Complainant

Respondent

Parties

George  Forbes

Wilsons Hospital School Compaany Limited By Guarantee

Representatives

Richard Stapleton Richard Stapleton Solicitors

Fiona Sheil Mason, Hayes & Curran LLP

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-00069772-001

05/03/2025

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

CA-00069772-002

05/03/2025

The Complainant originally submitted three complaints to the WRC.

CA-00069772-001

The Complainant is a qualified maths teacher. He stated that he was employed by the Respondent school from 1 July 2023 in a combined Prep Supervisor/Accounts role. He stated that his employment relationship was governed by two written contracts namely an Accounts Manager contract and a Boarding Supervisor contract. The Complainant maintained his dismissal breached fair procedures which assertions were refuted by the Respondent who raised jurisdictional issues in relation to time limit and length of service.

CA-00069772-002

In the course of the adjudication hearing the Complainant confirmed he was withdrawing complaint CA-00069772-002 under the Minimum Notice and Terms of Employment Act [1973-2017] as the matter had been resolved.

CA-00069772-003

Following discussion at the adjudication hearing the Complainant’s Solicitor confirmed by email to the WRC on 10 February 2026, that complaint CA-00069772-003 under the Organisation of Working Time Act [1997-2020] was being withdrawn as the matter had been resolved.

The Respondent referred to the Complainant’s contract of employment as an Accounts Manager signed on 4 September 2023. The Respondent stated that the Complainant had acknowledged in his own statement that he was advised on 5 July 2024 that his role as Accounts Manager no longer existed and that in response he stated “does that mean I am gone also?” to which the reply was “Yes!”. The Respondent stated that the Complainant then worked out his notice period of four weeks bringing this contract to an end on the 2nd August 2024.

The Respondent noted the position of the Complainant that after his notice period expired on 2/8/2024 he was asked to do further work for the Respondent in relation to redundancy payments and that no date was identified for the end of this work.  

It is the position of the Respondent that with respect to the Complainant’s Account Manager role his complaint was out of time since the date of dismissal – ie date of contravention - was 5/7/2024 notwithstanding that his notice period concluded on 2/8/2024 and given that the Complaint Form was received by the WRC on 5/3/2025 – i.e. some eight months later.

With respect to the Complainant’s second contract of employment of Boarding Supervisor, the Respondent stated this was a fixed term contract which commenced on 23 August 2024 with due end date being 30 May 2025. An unsigned copy of this contract was provided by the Respondent which also stated that the provisions of the Unfair Dismissals Act did not apply to a dismissal consisting of the expiry of the fixed term. The Respondent referred to the Complainant’s statement that he received induction in respect of his supervisory duties on 21 August 2024, that he commenced his Supervisor role on 26 August 2024 and that he was advised by the Respondent’s Manager on 8 September 2024 “not to come into work on Monday 9th of September 2024”.  

It is the position of the Respondent with respect to the Boarding Supervisor role, that the Complainant does not have sufficient continuous service to entitle him to bring a claim for unfair dismissals, since his length of service in this role was less than a year – ie from 23 August 2024 to 8/9/2024.

In summary, the Respondent submitted that the Complainant’s claim for unfair dismissal should be dismissed on the basis of the jurisdictional grounds outlined. The Respondent also stated that the Complainant had not particularised his financial loss since 8 September 2024 nor provided any evidence of efforts to mitigate any such loss.

With regard to the jurisdictional issues, the Complainant submitted that his employment was continuous and should not be regarded as fragmented. In this regard the Complainant maintained that a change in duties or contract did not alter the fact of continuity and that the same employment relationship persisted throughout. The Complainant further stated that it was signalled to him in advance of the end of his Accounts Manager role that he would be offered another role as Supervisor.

The Complainant stated that a review was commenced by the Respondent in April 2024 to consider its financial performance which also included consideration of cost cutting measures, re-organisation of employees’ roles and redundancy. He stated that his Manager entered his office on 5/7/2024 and advised that he wished to have a chat with him to which the Complainant responded by saying “….does that mean I am gone also”  to which the Manager replied yes. The Complainant stated that he then worked out his notice period which brought him to 2/8/2024. He stated that he continued to deal with account queries for the Respondent during August 2024 and was helpful and transparent whilst the handover of his duties was ongoing.

The Complainant outlined that he worked thirty five hours/week as Accounts Manager and that he also worked during Christmas 2023. He stated that he worked in this position for two days in August 2024 which may have been the 5th and 6th August 2024 but that he couldn’t recall the exact dates. He stated that he was paid in this role up to 7/8/2023 but accepted this may have included annual leave.

The Complainant stated that whilst he was working out his notice for the Accounts Manager position, that he was informed there may an opportunity coming up for supervision hours for 5th and 6th year prep. The Complainant stated that he followed up on this and was handed a “non-personalised generic blank copy of a contract…”. He stated that the supervision role was for 19 hours/week @€18.90/hour. The Complainant stated that he arranged for induction to take place on 21 August 2024, that he was shown around the rooms to be supervised and his duties were explained. He stated that he commenced the supervision duties on 26 August 2024 and that he integrated well into the school community, that he undertook all assigned duties without issue, that he frequently helped pupils and consistently received positive informal feedback.

The Complainant stated that from early September 2024, there was a marked, negative and unexplained shift in how he was being treated by the Respondent with individuals being less communicative and more dismissive and stated that without reason or explanation he felt sidelined. The Complainant referred to various school matters which arose in September 2024. He stated that on 4 September 2024 an employee of the Respondent entered his room and attempted to take roll call which he refused to allow. This person also queried a roll call entry. The Complainant stated that he “was not given an explanation for this intrusion”. He stated that during the period 26 August – 5 September 2024 he made numerous phone calls to the Boarding House Manager which were not answered.

In relation to his dismissal the Complainant stated that this was effected orally via telephone call on 8 September 2024. The Complainant went on to outline that after Sunday lunch on 8/9/2024 he received a phone call from his Manager who informed him “not to come into work on Monday 9th of September 2024”. The Complainant stated that he pressed the Manager for a reason but that the Manager “could not come up with a reason that I [Complainant] could agree with”. The Complainant stated that the Manager admitted during that telephone call to having him “watched on camera when doing 4th year Prep on Tuesday 3rd September 2024”. The Complainant stated that he was removed from the Boarding House WhatsApp group @21.52 on Sunday 8/9/2024. He stated that he attended a school match on 10/9/2024 and that pupils enquired as to his whereabouts as he was not in school.

Under cross examination, the Complainant stated that during September, October and December 2024 he did not look for any work as “he didn’t see anything suitable”. He stated that he was “actively interested in seeking opportunities” but that the dismissal impacted his confidence. The Complainant stated that from Spring 2025 he was “pro-active”. Under further questioning the Complainant outlined details in relation to his farm work and income. He stated that he had come to the realisation that full time work didn’t suit him and that he was also considering self employment. The Complainant also referred to various hurdles to obtaining a maths tutor position and he regarded his age as not in his favour when it came to employment. In answer to further questions, the Complainant stated that he did not apply for any jobs during March, April, May and June 2025. He referred to two posts he did apply for without success.

It is the position of the Complainant that he was dismissed by the Respondent on 8/9/2024 without reason, explanation, consultation, investigation or warning and that he was denied representation and an opportunity to respond. He stated that the dismissal came as a shock given that he had been told he was performing well. The Complainant stated that his dismissal lacked justification and breached fair procedures and that as a result of how he was treated he experienced considerable stress and financial loss.

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

“dismissal”, in relation to an employee, means—

a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee……”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4) of the Act prescribes the circumstances where a dismissal may be justified:

6 (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 ……

(a) the capability, competence or qualifications of the employee for performing 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

(d) 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 any statute or instrument made under statute.”

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6 (7) of the Act provides that in determining whether a dismissal is unfair, regard may be had:

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice…..”

Section 14(1) of the Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Section 7 (2)(d) of the Act provides that in determining the amount of compensation, if any, an Adjudication Officer shall have regard to “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14….or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,….”

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that it acted reasonably, in accordance with its disciplinary procedure or relevant code of practice and that the reason for the dismissal is substantial and/or within the parameters of Section 6(4).

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the poor performance or conduct of an employee and at the same time, afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters.   I have summarised the requirements of SI 146/2000 as follows:

·       To comply with the general principles of natural justice and fair procedures;

·       That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·       That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·       That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

In the Supreme Court decision in Iarnród Éireann/Irish Rail V McKelvey [2019] IESC 79, Charleton J. made the following comments about the conduct of a disciplinary process:

“Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal….. Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her]…..”

Further to the above principles, it has been well established in case law that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer. Rather the focus is whether the decisions arrived at are rational, reasonable and based on the information available.The Labour Court summarised this rationale in the case of Clancourt Management Ltd T/A Clancourt Management V Mr Jason Cahill [UDD2234], where it stated: 

“In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? ……”

Against the foregoing backdrop and having carefully considered all the sworn evidence, submissions, documentation and case law cited, I make the following conclusions:

·       The first contract of employment for the position of Accounts Manager was permanent with a date of commencement of 1/7/2023 although signed by the Complainant on 4 September 2023. Whilst the Complainant was advised by the Respondent’s Manager on 5/7/2024 that his position was being terminated I am satisfied his position did not actually terminate until 2/8/2024 when his notice period expired. The second contract of employment for the position of Boarding Supervisor – which copy was unsigned – stated that the employment would commence on 23/8/2024 although the Complainant attended for induction on 21/8/2024. This was a fixed term contract due to expire on 30/5/2025. In relation to the second contract, I am persuaded by the Complainant’s sworn and undisputed evidence that whilst he was working out his notice period for the Accounts Manager position, he was informed there may be an opportunity coming up for supervision hours for 5th and 6th year prep. Accordingly, I consider that during the Accounts Manager notice period there was an intention on the part of the Respondent to retain the Complainant in employment – albeit on different terms and duties. In this regard, I am satisfied that short periods between dismissal and re-employment do not break continuity. In Kenny V Tegral Building Products (UD837/2004) the Employment Appeals Tribunal held that a break of 24 days between dismissal and re-employment did not break continuity of service. In all the circumstances therefore, I find the Complainant has established sufficient continuous service – in excess of one year from 1/7/2023 – 8/9/2024 – for the purposes of the Unfair Dismissals Act [1977-2017];

·       In relation to the final dismissal on 8/9/2024, I accept the sworn and undisputed evidence of the Complainant and overall I am satisfied there is no dispute between the parties as to the circumstances of this termination. Having regard to the provisions of Section 6(7) of the Unfair Dismissals Act [1977-2017] and the tenets of SI 146/2000 and the Respondent’s own disciplinary procedures outlined at Appendix A of the Complainant’s Boarding Supervisor contract of employment, I am satisfied that the Complainant’s dismissal was carried out contrary to established fair procedures. I find the Complainant’s dismissal on 8/9/2024 was arbitrary and unreasonable and that he was not afforded any disciplinary process – including not being furnished with any disciplinary charges/complaints, or opportunity to respond to any such charges/complaints, or avail of representation or attend a disciplinary hearing or a right of appeal.

In light of the foregoing, I find the Respondent has not discharged the burden of demonstrating that the Complainant’s dismissal was fair.

CA-00069772-001

For the reasons outlined this complaint is well founded.  I decide that compensation is the appropriate remedy. Section 7(1) of the Unfair Dismissals Acts [1977 – 2017] provides for payment “of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration ……) as is just and equitable having regard to all the circumstances”. Financial loss is defined  “….as including any actual loss and any estimated prospective loss of income attributable to the dismissal ….”. Section 7(1)(c)(ii) of the Act provides that if an employee has incurred no financial loss compensation is limited to a maximum of 4 weeks.

Without prejudice to its position, the Respondent submitted that the Complainant had not shown evidence/sufficient evidence of mitigation and that any potential compensation should be limited to 4 weeks in accordance with Section 7(1)(c)(ii) of the Act.

Section 7(2)(c) of the Unfair Dismissals Acts [1977 - 2017], obliges me to take account of the measures adopted by the Complainant to mitigate his losses. Notwithstanding the Complainant’s views in relation to obtaining other work, I am satisfied he has not provided any evidence of mitigation by way of any documented efforts or applications for other posts since 8/9/2024. In the case of Sheehan V Continental Administration Co Ltd [UD858/1999] the EAT held that “A Complainant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.……The time that a Claimant finds on his hands is not his own, unless he chooses it to be, but rather time to be profitably employed in seeking to mitigate his loss”.  

Section 7(2)(d) of the Act requires me to have regard to “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedures referred to in.…section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal….”.

Taking all matters into consideration arising from the unfair termination of the Complainant’s employment which was due to run until 30/5/2025 and based on the Complainant’s final wages of €18.90/hour for 19 hours/week, I hereby award him the amount of €7,500 gross pay. I consider this amount just and equitable to compensate the Complainant for the unfair dismissal. This amount is subject to such statutory deductions as may apply.

CA-00069772-002

This complaint was withdrawn in the course of the adjudication hearing.

CA-00069772-003

This complaint was withdrawn following the adjudication hearing.

Unfair Dismissal; Continuity of Service; Fair Procedures, Mitigation