UD410/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                           CASE NO.

Orchard House Limited                                                                                              UD410/2012                                  

against the recommendation of the Rights Commissioner in the case of:

Triona Raymond                                                                                                                                                                                                                                                                

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K. T. O' Mahony B.L.

Members:     Mr J. Hennessy

                     Mr D. McEvoy

heard this appeal at Killarney on 4th February 2014

Representation:

Employer :   Mr. John Boylan, McNulty Boylan & Partners, Solicitor,

                     Clarke’s Bridge House, Hanover Street, Cork

Employee :   Mr Gerard Kennedy, SIPTU, Liberty Hall, Eden Quay, Dublin 1

This case came before the Tribunal by way of an appeal by the former employer against a recommendation by a Rights’ Commissioner reference r-109469-ud-11. The employer will hereafter be referred to as the employer and the employee the employee.

The determination of the Tribunal was as follows:

Employer’s Case

The employer operates a childcare business, providing pre-school, day care and after school services to the local community. The employee has been the recipient of a number of prestigious awards and strives to provide first rate facilities to its clients. In addition to issuing the employee with her terms and conditions of employment the employer also presented her with the policy and procedures handbook of the company.

A director met the employee, at her request, on 10 March 2011 to discuss a verbal warning issued to her on 9 March 2011. The warning had been issued by the centre manager (the manager) on the grounds that the employee declined to undertake certain training and duties and her argumentative approach. This director told the Tribunal that he gave the employee a fair hearing. During the course of their discussion the employee accused the manager of bullying her and indicated that there were witnesses to the bullying. The director took the allegation of bullying seriously, in particular given the nature of the respondent’s business and indicated he wanted to investigate it but the claimant declined to name the alleged witnesses to it.

On his return from two weeks leave the claimant provided the names of the three witnesses to the alleged bullying. During individual meetings with the three alleged witnesses, all three employees denied witnessing the alleged bullying and two of the employees alleged that the claimant had asked them to falsely state that she had been bullied by the manager. One of the employees, who was a reluctant witness before the Tribunal, gave evidence that the claimant had asked her to state that she had witnessed the manager bullying her. The director also interviewed the manager. He took notes during the interviews and compiled a report on his investigation.  

The director concluded that the alleged bullying had not occurred and that requesting employees to falsely state that they had witnessed bullying amounted to gross misconduct. He invited the claimant to a meeting on 8 April 2011 and summarily dismissed her for gross misconduct. He did not give the employee prior notice of the purpose of the meeting of 8 April. He did not provide her with a copy of the interviews or his report on the investigation.The decision to dismiss the employee was taken prior to the meeting of 8 April. The director accepted that he did not comply fully with the employer’s own procedures on summary dismissal.

The centre manager considered her management style to be fair. She did not bully the employee. At times the employee was a difficult and was resistant to change.

The employee did not appeal her dismissal despite having indicated that she would.

The employee confined her evidence to the sole issue of loss.

Determination

It is a fundamental principle of employment law that fair procedures must be applied to a dismissal.

In Mooney v An Post [1998] 4 IR, Barrington J in the Supreme Court stated:

“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 charges against him and to be given an opportunity to answer it and to make submissions.”

The respondent’s Policy and Procedures Handbook for Employees, in the section dealing with summary dismissal for gross misconduct provides, inter alia:

You will be given ample opportunity to review the case against you and to state your side of the case ….

Charges of gross misconduct will be investigated thoroughly by the Centre Manager and the (Director ….

In failing to give her prior notice of the case against her the respondent failed to give the claimant ample or any opportunity to review the case against her or to state her side of the case and in so doing the director failed to follow the respondent’s own procedures or any fair procedures. Accordingly, the dismissal is unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. However, in seeking to manufacture a bullying allegation against her manager the claimant made a significant contribution to her dismissal. Taking this contribution into account the Tribunal awards the claimant compensation in the sum of €10,000.00 (the same award as made by the Rights Commissioner) under the Acts.      

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)