UDD2624

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00047801 (CA-00058870-001).

BACKGROUND:

The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 8 March 2025 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

A Labour Court hearing took place on 4 June 2026.

The following is the Decision of the Court:-

DECISION:

1. This is an appeal by Ms Joanna Gurtman against a Decision of an Adjudication Officer (ADJ-00047801/CA-00058870-001) made under the Unfair Dismissals Act, 1977 to 2015 (the UD Act) in a complaint against Sport Ireland. The Adjudication Officer, in a decision dated 30 January 2025, found that the dismissal was fair.
2. For ease, the parties are referred to in the same way as at first instance, so Ms Gurtman is referred to as “the Complainant” and Sport Ireland as “the Respondent”.
3. At the hearing of the Court on 4 June 2026 in Dublin, the Complainant was unaccompanied and unrepresented. The Respondent was represented by Mr Brian Kavanagh of Ibec. The Court received written submissions from the parties in advance of the hearing and heard oral submissions from both parties at the hearing. Ms Emma Ward, Mr Paul McDermott, and Dr Una May gave evidence under oath on behalf of the Respondent and Ms Dimitra Darra gave evidence on affirmation. The Complainant also gave evidence under oath.

Summary of the Respondent’s Submission

4. The Respondent is the national agency for sport in Ireland, including active participation in sport, high performance sport, anti-doping, coaching and the development of the Sport Ireland Campus.
5. The Complainant was employed as a Finance Manager by the Respondent pursuant to a contract of employment, signed on 25 July 2017, with a commencement date of 8 August 2017. Her contracted hours were 37 hours per week with an annual salary of €47,081. Her employment was terminated on 26 June 2023 when she was summarily dismissed.
6. The Respondent set out the background to the issue as commencing when the Complainant’s manager identified to HR, in January 2022, that he had not heard from the Complainant for a significant period and was unsure if she was working or absent. Emails were exchanged and a welfare Zoom meeting was arranged for 10 February 2022, in the absence of medical certification from the Complainant. At the welfare meeting the Complainant raised a number of workplace issues which HR said would be dealt with on her return to work. Subsequently medical certificates were provided covering the absence period. The Complainant returned to work on 4 April 2022 but refused to attend a meeting with her manager. Mediation was arranged for June 2022 following a period when the Complainant had not been performing any work duties. A report issued on 3 August 2022 following which the Complainant was referred for an occupational health assessment where she was deemed unfit for work for four weeks from 18 August 2022. She was deemed fit to engage with HR and return to work on a phased basis from 22 September 2022. Thereafter the Respondent sought to engage with the Complainant regarding her return to work and her grievance. The Complainant did not return and did not submit a written grievance. The Complainant was absent on bereavement and annual leave from 22 September until 27 October 2022. The Respondent’s HR Manager met the Complainant on 27 October 2022 in the context of a return to work meeting where the Complainant was unhappy with the lack of action on her workplace issues. The Respondent’s position is that it made multiple efforts to engage with the Complainant to discuss her grievance and accommodated her with off campus locations and/or taxis to facilitate meetings but the Complainant did not attend or engage.
7. In November 2022 the Respondent engaged an external Investigator to conduct a disciplinary investigation into the Complainant’s conduct resulting in a recommendation for disciplinary action for breaches of policies, working location and insubordination. The Complainant did not engage with the Investigator. From end December 2022 to end March 2023 the Respondent maintained that no contact could be made with the Complainant. Three occupational health assessments were arranged, for 18 and 20 April and 3 May 2023, to establish the Complainant’s fitness to participate in the process arising from the investigation report [which issued on 9 March 2023] but she did not attend any of the appointments.
8. A disciplinary officer was appointed and a meeting invitation issued for a disciplinary meeting on 13 June 2023, which the Complainant did not attend. The meeting was rescheduled for 20 June 2023 and again the Complainant did not attend. The disciplinary officer considered the results of the investigation report and concluded that dismissal without notice was the appropriate sanction, communicating same to the Complainant on 26 June 2023.
9. The Complainant appealed the disciplinary outcome by email of 3 July 2023. An appeal meeting was scheduled for 28 July 2023, and rescheduled at the Complainant’s request to 4 August 2023. By email, dated 31 July 2023, the Complainant advised the Respondent that she would not attend the appeal meeting and requested it be conducted in her absence with the Complainant advising, by email dated 8 August 2023, that she was not fit to participate. The Respondent’s appeal panel upheld the decision to summarily dismiss the Complainant and communicated this to her by letter dated 22 September 2023.
10. The Respondent submitted that the Complainant’s dismissal was fair and arose from serious misconduct, giving rise to substantial grounds justifying her dismissal, following a thorough process in accordance with the Respondent’s policies and the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) in which the Complainant was afforded all the benefits of fair procedures and where the universal principles of natural justice were applied. The Respondent submitted that the dismissal was an appropriate and proportionate response to the Complainant’s persistent failure to comply with the correct attendance procedure, failure to attend work related meetings, failure to carry out the duties of their role while receiving payment for doing so from January 2022 to June 2023, failure to use the appropriate and authorised company equipment to perform duties, working outside of Ireland remotely without authorisation, and failure to comply with the Respondent’s policies and procedures. In reliance on Looney & Co Ltd v Looney UD843/1984 the Respondent submitted that “a reasonable employer in the same position and circumstances” as the Respondent would have reached the same determination. It submitted, in reliance on The Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241, that the decision to dismiss was within the band of reasonable responses available to it. The Respondent submitted that the Complainant’s actions destroyed the Respondent’s trust and confidence in her and rendered the continuation of the employment relationship impossible, therefore justifying dismissal.
11. Without prejudice to its submission that the dismissal was fair the Respondent submitted that reinstatement or reengagement were not appropriate remedies where the Complainant had contributed so significantly to her own dismissal and where the Respondent had lost trust in the Complainant. It submitted that the Court should have regard to the views of the parties including the Respondent’s strong opposition to reinstatement or reengagement. Without prejudice to the foregoing the Respondent noted that the Complainant had not provided any evidence that demonstrated she had made reasonable efforts to mitigate her loss.

Summary of the Evidence of the Respondent

Evidence of Ms Emma Ward, HR Manager of the Respondent

12. Ms Ward (the witness) gave evidence under oath in respect of her engagement with the Complainant up to the commencement of the investigation and disciplinary processes.
13. The witness said that in January 2022 the Complainant’s manager approached HR regarding the Complainant not being in contact with him. The witness said that she held a welfare meeting via Zoom with the Complainant who said that she was not in work but that she had medical certificates. The witness said that the Complainant raised issues regarding the work environment which the witness said she told the Complainant would be dealt with on the Complainant’s return to work. The witness said that mediation was offered to the Complainant and an unsuccessful mediation process was undertaken during June and July 2022. Thereafter, the witness said multiple efforts were made to meet with the Complainant regarding her complaints or alternatively to get her to put her grievance in writing. The witness said that despite offering meetings off campus, closer to the Complainant’s home, and offering taxis to the Complainant the meeting(s) never happened. Ms Ward said that the Complainant said she would not attend meetings. The witness said that the Complainant admitted that she was not doing any work for the Respondent. The witness said that occupational health appointments were arranged for the Complainant and that on 18 August 2022 she was deemed unfit for four weeks and on 22 September 2022 was deemed fit to engage with HR and return to work on a phased basis. The witness said that a virtual return to work meeting took place on 27 October 2022. At that meeting the Complainant raised issues about her manager and a meeting was arranged to address those issues but the Complainant did not attend the meeting.
14. In cross-examination, it was put to the witness that she had informed the Complainant (by email of 2 November 2022) that she would have to withdraw her complaint before she could return to work which indicated that the Respondent knew the details of the Complainant’s complaint. The witness said this was not so, rather that the Complainant had referred to having a complaint but had not engaged with the Respondent’s efforts to engage in a process despite a proposed meeting being scheduled twice with her. The witness said that in the email the first option open to the Complainant was to engage in the process and return to work. The witness said that no written response was given in respect of the Complainant’s grievance before moving to disciplinary because the Respondent did not have any details of the grievance.
15. In answer to questions from the Court, the witness said that HR had followed up remotely when the Complainant had been absent without leave for two weeks, and that medical certificates were later provided to the Respondent. The witness understood that the Complainant had previously been working to her manager but that the witness was not the HR Manager at that time. No issue had been taken with her not providing the medical certificates to her manager. The witness outlined the sequence of events regarding the Complainant being unfit for work in August 2022 and after the Complainant was deemed fit to return the Complainant had taken bereavement leave and annual leave after which a return to work meeting was facilitated. At the end of the return to work meeting the witness said that the Complainant had asked about her grievance and the witness said that she tried to get details of the complaint which were not provided to her. The witness said that the Respondent did not understand why the Complainant was not attending work, whether she was in Ireland or not and efforts to meet her had failed. She said that she set up the investigation process, following a tender process, and that the Complainant was on notice of the investigation, what it was for and the consequences of it. The witness said that the disciplinary policy was shared with the Complainant. The witness was not able to confirm the terms of reference of the investigation and whether it was fact finding in nature or potentially involved sanctions. The witness said she had no involvement with the disciplinary process nor with the investigation other than to set it up.

Evidence of Ms Dimitra Darra, External Investigator

16. Ms Darra (the witness) gave evidence under affirmation, via video link, in respect of the investigation into the Complainant’s conduct that she undertook for and on behalf of the Respondent. She said that she was a HR professional, with 15 years’ experience in workplace investigations, specialising in employee relations work in Ireland and the UK. Prior to being instructed in the investigation she had no previous engagement with the Respondent. The witness said that she was engaged by Emma Ward who provided her with terms of reference for the investigation and she had a brief call with Ms Ward regarding the allegations of “serious breaches of terms and conditions”.
17. The witness said she made multiple efforts to contact the Complainant. The first contact was on 12 December 2022 to invite her to a remote meeting on 15 December 2022. The Complainant initially confirmed her attendance but did not attend and by email sought to reschedule. The Complainant was invited to a rescheduled meeting on 21 December 2022 which she did not attend, having (by email of 16 December) undertaken to respond by 19 December. The meeting was rescheduled for 29 December 2022. The Complainant did not respond or attend and the investigation was conducted without her involvement.
18. The witness said that she met all relevant people in the Respondent. The witness said that she addressed all of the allegations in respect of the Complainant including “multiple patterns of behaviour”, non-attendance by the Complainant and her lack of communication with her line manager. The witness said she relied on a HR timeline which she drafted.
19. In response to cross-examination, when asked what independent steps she took to verify the Complainant’s conduct, the witness said that she solely relied on material from HR which included communications from the Complainant. She did not make independent checks on the allegations. The witness said that the word “allegedly” should have been included in the email to the Complainant of 15 December 2022 which referenced “policies that have been breached from your end”. The witness confirmed that the Complainant was not provided with the HR narrative nor the minutes of meeting with her line manager (the only minutes appended to the investigation report). The witness was challenged on the use of “gaslighting”, “monetary motivation”, “narcissistic disorder” in the outcome report when she had not met the Complainant. The witness confirmed that she concluded in the investigation report that the Complainant’s behavioural patterns “are usually met into personalities with severe narcissistic disorders”, that the Complainant “used her mental health to manipulate HR and the business”, that the Complainant “deceived HR by lying about location and work progress”, and that she found the “coincidence suspicious” regarding the timing of the Complainant reporting her mother’s death when she was due to meet HR. The witness said that she never had the opportunity to discuss “other matters” around the Complainant’s employment as raised by her because they never met. She did not raise the “other matters” with HR as she had no more information than a single line in an email.
20. In answer to questions from the Court, the witness did not recall whether she raised with HR the Complainant’s lack of engagement with the investigation process. She did not raise with the Respondent the content of the Complainant’s email of 16 December 2022, in which the Complainant described herself as “a person struggling with depression due to work-related stress”. The witness acknowledged that she had no clinical qualifications or relevant experience to opine on how particular mental health issues presented themselves in individuals or to diagnose disorders in respect of the Complainant.
21. The witness confirmed that “employee” was used in the terms of reference for the investigation but that in the investigation report she referred to the Complainant as “the alleged perpetrator”. The witness described her role as one of fact finding. When it was put to the witness that the provision in the terms of reference, which provided that “the Investigator will decide if further action is required”, goes beyond the finding of fact the witness said that this could relate to the Investigator recommending further action rather than deciding the action. The witness said that she did not discuss the report with the Respondent or Complainant before issuing. The witness did not know what evidence had been provided to the Complainant in advance of the investigation. The witness was not able to explain the inclusion of a section on “Mitigating Factors” in the report when there was no reference to such in the terms of reference. The witness said that the report was based on evidence, but the commentary/assumptions were an addition not related to facts.

Evidence of Mr Paul McDermott, Director of National Governing Bodies and High Performance (Principal Officer Grade)

22. Mr McDermott (the witness) gave evidence under oath about the disciplinary process he conducted on behalf of the Respondent in respect of the Complainant. He gave evidence that he was asked to conduct the disciplinary process by the Respondent’s HR Director (DC).
23. The witness said that he wrote to the Complainant on 30 May 2023 inviting her to attend a disciplinary meeting with him on 13 June 2023 where a notetaker would be present. The witness said that the letter advised the Complainant of her right to be accompanied to the meeting by a colleague or trade union representative. The letter set out allegations of gross misconduct and advised that a potential outcome of the disciplinary process was summary dismissal. The allegations put to the Complainant were: failure to comply with correct attendance procedure and failure to attend work-related meetings while the organisation has made all the accommodations requested; failure to carry out the duties of her role; failure to use the appropriate and authorised company equipment to perform any duties; working outside of Ireland remotely and without authorisation; failure to submit timesheets; and failure to comply with Sport Ireland’s policies and procedures. The Complainant was provided with a copy of the investigation report and the Respondent’s disciplinary policy. The Complainant did not attend the meeting of 13 June 2023 and by letter of that date a further date of 20 June 2023 was proposed where the Complainant was advised that the meeting would be held and a decision made in her absence if she did not attend on 20 June. The Complainant did not attend the rescheduled meeting.
24. The witness said that when the Complainant did not attend he proceeded to make a decision having regard to the investigation report. His evidence was that the investigation report clearly showed company policy had been breached and in the absence of any mitigating factors he made the decision to dismiss. He said he considered alternative sanctions but considered the appropriate sanction was dismissal. He said that the information in the report suggested the Complainant had failed to fulfil her duties in a number of areas including compliance with the attendance policies. He said he did not receive any communication from the Complainant until some days after the disciplinary meeting had taken place. The witness’s previous experience of the Complainant was positive. The letter of termination, dated 26 June 2023, concluded that the appropriate course of action was to dismiss the Complainant with immediate effect.
25. In cross-examination, the witness confirmed that only the investigation report had been considered in deciding to dismiss. He had some recollection of receiving emails from the Complainant but they were of a general nature and not really related to the investigation. He did not take those emails into consideration as he did not see them as relevant. When asked what steps he had taken to verify that the Complainant had failed to carry out the duties of her role, the witness identified that his role was part of a process and that it was not for him to reinvestigate the issues already investigated. The witness confirmed that “failure to submit timesheets” was not included in the grounds for dismissal.
26. In answer to questions from the Court the witness confirmed that he had never previously been a disciplinary officer and had no previous experience with the Respondent’s disciplinary policy, but he said that he took particular training, clarified to be online via Ibec, regarding the range of sanctions. The witness said that he did not consider other factors outside of the report. He said that his focus on the report was on reviewing the allegations including a review of the document trail and that he only attended to the facts. He said he would have been happy to interrogate the report in a meeting with the Complainant. When asked if he had any concerns that the material relied on in the report had not been provided to the Complainant, eg IT input into working abroad reflected in the HR thread, the witness said he thought HR had put it to her. The witness said that he did not attach particular weight to the inferences in remarks in the report including regarding suspicion around the death certificate, rather he focused on the thread of events and findings. In response to a question asking if he was satisfied the terms of reference and report were aligned the witness said that he was satisfied the investigation was done in good faith and the report revealed facts and information which allowed him to reach his decision. The witness said that he did not consider, in the absence of the Complainant’s attendance, that he had a continuing obligation to interrogate as he did not think it was within his authority to reinvestigate any issues and he had the thread of information and sequence of events to rely on. The witness said the purpose of the hearing was to give the Complainant a right to be heard and that it was a missed opportunity for her. The fact that the recommendations in the report were not followed did not give the witness cause to question the report. The non-application of the Respondent’s policies and procedures, including the Absence Management Policy, were identified to the witness who considered that the Complainant’s non-attendance at work was a significant issue. The witness said that there was a cumulative effect of the various breaches and the non-engagement by the Complainant was a factor. In re-examination the witness identified that the Absence Management Policy allowed for termination for gross misconduct albeit at the end of an extensive process.

Evidence of Dr Una May, Chief Executive Officer (CEO) of the Respondent

27. Dr May (the witness) gave evidence under oath about the appeal process she undertook on behalf of the Respondent in respect of the Complainant. She said she was appointed to the appeal panel, with board member Ms D, by the HR Director of the Respondent. The witness considered she was the appropriate person to undertake the appeal, given her seniority. An initial appeal hearing planned for 27 July 2023 was rescheduled, at the request of the Complainant, to take place on 4 August 2023. The Complainant emailed Dr May to say that she would not be able to attend the rescheduled hearing. Because of issues raised by the Complainant regarding her fitness to attend Dr May said she arranged an assessment of the Complainant by Medmark, which the Complainant did not attend. The witness described procedures as her “thing”. She said that she was unclear on the basis of the appeal. The witness said that she received four emails from the Complainant in advance of the appeal and considered every item and every attachment as well as the investigation report. The appeal decision was jointly made with Ms D. The witness said that she had forwarded to HR earlier emails sent to her by the Complainant (in or around February/March 2023) in which the Complainant was outlining her discontent. The witness said that she did not deal with individual complaints.
28. In cross-examination the witness confirmed receiving an earlier complaint from the Complainant, which the Complainant said identified issues around the disciplinary process. The witness said that she considered it was more issues of concern than a formal complaint. The witness said that she did not have any sense of what the complaint was about but understood that HR had requested specific follow-up. When it was put to the witness that there was a conflict between being an appeal person and engaging with HR re the Complainant’s concerns the witness said that she was unbiased in her approach to the appeal. The witness denied that she had not reviewed the emails sent by the Complainant to Mr McDermott (on 6 and 20 June 2023) as they had been provided by the Complainant in her appeal documentation. In answer to a query about what steps the witness had taken to clarify the findings re the Complainant failing to carry out her duties or using unauthorised equipment, the witness said that she based her decision on the information provided to her and considered there was strong IT and HR evidence in respect of the allegations.
29. In response to questions from the Court the witness said that it was a complex appeal which she distilled down to four points based on the submission put forward by the Complainant. The witness said that she did not clarify the grounds of appeal with the Complainant and did not review the [investigation or disciplinary] process. She said she accepted the findings of the investigation report as provided, attributing unusual language to it being written in the second language of the Investigator. The witness did not consider the personal judgments in the report to be particularly relevant as the facts were addressed. She said she assumed the disciplinary officer did not have regard to those aspects of the report either but had not met Mr McDermott nor explored his role in the context of the appeal. The witness said that the appeal panel considered the sanction in line with the disciplinary policy but that the definition and scale of the misconduct made a lesser sanction inappropriate. When asked to reconcile her prior involvement in the complaint email with her role in the appeal process, notwithstanding her indication in an email of 8 March 2023 that she could and would intervene in the investigation process, the witness said that she was the most senior person in the Respondent and the person appropriate to deal with the appeal.

Summary of the Complainant’s Submission and Evidence

30. The Complainant was employed by the Respondent as a Finance Manager from August 2017 to 26 June 2023 when she was summarily dismissed. The Complainant’s position is that her dismissal was both substantively and procedurally unfair. The Complainant maintains that her dismissal took place in the context of an outstanding complaint she made of workplace bullying, work related stress, issues around her return to work, role uncertainty and a failure by the Respondent to respond to her requests for support and alternative arrangements. The Complainant submitted that the Respondent did not properly process her complaint and that when she refused to withdraw the complaint the Respondent moved into a disciplinary investigation.
31. The Complainant considered that the investigation report was not a safe foundation for dismissal on the basis that it was produced without properly considering her version of events and yet made serious adverse findings about the Complainant’s conduct, motives, credibility, work participation, mental health and medically related incapacity. The Complainant noted that the report used prejudicial and non-neutral language including “gaslights”, “monetary motives”, “personalities with severe narcissistic disorders”, “manipulate”, and “malicious” which was not neutral fact finding. The Complainant maintained that her documented medical condition and participation difficulties were treated as non-attendance and misconduct. The Complainant submitted that given the issues with the investigation report, the Respondent could not safely rely on it for summary dismissal without a proper independent disciplinary assessment.
32. The Complainant criticised the dismissal decision where it was taken based solely on the investigation report without having regard to the materials she provided to the disciplinary decision maker including what she described as her written defence, medical context, complaint context, factual rebuttal and mitigation. She maintained that the allegations against her were not tested against that written material, her medical evidence, her clean disciplinary record and proportionality. The Complainant said that her non-attendance was treated by the Respondent as an absence of defence and mitigation where she maintained that her non-attendance was inseparable from her documented medical condition and documented participation difficulties. The Complainant submitted that her non-attendance did not absolve the Respondent from its duty to assess her written material before imposing summary dismissal. The Complainant submitted that the letter of dismissal did not show a clear reasoning from allegation to evidence to her response to finding to mitigation and proportionality and finally to sanction. Because the Respondent’s disciplinary procedures provided for lesser sanctions the Respondent needed to explain why dismissal was the appropriate sanction in the particular context and it did not do so.
33. The Complainant said that Dr May had been materially involved in matters directly connected to the dismissal process before chairing the appeal. The Complainant had sent a complaint to Dr May on 20 February 2023 referencing HR conduct, mismanagement and the effect of same on the Complainant’s mental health. The Complainant said that Dr May’s replies showed that she had looked into the issues, consulted with HR, reviewed correspondence, addressed the grievance route, referred to the Investigator and recommended pausing activity pending occupational health involvement. The Complainant said that Dr May was not objectively independent given her material involvement in the issues that the appeal had to later assess. The Complainant also noted that the appeal outcome did not show a genuine reasoned assessment or explanation of how the defence material was weighed but just adopted the disciplinary conclusion without showing independent analysis or explaining why summary dismissal remained proportionate.
34. The Complainant’s closing submission was that the dismissal was “unsafe” not because of one isolated defect, but because of a chain of procedural failures, based on a procedurally unsafe investigation report and without an independent appeal.
35. Following the termination of her employment with the Respondent, the Complainant was unemployed up to the date of the hearing as she said she was prioritising her mental health recovery. She made no effort to look for work. She was in receipt of jobseeker’s allowance.

Relevant Legislation

36. Section 6(1) of the UD Act provides:

"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."

37. Section 6(4) of the UD Act provides:

"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…"

38. Section 6(7) of the UD Act provides:

"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, 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."

Deliberations

39. The fact of dismissal was not in dispute. The burden of proof rests with the Respondent to show that there were substantial grounds justifying the Complainant’s dismissal and that it resulted wholly or mainly from one of the matters specified in section 6(4) of the UD Acts.
40. In Hennessy v Read & Write Shop Ltd UD192/1978, the Employment Appeals Tribunal (the EAT) held that:

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to:

1. The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and
2. The conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

41. It is settled law that it is not for this Court, in considering the fairness or otherwise of the dismissal, to substitute its own view for that of the Respondent, rather the Court’s role is to determine whether the decision to dismiss is within the band of reasonable responses open to the Respondent.

42. The Circuit Court, in Allied Irish Banks v Purcell [2012] 23 ELR 189, said: “It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken.”

43. The Respondent relies on the Complainant’s conduct as being wholly or mainly the basis for dismissal. The conduct in question was set out in the investigation invitation letter as “concerns” that the Complainant was “breaching several organisation’s Policies and Procedures that constitute part of your contract of employment”. The period governing the alleged breaches was from January 2022 onwards. The concerns set out were:

1. Failure to comply with correct attendance procedure;
2. Failed to attend meetings scheduled while the organisation has made all accommodations requested;
3. Failure to carry out the duties of her role;
4. Failure to use the appropriate and authorised company equipment to perform any duties;
5. Working outside of Ireland remotely without authorisation;
6. Failure to submit timesheets;
7. Failure to comply with Sport Ireland Procedures.

44. The investigation report presented the “concerns” differently by attaching to them alleged breaches of specific policies including breaches of the Respondent’s Security Policy, IT Policy, Absence Policy, and Attendance Policy and describing them as allegations. The investigation report upheld all of the originally drafted concerns (as allegations) in a report dated 9 March 2023. The report recommended that the Respondent process disciplinary action to address a range of issues, which went beyond the scope of the allegations/concerns put to the Complainant, including deception and insubordination.

45. A disciplinary meeting was arranged, the invitation to which changed the characterisation of the conduct which had been investigated from concerns to “alleged gross misconduct”.

46. This Court, in DHL Express (Ireland) Ltd v Michael Coughlan UDD1738, notes that the established jurisprudence in relation to dismissal law in this jurisdiction, takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. In that case the Court cites, as evidence of this jurisprudence, an EAT decision of Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissals Cases and Commentary (IBEC 1996)). In that case the Tribunal stated: “Section 8 of the Minimum Notice and Terms of Employment Act, 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only in cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping etc. They did not do so.”

47. In O’Riordan v Great Southern Hotels UD 1469/2003 the EAT held that: “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

48. The extract of the Respondent’s Disciplinary Procedure, provided to the Court, included a range of 17 examples of what it considered gross misconduct including one of the seven concerns/allegations put to the Complainant which was “Failure to comply with correct attendance procedures”. Inclusion by an employer of conduct in the definition of gross misconduct is not determinative of it being gross misconduct. It is noteworthy that the other concerns/allegations which were termed gross misconduct at the disciplinary stage did not appear in the list of examples in the Respondent’s procedure and neither did the relevant policies address purported breaches as gross misconduct.

49. The Respondent also provided copies of its Attendance Management Procedure which included a very detailed process to be followed by the Respondent in the case of absence without leave. The only mention in the procedure of gross misconduct was on page 17 of the 18 page procedure which envisaged a gross misconduct termination if the employee did not respond to a three-stage engagement in the case of an absence without leave procedure. It is not disputed that the Respondent’s Absence Management Procedure was not followed in the case of the Complainant.

50. The Court notes that none of the conduct issues leading to the Complainant’s dismissal had previously been addressed by the Respondent under the relevant policies or under the disciplinary procedure prior to invoking the process leading to dismissal. The fact that the Respondent considered that there was a multiplicity of issues which needed to be addressed, some from almost twelve months previously, does not elevate the issues of concern to a more generalised allegation of gross misconduct.

51. What the Court has to determine is whether or not the conclusions reached by the Respondent, including the decision to dismiss, were within the range of reasonable responses open to it having regard to all the circumstances. Further, whether the summary dismissal of the Complainant is unfair arising from such purported misconduct requires consideration of the factors set out in section 6(7) of the UD Act in respect of the conduct of the employer in relation to the dismissal and the application of fair procedures.

52. As set out earlier in this decision, the role of the Court is not to determine whether or not it would dismiss in the circumstances but to determine whether the decision to dismiss was within the band of reasonableness open to the Respondent, including whether the decision to dismiss was proportionate in all the circumstances.

53. In Allied Irish Banks v Purcell, the Circuit Court, citing Lord Denning MR in the decision of the UK Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91, stated that: “the correct test is: Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal is unfair. But if a reasonable employer would have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably takes a different view.” The High Court in Bank of Ireland v Reilly agreed with Judge Linnane’s views regarding the appropriate test.

54. The Court finds that the Complainant was not afforded the full panoply of fair procedure rights and her rights to natural justice were not complied with. The investigation undertaken went beyond fact finding as it purported to allow the investigator to decide if further action was required. The report concluded that disciplinary action should be taken against the Complainant. The threshold for fair procedures for such an investigation was not met in this case. While broad allegations were put to the Complainant none of the material relied on by the Investigator was provided to the Complainant, either before commencement of the investigation or at any stage thereafter. The Investigator relied on a timeline from HR, in respect of which her oral evidence conflicted with the information in the report, where in the report the timeline was purportedly provided by HR (not supported by the oral evidence of the HR manager), where in evidence the Investigator said she had produced the timeline from emails provided by HR. In any event it was not disputed that the first the Complainant knew of the timeline was when she received the investigation report. The outcome of an IT investigation, conducted for HR, identifying the Complainant’s IT activities which was relied upon by the Investigator was not disclosed to the Complainant. It appeared from the investigation report that only one witness interview was conducted, with the Complainant’s line manager, and again it is not disputed that the minutes of that interview were not provided to the Complainant at any time prior to their inclusion in the investigation report. It cannot be a defence to that breach to say that if the Complainant had attended the investigation meeting she could have defended her position in circumstances where the interview with the line manager had not taken place at the time the Complainant’s meeting was scheduled.

55. While the Court could have some sympathy with the lack of engagement by the Complainant with the investigation process, the breadth of the investigation envisaged and the power given to the Investigator to decide if further action is required imposes an obligation on the Respondent to ensure fair procedures are scrupulously applied. In fairness to the Respondent it appears that the Investigator did not advise the Respondent of the Complainant’s lack of engagement. However, the Respondent engaged the Investigator and it was for the Respondent to ensure the investigation was conducted fairly. The initial approach from the Investigator identified concerns and expressly set out that the investigation meeting was not a disciplinary meeting. No mention was made of misconduct or gross misconduct. Subsequent communication referenced “a disciplinary matter that needs investigating” and the language used indicated pre-determination which the Investigator said in evidence was because the word “allegedly” was omitted. The Investigator was informed by the Complainant that she was “struggling with depression due to work-related stress”. The Investigator proceeded in the Complainant’s absence. In proceeding in the Complainant’s absence, the Investigator is obliged to ensure the Complainant is fully aware of what is being considered and is given an opportunity to respond. The terms of reference for the investigation expressly provide that the Complainant will be provided with all of the evidence being considered by the Investigator and further that final comments will be elicited from the parties (including the Complainant). The terms of reference do not expressly provide for a draft report, but it is envisaged, by paragraphs 11 and 12, that the Complainant will receive the findings and have the opportunity to comment before a final report is concluded and issued. None of these procedural steps were complied with by the Investigator. In this case the Investigator proceeded to reach conclusions in the absence of providing anything other than a bullet point introduction of concerns without any substance whatsoever being provided to the Complainant until the final (and only) report issued.

56. In addition to the significant procedural difficulties in the conduct of the investigation, the investigation report included very significant conjecture, prejudgement, prejudicial remarks and conclusions which the Investigator accepted at hearing she was not qualified to make. The persistent reference to the Complainant as “the alleged perpetrator” is less than ideal although it is noted that at one point the phrase is used in the terms of reference (paragraph 2) where otherwise the Complainant is more properly referred to as “the employee”. Some of the problematic conclusions reached, for which an evidential basis was lacking, were that the Complainant “was driven by monetary motives claiming she is fit to work”, and that she was gaslighting HR. The Investigator also “found it unusual and contradictory for people suffering with depression to find the energy to engage for hours in email exchanges perfectly able to structure accusations against others” despite the Investigator herself having concluded that the Complainant was fit to engage with the investigation. The Investigator found the Complainant “used her mental health to manipulate HR” and concluded that “[t]hese behavioural patterns are usually met into [sic] personalities with severe narcissistic disorders” notwithstanding that she was not qualified, clinically or otherwise, to reach such a conclusion. The Investigator found the “coincidence suspicious” of the Complainant’s mother’s death notwithstanding the HR Manager’s evidence that the Respondent raised no issue with same. Further, the Investigator reached conclusions which were contradictory to each other: finding on the one hand that the Complainant had done no work at all for the Respondent for a period of 11 months but was working from a country other than Ireland during an overlapping period.

57. Given the above procedural failures and the difficulties with many unsupported conclusions reached by the Investigator, a robust disciplinary process would have to be undertaken by the Respondent to overcome these failings. Unfortunately, there was no evidence that there was any assessment of the investigation process undertaken at either the disciplinary stage or the appeal stage. Both the disciplinary decision maker and the appeals panel member gave evidence of their reliance on the investigation report in reaching their conclusions and both gave evidence that they accepted the process undertaken by the Investigator to have been fair and appropriate. This Court finds otherwise and the fact that the investigation report and/or process was not subject to any scrutiny at the later stages of the process renders the process fundamentally unfair. While the appeal witness said that she ignored the inappropriate comments of the Investigator and assumed the disciplinary decision maker did likewise that was not confirmed in evidence. Added to these issues were that the disciplinary decision maker, on his own evidence, had no regard to a document dated 20 June 2023 (incorporating another email from 6 June 2023) from the Complainant, which he recalled reading but did not consider relevant. This document (sent on the day of the disciplinary hearing) provided a robust defence, which it was open to the disciplinary decision maker to not accept once he considered it, but it was not open to him to dismiss it as irrelevant without considering it. The Complainant did not assist herself in this regard by sending the document to multiple politicians with the disciplinary decision maker as a copied recipient, but the witness evidence was that it was received but not considered in the context of the disciplinary process. The disciplinary decision maker likewise reached the conclusion that the allegations (deemed to be proven by the Investigator) constituted gross misconduct where only one of them was even designated as such in the Respondent’s disciplinary procedure and where such designation conflicted with the Absence Management Procedure and where other policies, provided by the Respondent, did not identify a breach as gross misconduct. It may be possible to conclude that a multiplicity of breaches may reach the threshold of gross misconduct, where individual breaches would not, but no such analysis was evident from the letter of dismissal nor the evidence given at hearing. The failure to address the individual issues under the appropriate policies was not considered either at the disciplinary or appeal stage of the process.

58. The Court is concerned that the prior involvement of Dr May, in the Complainant’s grievance, was not taken into account in deciding the composition of the appeals panel. It is not unreasonable to conclude that Dr May may have lacked independence, less because of her alleged inaction on the Complainant’s grievance, but rather because of her clear indication (in an email dated 8 March 2023) that it was within her power and remit to insert herself into the process at the investigation stage and dictate its progress. Dr May did not, in evidence, resolve the issue of potential bias identifying only that she was the most senior person available and the person most suited to handle the appeal. The Court is not satisfied that Dr May was the appropriate person to be on the appeal panel given her prior engagement on the issues and particularly where the potential bias issue was not addressed, in any meaningful way, in the appeal outcome letter.

59.The Court finds that the Investigation report and process was fundamentally flawed and was not subject to any scrutiny at the disciplinary or appeal stage. Additionally, the disciplinary process had no regard to the Complainant’s submissions in reaching the decision to dismiss. The conduct of the appeal process, including having regard to the prior involvement of the member of the appeal panel who gave evidence, did nothing to address the deficiencies at the earlier stages of the process. These factors combined, having regard to section 6(7) of the UD Act, in the Court’s view, renders the decision to dismiss unfair, both substantively and procedurally, and outside the band of responses open to a reasonable employer.

Redress

60. The Court heard the parties on redress. The Complainant sought reinstatement which was opposed by the Respondent. In reliance on The State (Irish Pharmaceutical Union) v Employment Appeals Tribunal [1987] ILRM 36, the Respondent submitted that the Complainant’s wishes cannot be overriding and that the Court must hear both parties and take the views of the parties into account before a remedy is decided upon.
61. The Respondent’s representative submitted (without prejudice to the Respondent’s submission that the Complainant was not unfairly dismissed) that compensation was the more appropriate redress in circumstances where “the actions of the Complainant destroyed the Respondent's trust and confidence in her” and where in closing said that the Complainant had “fundamentally destroyed the mutual trust and confidence essential to any employment relationship”. The Respondent relied on Organic Lens Manufacturing v Brian McAllister UDD2137 in setting out that re-instatement would inflict undue hardship on the Respondent by forcing the restoration of a relationship that is “long past any possibility of restoration”. In that case the Labour Court said: “There is a very good reason why re-instatement is a remedy that is determined by this Court relatively rarely as it is to be expected in most cases that dismissal itself indicates a breakdown in the employee/employer relationship and it is not the role of the Court to inflict hardship on both parties by requiring them to restore a relationship which is often long past any possibility of restoration.”
62. The Court noted the submissions of both parties on the remedy issue with the Respondent deeming reinstatement and reengagement to be inappropriate and the Complainant deeming compensation to be inadequate. While the Court noted the Respondent’s submissions regarding remedy the Court also considered the evidence adduced by the Respondent’s witnesses. No evidence was given to support the submissions that the relationship was damaged beyond repair or that trust and confidence had been irretrievably broken. The line manager with whom the Complainant reported issues is no longer with the Respondent. The disciplinary decision maker spoke positively about his previous interactions with the Complainant, and it was not in dispute that the Complainant had a clean disciplinary record during her six years of service with the Respondent.
63. The Complainant raised interpersonal issues she was having with her manager. Her engagement with those matters was less than ideal. The Respondent’s pre-condition for the grievance to be documented in writing before undertaking an investigation was not ideal either, particularly when there had been sufficient information known to the Respondent to engage a mediator in respect of the same issues. The Complainant’s lack of engagement was undoubtedly frustrating for the Respondent and the Complainant was not entitled to refuse to engage with occupational health in reliance on her own views of her health issues. The escalation to significant disciplinary action, while leaving the existing grievance unresolved, led to the parties being at cross purposes with each other and neither engaging helpfully with a view to a resolution. The Respondent appeared to accept that the Complainant would not or could not work directly with her line manager but other than the mediation process does not appear to have taken steps to return her to work or provide clarity on the role to which she could return.
64. The Respondent may have considered that dismissal would resolve the issue once and for all but the Respondent cannot dismiss unfairly and then have the benefit of declaring a destruction of trust and confidence with a view to relying on the rarity of reinstatement or reengagement as a remedy. Neither can the Complainant, who undoubtedly contributed to the frustration of her employer and whose tendency to surreptitiously record interactions with management is not condoned by this Court, expect to take no steps whatsoever to mitigate her loss and rely on reinstatement to make good her financial loss. It would not be appropriate to enrich the Complainant by reinstating her when on her own account she has, since her dismissal, been working on her mental health recovery and has not been available for or seeking work elsewhere. The Court notes that since her dismissal the Complainant has been in receipt of jobseekers benefit so could have worked during that time. The Court notes that, given the passage of time since the dismissal, reinstatement would give the Complainant the benefit of an award which exceeds the compensation limit available under the UD Act, which the Court does not consider appropriate. The Court concludes that re-engagement is the most appropriate remedy in all the circumstances.

Decision

65. In accordance with the provisions of section 8A of the UD Act the Court sets aside the decision of the Adjudication Officer, dated 30 January 2025, bearing reference numbers ADJ-00047801 and CA-00058870-001.
66. The Court decides that the Complainant’s dismissal was unfair and the appropriate redress is re-engagement of the Complainant, by the Respondent, into the position she held immediately before her dismissal on the same terms and conditions as applied at the date of dismissal. Reengagement is to take effect 42 days after the date of this decision. For the avoidance of doubt, the period from the date of dismissal to the date of reengagement is to be considered a period of unpaid suspension.
67. The Court so decides.

	Signed on behalf of the Labour Court
	Niamh McGowan
TH	______________________
16/09/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be in writing and addressed to Ms Therese Hickey, Court Secretary.