Complainant

Respondent

Parties

Amanda  Butler

Dehac Retail Ltd  t/a Costcutters

Representatives

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-00069899-001

10/03/2025

The Complainant contended that she was employed as a Deli Manager with the Respondent from 10 August 2020 to 29 August 2024 when her employment was terminated.  The Complainant contended that she was unfairly dismissed. 

The Respondent denied the allegations and instead submitted that the Complainant’s employment was terminated following an investigation process for alleged gross misconduct for having given false evidence to an earlier hearing at the WRC.  It was the Respondent position that the Complainant was found to have given false evidence and found to have brought a Director of the Respondent and the Respondent into disrepute.  

Preliminary Issue – Time Limit

The Complainant had submitted a manual complaint form with a handwritten cover note in which she stated that she had been advised by staff of the Information Services of the WRC when she was sending her complaint form, to send a cover note explaining what had happened on Friday 28 February 2025.

She stated that on the morning of 28 February she tried to submit her complaint as it was coming to the end of the timeframe given for doing so.  She stated that everything was fully complete but when she tried to submit the form it kept coming up as unauthorised access with a red X above it, and also a message stating that she did not have permission to access this application.  She outlined that she called the WRC at 11:45am and explained what was coming up on the submission and that it would not allow her to send her complaint.  She stated that the person she spoke to was not able to explain what was going on and said it was unusual, and she advised her to send an email explaining that it was urgent and forward a screenshot of what was coming. 

The complainant stated that she sent the email at 11:49am, immediately after the call, but that she did not receive any reply so on the following Wednesday (5 March), she rang the WRC and spoke to a staff member in Information Services again at approximately 09:30am.  She stated that the member of staff said she did not know what had gone wrong, but that she would speak to her supervisor and try to establish what had happened.  In the context that she had no reply and it could not be ascertained what had happened, that WRC employee confirmed that she would call back to confirm the next steps to be taken. 

The Complainant outlined that she received a call back at 10:24am and that the employee confirmed that her supervisor advised that a copy of a manual complaint form would be issued to the Complainant and she should return it immediately to the Workplace Relations Commission.  The Complainant stated that she asked if it was too late now as she had been trying to submit it on time, but with the error on the website, it would now be late.  The employee confirmed that she should send in the form and that they would advise on next steps once they were in receipt of the form.  The Complainant confirmed that she submitted the document in the post on Thursday 6 March and that it was received in the Workplace Relations Commission early the following week.

In those circumstances the Complainant asked that her complaint be considered to be in time or that alternatively, she be granted an extension of the time limit in accordance with the provisions of the legislation.

The substantive case:

In her complaint form, the Complainant outlined that she was suspended and then dismissed in relation to an allegation that at a previous workplace relations hearing, she had falsely accused a Director of the Respondent, of demoting her from her position as Deli Manager. 

She stated that after she had attended a hearing of the WRC on 15 July 2024, her Employer’s wife, Ms. Johnson, sent her a text, requesting her to bring additional information to work on the 16 July 2024.  This information had not been accepted or used by the Adjudication Officer at the hearing.  The Complainant stated that Mr. Johnson, came to her while she was working, asking for that information and she informed him that she did not have it, as it was not accepted or used and was no longer relevant.  She stated that he became angry and demanded that she bring it in, as he wanted to see what was in it.  She outlined that he also asked for her documents from the hearing, which she told him he already had, but that he tried to coerce her by way of threats, that he would have this information analysed. 

She stated that on 17 July, Mr. Johnson and Ms. Johnson came to her in work again and that Mr. Johnson asked if she had the information for them, and when she said, no, you already have the information from the hearing, Ms. Johnson demanded that she bring it in and said “as your Employers, I am telling you we want that information and don’t say anything about harassing”. 

She stated that Mr. Johnson said she would get an email that afternoon and there would be a meeting about this.  The Complainant stated that on 18 July 2024, Mr. Johnson called her into the office and handed her a copy of an email he had sent to Ms. Johnson.  She stated that this email stated that she was being suspended on an allegation that she falsely accused a director of the company of demoting her from her position as Deli Manager.  She stated that he told her there would be an investigation carried out.

She stated that the investigation took a number of weeks and that she had two meetings with Mr. Johnson’s friend and business partner, (hereinafter referred to as Mr. A)  who conducted the investigation. 

The Complainant stated that at the first investigation meeting, Mr. A said that they would have to cancel the meeting and reschedule when she told him that she had not been given any information prior to the hearing and that she did not know what she was accused of.  She stated that Mr. A said he was unaware of this, and he brought an end to the meeting. 

The Complainant outlined that at the next meeting, when asked, Mr. A confirmed that he had been given no information to carry out the investigation and that he had just been given a list of questions to ask her and that was his job done.  She outlined that on 29 August 2024, she was called to a disciplinary meeting with Mr. Johnson, and her employment was terminated with immediate effect. She was not given an opportunity to defend herself and Mr. Johnson would not allow her to speak.  She stated that Mr. Johnson said he would not listen to anything she had to say, and he called her a liar and stated that he was terminating her employment.

The Complainant stated that she was given no opportunity to appeal and her email requesting the information needed was ignored, as was her letter of appeal.  She stated that at the time of submitting her complaint, she had received no correspondence from Mr. Johnson on this matter.

 Complainant evidence at hearing:

At hearing, the Complainant presented a handwritten submission which she wished to read into the record by way of her evidence.

In that document she submitted that she was seeking adjudication for an unfair dismissal.  She outlined that she had previously made a complaint to the WRC in relation to penalisation for having made a protected disclosure.  She stated that the hearing was arranged for 10 April 2024 and her Employer Mr. Johnson did not attend.  She stated that a further hearing was then held on 15 July 2024.

The Complainant stated that by way of context and background to the issues, she needed to go back to September 2023 when her employer Mr. Johnson wanted her to take cash payments, which she refused.  She stated that he said that he had to do it that way as it was costing him too much to pay her.  She stated that when she refused again, his response was that he could not force her to do so, but that there would be consequences for her decision.  She stated that after that, everything changed, that she was micromanaged by the Store Manager (hereinafter referred to as Ms. A), who she said harassed her and tried to bully her on a daily basis.   The Complainant stated that the harassment would begin as soon as she entered work each morning and would continue throughout the day, with Ms. A continually finding fault with her. 

The Complainant gave examples of the kind of incidents that occurred at that time.  The Complainant stated that these incidents took place a number of times each day, with Ms. A always trying to find fault and trying to catch her out if she didn’t do something.  She also stated that Mr. Johnson also went from telling people how great she was, and how she had turned the place around, to now trying to find fault with her work and accusing her of not doing her job.  The Complainant stated that Mr. Johnson accused her of falsifying waste sheets, telling her she was not filling them out correctly and saying that there needed to be a meeting about this as it was very serious.  She stated that when she said there was no problem with having a meeting, and that all the afternoon staff should be present at the meeting, he asked why that would be necessary.  She stated that she clarified that it was the afternoon staff who are the ones that fill out the sheets and not her, as she leaves at 2pm each day, and the staff who close the deli at 4pm are the ones who complete the sheets and who would know what waste there was at that time of the day.  She stated that when Mr. Johnson was not in a position to leave the blame with her, he never mentioned it again to either her or any of the staff. 

She stated that Mr. Johnson was always accusing her of falsifying the HACCP sheets and again those sheets were not filled out by her, so again this was never mentioned again after the first occasion.  The Complainant outlined a number of other issues between her and Mr. Johnson throughout the course of those months. 

The Complainant stated that Mr. Johnson had tried to intimidate her on more than one occasion with a threat to her job and he had said to her that he would put someone else’s name over the door and she would have to apply for her own job all over again.  She stated that it was confirmed to her by the Barry Group, that this would never happen as it was not Mr. Johnson’s shop.  She stated that he advised her that he would sub lease the shop to an Indian person and that she wouldn’t be there and that it would be all Indians running the store.  She gave evidence that he told her he would be making changes and if she did not like those changes, “the …. door is always there”. 

The Complainant outlined a number of further occasions throughout early 2024 when difficulties arose in conversations between her and Mr. Johnson.  The Complainant stated that on each occasion where he called her to a meeting, he would have Ms. A present as his witness and she stated that this was the girl she had made complaints about, one complaint formally in writing on Mr. Johnson’s advice in February 2024.  She stated that Mr. Johnson chose to ignore that complaint and not deal with it and she stated that this was notably different to how he had dealt with Ms. Johnson’s complaint about her, where he had shown preferential treatment to Ms. Johnson as his wife and a director. 

She stated that she felt Mr. Johnson was constantly seeking to make her job harder by adding additional duties and taking away staff in the hope that she would make a mistake or not be able to get something done.  She advised that she had stated all of this at the hearing to the Adjudication Officer at the second hearing of her previous case and also said she was aware that they were trying to find fault or get some reason to claim gross misconduct and she made reference to the fact that Mr. Johnson was overheard telling Ms. A that she needed to get it in writing if Mandy or another staff member say they can’t or won’t do something.  She stated that she could see that they were clutching at straws to find fault.  However, she stated that she never let the way she was treated affect her work and always did what was asked of her. 

The Complainant stated that following the hearing on 15 July 2024, she received a text from Ms. Johnson at 3:34pm.  In that text Ms. Johnson requested that on her return to work the following day, she should bring a copy of the letter given to her by another member of staff, which was presented at the WRC.  She noted that she had not provided this as part of her submission and so it was not accepted by the Adjudication Officer. 

The Complainant stated that the following day, 16 July 2024, Mr. Johnson came over to her and asked her for a copy of the letter.  She outlined that she said to him that he and Ms. Johnson must have been confused, as the letter was not in evidence at the hearing.  She stated that Mr. Johnson said he wanted a copy of it as it involved him.  She stated that she told Mr. Johnson if was not used, then it was not relevant.  She gave evidence that Mr. Johnson got very annoyed with her and insisted he wanted a copy of that letter and he also wanted her to provide him with a copy of her contract as he hadn’t got his copy.  She stated that he then said he wanted to have it analysed as he didn’t believe it was his signature on it.  The Complainant stated that she said to him, you are fully entitled to do that, and you have a copy of it, and all of the information used, the same as she had herself.  She stated that Mr. Johnson said he had but that he didn’t have “half of the stuff” that the Complainant had.  She stated that Mr. Johnson said he was telling her to bring that letter and contract in, and he was angry and said “make sure you have that with you tomorrow” and he walked away. 

On 17 July 2024, another member of staff advised her that Mr. Johnson wanted to talk to her and that as she walked over to him, Ms. Johnson joined them both, and Mr. Johnson asked if she had those two documents for him.  The Complainant outlined that she said no, she didn’t, and he asked why and at that time Ms. Johnson spoke over them and said, “Mandy, as your employers, we are telling you we want those letters and don’t say anything about harassing”. 

The Complainant stated that Mr. Johnson spoke over her so she said, can you let her speak.  She stated that at that point Ms. Johnson said, “he can speak, don’t you tell him what to do”.  She stated that Mr. Johnson asked had she opened the letter and she said no, it was a sealed envelope for the Adjudication Officer.  He then asked if she had a copy of it and she said, yes, and if it had been accepted, you would have had one too.  She stated that Ms. Johnson asked why won’t you give us a copy and she responded that it wasn’t used so it wasn’t relevant and so she didn’t need a copy of it.  She stated that both Ms. Johnson and Mr. Johnson got very annoyed, and Mr. Johnson said to expect an email from him in about an hour and that a meeting would be held about the matter.   

She confirmed that both Mr. Johnson and Ms. Johnson left the shop and that she received no email. 

The Complainant gave evidence that the reason she would not give Mr. Johnson a copy of the letter, was that she feared the way the member of staff might be threatened as it was a statement from another member of staff by way of evidence.  She confirmed that she returned the letter to that member of staff and explained why.

The Complainant stated that on 18 July 2024, Mr. Johnson called her and asked her to come into the office for a meeting.  She stated that she brought a colleague (Ms. B), in with her.  She stated that Ms. A was standing there.  She stated that there was no meeting, that Mr. Johnson just handed her an envelope and said, “that’s a copy to take with you, you can read this one here”.  The Complainant stated that she read the letter and that it was an email he had sent to Ms. Johnson and printed to give to her and that it was confirmation of her suspension.  She stated that she asked would he like her to leave now and he said yes, that she was to get her belongings. 

The Complainant stated that a week later on 25 July 2024 she received a text from Mr. Johnson requesting her email address as soon as possible and she confirmed that she sent this on to him.  She further confirmed that she then received an email to confirm that an investigation was ongoing. 

The Complainant outlined that on 2 August 2024 she received another email to say the investigation was still ongoing and then on 8 August 2024, she received an email from Mr. A, stating that he was appointed by Mr. Johnson to carry out investigation meetings.  She advised that she emailed Mr. Johnson to confirm that it was Mr. A that was his Investigator, and she received confirmation of same from Mr. Johnson.

The Complainant stated that the reason she emailed to confirm with Mr. Johnson that Mr. A was to conduct the investigation, was that she had assumed any investigation would be carried out by an independent body, not by Mr. Johnson’s long-term friend and Business Partner.  She stated that she had received an email from the WRC confirming that Peninsula, was now on record as the Employer representative and so she fully believed the investigation would be carried out professionally and not by a friend of Mr. Johnson. 

On 12 August 2024 the Complainant advised that she emailed Mr. Johnson and received no reply.  She confirmed that on 1 August 2024, she attended a meeting with Mr. A, and her colleague Ms. B attended as her witness.  The Complainant outlined that on 16 August she received an email from Mr. A to reschedule their appointment, together with a copy of the complaint against her made by Ms. Johnson.  She stated that this was the first time she was aware of the actual complaint.  She outlined that on 21 August she attended a meeting with Mr. A, and again her colleague Ms. B attended as a witness. 

The Complainant stated that on 23 August 2024 she received an email to attend a follow up disciplinary meeting on 27 August 2024 at 2pm.  She confirmed that she emailed Mr. Johnson to let him know she would not be able to attend as she did have an appointment at 2:25 pm on that day.  She also confirmed that she was available earlier.  She stated that she had been advised not to attend any meeting outside of her working hours and she was of the view that Mr. Johnson was aware that after 2pm her colleague Ms. B would be gone home, and she would have no witness.  The Complainant was also of the view that as Mr. Johnson was escalating matters from investigation meetings to disciplinary, he needed to furnish her with the appropriate information and the findings of the investigation and yet again she had to request this information as proper procedures were not followed. 

The Complainant confirmed that she received an email to reschedule the meeting for 29 August and that she only received a copy of Ms. Johnson’s complaint and the questions asked.

The Complainant confirmed that she attended the disciplinary meeting on 29 August and that again her colleague Ms. Bwas in attendance as her witness.  She stated that she was advised that if proper procedures had been followed, she would have received all of the following:

·       A copy of the Employer’s handbook

·       A written copy of the Disciplinary Procedure

·       What she was to be disciplined for

·       The facts of the case

·       A copy of a report of the investigation and how it was carried out

·       Any witness statements

·       A copy of the findings

The Complainant stated that at the meeting she was not allowed to challenge any evidence or represent herself and Mr. Johnson stated he was not willing to listen to anything she had to say.  She stated that the meeting was in fact all one sided.  It was a complaint made from wife to husband, or Director to Director, and it was clear that Mr. Johnson’s decision to terminate her employment, was already made before the meeting.  She stated that it was evident that Mr. Johnson’s decision to terminate her employment had already been made and this was made clear when Mr. Johnson confirmed that he was the witness for his wife Ms. Johnson.  The Complainant outlined that she had been given to understand that in that context that Mr. Johnson could not be unbiased or impartial in arriving at the decision to terminate her employment.

The Complainant outlined that she sent a number of correspondences to Mr. Johnson seeking to understand the process for appeal and indeed seeking to make an appeal, and that she had not received any response to any of those correspondences.  The Complainant provided copies of all of those correspondences. 

The Complainant stated that she wished to make the following points in relation to the previous hearing.  She stated that at that hearing she had read from scripts that were in front of her as she was doing in relation to the instant case.  She stated that she said she had been demoted without being told and she stated that it was confirmed by the Adjudication Officer that that was what she had read out.  She stated that Mr. Johnson had said, “you are the manager” and so she asked, then why had Mr. Johnson taken away her duties from her.  She stated that Mr. Johnson’s answer was again “you are the manager”.  

The Complainant stated that she advised that she had said that the staff had all told her that they had been told by Mr. Johnson, Ms. Johnson and Ms. A, that she was not their manager and that Ms. A was the manager and so she asked the question of both Mr. Johnson and Ms. Johnson, is that not what you have told the staff and Ms. A.  She stated that at the hearing Mr. Johnson did not answer and Ms. Johnson had said, no, she didn’t.  She stated that at that time, Ms. Johnson had to be sworn in to give testimony and that when she was sworn in, she stated that she had never said that and that the Complainant managed all the deli staff.  She stated that all staff who are absent had to contact her and the Store Manager. 

The Complainant gave evidence that she stated that nobody makes contact with her and that the staff had been told by Mr. Johnson, Ms. Johnson and Ms. A, that they were to deal with Ms. A, that she was the Manager and everything was to go through her.  She stated that she also advised the hearing that when she got cover for a staff member in the deli at 7am in the morning, when Ms. A was not on duty, she was told that she was going over Ms. A’s head and she wasn’t to do that again.  Again, the Complainant confirmed that Ms. Johnson said that she never said that, so she asked the question of Ms. Johnson as to whether recently she had not told another staff member that herself and Mr. Johnson were her bosses, that they pay her wages and not Mandy, and that Ms. A was her manager and everything was to go through her.  Ms. Johnson said that she never said that and so the Complainant had asked Ms. Johnson if that staff member was therefore telling lies.  The Complainant stated that she was also shown a copy of another member of staff’s statement and that she used a copy of that section at the hearing to show why staff were leaving because of the way they were being threatened and it was also evident from that statement that the person alleged that Ms. Johnson had told her she was not the manager. 

The Complainant confirmed that the previous WRC hearing was held on 10 April 2024 and that it was reconvened on 15 July 2024. She confirmed that she was suspended on 18 July 2024 and that the first meeting under the investigation took place on 15 August 2024.  She stated that as she hadn’t received a copy of the complaint in advance of that meeting, the investigator adjourned the meeting and convened a further hearing on 21 August 2024 having sent her a copy of the complaint.  She confirmed that the disciplinary hearing took place on 29 August 2024 and that she lodged her appeal with the Employer on 23 September 2024. 

The Complainant confirmed that Mr. A was a Business Partner of the Employer in another business and that they had been long term friends.  She drew attention to the fact that she had not received a copy of the complaint about her at the time of the first disciplinary hearing but that she had received it in advance of the hearing on 21 August.  She confirmed that she received it on Friday 16 August. 

The Complainant also confirmed that in relation to the Employee Handbook and the grievance and disciplinary procedure, that she received a copy of that only after her dismissal.  The Employer put it to the Complainant that everybody received a copy of those documents at commencement of employment and that there is a copy of same available on the wall and the Complainant responded that she did not receive one at the start of her employment.  She also confirmed that prior to the disciplinary hearing, she received no findings of the investigation and no notes of interviews. 

Under cross examination the Complainant confirmed that after the previous WRC hearing Ms. Johnson had sent a letter of complaint.  She confirmed that at the investigation meeting, Mr. A had told her about the letter and had sent her out the letter.  The Respondent put it to the Complainant that the purpose of the investigation had been set out in the email inviting her to the investigation meeting and the Complainant confirmed that this was the case but that it was not clear from that what she was alleged to have done, but she confirmed that she was requested to meet and that she did attend the office and was given an envelope and that she read the letter when it was handed to her.  She confirmed that Mr. A had contacted her regarding the investigation and that at the commencement of the investigation, he told her what it was about.  She confirmed that on 21 August she met Mr. A again and that he asked her a series of questions and that he advised her that he had been told to ask those questions.  He stated that he wanted to get to the crux of the matter. 

In relation to the meeting with Mr. Johnson, she confirmed that it got very heated.  She stated that she was still denying what had happened and that he called a halt to the meeting and that it was a very short meeting.  She confirmed that she had sent an email of appeal, and she was somewhat shocked at the Respondent position that they weren’t sure if they had received it.  However, she did confirm in response to questions by the Respondent that she had not sent it by registered post, to which the Respondent replied that he couldn’t be clear if he had replied to the email on 18 September or not.  In response to a request for clarification from the Adjudication Officer, the Complainant confirmed that she had not been aware of Mr. A meeting anybody else.  She confirmed that she was aware prior to the investigation meeting that the issues to be discussed related to matters arising from the previous WRC hearing, but she was not clear that Ms. Johnson had made a complaint, nor was she aware of the substance of that complaint.  She confirmed that she had advised the Investigator about the evidence of her colleague Ms. B, but that had not been taken into account and that it appeared that the only evidence that had been taken into account was the evidence given by Ms. A.  

Redress:

In relation to redress, the Complainant confirmed that she could not go back to work with the Employer, that there had been too much “water under the bridge” at this time.  She confirmed that she was not in employment, that she had been unwell since 29 August and that she had been in receipt of illness benefit since then.

The Respondent did not provide a submission in this matter.

Witness evidence – Damien Johnson

Mr Johnson gave evidence that the Complainant was guilty of gross misconduct at the previous WRC hearing, that she had told mistruths at that hearing and had brought his co-director into disrepute.  He stated that he had the matter investigated and he found that he had no option but to terminate her employment.  He stated that the Complainant had accused Ms. Johnson of demoting her and that as a result Ms. Johnson needed to be sworn in at the previous hearing to confirm her position. He stated that the Complainant believed that she had been penalised by being demoted for having made a protected disclosure but that the grounds for dismissal were the lies told by the Complainant at the previous hearing because she had given false evidence.  He stated that unfortunately there was no recording at the WRC hearing but that he had followed a procedure, had established an investigation and that at the end of the investigation he had found that the only course of action open to him was to dismiss the Complainant. 

In response to questions from the Adjudication Officer, Mr Johnson stated that the purpose of the investigation was to establish what was said during the WRC interview.  He stated that the Investigator had interviewed Ms. Johnson and had noted that she had to be sworn in to give testimony at the hearing. 

In response to queries from the Adjudication Officer, Mr Johnson confirmed that the Complainant had been placed on paid suspension on 18 July and that had been done by letter.  He confirmed that she had received a letter of invitation to the disciplinary meeting on 23 August and that the hearing took place on 29 August.  He confirmed that the Complainant did get a copy of the investigation report and the questions asked and he referred to relevant emails.  He stated that he knew what was said in the WRC as he was there.  He confirmed that the meeting was very short, and he said that the Complainant continually denied what was said and that there was really “no place to go”.  He confirmed that he had a prewritten letter ready for the Complainant and that he had done so because he had a “funny feeling” how things were going to go.  He confirmed that both he and his wife, Ms. Johnson, were directors of the business. 

Mr Johnson advised that he could not recall the details of the timeframe around the appeal or the grounds for the appeal and that he had given some thought to who would conduct an appeal but that ultimately no appeal had been conducted. 

Under cross examination the Complainant asked Mr Johnson why he had not followed a procedure.  Mr Johnson responded that he believed he had and that it was a matter for the Adjudication Officer.  He confirmed that there was a delay in getting a person to conduct the meeting and in relation to the allegation, Mr Johnson stated that he acknowledged that the Complainant had read from scripts on the day of the previous hearing, but that it hadn’t all been conversation and that the Complainant had asked two questions and had answered questions for the Adjudication Officer. 

The Complainant asked Mr Johnson why Ms. Johnson had been sworn in on the day.  Mr Johnson stated that the Complainant had asked why Ms. Awould say that she was the manager and that in order to respond to it Ms. Johnson had to be sworn in in order to provide her response. 

Mr Johnson confirmed that as far as he was aware, he had given the Complainant all the relevant information in advance of the investigation.

He also confirmed that he had decided the outcome of the investigation meeting and he said it was a clear case of a statement of what the Complainant had said versus what Ms. Johnson had said.  He stated that the matter also had an impact on Ms. Aas she was accused of being involved in the demotion of the Complainant.  He confirmed that he had not received Ms. B’s statement so he could not have taken it into account.  He stated that he made his decision to dismiss the Complainant based on his own presence in the WRC and on the wording of the WRC decision.

In response to questions from the Adjudication Officer, Mr Johnson confirmed that Mr. A did not draw conclusions under the investigation.  He stated that he simply obtained answers and that those were passed to him, and that he made the decision to dismiss.  He stated that it was based on Mr. A’s evidence of the investigation interviews.  He stated that he did not see any other option.  He confirmed that he didn’t have the dismissal letter with him at the disciplinary meeting but that he issued it on 2 September. 

Redress:

The Respondent stated that if the Complainant was to succeed in her claim of unfair dismissal, his preferred method of redress was compensation as he believed there was no possibility of the parties working together again.

Preliminary Issue – Time Limit

The Complainant outlined clearly the difficulties she experienced in seeking to electronically submit her complaint within the time limit and sought an extension of the time limit. 

In considering the merits of this application for an extension of time and in deciding if “reasonable cause” existed for the delay in submitting this complaint within the 6-month timeframe I am guided by the position set out in the case of Cementation Skanska v Carroll, DWT 0338 where the Court stated as follows:

 “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”.

The Complainant cited in very specific detail the difficulties she encountered in submitting her complaint electronically and she outlined the efforts she made to address those challenges.  The WRC records reflect her efforts in that regard.

It is evident that soon after receiving a copy of the manual complaint form from the WRC the Complainant completed same and submitted her complaint without delay. 

Based on the evidence provided I am satisfied that, but for the difficulties the Complainant described and which I was able to verify from the WRC records, the Complainants complaint would have been submitted within the prescribed time limit.

In all the circumstances, I am satisfied that it is appropriate, in this instance, to grant an extension of the time limit as requested.

The Substantive Issue

I have given careful consideration to the positions outlined by the parties, together with all supporting documentation, and relevant case law.  I have also taken account of the witness evidence given under oath/affirmation and have made my own enquiries in order to fulfil my obligation to fully investigate the matters before me.

In the first instance, I consider it important to clarify the role of the Adjudication Officer in relation to a complaint of unfair dismissal.  In this regard I rely upon the established case law which determined that the role of the Adjudication Officer is not to determine whether or not the Complainant did or did not carry out the act of which he/she was charged but rather to establish if the Respondent has proven that the dismissal was not unfair and in so doing to determine if the decision to dismiss was a proportionate response and within the band of sanctions which could be imposed by a reasonable employer.  In such circumstances I will not seek to determine if the Complainant acted as alleged by the Respondent, but rather I will seek to determine if the Respondent has proven that the dismissal was fair and proportionate in all the circumstances of this case.

The Law:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

“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 qualification 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 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(2) of the Act states as follows:

“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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a)   The employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Unions Act, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or a re times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(b)   Religious of political opinions of the employee,

(c)    Civil proceeding whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness.”

Section 6(6) of the Act states as follows:

“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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal”.

Section 6(7) of the Act states as follows:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer, considers it appropriate to do so—

(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 referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

I noted the Complainant position that she was unfairly dismissed from her employment with the Respondent, that the reason for that dismissal was that she was alleged to have given false information to a previous hearing of the WRC which she denied and that as such she was dismissed without just cause and fair procedures.

I noted the Respondent position which was that the Complainant was dismissed for having given false information to a previous hearing of the WRC and that after an investigation and a disciplinary procedure she was dismissed from employment.

I noted that the Respondent was of the view that it had conducted a fair procedure, having instigated an investigation and a disciplinary process.  In that regard I noted the following in relation to the investigation procedure:

·       The Complainant was placed on suspension pending an investigation

·       The Complainant was not provided with a copy of Ms. Johnson’s complaint or any other relevant documentation prior to her attendance at the first investigation meeting

·       No terms of reference for the investigation were provided; nor was there any statement provided to clarify the purpose or methodology for the investigation.

·       No clarity was provided in terms of the relevant policy governing the investigation

·       Witnesses identified by the Complainant as having relevant information were not interviewed as part of the investigation process

·       The Complainant was not provided with the notes or minutes of meetings held with witnesses that were interviewed, thus denying the Complainant the opportunity to provide any response to comments or observations made

·       The Complainant was not given any opportunity to cross examine the witnesses

·       The Investigator asked a set of predetermined questions which were set by Mr. Johnson, the husband of Ms. Johnson who had made the complaint about the Complainant.

·       The Investigator did not make any findings or draw any conclusion but merely passed his notes of the answers to those questions to Mr. Johnson.  The Complainant did not receive a copy of this document from the Investigator

I recognise that the Investigator did make arrangements to adjourn the first investigation meeting and to provide the Complainant with a copy of the complaint made by Ms. Johnson.  Nonetheless, it cannot be said that this was a fair and thorough investigation in circumstances where the husband of the person making the complaint determined the questions to be asked, where the information gathered throughout the process was not provided to the Complainant and she was not afforded the opportunity to respond to or challenge that information. The evidence given by the Complainant that the Investigator was a friend and long-term business partner of Mr. Johnson was unchallenged by the Respondent and caused concern about the impartiality of the Investigator. These concerns were further exacerbated when it emerged that it was common case that Mr. Johnson had set the questions to be asked of those giving evidence to the investigation.

In relation to the disciplinary process, I noted the following:

·       The Complainant was invited to attend a disciplinary meeting on 29 August 2024 by letter of 23 August 2024

·       In advance of that meeting she did not receive any information regarding the outcome of the investigation, nor did she receive a copy of the disciplinary policy

·       At that meeting Mr. Johnson put it to her that she had lied under oath at a previous WRC hearing, a charge which the Complainant denied

·       Both parties became agitated, and Mr. Johnson dismissed the Complainant.

I noted Mr. Johnson’s confirmation at hearing that he had prepared a letter of termination of employment for the Complainant prior to the disciplinary meeting as he “had a funny feeling that’s how it was going to go”.  I noted also that both parties confirmed that it was a very short meeting.

In relation to the appeals process I noted as follows:

·       The Complainant sent an email to the Respondent on 18 September 2024 seeking clarity in relation to the procedure to appeal her dismissal

·       The Complainant’s position was that she did not receive a reply. The Respondent evidence that he did recall considering who might hear the appeal and his evidence that he could not recall if he had replied to that email would seem to substantiate that position.

·       The Complainant position that she then sent a follow up letter on 23 September 2024 setting out the grounds for her appeal.  It was the Respondent position that he never received that letter and although the Complainant confirmed that she had not sent it by registered post she was able to provide a copy of the letter at hearing.

While it is disputed that the letter of appeal was received by the Respondent it is clear that the Respondent did receive the email of 18 September and was therefore aware of the Complainant’s wish to make an appeal.  Despite this, by his own evidence it is apparent that he did nothing to facilitate such a process, other than to consider who might hear such an appeal.

Taking all of the above into account I have formed the view that the Respondent had scant regard to the right of the Complainant to have a fair and impartial investigation and a fair and balanced disciplinary process. 

Throughout the investigation process the Respondent, in the person of Mr. Johnson, withheld pertinent information from the Complainant and sought to insert himself into the investigation by prescribing the questions to be put to participants.  The Investigator did not therefore, follow the evidence, did not hear from witnesses nominated by the Complainant and did not provide the Complainant with notes or minutes of meetings held as part of that process, thereby denying her the right to fully respond.  Given the close relationship between Mr. Johnson and the Investigator and given the extent to which the Investigator acted under the direction of Mr. Johnson I am left with significant concerns about the impartiality of the Investigator.  In all the circumstances it is evident to me that the investigation was neither fair nor thorough.

During the disciplinary process it is clear that the Complainant, once again, was not provided with the relevant policies or information prior to the disciplinary meeting.  Instead, the meeting opened with Mr. Johnson outlining accusations against the Complainant which were then denied by the Complainant.  It appears that both parties quickly became irate in the meeting and after only a few minuets the Respondent decided that the Complainant was guilty of the allegations set out by Ms. Johnson and dismissed the Complainant.  Most noteworthy was the Respondent confirmation that he was a witness to what had happened in the previous WRC hearing and so he was in a position to verify his wife’s version of events.  It was also noteworthy that Mr. Johnson had the dismissal letter already written prior to commencing the disciplinary hearing.

The manner in which the Respondent conducted this disciplinary process showed flagrant disregard for the principles of natural justice, in particular the principle “Nemo iudex in causa sua” (no one can be a judge in their own case).  Mr. Johnson acted as witness and decision maker in a complaint made by his wife.  In such circumstances he cannot be described as an uninterested party. He directed the questions to be put to those interviewed at investigation and he wrote the letter of dismissal prior to holding the disciplinary hearing.  In so doing he demonstrated a clear bias against the Complainant and denied her the right to a fair and impartial consideration of the facts of the case.

In addition, Mr. Johnson failed to make arrangements for an appeal although he was aware that the Complainant was seeking an appeal.

Section 6 of the Act states that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:….

(a)   Civil proceeding whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness.”

I note that Part 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act defines “civil proceedings” as “any cause, action, suit or matter, other than a criminal proceeding, in any court.”  This was further confirmed by the Supreme Court in its decision in Zalewski v Adjudication Officer & Ors [2021] IESC 24 which found that a hearing at the WRC is concerned with the administration of justice in accordance with Article 37 of the Constitution.  Based on this judgement, and the definition above, I am satisfied that an employment rights hearing under the auspices of the WRC constitutes a civil proceeding and, in that case, I am satisfied that Section 6(2) (c) of the act is applicable to the instant case.

The Complainant gave evidence in a previous hearing at the WRC and while it was alleged that she gave false testimony to that hearing, in view of the numerous flaws and deficiencies in the Respondents process it cannot be said that there was any clear and impartial evidence of wrongdoing on the part of the Complainant. 

There was, however, ample evidence to support a view that the Respondent was unhappy with the witness evidence given by the Complainant at that previous hearing and sought to retaliate against the Complainant upon return to the workplace.  It is clear from the evidence of both parties that the Respondent pursued the Complainant for a copy of a letter which was not taken in evidence by the Adjudicator at the hearing of that matter.  It is also evident that the Respondent behaved most egregiously in inserting himself into the entire investigation and disciplinary process in matters complained of by his wife and that he presided over, what can only be described as, an unsound and deeply flawed process. 

The Courts have always afforded individuals giving testimony certain protections in recognition of the key role of witnesses in the administration of justice.  Complainants must be free to lodge complaints in relevant courts and individuals must be free to give evidence without fear of reprisals or any form of coercion.  The law requires those giving evidence to do so under oath or affirmation and provides a clear mechanism to investigate allegations of false testimony in such circumstances.

It is clear, that in this case the Respondent, decided himself on the question of the guilt of the Complainant and dismissed her for having given evidence in the earlier hearing.  The Respondent’s actions in this matter are against all reason and judgement. 

In all the circumstances I find that the Complainant was unfairly dismissed as a result of her having given witness testimony in an adjudication hearing of the WRC and due to the Respondent’s failure to conduct a fair and impartial disciplinary process.

I have found that the Complainant was unfairly dismissed by the Respondent and so it is my decision that this complaint is well founded.

Redress/Remedy

In deciding on the appropriate remedy, I must first consider reinstatement of the Complainant, in circumstances where she continues to be unemployed. I do so, notwithstanding the Complainant position that she did not wish to be re-instated and the Respondent view that the parties could not work together again.

In considering this question, I have regard to the findings of the Supreme Court in An Bord Banistiochta, Gaelscoil Moshiolog v The Labour Court, where it was stated that “the remedy of reinstatement is exceptional in nature, involving as it does the imposition of a contractual relationship which is not only personal, but involves a high level of mutual trust and confidence, on an unwilling party…. It is wrong to view reinstatement simply as punishment for wrongdoing on the part of the employer”

In light of the above, I am satisfied, based on the evidence presented to me, that the trust and confidence required for the resumption of an employment relationship between the parties no longer exists.  Accordingly, I have decided to make an award of compensation.

The Complainant was employed by the Respondent earning €755 per week and was dismissed from her employment on 29 August 2024.

Having considered the evidence, I note that at the date of hearing the Complainant remained unemployed and under the care of her physician.  I note that the Complainant might reasonably have been expected to obtain alternative employment within the period between her dismissal and the hearing and in these circumstances, it would not be just or equitable to award the Complainant the entirety of the financial loss attributable to her dismissal from 29 August to the date of the hearing or to include in any award an element of future loss after the hearing. It would also be appropriate to take account of disability payments received since her dismissal.

However, in assessing the level of compensation to award, it would also be wholly inappropriate to focus solely on the Complainant’s mitigation efforts especially in circumstances where the Respondent’s conduct in dismissing the Complainant was entirely unreasonable as set out above. This is in line with the Adjudication Officer in ADJ 32667, where, in calculating the award of compensation, she stated, inter alia, that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

In examining the provisions of Section 7(2) in respect of the instant case, I find as follows:

7(2)(a)(d) and (e): The Respondent acted wholly unreasonably in dismissing the Complainant without cause and no procedural fairness was afforded to the Complainant. The Respondent effectively summarily dismissed the Complainant at a meeting in August 2024, did not afford an opportunity to the Complainant to fully respond to allegations, and offered no right of appeal. This represents a wholesale failure to comply with the principles of fair procedure contained in S.I. No. 146/2000, the Code of Practice on Grievance and Disciplinary Procedures. The responsibility for the dismissal and the resulting financial loss therefore rests overwhelmingly with the Respondent.

7(2)(b) and (f): The Complainant made no contribution to the termination of her employment.

Having regard to the foregoing, I must conclude that an award of €40,000, represents a just and equitable measure of compensation.

The Respondent is directed to pay the amount of €40,000 to the Complainant as compensation for the unfair dismissal.

Unfair dismissal