Complainant

Respondent

Parties

Joyce  Holleran Whelan

Headford Co Operative Mart Limited Headford Mart

Complainant

Respondent

Anonymised Parties

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Representatives

Siobhan Mc Gowan Alastair Purdy & Co. Solicitors

Siobhan Browne Siobhan Browne and Associates Limited

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-00058645-001

04/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00058645-002

04/09/2023

The Complainant was employed as a Finance and Banking Manager from 29th November 2021 until her dismissal on 5th April 2023.

The Complainant was employed as Finance and Banking Manager, and was then asked to act as interim General Manager on 31st December 2021.

When the Complainant started, four members of the board/committee resigned their posts. The Complainant was never provided with handover documents. Staff, auctioneers and committee members failed to provide passwords for the computer systems or necessary contact details. She suffered ongoing bullying and intimidation from some Committee members, auctioneers, fellow co-workers and customers.

On 4th of December 2021, the Complainant, was locked out of a door into the office side of the reception. A new lock was fitted, and the Complainant could only gain access to the office by knocking and seeking admittance from other staff. Several staff refused to engage after her appointment. The Complainant, was also assaulted with an electronic cattle prod outside the Mart. The incident was reported to the Gardai, the Chairperson and the Board, but no action was taken.

On 11th of December 2021, four staff refused to work alongside her and left. One of the staff, who had expressed outrage at the Complainant making a complaint against the person accused of the assault, dismantled the I.T. network and LSL online bidding system in an effort to shut down the business. The Complainant was very stressed, and the auction proceeded without any online presence. On 17th of December 2021 the Respondent’s solicitor, arrived at the premises stating that she wanted immediate access to the shareholders list and other documents relating to serious concerns. The solicitor proceeded to interrogate the Complainant and another colleague. The Complainant was accused of discrepancies between the share book and the printed share sheet from the Infomart software. When the Complainant proceeded to query which mistakes the Solicitor was referring to, she refused to point them out. The Complainant was very concerned as she felt her integrity and abilities were being questioned.  

On 5th of January 2022, the Respondent received a letter from thirteen current and former staff members outlining “complaints” they had with the Complainant. On the 11th of January 2022, the Complainant met with the Chairman Liam Thornton and furnished a letter of grievance and protected disclosures. The Complainant had already submitted statements and messages to the Chairman and members of the Mart’s committee. She set out details of intimidation, verbal bullying and slander against herself and her family by colleagues and customers. The Complainant also outlined a protected disclosure which needed to be investigated with urgency and provided examples. No investigation was ever launched by the Respondent.

In 2022, the Complainant was given instruction to check the records and to disclose any possible anomalies in banking, financial and governance matters. The Complainant compiled a detailed folder. Mr. Thornton Chairman then advised the committee that he was no longer in a position to run for re-election as he felt under undue pressure. On 5th of December 2022, the Annual General Meeting took place. On 12th of December 2022, a new committee and Chairman, Mr. Fiachra Craddock were elected. The Complainant arranged a meeting with Mr. Craddock on 15th of December 2022. The Complainant disclosed a folder of documents containing major concerns with the finances and governance including movements of large sums, pension irregularities for two staff, five figure cheques paid to staff and committee members with no supporting documentation. She requested him to go through the files, but he refused to accept the folder. She told him she would store the folder in the strong room.

On 9th of January 2023, the Complainant attended her first meeting with the new committee. She felt humiliated by questioning by several members. She raised it during the meeting several times to no avail. In light of this, she left the meeting. Following the meeting, she contacted Charlie Clarke, HR Consultant for the Respondent, who facilitated a further meeting between her, Mr. Craddock, and the Secretary. She expressed her concerns due to the tone and conduct of some committee members to her on 9th of January 2023. After a break, Mr. Craddock apologised for allowing the issues to arise and assured her the committee would be addressing the behaviours at the next meeting.

On 10th of January 2023, the Complainant took leave to attend her Aunt’s funeral. During her absence, on 11th of January 2023, Mr, Craddock arranged a test to be carried out on the newly raised animal pens. No prior notice was given to the Complainant of this inspection. On 12th of January 2023, verbal advice was given that the Respondent had failed a ‘load’ test on the pens which, as a consequence, led to the closing of the mart. The Complainant demanded a written report which followed stating “immediate cessation of use until rectified”. The Complainant contacted FBD to ensure that the mart was insured and compliant for the first sale of the year to proceed.

On 13th of January 2023, a special committee meeting was arranged at short notice. When the Complainant entered the room, she was asked to leave. On 11th of February 2023, Mr. Colin Heaney of FBD was to meet with the Complainant regarding compliance, however, three members of a new “sub-committee” also attended, without notice, leaving her embarrassed and publicly undermined in her role. Mr. Heaney found in favour of the mart, following the actions taken by the Complainant. On 13th February 2023, the Complainant attended a second meeting with the new committee. Despite Mr. Craddock’s assurances, the members used a tone of aggression and accusation. One of the members accused the Complainant of gross negligence by putting staff members lives at risk but refused to explain. On 16th of February 2023, the Complainant wrote an email to Mr. Craddock saying she did not experience any improvement of tone during the meeting. Mr Craddock said that he had not witnessed any such behaviours. On 22nd February 2023, the Complainant discovered she no longer had access to the Infomart Shareholder App. This undermined her position as a senior member of staff. The Complainant emailed Mr. Clarke, HR Consultant, seeking a meeting with Mr. Craddock in order to resolve any mistrust, historic or new.  A meeting was arranged on 6th of March 2023 with Mr. Craddock and the new HR Consultant, Ms. Siobhan Browne. The Complainant disclosed the escalating difficulties and aggressions shown and that the situation was impacting her personal life severely. She said if he didn’t see any other alternative, she was open to discussions around a mutual agreement on the ending of her contract.  On 9th of March 2023, Ms. Brown sent an email to the Complainant stating her holidays would be paid and enquiring about the agreement between her and Mr. Craddock. The Complainant emailed Mr. Clarke, stating that she withdraws her request to meet with Mr. Craddock. On 11th of March 2023, the Complainant received an email from Mr. Craddock outlining a proposal for the termination of her employment. The Complainant did not initially see the email. On 21st of March 2023, she was informed by email by Mr. Craddock that the offer was no longer available, and she was being made redundant.

The Respondent alleged that the original General Manager was now returning from sick leave, so the Complainant was no longer required as interim General Manager. They alleged the role of Finance and Banking Manager was no longer required. The Complainant, who was firmly of the belief the redundancy situation was not genuine, set out possible alternatives to redundancy. These were not taken up. On 30th March 2023, the Complainant met with the returning General Manager, Mr. Craddock, Secretary and Mr. Seamus McHugh and Mr. Kieran O Connor. The Complainant was informed she was no longer required to work her notice period. She informed Mr. Craddock the wages would have to be done. On the following day, the Complainant returned to work for the day to facilitate wages being paid.

The Complainant refers to her contract of employment for the interim General Manager role. This provides should the General Manager vacate the role again within a period of 6 months, then the position shall be offered to her. The General Manager did decide during the 6 month period, to formally vacate the role. However, instead of offering the role to the Complainant, the Respondent publicly advertised the role. The Complainant’s solicitor highlighted this to the Chairperson but the role was not offered to her. The Complainant says this indicates a personal issue which the Respondent’s members and officials had with her, which sets it apart from the impersonal nature of a valid redundancy situation. Despite the “reasons” furnished to the Complainant for her “redundancy”, a former employee, who refused to work alongside her was offered the role of General Manager. The Complainant understands other roles were also created following her dismissal.

The Complainant says she was dismissed due to the matters she was raising, as opposed to a genuine redundancy situation. She relies on the decision in Daly v Hanson Industries Limited UD55/1979, when the Employment Appeals Tribunal found that there was a redundancy element in the dismissal, the dismissal did not result “mainly” from the redundancy itself. In that case, the Claimant was made redundant on foot of her having given evidence on behalf of a previous General Manager of that company. She was made redundant, the day after she presented her evidence. The Complainant relies on the decision of the Employment Appeals Tribunal in St. Ledger v Frontline Distributors Ireland Ltd [1995] ELR 160 that the statutory definition of redundancy has two important characteristics. Those are “impersonality” and “change”. The Complainant contends her dismissal of the Complainant is not “impersonal” and relates to areas of serious concern raised. The Respondent failed to offer the General Manager role to the Complainant. No valid consultation took place with the Complainant in relation to the redundancy and she was already under notice of termination of employment from the company.

The Complainant claims she made a protected disclosure on 15th December 2022 when she provided Mr. Craddock with a folder of materials regarding financial irregularities. The Complainant contends that following the disclosure on 15th December 2022 and as a consequence, she was placed on notice of a “consultation period” under letter dated 21st March 2023. In addition, the Respondent refused to consider her for the role of General Manager when this became vacant.

The Complainant was out of work for three months and is now employed on a fixed-term contract at a lower salary with a loss of 6,000 euro per annum.

The Respondent denies unfair dismissal and says the Complainant was dismissed due to redundancy. The Respondent raised a preliminary objection to the Complainant pursuing two dismissal complaints under separate Acts.

The Complainant was employed as an Interim Mart Manager to cover for the long-term absence of the General Manager on a contract dated January 1st 2022. The records show payroll from January 2022 in line with the Interim Mart Manager contract.

The Finance Administrator confirmed he did not prepare or submit payroll for December 2021. There is a lack of clarity regarding the starting date of the Complainant. There were some discrepancies in relation to payments for pension by the Complainant for herself to the pension provider, one titled an AVC but drawn on the mart funds, and incorrect employer sums that exceed the sum agreed between the parties. The Complainant declined to properly engage with the Chair of the Mart following the cessation of her employment.

The Complainant undertook some duties as Finance Manager for December 2021 and was appointed interim General Manager on 31st December 2021.The Mart has always historically had a structure of a Full time General Manager, a finance administrator and a number of part time staff who typically work on Mart days. Ms. Holleran commenced as Interim Mart Manager on January 1st 2022, and worked with the part time Finance administrator during 2022.  At no time did Ms. Holleran suggest she was understaffed and required a further post in Finance while acting in the post of Interim Manager. In January 2023 the General Manager contacted the Chairman and Secretary to say he was feeling better and was hoping to return to work. An occupational health assessment was arranged to confirm. The Committee of the Mart who are all voluntary members determined it would be a good idea to get professional HR advice to support the transition back from long-term sick absence of the General Manager and the cessation of the fixed purpose contract of the Acting manager. Jarlath Woulfe contacted Ms. Siobhan Browne HR representative on February 16th 2022, to discuss some support for the Mart. Ms. Browne says this was her first engagement with the mart. She advised on the nature of the Fixed Purpose contract and its natural ending as a result of the return of the General manager which would constitute redundancy. Ms. Holleran Whelan would not be receiving a redundancy payment due to less than two years’ service. Ms. Holleran Whelan was aware of the proposed return of the General Manager.

Ms. Holleran Whelan contacted the Chairperson asking for a meeting. Ms. Browne attended a meeting with the Chair and Ms. Holleran Whelan who was accompanied by her husband on 6th March 2023. Ms. Holleran Whelan expressed a wish to leave and asked that a proposal be made to her by the Mart. She asked Ms. Browne to speak to the previous HR advisor, who confirmed that there were no investigations or issues arising that had been brought to his attention. As Ms. Holleran Whelan initiated this meeting, the Chairperson and Ms. Browne did not raise the issue of the redundancy of her post. The Chairperson then reached out to the Mart committee following the meeting and sought approval for a voluntary ex-gratia payment. The Chair made the offer on a good will basis to Ms. Holleran Whelan. She did not revert in the timeframe agreed and then advised she was seeking a significant sum in excess of a year’s salary from the Mart. The parties were unable to agree voluntary terms and notified Ms. Holleran Whelan. When there was a return to work date for the general manager, the organisation commenced redundancy consultation with Ms. Holleran Whelan on March 21st 2023.

The organisation had a number of discussions with Ms Holleran Whelan regarding alternatives. She suggested the role of Finance Manager, the organisation advised this role was not either in the budget or affordable by the mart and had never existed during the lengthy tenure of the General Manager. She suggested the finance administrator role and the organisation advised this was now part-time, and not available as the long- term finance administrator was in post.

The organisation was unable to secure a suitable alternative. At the end of the consultancy period, the organisation advised Ms. Holleran Whelan that she would become redundant when the interim mart manager post concluded due to the return of the General Manager. The organisation offered the ex-gratia sum which was declined by Ms. Holleran Whelan who was continuing to seek further sums. Ms. Holleran Whelan’s employment ended by virtue of a lawful redundancy on April 5th 2023. She was paid holidays and balance of notice as per her contract of January 1st 2022 in her final payslip.

I heard and considered the submissions and evidence of the parties, and witnesses.

CA-00058645-001

The Complainant alleges she was unfairly dismissed by the Respondent when she was made redundant on 5th March 2023, and was penalised as a result of making protected disclosures on 11th January 2022 and 22nd March 2023. This is denied by the Respondent who claim the Complainant was made redundant which is a fair dismissal due to the return of the General Manager from long term sick-leave.

The Respondent raised a preliminary point that the Complainant was pursuing two dismissal complaints under separate Acts. The Complainant’s representative clarified that the complaint of  penalisation under the Protected Disclosures Act 2014 does not relate to the Complainant’s dismissal.

The Complainant was employed with the Headford Co-operative Mart as Finance Manager from 30th November 2021. She took on the position of Interim Mart Manager on 1st January 2022 pursuant to a contract of employment which states:

“Your employment under this contract is on a fixed-purpose contract (cover for long-term sick-leave) commencing on 1st January 2022 and shall extend to the date incumbent manager (J W) confirms his intention to return, in which case you would revert to your previous role as Finance Manager. In the event the incumbent manager returns to work and has to go on sick-leave again within six months you will again resume the position of Manager”.

Section 6 (1) of the Unfair Dismissals Acts 1977-2015 states subject to the provisions of this section, 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…

S6 (4) 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:

(a) the capability , competence or qualifications of the employee for performing the work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c ) the redundancy of the employee, and

(a)    the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or instrument made under statute….

The Complainant gave evidence of extensive difficulties in the workplace when she took up the post with the Headford Co-operative Mart, which ranged from staff leaving, being excluded from information and access, and assault at the mart on 4th December 2021. On 5th of January 2022, the Respondent received a letter from thirteen current and former staff members outlining “complaints” they had with the Complainant. The Complainant lodged a written grievance and protected disclosure on 11th January 2022 with the Chairman regarding concerns, intimidation, bullying and slander against herself and her family by colleagues and customers.

In 2022, the Complainant said she was given instruction to check the records and to disclose possible anomalies in banking, financial and governance matters. A new committee and Chairman Fiachra Craddock were appointed to the mart in December 2022. The Complainant says she met Mr. Craddock on 15th of December 2022 and tried to give him a folder of documents containing major concerns with the finances and governance, but he refused to accept it. Mr. Craddock denied the Complainant raised concerns at the meeting.

The Complainant raised further complaints of bullying, inappropriate questioning and tone from new committee members and exclusion in January 2023 with the Chairman. She was given assurances this would be addressed but says it reoccurred again in February. The Complainant subsequently sought a meeting with the Chairman stating the issues were impacting her, and seeking a mutually agreed ending to her contract on 6th March 2023. However, no terms were agreed.

It is notable that the Respondent did not address the serious complaints and concerns raised by the Complainant and others in accordance with its procedures, nor did they comply with SI 146-Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 during the period of the Complainants employment. The Code of Practice requires that employee grievances are fairly examined and processed, details of any allegations or complaints are put to the employee concerned, the employee has the opportunity to respond fully, and the right to a fair and impartial determination of the issues concerned.

The Courts are cognisant of the serious damage that can be caused to the reputations of individuals where there are allegations of bullying and harassment. Ms. Justice Irvine outlined the entitlement of employees to fair procedures in investigations and disciplinary processes and SI 146 Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 in Irish Rail v McKelvey [2018] IE CA346.

It was with this backdrop that the Complainant was notified of the termination of her contract when the General Manager returned from sick-leave. She did not return to the Finance Manager role and was made redundant. However, when the General Manager subsequently went on sick-leave shortly after, the Complainant was not invited to return to the Mart as Interim Manager which situation had been provided for in her contract of employment. The Respondent did not provide any adequate explanation for this. The decision in St. Ledger V Frontline Distributors Ireland Ltd [1995] ELR 160 sets out the requirement for impersonality in the redundancy process.

In the circumstances, the Respondent has not discharged the onus on an employer to show the dismissal was wholly or mainly due to redundancy. The Respondent has also acted unreasonably as it has repeatedly failed to comply with the provisions of SI 146 of 2000 and to deal with employee complaints and concerns in accordance with its procedures.

I find the Complainant was unfairly dismissed on substantive grounds. In all the circumstances it is just and equitable that the Complainant be compensated for her financial losses of 26,250.00 euro gross and I direct payment by the Respondent.

CA-00058645-002

The Complainant alleges she has been penalised due to a protected disclosure made to the former Chairman on 15th December 2022 regarding financial irregularities. She claims she was notified of her redundancy and was not considered for the role of General Manager when it became vacant as a result of her protected disclosure.

The Respondent denies the current Chairman or committee were aware of any protected disclosure. The Respondent accepted the former Chairman of the committee was aware of the Complainant’s protected disclosure. The Respondent says this did not feature in the termination of the Complainant’s contract of employment due to the return of the General Manager and the change of personnel.

The test for penalisation of a worker due to a protected disclosure complaint was set out by the Labour Court in Aidan & Henrietta McGrath Partnership v Monaghan [2017] ELR 8 and that the Court must:

(i)               Establish that a protected disclosure had been made; and

(ii)              If so, then it must examine whether a penalisation within the meaning of the Act has occurred.

The Court stated the act or omission that is being complained of must be because of, or in retaliation for, the worker having made a protected disclosure. The making of the protected disclosure must be an operative cause of the penalisation. A consideration of the motive or reasons which influenced the decision maker to subject the worker to the act or omission complained of must be undertaken.

The Complainant’s letter of 11th January 2022 to the Respondent’s former Chairman contains a protected disclosure. There is a conflict in the evidence of the parties regarding whether a protected disclosure was made to the Chairman on 15th December 2022.  Having considered the evidence, I am not satisfied that the acts complained of are sufficiently connected to the protected disclosures. I do not find this complaint to be well founded.

CA-00058645-001

The Complainant was unfairly dismissed. I direct payment of the Complainants financial losses of 26,250.00 euro gross by the Respondent.

CA-00058645-002

I do not find this complaint to be well founded.