UD1747/2011, MN1805/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr T.  Taaffe

Members:     Mr M.  Noone

                     Mr F.  Keoghan

heard these claims at Dublin on 28 January

         and 15 & 16 July 2013

Representation:

Claimant:     

         Ms Theresa Ham, Kingsford Solicitors, Suncroft Avenue,

                     Strand Road, Portmarnock, Co Dublin

Respondent:  

         Ms Elaine Finneran BL instructed by, on the first and third days,

         Mr Noel Reilly, on the second day, Mr Tom Halligan both of

         Gaffney Hooligan & Co., Solicitors, Artane Roundabout,

                     Malahide Road, Dublin 5

The determination of the Tribunal was as follows:

The respondent operates recruitment and staffing agency which was incorporated in early 2007. The claimant was hired as a sales manager in March 2007, she later became a senior sales manager and in August 2010 she became executive sales director. It was common case that this promotion was in recognition of the claimant’s performance of her duties.

On or around 23 May 2011 a part-time member of staff (PT), who was working in the respondent’s open plan office, was engaged in a phone call with the claimant who was on a day off. At the end of this call PT left the office in some distress. The managing director of the respondent, who had become aware of this whilst in her office followed PT from the building and discovered that PT was dissatisfied with the conduct of the claimant in dealings with her to the extent that PT lodged a verbal complaint with MD about the claimant’s conduct. On returning to the office MD spoke to the other two members of staff in the office, the operations manager (OM) and MD’s niece (DN) and asked if they had any problems with the claimant’s conduct. Both MD and DN expressed dissatisfaction with the claimant’s conduct towards them.

O planning issues were not raised with the claimant. On 27 June 2011 the claimant began a period of four weeks’ sick leave in order to undergo a medical procedure. It was the claimant’s position that the respondent had some two weeks’ notice of this sick leave.

The respondent’s position was that during the claimant’s absence on sick leave MD noticed an array of documentation on the claimant’s desk seemingly unattended to. MD also became aware of certain procedural issues and local arrangements concerning a major client which the claimant had brought to the respondent and for which the claimant had responsibility.

When the claimant returned to work on 25 July 2011 she was called into a meeting by MD  to discuss the complaints which MD wished to raise with her both in regard to her interactions with other staff members and her dealings with the major client. The meeting lasted some 45 minutes and at the end of the meeting MD gave the claimant a copy of the notes she had referred to during the meeting. It was common case that the claimant was being angry, defensive, and upset during the meeting. At its conclusion the claimant was sent home, effectively suspended on full pay.

MD’s notes were in the following terms

Work Performance Concerns

·         Control of clients excessive

·         Poor communication with the office in dealings with clients and candidates and not relating to the office

·         Major client rebates and credits

·         In effect keeping secrets from MD

·         Very poor transparency re holiday time/no planning and discussing it with me to ensure cover

·         Disorganised

People Staff Management

·         The way you speak to staff

·         Your attitude to staff when things don’t go well or don’t go your way

·         PT and a client, jury service issue for a placement

·         The business cards issue recently

·         The way you spoke to DN once she started to go on more client visits with MD

·         You seem to have to be seen to control the office and people in it

·         I put a mentor in place to help you with the role but you choose not to use this

·         I have received accusations from all the staff in relation to your bullying and harassment

·         The office environment has been calmer and more productive in the past month

Where we are at

·         Lack of respect for colleagues/staff and the MD

·         Poor judgement calls

·         Not following business procedures/practices

·         Not showing appropriate commercial competence in relation to the consequences of the above points

·         Bullying accusations

·         Insubordination

·         All of this equals misconduct

No notes of this or subsequent meetings were opened to the Tribunal. At this stage no written complaint had been received from any of the three people who expressed dissatisfaction with the claimant on 23 May 2011.

On 26 July 2011 the claimant sent MD an email. The claimant expressed her annoyance at the way she had been treated and sought clarification on her status. A further meeting was held between the claimant and MD on 27 July 2011 in order to go through details of all work issues. By the time of this meeting written complaints had been submitted by both OM and DN. The claimant’s response was that she would reply in writing to all the issues raised by MD. PT submitted a written complaint the following day and copies of all three complaints were forwarded to the claimant.

For all meetings after 25 July 2011 the claimant was afforded the opportunity of being accompanied an offer which she declined. On 27 July 2011 MD gave the claimant five pages of handwritten notes setting out the complaints against her.

The claimant replied to MD in an eight page document on 29 July 2011 setting out her response to the allegations against her. In the final paragraph the claimant concluded

“I await clarification as to the company’s position in relation to whether the company is viewing the above as gross misconduct. My position is that I have not been guilty of any misconduct and that no substantial evidence of same has been furnished by the company”.

The claimant met MD again on 4 August 2011. On 5 August 2011 the claimant emailed MD with her response to the previous day’s meeting. At point 9 the claimant stated that she looked forward to receipt of her P60 and payslips. It was the claimant’s position that at the meeting on 4 August MD offered the claimant the opportunity to resign from respondent in order to avoid the stigma of having been dismissed for gross misconduct.

On 11 August 2011 MD sent a four page document to the claimant confirming the option for the claimant to resign but it concluded “will send you a letter outlining the reason for your termination of employment as soon as practicable”. The same day the claimant confirmed by email that she would not be resigning. On 15 August 2011 MD wrote to the claimant confirming her dismissal for gross misconduct. The claimant was paid until 31 August 2011.

Determination

The Tribunal carefully considered the evidence adduced both verbal and written. It is common case that the dismissal took place after a number of “one to one” meetings between the representative of the respondent and the claimant. The Tribunal has examined the procedures adopted and implemented by the respondent including its written procedures. Having considered the investigation conducted by the respondent it is found and determined:-

1.      That no opportunity was afforded by the respondent to the claimant to engage with the parties who had communicated allegations of misconduct to the respondent concerning her and in response to which the respondent had commenced an investigation.

2.      That in the course of the investigation in respect of these allegations the respondent had formed a conclusion prior to the completion of their investigation that they were justified.

3.      That in respect of written responses by the claimant to these allegations that no response was either sought or obtained by the respondent from the parties concerned for consideration by the claimant prior to the conclusion of their investigation.

4.      That the presence in the investigative process of the matters aforesaid has resulted in the respondent’s failing to carry out a full and proper investigation which in turn has invalidated the subsequent disciplinary action of the respondent in dismissing the claimant.

It is therefore found and determined that the claimant was unfairly dismissed. The Tribunal finally considered the evidence presented by the claimant in respect of mitigation of loss and is not satisfied that a coherent and sustained effort was made by the claimant to mitigate her loss. It therefore finds and determines that the claimant contributed to her loss. The Tribunal awards the sum of €35,000-00 in respect of her dismissal under the Unfair Dismissals Acts, 1977 to 2007.

The evidence having shown that the claimant received slightly in excess of her statutory entitlement to notice pay the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 must fail and the Tribunal so determines.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)