Complainant

Respondent

Parties

Mary  Downes

 Seetec Employment and Skills Ireland Designated Activity Company.

Representatives

  Self-Represented

Cillian McGovern B.L. instructed by Sinead Morgan DAC BEACHCROFT

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-00070536-001

03/04/2025

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

The respondent made its submissions the evening before the start of the hearing.  In the circumstances, and in order that the complainant would not be prejudiced by this action, the matter was adjourned to allow the complainant to consider the submissions and to take any advice that she wished to do.  She was also requested to provide detail regarding the mitigation of her loss prior to the next day of hearing.  This was received by the WRC and the other party prior to the reconvened hearing.

The complainant and four witnesses for the respondent undertook to give their evidence under affirmation.  Cross examination was facilitated.

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

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

The respondent denied that the complainant was dismissed unfairly, she was dismissed for gross misconduct at the conclusion of a fair and reasonable disciplinary process, in line with the requirements of the 1977 Act.

The respondent submitted that it is a business which delivers employability and skills programmes across Ireland on behalf of the State.  In particular, the respondent supports vulnerable individuals on returning to the workforce.

The respondent submitted that the complainant worked for it as an Employment Advisor.  The complainant would meet with clients to discuss their skills and support them in attaining employment.  Many clients would fall into the vulnerable category and could include minorities from different backgrounds, to include foreign nationals and members of the Travelling Community.  The respondent is an equal opportunities employer.  Within its workforce it promotes, diversity, equality and inclusion and requires its staff to attend appropriate training to ensure all clients are treated equally. The respondent submitted that the complainant remained employed in this capacity until her dismissal for gross misconduct on 7 February 2025.

The respondent submitted that there were no issues with the complainant’s employment until a complaint was received from a client of the employment service on 30 September 2024. On foot of the complaint an investigation meeting was arranged with the complainant, which was chaired by an investigating officer in the presence of a note taker.  This took place on 3 October 2024. The complaint related to alleged racist comments that had been made by the complainant to the service user. There were no notes or record of the client meeting other than those on the client management system, which only contained basic details of the appointment.

The complainant attended the investigation meeting with her representative.  The complainant denied the conversation occurred as alleged but could not recall any details from her meeting with the client. A further investigation meeting was scheduled on 18 October 2024 attended by the investigating officer and a note taker. The complainant confirmed she did not require a colleague to attend. At that meeting the complainant would not fully engage with the investigator. The investigator asked the complainant about the content of the 21-minute meeting with the client. The only recollection the complainant had was that the client discussed having a medical condition.   During the course of the investigation the investigator spoke by phone on a couple of occasions with the client user. They also spoke with the client users' normal Employment Advisor to try to assess the credibility of the complaint. The investigator also spoke to five witnesses, who worked in the office with the complainant to assess whether there was a history of making inappropriate comments.

The complaint was investigated under the company's Disciplinary and Procedure Policy to determine whether her behaviour amounted to gross misconduct, in particular whether there had been: either a severe indecent or abusive behaviour language and or conduct likely to offend clients, suppliers visitors or other employees, or acts of incitement or actual acts of discrimination, bullying, harassment, sexual harassment, indecent or offensive behaviour. 

An investigation report issued on 4 November 2024.  This indicated that two of the five witnesses confirmed with certainty that the complainant had previously made racist comments. No mitigating circumstances could be identified by the investigator for the alleged comments.  The report recommended that the matter proceed to disciplinary stage in line with the company's Disciplinary and Procedure Policy.

The respondent submitted that the complainant was provided with a copy of the investigation report on 8 November 2024. She went an extended period of certified sick leave from 12 November 2024 to 10 January 2025. On her return from sick leave the complainant was put on a period of paid suspension from 13 January 2025 in line with the company's Disciplinary and Procedure Policy. A disciplinary meeting was arranged for 17 January 2025 with the disciplinary officer and a note taker. The complainant was afforded the right of representation by a colleague or trade union representative at that meeting. They were also provided with a pack of all relevant investigation materials including the client complaint meeting notes, investigation report, and consolidated witness statements.

The respondent submitted that the first disciplinary meeting took place on 17 January 2025. The complainant confirmed that she had no recollection of the conversation with the client which was approximately 20 minutes long. The complainant then refused to answer any questions without having a note taker present. The meeting was adjourned as the complainant would not engage.  A letter was issued to the complainant on 22 January 2025 rescheduling the disciplinary meeting re-confirming her right of representation at that meeting. The letter requested her attendance and full participation at the rescheduled disciplinary meeting on 28 January 2025.

The respondent submitted that this re-scheduled disciplinary meeting took place on 28 January.  A colleague attended with the complainant as her colleague/note taker. Once again, the complainant indicated that she could not recall any significant details in relation to the conversation with the client, bar the fact that they discussed the client's hospital appointments and the work the client could do. She could not give any reason why the client could have misunderstood the conversation in such a significant way.

The respondent submitted that a letter issued to the complainant on 7 February 2025 confirming the outcome of the disciplinary meeting. The complainant was dismissed by reason of gross misconduct in contravention of the company's Code of Conduct and Disciplinary and Policy and Procedure. The letter referenced the disciplinary meetings that were carried out, the documentation that had been provided to the complainant during that process and the opportunity she was allowed to respond to those allegations. The letter confirmed that the balance of the evidence provided (to include the responses from the complainant) pointed to a very strong probability that the events happened as detailed within the client's written complaint. The letter also set out in detail all factors which were considered in coming to this conclusion. The letter also addressed the appropriate sanction in the particular circumstances. In particular it indicated that the complainant did not provide any credible or persuasive mitigating factors or show any remorse or acceptance that the conduct was inappropriate.

The letter also referenced the impact of the incident on the organisation's reputation and the relationship with the client in particular that the behaviour meets the threshold of being "severe, indecent, or abusive behaviour/language and/or conduct likely to offend customers, suppliers, visitors or other employees". As such the conduct resulted in a complete breakdown of the mutual trust and confidence in the existing contract of employment. In those circumstances they had no option but to dismiss in circumstances where the complainant had not provided any credible explanation as to why the client would have fabricated her interactions with the complainant and the fact that the complainant showed no remorse or acceptance that her conduct was inappropriate.

The respondent submitted that the complainant's employment was terminated on 7 February 2025, without notice, in line with its Disciplinary and Procedure Policy, noting that she had the right to appeal.

The respondent submitted that an appeal was received on 17 February 2025 and that the grounds of appeal focused on the severity of the sanction. Although the clamant continued to deny the allegations her grounds of appeal referred to the fact that "this situation was an unfortunate misunderstanding".

An appeals officer was appointed to deal with the appeal. A letter issued to the complainant on 26 February 2025 confirming his involvement and scheduling an appeal meeting for 5 March 2025. She was given the right to be accompanied by a fellow worker or trade union representative.   The appeal hearing took place as scheduled. Although the complainant' representative was not available, she indicated that she was happy to proceed.  The complainant referenced "regret" and "making amends" but continued to assert that she had done nothing wrong. She could still furnish no further details in relation to the content of the 20-minute conversation with the client.

The respondent submitted that the appeal outcome issued on 12 March 2025 reconfirming the sanction of dismissal. The appeal was concluded that after careful and comprehensive consideration of all the facts presented prior to the appeal hearing and put forward in the complainant's letter of appeal and the statement read out by her at the appeal hearing.  He had formed a reasonable belief that the racist comments had been made by the complainant as no other alternative plausible theory had been put forward.  He indicated that the complainant's past unblemished performance was not satisfactory mitigation. Given that the respondent provides services to vulnerable clients and in circumstances where the complainant had demonstrated no remorse there was no guarantee that a repeat of the conversation would not occur.  In particular he stated that he could find "no demonstrable evidence of the recognition of the harm caused or that there was any harm caused, whether intentional or not. Regretfully this does not inspire confidence or provide any reassurance that a repeat of such a conversation may not occur again in the future. And clearly, I cannot expose our clients or the business to such a risk, as we must expect and be as confident as possible that all employees working at (the respondent) uphold the values, principles and behaviours which underpin our service to the whole community. Therefore, I believe I have little alternative but to reject your appeal, and instead to uphold the disciplinary outcome finding of dismissal by reason of misconduct."  On that basis the outcome of dismissal was upheld.

The respondent submitted relevant portions of s.6 of the Unfair Dismissals Act 1977, as amended, including:

“(1) 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…

(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:

(b) the conduct of the employee…

(7) 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 or the Labour Court, as the case may be, 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,”

The respondent submitted that the question of what the principles of natural justice require, generally, in workplace investigations was addressed by the Supreme Court the case of Connolly v McConnell [1983] I.R. 172, where the Supreme Court stated as follows:

“when a person holds a full-time pensionable office from which he may be removed, and thus be deprived of his means of livelihood and of his pension rights, the domestic tribunal or body having the power to remove him are exercising quasi-judicial functions. Therefore, they may not remove him without first according to him natural justice. He must be given the reasons for his proposed dismissal and an adequate opportunity of making his defence to the allegations made against him–audi alteram partem. The members of the Tribunal must be impartial and not be judges in their own cause–nemo iudex in causa sua. They must ensure that the proceedings are conducted fairly.”

The respondent noted that the High Court has determined that the principles of natural justice and fair procedures require that an employee be informed of the allegations against him and be afforded the opportunity to answer those allegations. As Barron J. states in Flanagan v University College Dublin [1988] I.R. 74:

“The principles of natural justice involved relate to the requirement that the person involved should be made aware of the complaint against them and should have an opportunity both to prepare and to present their defence.”

The respondent also noted that the judgment of the High Court in Mooney v. An Post [1998] 4 IR 288 sets out what is required of employers when conducting investigations into misconduct:

“Certainly, the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly, the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.”

The respondent further noted that the importance of fair procedures, generally, being applied and an employer adhering to the contractual entitlements of an employee in a process involving a serious sanction, including dismissal, has been recognised by the High Court. As noted by Laffoy J. in Giblin –v- Irish Life & Permanent PLC [2010] IEHC 36:

“First, in conducting a process to determine whether the plaintiff should have a serious sanction, including the most serious sanction available, namely, dismissal, imposed on him, the defendant must act in accordance with the terms of the Plaintiff’s contract of employment, including the implied term that the Plaintiff, as employee, is entitled to the benefit of fair procedures (Glover v BLN [1973] IR 388). However, it is well recognised that what fair procedures demand depends on the terms of the plaintiff’s employment and the circumstances surrounding his purported dismissal.

It is not to be inferred from this decision that I consider that it is not appropriate for executives of the defendant who are involved in the human resources aspects of the defendant’s management to conduct the type of investigation which was conducted in relation to the plaintiff. Nor is it to be inferred that I am of the view that the person or persons who conduct the “thorough investigation” to be conducted under para. (iv) of the Disciplinary Procedures in all cases should not be the decision maker as to whether the conduct of the employee being investigated warrants a serious sanction such as dismissal. A one stage inquisitorial process may be appropriate in many cases.”

The respondent submitted that it operates a tripartite process consisting of investigation, disciplinary and appeal, as set out in its written Disciplinary Policy and Procedure document. This three-stage process accorded the complainant numerous opportunities to prepare and present her defence. These three separate processes were conducted by three different managers within the respondent and who were independent of each other. The separation of these processes, and the independence of the managers who conducted them, are in strict accordance with the principles of natural justice and are in excess of what Laffoy J. requires of employers in her judgment in Giblin set out above.

The respondent submitted that it informed the complainant of the precise detail of the allegations against her. These were subsequently confirmed in writing on multiple occasions. Despite being given numerous opportunities, she failed to admit her wrongdoing. It cannot be credibly said that the complainant was either unaware of the allegations against her, or that she was prevented from preparing and presenting her defence. The allegations made by the client were extremely detailed in nature. Despite these opportunities the complainant repeatedly confirmed she could not recall the content of the meeting with the client and could not present any plausible explanation for the client making these very specific allegations.

The respondent submitted that the complainant’s only basis for her claim of unfair dismissal appears to be her assertion that the sanction was unfair and disproportionate. In relation to that submission, the law has long recognised the legal and contractual right of an employer to summarily dismiss an employee for gross misconduct. In Carvill v. Irish Industrial Bank Ltd. [1968] I.R. 325 the High Court noted that summary dismissal is warranted where an employee must have been guilty of actions inconsistent with the performance of his contract.

The respondent also submitted that it is well established that in exercising its jurisdiction under the Act it is not for the Workplace Relations Commission to put itself in the place of the employer. In Bunyan v United Dominions Trust [1982] I.L.R.M. 404 for example, the EAT adopted and applied the following principle enunciated by the UK EAT in NC Watling Co Ltd v Richardson [1978] I.R.L.R. 225:

“[T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

The respondent submitted that the question of the ‘reasonableness’ of the decision of an employer to dismiss was considered in Bank of Ireland v Reilly [2015] IEHC 241, where Noonan J. noted that s.6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However, “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”

The respondent submitted that, given the impact of the complainant’s conduct when providing a service on behalf of the State and while dealing with vulnerable individuals, that the decision to summarily terminate her employment was (at the least) within the band of reasonableness open to the respondent, and in fact was the only reasonable option where no remorse was shown by the complainant for her behaviour and where the respondent had lost trust and confidence in the complainant.

The respondent cited a case where the Employment Appeals Tribunal upheld a summary dismissal on similar grounds in Knox Hotel and Resort Ltd. UD 27/2004, stating:

“[The complainant's actions] “destroyed the respondent's trust and confidence in the Complainant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal."

The respondent submitted that in this case it gave extensive consideration to the appropriate sanction, as outlined in the extremely detailed outcome letters following both the disciplinary and the appeal processes. However, given the complainant’s failure to accept her behaviour and the impact of that behaviour on the service provided by the respondent, the relationship of trust and confidence was fundamentally ruptured to a degree that rendered the continuation of her employment as impossible.

The respondent concluded that the complainant accepted that she had "regrets" during the course of the process, but when challenged, she failed to accept her behaviour and the impact of that behaviour on the respondent and their clients. The complainant had also failed to properly engage in the process or to explain why the client would have made false allegations against her or to provide any plausible explanation for the complaint.  Her actions clearly constituted gross misconduct under the Disciplinary and Procedure Policy and a fundamental breach of the relationship of trust and confidence necessary to maintain the employment relationship.

The respondent noted that the complainant was dismissed following a robust and fair tripartite process, consisting of investigation, disciplinary, and appeal, during which she was accorded multiple opportunities to set out her account of events and during which she continually refused to admit her actions. The absence of any acceptance of her actions and the impact of those actions the respondent could not guarantee a repeat of this behaviour. Given the client facing nature of the service the respondent must have full trust and confidence in their employment advisors in dealing with their vulnerable client base. In circumstances where that trust and confidence had been lost the respondent had no option but to apply the sanction of dismissal.

Oral Testimony:

The first witness for the respondent was the area manager who conducted the investigation process. He stated that he received a call from an employment advisor who noted that her client stated that she felt that colour had been brought into the conversation with another employment adviser. The service user was then asked whether she would like to make a formal complaint. This complaint was made after 6pm on 30 September 2024.

The witness stated that his purpose was to investigate the complaint received from the client. He stated that additional questions were put to the client during a follow-on phone call. The original complaint and these additional questions formed the basis of the complaint made against the complainant.

He noted that the complainant was extremely open and calm throughout the process. Notes were sent to her to approve and ultimately, he made a recommendation.

The witness stated that he carried out an investigation with the other occupants of the office shared with the complainant.  Two of the complainants’ colleagues stated that they had heard her use racist language on occasion. He determined that there was a requirement for a disciplinary hearing on an issue of gross misconduct. He confirmed that he did not send copies of the colleagues observations to the complainant.

Under cross examination he was asked who instigated the complaint against the complainant. He stated that the client was asked if they would like to make a formal complaint.

In response to a specific question the witness stated that he was never told that the complainant would not have to deal with foreigners.

The second witness for the respondent was the area manager who was responsible for the disciplinary process. She received an e-mail asking her to hold a disciplinary process on 17 January 2025. She stated that she received a summary of the witness statements and that the full copy of the witness statements was received between 17 and 27 January, the 1st and 2nd dates of the disciplinary meetings.

She stated that the meeting did not go very well as the complainant said that she wasn't going to comment on anything that was presented to her. The witness confirmed that she passed on full witness statements to the complainant on 23 January. She confirmed that the complainant had her own note taker present when the hearing reconvened on the second day. She stated that the complainant did not provide any alternative as to what happened with the client, her only answer was this conversation did not happen. The witness confirmed that she was not given anything back regarding the complainants comments on the client's version of events, nothing was put forward in response.

The witness stated that the complainant’s response did not give her, as disciplinary officer, a reasonable belief that there were alternatives to the client's version of events.

The witness was asked if the complainant ever denied saying the comments and noted that yes she said that it did not happen but gave no further comment. The witness stated that the complainant was given a number of opportunities to provide another version but did not do so. She decided that on balance the complaint from the client was credible.

The witness stated that she considered other options of a verbal warning or written warning but even though the complainant was given multiple opportunities to respond to the complaint while in possession of the documentation, she did not give any alternative version and there was no accountability from the complainant.

Under cross examination the witness confirmed that she never met or interviewed the client. She was asked whether if she was in this situation she would have shown remorse and she indicated that she would have, she would have been happy to be given the opportunity to respond. She also acknowledged that it was difficult to go through the investigation without the whole complaint in front of her but noted that the complainant had the opportunity to respond to the complaint when she had the full documentation in her possession but chose not to do so.

The third witness for the respondent was the director of service support who acted as the appeal decision maker in the last step of the process. He confirmed that his involvement with the GDPR request was to pass on the request for response, but he noted that he did not collate the information.

He stated that he regretted the effect that the process had on the complainant herself but noted that there was no explanation from the client about what happened, she simply stated that the incident did not happen.

He stated that he formed a reasonable belief that the conversation happened as outlined in the client’s complaint. There was no logical ground for the client to make up or fabricate matters, there was no history of such complaints, she was not targeting the complainant nor was the client antagonistic. The witness was asked if anything stood out during the process, such as that the first meeting was disciplinary rather than investigatory. He noted that he was happy that the complainant had been provided with the opportunity to comment on everything while in possession of the documentation therefore he upheld the original outcome. He restated that the complainant was given ample opportunity to give her point of view but noted that she was quite defensive and focused on perceived procedural issues rather than addressing the substantive nature of the complaint against her.

Under cross examination the witness confirmed that he had never met nor interviewed the client. He was asked whether he would have been happy to go through the investigation or the disciplinary without the documentation. He noted that he would have been happy to go through the procedure, but that the complainant was not left without documentation, noting that she didn't have his initially, but it was provided to her thereafter.

The witness was asked whether he would have shown remorse in a similar situation and said that yes, 100% he would have shown remorse.

Under redirection the witness was asked about the proportionality of the sanction. He said that he considered the issues and the likelihood of repeat offence, and he said that from what he had seen there was a likelihood of a repeat offence, and he did not take this lightly and so upheld the original outcome.

The fourth witness for the respondent was the senior HR business partner for the respondent. It was noted that she provided the invitation to the investigation process and she was asked had she any concerns regarding the process. She stated that she was not willing to share the rationale as regards the probable case with the complainant at the outset. She was only satisfied after the fact finding was concluded and that a reasonable possibility of a valid complaint was established. She confirmed at the investigation stage was not concluded until all the notes were agreed. She stated that the complainant's perspective did not change despite having access to the documentation, she simply denied that the conversation happened. The witness noted that from a HR perspective the process was reasonably correct she noted that an offer of the services of the employee assistance personnel was also made to the complainant.

The witness noted that she went off on maternity leave from mid-January onwards and as such had no knowledge of the remainder of the process.

Under cross examination the witness was asked whether she had met her interviewed the client, or whether she understood the client's state of mind. She stated that she had not met her. The witness was asked the same question as to whether she would have shown remorse if she had committed a breach and she stated that yes, she would have shown remorse.

The witness was asked whether she was ever contacted regarding the complainant not working with foreigners, but she said she was not.

The witness was asked whether it was appropriate that a person accused of racism was left in place and she noted that they had to conduct a fact-finding meeting before any decision could be made to leave somebody in place or not. She stated that there was a fair fact-finding investigation, followed by a disciplinary process and appeal.

When asked were there any previous complaints regarding the complainant performance she stated that she had no recollection of any previous complaints. She also stated that she was not in a position to provide any detail of any awards that the complainant had received.

Under redirection the complainant was asked about the nature of the complaint and noted that the complaint at this stage was high level and that specific detail was not necessary at the outset, rather it was just to establish if the complaint was viable.

Closing arguments:

The respondent accepted that the process was not perfect. It noted that in the circumstances in which it operates the complainant was not handed the complaint in advance but was only given excerpts in advance of the investigation. However, it noted that the dismissal was fair and procedurally sound and the complainant was given ample opportunity to put her case forward. There was an investigation, disciplinary hearing, and appeal over a 5-month time period.

It was also noted that the respondent’s employee assistance service was offered to the complainant on 30 October prior to the disciplinary hearing. 

In conclusion the respondent noted that it did not dispute that the complainant did not receive a complete copy of the complaint at the outset however it was read out to her in its entirety. The responded noted that the complainant’s attitude to the process did not change with full knowledge of the complaint. She had no alternative version of what had happened. The respondent submitted that the dismissal was proportionate.

Finally, the respondent noted that someone who is dismissed has a duty to mitigate their loss. The complainant was unemployed for seven months but only applied for four or five roles and although currently only in a part time job was not looking for any further roles.  This should have an impact on any proposed compensation for loss of earnings, if such was deemed necessary.

The complainant categorically denied the comments attributed to her. She submitted that the nature of the allegation is entirely inconsistent with her character, conduct and the professional values she has upheld throughout her employment and career. The allegation suggested that she made racially inappropriate and offensive comments to a client regarding interracial relationships and immigration. She firmly denied that any such conversation took place. At no time has she ever made such remarks, nor would ever speak in a manner that disrespects, discriminates against, or undermines the dignity of any individual – client or colleague.

The complainant submitted that up until the minute the disciplinary meeting took place in October, she was not aware or informed of the alleged accusations/allegations. The interaction in question occurred in a professional setting, during a one-off appointment in the absence of the client’s usual employment advisor. The client had informed her they were due for a major operation, and she had expressed appropriate concern for their well-being, asking if they had someone to support them. Her primary focus, as always, was to support the client’s progress toward employment, as per company guidelines.

The complainant submitted that a few days after the appointment, the client contacted the office, not to file a complaint, but to raise a “concern” about the conversation. It was submitted that this distinction is important. Furthermore, there were no witnesses to the alleged conversation, and the client’s account has changed over time, with new details being added in a manner that raises questions and credibility and accuracy of the allegations.  The complainant submitted that despite this, she was not made aware that any allegation had been raised against her until she received a notice from the Human Resource Manager just two days prior to a disciplinary hearing. Up until that point, she was continuing to carry out her duties in good faith, unaware that an investigation had begun. It is submitted that this is a serious breach of proper process. The complainant submitted that at no point was she given the opportunity to respond to any concerns informally, provide her version of events during an initial investigation, or access the evidence being used against her ahead of the hearing.

The complainant submitted that the first meeting that she was invited to was already framed and documented as a disciplinary hearing. The complainant also highlighted that the entire allegation against her is based on hearsay – a verbal account from a single client, made several days after the meeting, with no witnesses, no recordings, and no written contemporaneous notes. The client initially stated that they did not wish to raise a complaint, only a concern, and their story evolved over time with new details being added, which further undermines the reliability of the allegation.  The complainant submitted that this can be noted on the second meeting which was an investigation meeting after the disciplinary dated 18 October.  There is no corroborating evidence to support the claims.

The complainant submitted that given that the alleged remarks are serious and career-threatening, it is vital to note that no formal complaint was submitted, no independent verification was possible, and no opportunity was provided for her to respond at an early stage. She submitted that a finding of gross misconduct should only be made where clear, objective, and corroborated evidence exists, not based on hearsay.

It is also troubling that the investigating officer (an area manager) conducted two phone conversations with the client outside of any formal process, the contents of which were not witnessed, recorded, or disclosed in full.  Despite this, the manager asserted that the client’s story “never changed” in direct contradiction to the documented progression of the allegations as evidence by the investigation notes dated 18 October). Prior to this allegation, the complainant had taken a six-week period of approved leave – part paid, part unpaid.

The complainant submitted that upon her return, she underwent a performance review during which she was informed she may be placed on a Performance Improvement Plan (PIP), despite receiving no clear reasons or evidence of underperformance. She submitted that she was also told “if you’re coming in for the sake of coming in, don’t”. These comments and actions were unusual and left her with the strong impression that the investigating officer had predetermined intentions regarding her position in the team. The complainant submitted that her recollection is that she had a second review in the period of the investigation which she did not receive any paperwork for.

The complainant submitted that throughout her approximate six years of service, she had had no previous disciplinary actions, complaints, or concerns raised against her. She had worked diligently and professionally to support clients, always acting in their best interest and in accordance with her duties.

The complainant submitted that she strongly believed that the process followed in this case has been flawed and lacks impartiality for the following reasons:

·        A disciplinary hearing was scheduled and conducted before she was informed of the allegation.

·        She was denied a fair opportunity to respond before formal disciplinary action was initiated.

·        The investigation and appeal processes were conducted by colleagues, raising concerns about fairness and bias.

·        The person conducting the appeal stated he had no awareness of the disciplinary hearing and yet he was the person that requested the Data Subject Access Request (DSAR) regarding all correspondence to the alleged complaint.

·        In addition, there was a correspondence between the appeals officer and the Human Resource Manager that the complainant did not have access to.

·        There has been a failure to provide clear, consistent and objective evidence to support a finding of gross misconduct.

In conclusion, the complainant submitted that full consideration be given to the inconsistencies in the allegation, the complainant’s previously unblemished record, and the questionable manner in which this matter has been handled.

Oral Testimony:

The complainant gave evidence in relation to the complaint. She stated that there were no complaints made against her during her time with the respondent. She stated that the disciplinary process was initially conducted without her input. She stated that in relation to regret and remorse, she stated that matters could have been dealt with in a different fashion.

As regards mitigation of her loss the complainant stated that she finished up with the respondent on 7 February 2025 and she was back in part time work in the workforce from September of that year. She stated that she was not looking elsewhere at the moment. She stated that she made four or five job applications over the period of unemployment.

Under cross examination the complainant confirmed that she was unemployed for seven months and that she started looking for work in April or May of 2025. She was asked where she currently looking for work and replied that she was not.

The complainant confirmed that she did not know what the full complaint was until she received it under her data access request noting that she did not understand the complaint in its entirety.

The complainant confirmed that she was not happy with proceeding in the first meeting on 13 January in the absence of her own note-taker. She stated that the matter reconvened with a note-taker and there were no issues with the meeting of 28 January 2025. She stated that she doesn't believe she got a fair hearing from day one. She went through the process noting that the process was adjourned to allow her to bring in a note taker. She confirmed that this was done for her benefit.

It was put to the complainant that she simply wanted to make a statement and not to answer any questions, but she denied that this was the case. In relation to the appeals process she confirmed that she made an appeal submission. It was noted that she did not criticise the process or state that she did not get a fair hearing during the appeal and she was asked whether she accepted this. She stated that she never received a copy of the transcript of the phone calls.

Closing arguments:

In conclusion the complainant noted that she was not given the entire complaint prior to the original meeting. She stated that she couldn't understand why respondent was so set on looking at remorse when she didn't say the things she was accused of. She also noted that she had a five-and-a-half-year unblemished record.

She noted that the client did not wish to raise a complaint but simply had a concern. The phone call concerning the complaint was never recorded or noted down in detail. Although the procedures say that at every stage the complaining would be given the complaint in writing this was not done. The complainant stated that she was not provided with a copy of all the documentation but instead had to seek these herself using the subject access request.  No copy of the complaint was provided to her during the disciplinary investigation until January 2025.

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

(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 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.

The respondent submitted that the complainant was dismissed arising from her conduct as per Section 6(4)(b) of the Act.  It noted that it had undertaken an investigation and disciplinary process which resulted in her dismissal and that she had the opportunity to appeal matters.  The respondent submitted that the dismissal was fair.

The complainant suggested that dismissal was a disproportionate option in the circumstances of her case.  She submitted that the procedure was not conducted fairly.

The respondent cited the case of Bank of Ireland v Reilly [2015] IEHC 241, as follows outlining that  Noonan J. noted that s.6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However, “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”

The respondent submitted that in this case it gave extensive consideration to the appropriate sanction, as outlined in the extremely detailed outcome letters following both the disciplinary and the appeal processes. However, given the complainant’s failure to accept her behaviour and the impact of that behaviour on the service provided by the respondent, the relationship of trust and confidence was fundamentally ruptured to a degree that rendered the continuation of her employment as impossible.

Therefore, the matters for me to decide upon are whether the process followed fair procedure and whether the option chosen by the respondent was within the range of options that a reasonable employer would have considered or that the option of dismissal for gross misconduct was a decision that a reasonable employer would have come to.

As well as the legal precedents cited by the parties, I am mindful of the Code of Practice on Grievance and Disciplinary Procedures produced by the Workplace Relation Commission produced pursuant to S.I. 146 of 2000 - Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000

Section 4.10 & 11 state as follows:

10. Disciplinary action may include:

• An oral warning
• A written warning
• A final written warning
• Suspension without pay
• Transfer to another task, or section of the enterprise
• Demotion
• Some other appropriate disciplinary action short of dismissal
• Dismissal.

1. Generally, the steps in the procedure will be progressive, for example, an oral warning, a written warning, a final written warning, and dismissal. However, there may be instances where more serious action, including dismissal, is warranted at an earlier stage. In such instances the procedures set out at paragraph 6 hereof should be complied with.

Section 4.6 outlines the following must apply:

6. The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

• That employee grievances are fairly examined and processed
• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The complainant was alleged to have used racist language, and the employer undertook an investigation process.  This was followed up by a disciplinary process.  The respondent accepted that the complainant was not provided with the complaint in its entirety at the outset but the evidence given is that the complaint was read out to the complainant in its entity at the outset and it was provided to her prior to the conclusion of the disciplinary process, notwithstanding that this was provided as part of a subject access request.  The complainant was out on extended leave during the period that she requested the documentation.  It is not disputed that she was in possession of the complaint before the second, substantive, disciplinary hearing was heard.

On foot of the complainant allegations, the company investigated the matter, then subsequently held disciplinary hearings, decided the matter and conveyed this to the complainant.  She subsequently appealed the matter and the decision to dismiss was upheld.

On the basis of the evidence presented to the hearing, the respondent appears to have largely followed its in-house disciplinary procedure.  This disciplinary procedure accords with the Code of Practice produced by the WRC.  The details of the grievance and complaint against the employee were put to her, and she was given the right to respond to those allegations.  She was afforded the right to representation.

The complainant partook in the process to a limited degree but offered no other evidence, factors or circumstance such as to overturn the decision to dismiss her for gross misconduct.

I find that the process, although not perfect, was not unfair and generally followed the principles of the Code of Practice.

The respondent noted that dismissal is an option open to it where gross misconduct has been established.  This is laid out in both the code of conduct and the respondent’s in-house disciplinary policy.  Although this may be a harsh outcome, I am mindful of the the case of Bank of Ireland v Reilly [2015] IEHC 241 cited by the complainant, where Noonan J. held

“that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

Having regard to this complaint, I am satisfied that it was reasonably open to the respondent to dismiss the complainant in circumstances where it had found that gross misconduct had occurred.  I am satisfied that the sanction was not disproportionate or outside the range of reasonable responses on the part of the employer.

Accordingly, I find that the complainant was not unfairly dismissed.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Unfair dismissals Act – unfairness of process – disproportionate sanction – process followed the Code of Practice – process not unfair – sanction within the range of reasonable options – dismissal not unfair.