinary investigation and hearing and this sanction was upheld on appeal.

Investigation

On 25 October 2024, the respondent wrote to the complainant  noting that Mr. Musharaf Hussain, the Manager of the Respondent’s store in Cork, had been appointed as the investigator. He had no prior knowledge of the complaints or of those involved. She was also told  that Complaint 3 would now form part of the internal investigation. As part of the investigation process, the Investigator interviewed twelve employees.

On November 8th, 2024, the Respondent wrote to the complainant  and invited her to an interview with the Investigator on 15 November 2024 to give a statement relating to the complaints. Details were submitted in relation to all of the complaints

There were four main components to Complaint 1. It was alleged that the complainant  hit Ms. Zelazna with a ladder, repeatedly attempted to hit her with a trolley,  made threats of further assault to her; and spoke inappropriately about her to colleagues.

On September 26th,  2024, the Investigator interviewed Ms. Zelazna in respect of Complaint 1.  Various witness statements were made supporting Ms. Zelazna’s account.

Based on the evidence and witness statements, the Investigator was unable to make a definitive determination regarding these allegations and the complainant ’s allegation that Ms. Zelazna assaulted the complainant, as alleged. He  determined that the remainder of Complaint 1 was well-founded, and that the complainant  had breached the Dignity at Work policy.

There were three main components to Complaint 2. It was alleged that the complainant  repeatedly called Mr. Sands a liar, that she refused to work with him; and that she intentionally made Mr. Sands feel uncomfortable in the workplace.

On September 24th, 2024, the Investigator interviewed Mr. Sands in respect of Complaint 2 and various witness statements were made supporting Mr Sands’ account.

On November 15th, 2024, in a meeting with the Investigator, the complainant  admitted to calling Mr. Sands a liar. The Investigator determined that Complaint 2 was well-founded, and that the complainant  had breached the Dignity at Work policy.

There were three main components to Complaint 3. These were that the complainant acted inappropriately and engaged in unacceptable behaviour, that she had acted in a threatening manner towards colleagues; and that she had  brought the  company into disrepute by telling patrons in neighbouring businesses to boycott it.

On November 5th, 2024, the Investigator interviewed Ms. McDonald, who had met with the complainant  on  September 23rd, 2024, to notify her of the investigation into Complaint 1 and 2. On 8 November 2024, the Investigator met with Ms. Sharon Bradley, Store Supervisor, who was also present that day. In an excerpt of the interview notes with Ms. Bradley, she states:

“As I was leaving the office [the complainant ] was on her way into the office so I left and went around back to the shop where I was doing my normal work and I heard [the complainant ] coming out by the office around towards the shop and she was rolled and screamed saying that she's not fired she's not fired she is going to work and she had left then and went onto the shop floor she would not listen to Suzanne at all.”

On 15 November 2024, in meeting with the Investigator, the complainant  admitted to acting poorly to receiving notice that Complaint 1 and Complaint 2 were being investigated.

“IreactedbadbecauseIcouldnottrustheroranyoneafterallthesituation happened.”

TheInvestigatordeterminedthatComplaint3waswell-founded,andthatthecomplainant  had acting inappropriately, spoke in a threatening manner to colleagues, and brought the Respondent into disrepute. A copy of the investigation report was given to the complainant  on 11 December 2024.

DISCIPLINARY PROCESS

On December 12th, 2024, the respondent wrote to the complainant  and informed her that based on the findings of the investigation report, there was sufficient evidence to proceed with a disciplinary hearing.

She was told  that the purpose of the disciplinary hearing would be to consider the complaints in light of the respondent’s Disciplinary Policy, and  she was put on notice that the allegations against her were serious and had the potential to result in disciplinary sanctions, up to and including dismissal.

On December 13th,  2024, the Disciplinary Chair, Mr. Conrad Ryan, Terminal 1 Manager wrote to the complainant  and invited her to a disciplinary hearing on  December 17th, 2024. She  was offered the choice of attending in person or virtually.  She requested a postponement of the disciplinary hearing to enable her to “take advice”. Mr Ryan initially denied this request:

On December 17th,  2024, the complainant  submitted a medical certificate, which stated she was unfit to return to work until  January 5th, 2025, and requested that the complainant  be given at least one weeks’ notice of any further meetings. Mr Ryan agreed to the postponement and respected the complainant ’s doctor’s request, and the disciplinary hearing was rescheduled for  December 23rd, 2024.

On  December 19th, 2024, the complainant  indicated that she would not attend the disciplinary hearing andMr Ryan again agreed to reschedule the disciplinary hearing. On  December 23rd, 2024, MrRyan wrote to the complainant  inviting her to a meeting on 7 January 2025.

Due to a typo in the email, it mistakenly referred to 7 January 2024. It wasclear thatMrRyandidnotschedule a meetingfor thepreviousyear.Inthe email he alsoafforded her the opportunity to providea writtenstatement to him in advance of the meeting, if she was unable to attend the disciplinary hearing either in person or online. She did not do so.

On January 7th,  2025, Mr Ryan held the disciplinary hearing. The complainant did not attend the disciplinary hearing, nor indicate in advance that she would not attend.

The hearing proceeded in her absence. As the complainant  did not attend the hearing and did not provide a written statement, Mr. Ryan conducted the meeting based on the evidence submitted in advance, including the Code of Conduct, the Dignity at Work Policy, and the investigation report (including excerpts of witness statements).

Due to insufficient evidence, Mr. Ryan was unable to make a conclusive determination regarding Ms. Zelazna’s allegation of assault under Complaint 1. However, Mr. Ryan found that the rest of Complaint 1, as well as Complaints 2 and 3, were substantiated.

He found the complainant's actions to be gross misconduct on the grounds that she had repeated and sustained refusal to follow reasonable instruction; repeated and admitted breaches of the Dignity at Work policy; and engaging in threatening behaviour and bringing the respondent into disrepute.

On January 8th,  2025, the respondent wrote to the complainant  informing her of the outcome of the disciplinary hearing held in her absence. He concluded that the appropriate sanction was dismissal, given the sustained nature of hers behaviour towards colleagues, the reputational damage caused by her actions on  September 23rd, 2024, and the need for airport police to intervene and escort the complainant  from the terminal.  The letter offered the complainant  a right of appeal within 14 calendar days.

On January 12th  2025, the complainant wrote to the respondent, setting out the grounds for her appeal. On 22 January 2025, the respondent replied inviting her to a formal appeal hearing. This letter informed her  that the appeal hearing would be final, with no a further right of appeal.

On  January 28th, 2025, the appeal hearing took place via Microsoft Teams. The complainant was accompanied by her husband, and a Portuguese interpreter was present. She  was uncooperative during the appeal hearing and did not engage with the process. Despite being invited many times to discuss the grounds of her appeal, she refused.

On January 31st,  2025, the respondent wrote to the complainant  informing her that her appeal had been unsuccessful and informed her  that the decision to dismiss her was upheld.

Hearing of Evidence

Evidence of Mr Musharaf Hussain. The witness gave evidence on oath.

He confirmed that he had had no previous association with or knowledge of the complainant. He managed the office in Cork. He stated that he had previous experience of conducting about four or five investigations.

He gave details on his conduct of the interviews with twelve people and that all material had been shared with the complainant before she was interviewed. A translator was present when she was interviewed.

He outlined his conclusions (as set out above in the submission).

In response to earlier allegations by the complainant that he had been disrespectful to her, he said that he was fully conscious of his obligations and had been respectful.

The complainant had also criticised the short duration of the meeting, but he said it had lasted three hours and fifty eight minutes.

He was questioned by the complainant as to why he had asked a question based on an allegation by one of the parties which had presumed that it was correct. He said that he had done so only to expedite the interview.

Conrad Ryan gave evidence on affirmation.

Mr Ryan had carried out the Disciplinary Hearing.

He gave evidence confirming the that while he had agreed to a first postponement, on the second occasion he decided to proceed as the complainant was on notice of the hearing, and her period of sick leave had ended.

He made his decision on the basis of the company’s policies and the evidence that had been gathered in the investigation, He regarded it as gross misconduct and upheld the decision of the disciplinary hearing at first instance.

The complainant put it to him that she had been medically certified as unfit for work between December 17th and January 5th. The witness said that he had been aware of this.

That concluded his evidence.

I have considered all the relevant evidence that was laid before me, both before and in the course of the hearing.

There are three ‘pillars’ which guide the adjudicator to a decision in a complaint of unfair dismissal.

They are as follows.

1.      Had the employer reasonable grounds to initiate disciplinary action and was it reasonable for them to do so?

2.      Secondly, was there a fair process throughout which the appellant’s rights were fully respected and vindicated?

3.      Finally, was the sanction imposed reasonable having regard to all the circumstances.

The onus under the Act falls on the employer to justify the dismissal.  In order for a dismissal to be fair there must be some significant grounds to support disciplinary proceedings or other actions against the employee related to performance or conduct.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee or other parties affected and ensure that justice is done.

These are not particularly onerous and are generally well known. They are referred to by such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases are argued on the basis of key facts not being in dispute and the outcome normally turns on alleged inadequacies in the procedures and/or the appropriateness of the sanction which must fall within what is described as a range of reasonable responses by the employer.

The criteria to be applied by and Adjudicator were set out on the oft cited EAT decision in Looney and Co v Looney UD843/194 and the view of Dr Mary Redmond to the same effect that;

It is not for the EAT 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 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’.

As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as the actions of ‘what a reasonable employer in his position and circumstances at that time would have done…’

That is the standard I will apply.

Turning to the first of these principles, the allegations made against the complainant were serious. They included common assault and while that element of the complaint was not upheld the respondent was obliged on the basis of that, and the other complaints to trigger an investigation.

It is at this next stage that procedural obligations kick in.

The complainant objected to the investigation and made some serious allegations against the investigator; that he did not speak English, that he had a bad attitude, that the translator had been laughing and was not able to translate. 

She also stated that the investigator could not be independent as he was an employee of the respondent.

Mr Hussein, the investigator in question gave oral evidence as a witness which was delivered in fluent and articulate English.

When confronted with this obvious rebuttal of her assertion (and reminded that she had made it on oath) she downgraded her criticism to something very vague, essentially to the effect that he (the investigator) did not agree with her submissions.

Of course, there was no obligation on him to do so; his role was fact finding and her entirely unwarranted attack on his English language skills was easily disproved to be false.

It was not to be the last time when the complainant’s evidence gave rise to concern as to its reliability.

As for the investigator’s independence the complainant did not actually raise any specific objection to the Investigation report, which is the ultimate barometer of a person’s independence, the outcome of his investigation. Where there is evidence of bias in the conclusions it should be relatively easy to identify these. The complainant did not do so.

And, even in cases where an investigator is an independent third party neutral, they will normally be paid by the employer. There have to be practical limits to the application of rules related to bias (and there are) and there will rarely be a level of detachment which is perfect in every way.

On the basis of his sworn evidence and the investigation report I find that the Investigator conducted his work to a high level of compliance with best practice, and I can find no basis to impugn it.

Turning to the disciplinary hearing one particular issue does arise, and that concerns whether the complainant received or read the notice of the deferred hearing.

The first hearing was due to take place on December 17th, 2024, and the complainant sought an extension of time to prepare.

This was agreed and the hearing deferred to the 23rd but on the 17th the complainant submitted medical certification of her unfitness for work until January 5th. She had been properly notified of this by letter of December 12th, followed up by a second letter on December 13th.

Returning to the medical certificate, it was a rather extraordinary document. Not only did it certify her as unfit for work but it also requested that she be given ‘one week notice before setting any meeting with her’.

Given that the certificate concluded that she could return to work on conclusion of the period of certification without ‘further assessment or review from doctor’ it is hard to know why a medical practitioner thought it appropriate to intrude such a requirement  related to her employment on the certificate.

While one week’s notice may not be a bad thing, it is surely no part of the part of the clinical function of a medical practitioner to prescribe conditions for the conduct of workplace affairs; a fact remarked on by the Disciplinary Hearer, Mr Ryan.

In any event the hearing was rescheduled by means of an email to the complainant on December 23rd, which obviously fell within her sickness period. She had asked in an email of December 17th that her medical certificate be respected and that she should be contacted again when it expired.

There are several issues here.

One is whether the company should have communicated with her while she was on sick leave (bearing in mind that she was effectively suspended since September 23rd.).

This adds another layer of oddity to the medical certificate where it indicated that she could return to work on January 5th when, in fact, there was no prospect of her returning to work until the disciplinary process had concluded.

She had not been at work for some three months at that stage. It raises a question about whether the certifying practitioner had any serious engagement at all with the complainant about her work circumstances, or simply wrote what the complainant requested him to write.

The second is whether the complainant even saw the email of December 23rd.

On this point her evidence was most unconvincing.

She was evasive and uncertain and while she suggested that she may not have seen it this was not entirely credible. She said that she was not monitoring emails during this period, but yet she replied to emails on December 17th and 19th. There was a full week after the Christmas period during which it is hard to believe the complainant never checked her emails.

And finally on this point, the medical certificate expired two days before the date of the disciplinary hearing, when the complainant would have been expected to be reading her emails again.

She confirmed that she did receive a Teams link for the disciplinary meeting but says she did not open it because she did not understand what it was and ‘it wasn’t explained to her’. This too, is scarcely credible.

 She made no attempt to contact the respondent to seek that, or any explanation.  Nor did she advise of her position or whether she would attend, even subsequent to the period for which she had been medically certified (admittedly that was only a matter of a couple of days).

Finally, while it may not fully remedy every serious deficit at first instance, any alleged deficit in the notification of the meeting should surely have been the most obvious foundation for her appeal, yet it played no part in it whatsoever.

Her letter of appeal on January 12th, 2025, is a reworking of her grievances about the allegations made against her, which had been fully addressed in the investigation.

At the workplace appeal hearing, and in response to questions from the Appeal Hearer she seemed unclear whether she wished to appeal or not and had to be pressed on the matter for an answer. She claimed that she had been forced to appeal.

There was no reference either in the appeal letter nor in the report of the Appeal meeting to her not having seen or not having received notice of the Disciplinary hearing sent on December 23rd by way of an explanation of her failure to attend. 

There was also her attempt to suggest, that an obvious typographical error in the reference to the meeting being held in January 2024 (instead of 2025) had some bearing on things; something she persisted with at the hearing. This did nothing to help the credibility of her evidence.

I am at a loss to understand why the respondent did not defer the Disciplinary Hearing for one further week and give the complainant clear notice following the expiration of her medical certification.

However, I must take all of the circumstances concerning the meeting into account, specifically that the complainant’s evidence that she was not aware of the notice of the meeting or could not remember when she saw it was not credible and the fact that that it was the third attempt to hold the meeting.

The previous two meetings had been deferred due to the actions of the complainant. It is hard to resist the conclusion that she was engaged on a strategy of obstruction of the process.

In my view, all of the facts point to her having been aware of the meeting and simply deciding that she would not attend.

It is not credible that she did not check her emails at any time between December 23rd and the date on which her medical certificate expired, January 5th.

The respondent walked a somewhat risky path in proceeding as it did, and as noted earlier a delay of a week would have had no adverse consequences for it.

But for all the reasons set out above, it narrowly escapes sanction in that regard due to my conclusions related to the conduct of the complainant. I am satisfied that she knew of the meeting and decided not to attend.

For these reasons, I find that the process was substantially fair to the point where the complaint of unfair dismissal is not upheld.

For the reasons set out fully above Complaint CA-00069399-001 is not upheld and the dismissal was fair.

Unfair Dismissal