Complainant

Respondent

Anonymised Parties

Training Co-ordinator

A Social Support Service

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-00003186-001

14/03/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00003186-002

14/03/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00003186-003

14/03/2016

Complaint    seeking adjudication by the Workplace Relations Commission under Section 28    of the Safety, Health & Welfare at Work Act, 2005

CA-00003186-004

14/03/2016

Complaint    seeking adjudication by the Workplace Relations Commission under Schedule 2    of the Protected Disclosures Act, 2014

CA-00003186-005

14/03/2016

On 13 March   2016, the Complainant, who had worked in a part time capacity in a number of   Training Roles at the Respondent Company from June 2002, lodged a complaint   before the WRC. She submitted that she had been Unfairly Dismissed on 30   September 2016(with notice).

The Complainant sought an Investigation under the   Industrial Relations Acts into the Disciplinary sanctions relied on by the   respondent and the Bullying and Harassment procedures.

The complainant submitted that she had been penalised   under the Safety Health and Welfare at Work Act, 2005 and the Protected   Disclosure Act, 2014.

The Respondent denied all claims.

Both Parties submitted extensive written and oral   submissions. The Respondent was represented by IBEC and the Complainant was   accompanied by her sister.

The Respondent raised an objection in relation to the   submission of parallel claims by the complainant and contended that she could   not by law be granted relief on all claims and should elect which legislation   she sought to make her complaints under .

The Respondent drew the attention of the hearing to   Section 27(4) of the Safety Health and Welfare at Work Act, 2005 and Section   12(2) of the Protected Disclosure Act, 2014 in this regard.

The Respondent also raised their dissatisfaction that the   complainant was seeking redress for Unfair Dismissal under the primary   legislation and under the Industrial Relations Acts.

Summary of Respondent   Position on Claim for Unfair Dismissal under the Unfair Dismissals Acts 1977-CA-00003186-001

The Respondent is a voluntary Organisation providing day   and residential services to adults with an Intellectual disability .It   employs 245 staff and is funded 88% publically and the remainder through   fundraising .The organisation has faced a number of significant funding   challenges in recent years.

The complainant commenced employment in June 2002 in the   role of Rehabilitative Training Instructor .At the time of her termination,   she worked 19.5 hrs per week and availed of 10 weeks of term time .Her gross   pay was 372 euro gross and 290 euro nett paid over a 52 week basis.

The Respondent submitted that the complainant’s grievances   were subject to both an external investigation by HSE Managers in 2013 and a   Labour Court Recommendation followed in November, 2014.

“Having considered the submissions made by both parties,   the Court is of the view that the organisations procedures have been   exhausted and sees no value in a further investigation being conducted .In   its approach to this case, the Courts primary objective is to facilitate the   claimant and management in restoring a viable employer/employee relationship   and in putting the various occurrences and issues in dispute behind them.

Therefore the Court recommends the parties should agree to   the appointment of an independent facilitator nominated by the Court for the   purpose of assisting the parties to reach agreement on acceptable terms under   which a normal working relationship can be restored. Upon acceptance of this   Recommendation they should confirm their acceptance when the Court will   proceed to make the nomination.”

Ms F was appointed   to facilitate the matter.

Two full days of facilitation, by side session were held on 20 February 2015 and 12 March   2015.The main agenda items were

1 Working Relationships

2 The Complainant sought a review of her grievances

The topic of the provision of a work plan was identified   by the Facilitator as a key issue to seek clarity for the complainant. The work   plan was drawn up to cover a 12 month period and identified the work areas of   priority for the organisation given the highly restricted funding and   regulatory environment .The work plan was based on the complainants job   description agreed in 2011.

The respondent submitted that the vast majority of the   time spent in facilitation was spent attempting to agree a terms of reference   for a review of working relations to be conducted by Ms F The complainant   furnished her position in writing as requested by Ms F in respect of the   proposed work plan. She sought a number of revisions and inclusions and stated   she was not prepared to proceed “with any further facilitation in their absence”.

On the eve of the third day of planned facilitation, the   respondent suspended the facilitation in favour of a direct engagement with   the complainant. By this stage, they had engaged with the Facilitator on the   respondent reservations that the complainant was seeking to attempt to   dictate the manner and type of work she was prepared to carry out over the   year ahead. The Facilitator had identified that “ the facilitation process is   no nearer to arriving at terms to normalise relationships than when it   started ….the gap is getting bigger if   anything “

The CEO met with the complainant on 16 April 2015 and   sought to point out that the organisation is reasonably entitled to plan and   direct the work to be carried out .She sought the complainants agreement to   the work plan .The complainant insisted that she was entitled to be training coordinator   for the whole organisation .The complainants support person asked what   consequence would follow in the face of a refusal? The Respondent submitted   that the response given was that the Disciplinary procedure would be invoked.

The CEO placed the complainant on one week paid leave to   reflect on her situation and arranged a follow up meeting on 27 April .At first,   the complainant acknowledged receipt of the meeting notes and the follow up   meeting .On 23 April, 2015, the complainant sought a clarification from the   CEO as to why she had been suspended and threatened with disciplinary action?   The CEO , furnished a response whilst on annual leave .and confirmed

1 The forthcoming meeting

2 The CEO was   concerned that the complainant did not understand the potential seriousness   of her continued failure to accept managerial decisions and work with them.

The complainant furnished a Medical certificate on 27   April 2015 and proceeded on sick leave. She made application for a months   leave in June 2015 .The CEO offered to meet with the complainant and offered   the support services of the Employment   Assistance Programme ( EAP)

The CEO received a response on 19 May 2015 , where the   complainant sought a number of clarifications and submitted that she was being victimised “ for trying to utilise   appropriate procedures “

The CEO wrote to the complainant on 25 May seeking   confirmation that the complainant was prepared to accept and work the work   plan provided within 10 days of her return from her trip abroad .No response followed.   Occupational Health Physician reports indicated that the complainant was   deemed fit to engage with the respondent.

A further meeting of July 3^rd took place with   the CEO and the complainant, where the complainant sought to amend the   minutes of the April meeting and alleged that she had been bullied and   victimised in relation to the work plan.

The Respondent submitted that the complainant did not   furnish a response to whether she was prepared to accept his work plan .She sought a return   to Facilitation when her term time concluded.

On August 10 , 2015, the CEO addressed the complainant by   letter of invitation to a Disciplinary hearing on August 18 , off site to discuss :

1 Your repeated failure and /or refusal to my reasonable   and lawful instruction regarding the work plan without good cause.

2 Your failure and/or refusal to engage with me over the   past three months to quickly and directly resolve this issue.

The CEO recused herself from conducting the disciplinary   hearing and the respondent appointed Mr HRP, an external HR Professional to   conduct the meeting with a note taker. The Respondent submitted a copy of the   Disciplinary Procedure for the record.

The Complainant was notified that she was entitled to be   appropriately represented at the meeting and that she may be subject to   disciplinary action up to and including summary dismissal .

The meetings took place over August 18 and September 4,   2015.

The complainant representations focussed on

1 She felt that she was never instructed to do anything

2 She interpreted the work plan as a change of contract,   which she was not prepared to accept.

Mr HRP made efforts to resolve matters by agreement and   was unsuccessful .He furnished a report to the Organisation dated September   4, 2015.

The report reflected the opinion that the invitations and   directions issued by the CEO were lawful and reasonable and the complainant’s   behaviour since 17 April 2015 had amounted to gross insubordination .He   recommended that the complainants’ employment be   terminated.

On 17 September 2015, the CEO wrote to the complainant   setting out the report findings and notifying her of her dismissal with   immediate effect .She was offered pay in lieu of notice.

The complainant appealed the decision and lodged a complaint   against the CEO on 23 September 2015.

In upholding the decision taken to dismiss, the Appeal   Panel heard the appeal and complaint at the same hearing.

The Appeals panel did not uphold the 14 complaints against   the CEO.

The Respondent submitted that the complainant was not   unfairly dismissed but rather was fairly dismissed for serious misconduct in   that she continually refused to accept an ongoing instruction or direction   from her CEO to accept the work plan, drawn up in accordance with the   complainants job description .A number of opportunities were provided to   accept the work plan, which she failed to do.

All aspects of Fair Procedures were afforded to the   complainant

1 She was informed of the allegations against her

2 Given the opportunity to reply to the allegations both   in person and in writing.

3 Given a fair   hearing by persons who had no prior involvement in the matter as in the case of Mr HRP and the Appeals Panel

4 Afforded an appeal.

Evidence of CEO :

The CEO had been CEO for a 5 year period .She had past   experience in training .She managed a challenging environment on funding and   regulatory requirements .The Organisation was keen to find a way to move   forward in the aftermath of the Labour Court Recommendation late in 2014. The CEO invested time in   facilitation and was open to establishing terms of reference for review .The   proposed work plan to address the 12 month priority was drafted by the   Director of Service and the Assistant Director and matched the agreed job description.

The CEO became very concerned in April 2015 that the   complainant was seeking to dictate her terms and she decided that the   document submitted by the complainant in response to the proposed work plan   showed that the complainant had not moved on the issue. She took the decision   to suspend the review and tried to engage the complainant in a clarification process,   but believed that the complainant had not heard her points made.

The CEO stated that her priority was to ensure that staff   functioned well but the complainant could not accept that she   couldn’t do the job she wanted to do .The CEO felt that she might benefit   from the clarity contained in the minutes and she made the decision to suspend   the complainant for a week . She stated that she told the complainant that   she would re-instate the Facilitator if she agreed to the work plan. The   complainant raised an assertion that there were flaws with one of her   training certs and the CEO said she took offence as the complainant came back   on something else when she wasn’t winning on the work plan. It was her own   role to obtain her own cert.

The complainant never agreed to the work plan. The work   plan was fair, training needed to be done and the database maintained .She   told the complainant that meetings were not meant to be upsetting but were   for clarity. The CEO had not had a situation like this before, but wanted the   organisation to be open to find a resolution .She wanted the complainant to   accept the work plan and was tired of asking for her co-operation.

The CEO engaged with Mr HRP and received his report on 4   September .She read the report about 20 times and gave the information to the   complainant by letter .The Organisation gave consideration to the reference in the report for severance and redundancy   .The Organisation needed the role so there was not a genuine redundancy .She   was not surprised by the issues raised against her during the appeal.The   complainant was provided with a copy of Mr HRP report .

During cross examination by the complainant, The CEO   denied that she had not heard the complainant .She also denied that the   complainant had been reasonable in   response to the proposed work plan .The complainant disputed that   she was assured that the Facilitator   would resume on agreement with the work   plan .

The CEO confirmed for the Adjudicator that external investigators   had been appointed in December 2013 to address the grievances raised by the   complainant prior to her appeal to the Labour Court.

Evidence of Line Manager, Ms LM1.

Ms LM1 had been in the service since 1993 .She understood   that the Facilitation Process post the Labour Court Recommendation was a “process   to move forward” She understood that the Terms Of Reference for the review   were agreed and she understood that the complainant wanted more in the   document .She devised the work plan with a colleague with an eye on “compliance   “as being a massive issue in training terms. She recalled that the   complainant had moved positions voluntarily in 2011 and her job description   had been agreed .In response to the complainants questions ,Ms LMI stated   that mandatory training and Health and Safety were included. The complainant   confirmed that that she had not submitted a fitness for return to work note.

Evidence of Mr A ( Appeals Board )

Mr A gave evidence that he had 30 years experience in a   Public Body and a further 10 in its successor .He had no prior knowledge or   involvement in the decision taken to dismiss the complainant.

He had had one telephone call previously after the Labour  Court with the complainant .He engaged a proper process of listening in   preparation for the appeal. He met with the CEO.

As the grievance against the CEO and the appeal of the   dismissal were related, both were heard together. He formed the view that   having listened to the appeal lodged by the complainant, there was no going   back unless the complainant’s interpretation was accepted. The Appeals Board   upheld the decision taken to dismiss the complainant .

The Complainant contended   that she had been unfairly dismissed by the respondent . She wished to   have her case heard as an Unfair Dismissal case and all other claims were   separately submitted .The Complainant submitted that she had worked in a   variety of roles within the Organisation since June 2002.

Senior Instructor

Co Coordinator of the Rehabilitative Training Centre.

Training Co coordinator for the Organisation

The complainant submitted that she had shown an exemplary   work etic with no significant sick leave and no complaint or disciplinary   issues before her verbal complaint of bullying in the workplace in 2011.The   incident initially started after a misunderstanding concerning a Fashion show   event being organised for clients  She   submitted that this complaint was never dealt with, she was not supported by   the Organisation and no risk assessment was undertaken.

She raised the issues with the former CEO as she was   dissatisfied at the approach adopted by her Managers and colleagues and she felt undermined .This resulted in her agreeing to re deploy   to her current role under protest in late 2011.She reluctantly accepted a new   contract of employment .She continued to feel undermined

The Complainant submitted that she had been dismissed   following an invitation to give her views on the work plan .She was on   certified sick leave at the time of her dismissal and contended that “ she   was unfairly dismissed because of all that went on since 2011”.The   complainant contended that had the issues of bullying been addressed ,then   the issue of the work plan would not have been a focus point .She submitted   that her desire to have her complaints investigated under the Dignity at Work   Policy were unfairly rejected by the Respondent , who accepted a Union objection on behalf of her   Manager over her head . The   complainant stated that she had accepted an offer of mediation but the   complaints were processed for screening to the HR Dept. of a Public body and   a direction followed that the issues should be addressed under the Grievance   Procedure rather than Dignity at Work She was unhappy that her personal   office contents had been tampered with, but got no satisfaction when she   reported the issues to management.

The Complainant appealed the outcome of an Internal   investigation under the Grievance Procedure to the then Rights Commissioner   service and this resulted in the Labour Court Recommendation of November 2014.  

The complainant posed a number of questions in her written submission which   centred on her reservations that the Organisation did not have the power to   dismiss her when she had merely registered a different point of view to the   CEO in relation to the work plan .The complainant herself was not concerned   regarding her work and agreed to engage on the issue of the work plan following the Facilitation process ordered   by the Labour Court .The respondent was requested by the Facilitator to amend   the proposed work plan at the second Facilitation meeting . When the   complainant had responded to the request for a work plan, she had not   intended that the Facilitator would   forward same to the Respondent.

She was suspended by the CEO on the eve of the next   scheduled Facilitation meeting without   any consultation with the complainant and she was directed to engage with the   CEO the next day .The invitation to   attend this meeting was sent while in   a process of relationship building on foot of the Labour Court Recommendation   .The complainant was suspended for one week. She commenced on sick leave   after this and did not return to work .She attended Occupational Health. The   complainant told the hearing that she believed that she had been targeted for   dismissal from the outset of the process   citing statements from the respondent as :

16 April 2015, to   meet to discuss the work plan

17 April 2015 to think about the work plan

17 April 2015 You will indicate that you are prepared to accept the work plan so that we   can move forward

24 April 2015 provided   you with a week to consider your response on the work plan

25 April 2015 That   you are willing to accept the work plan

10 August 2015 Your   repeated failure and /or refusal to accept my reasonable and lawful   instruction regarding the work plan without good or any cause

The complainant denied that she had ever been instructed   to take on the work plan .The complainant took issue with the two   disciplinary meetings she attended with Mr HRP in August and September 2015   .She expressed dissatisfaction in being referred to as a “ Misfit “ in the   report at the conclusion of the hearing .She expressed a confusion in   relation to these meetings as she understood that she was not in fact at a disciplinary hearing , but   rather being asked to explore a settlement for her exit from the Organisation   , which she refused .

On 11 August 2015, the complainant submitted that she   contacted the Chair person of the Board of Management for some advice with   regard to the Disciplinary hearing scheduled for 18 August .She asked how she   could go about appealing the decision to call a disciplinary meeting?. She   was advised that she could not appeal anything until after the Disciplinary   hearing and that right of appeal was to him as Chairman of the Board .She   disputed this, but was informed that the disciplinary meeting had to go ahead   first.

She disputed that   the Disciplinary procedure had been adhered to and recalled being advised by   Mr HRP to read the CEO letter dated 10   August carefully .She understood that she was being threatened by   dismissal and felt there was no ground   for negotiation .She requested a copy of the report .She received this after   her dismissal on 23 September ,2015.

She contended that   the review of the whole situation was stymied by the over emphasis on the   Work plan and she had been purposefully excluded from carrying out her   contracted role .Her role was not incorporated on the Organisational Chart.

“My total wish was to perform my work duties and I   actually looked for additional work/responsibilities that would reflect my   contract of employment at a meeting with the CEO on 3 July, 2015, but instead   I was being forced out of employment …… I was made a victim rather than be   treated as an employee “The complainant sought evidence of due process as she   contended that it had not been followed by the Respondent.

The complainant made further submissions to a high ranking   Church representative and the Labour Court. The complainant made further   submissions of discrimination, but clarified that she had not made a formal   complaint under Equality Legislation .The complainant submitted that she had   issues following her unsuccessful application for a Service Manger position   for a Public Body, when she discovered that the Respondent staff were in fact   carrying out aspects of the job which had remained unfilled.

The complainant gave evidence that she attended an appeal   meeting with the Chairman of the Board and a Committee member on 14 October,   2015.The appeal was unsuccessful.

The complainant gave evidence that the dismissal has had a   negative effect on her well being, her sleep was affected and future career   prospects were hampered and she had experienced financial loss and loss of pension.   She was currently received illness benefit from Department of Social Protection   and was very apprehensive regarding her future career prospects.

She contended that there had been a procedural unfairness   to her dismissal which rendered it unfair The Disciplinary procedures were   not applied correctly and while she was invited to a disciplinary meeting ,   she was informed that the meeting of 18 August was not a disciplinary meeting , neither was she   provided with a copy of terms of reference .

The complainant sought the option of compensation   as redress. In the aftermath of the hearing, the complainant submitted an   abundance of documents, many of which dated back to 2011.

I have read   and carefully considered both parties extensive written and oral submissions   in respect of this claim. I am extremely conscious that some very high   profile and experienced Human Resource/Industrial Relations Practitioners up   to and including the Labour Court have reviewed and analysed aspects of this   case in advance of this hearing .However, this is a claim for Unfair   Dismissal and it is important to capture what the Law requires me to do in   this case.

At the   conclusion of the hearing , I requested that the complainant furnish some   further documents

1 Minutes   contrary to those provided for 17 April 2015 meeting

2 Complaint   referred to in 2012 and the record of handling by the Public Body

3 Safe   Guarding Policy

The   Complainant furnished an abundance of documents which were copied to the   respondent , most of which I did not consider relevant to the request made .The   complainant made a reference to pension payments being curtailed in advance   of the decision taken to dismiss her . This was denied by the respondent who   undertook to assist the complainant in relation to any shortfall experienced.   This matter was not raised at the hearing and I have not incorporated it in   my decision .

An Unfair   Dismissal is described in Section 6 of the Act as :-

Unfair dismissal

6. — (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.

Section 6(4)   of the Act addresses some exceptions to that rule.

(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.  

I found that there was a highly defined   unshakeable shadow of the events of   the year 2011 for the complainant on this case . The antecedent event was the   complainant’s dissatisfaction with the scheduling of the Fashion show .Her   dissatisfaction escalated over the following years when she believed her issues   were not resolved by the respondent. While I noted that she accepted the   position of Training Co coordinator on 12 November 2011, there was no record to an acceptance under protest .

Having heard extensive evidence relating to this period,   in addition to a comprehensive review of the documentation presented in the case,   I have come to the conclusion, that the complainant did not find herself in a   position to be able to move forward   from this period and while I accept that she invested in the new position,   she did not thrive in it due to her heartfelt belief that that she was under   valued and absent from the Organisational Flow Chart.

I have taken significant time to analyse the   interaction between the Respondent and the Complainant during this period. I   found that the Respondent made an earnest attempt to manage and support the   complainant in her new role while keeping the Organisational goals in vision.   I did not find it unreasonable that the Organisation would look to its funder   to avail of a shared service of Human Resources and the Investigation Team   appointed in 2013 completed a very comprehensive report at face value.

The complainant held a strong belief that the   Organisation did not have a proper Dignity at Work Policy and this omission   hampered her pursuance of issues .Yet, it was clear to me at least that the Funders’   Human Resource Dept. at National   level appears to have analysed the complainant made under the Dignity at Work Policy and   directed it through Preliminary Screening to the Grievance Procedure .I found   this to be a reasonable action .I also note that the complainant submitted a   letter to the respondent on 3 March 2013 seeking that her complainants be   investigated through the Associations   Grievance Procedure .

When a workplace difficulty arises for any employee,   it can be beneficial to have support and direction from someone who   understands the Organisation, its people and its operational imperatives .The role of   a representative can be useful and effective to help navigate the procedures.   In this case , it was a lot for one pair of shoulders i.e. the   complainant to navigate alone with   random support by way of her sister or Solicitor, irrespective of how well   intentioned those parties were .I   accept that the respondent stretched their criteria for representation to   include these supports chosen by the complainant herself . I have formed the   view that the complainant may have benefitted from a representative during   the course of the events before the question of dismissal arose. I found that   the point of representation was flagged by Ms E, the Facilitator and Mr   HRP with the complainant as evidenced   in the documentation submitted.

The Labour Court made a very profound   recommendation in November 2014 and directed the parties to Facilitation,   which was accepted by both parties.

“ ……..In its approach to this case, the Courts   primary objective is to facilitate the claimant and management in restoring a   viable employer/employee relationship and in putting the various occurrences   and issues in dispute behind them.Therefore,the Court recommends that the   parties should agree to the appointment of an independent facilitator   nominated by the Court for the purpose of assisting the parties to reach   agreement on acceptable terms under which a normal working relationship can   be restored .”

I understand from the evidence heard at hearing   that both parties were optimistic of a mutual course of stability in the   aftermath of this recommendation during 2015 and both parties looked forward   towards the future in early 2015. I found that this objective was tested   early on in the process when problems emerged on the agreement of a work   plan. The breakdown that followed in the face of this work plan became in my   view symbolic of the state of play for the parties.

The   Respondent submitted a work plan which reflected the stated needs of the   Organisation , while the complainant approached the work plan as an   opportunity to secure the improvements in her working life that she had   waited for since 2011, she placed an   early ultimatum on the negotiations which proved fatal in her case . It is   clear that the good will of the respondent evaporated somewhat when faced   with the ultimatum that unless the complainant secured certain concessions in   relation to her work plan, she would withdraw from Facilitation.

I was very struck by the evidence of the CEO in   this regard .Faced with the complainant’s response to the proposed work plan;   she sought a direct engagement with her, which culminated in her placing the   complainant on a weeks leave to consider her position. This was not appealed   by the complainant and was followed by a period of extended sick leave ,   annual leave .I accept that the CEO   endeavoured to paint the realities of the service out to the complainant and   that she was needed to both provide and co ordinate training in the service   ,and thus sought her co operation .

In the High Court case of Bank Of Ireland V James Reilly [2015] IEHC 241, Noonan J cautions   on the application of both a holding or punitive suspension.

“ It is potentially capable of constituting a   significant blemish on the employees record with consequences for his or her   future career “

“It will normally be justified if seen as   necessary to prevent a repetition of the conduct complained of ……”

In the instant case, I accept that the CEO had   not planned to place the complainant on a week off in advance of the meeting   .I accept that she saw it in the context of a necessary tool for reflection   to initiate co operation with the work plan and in the genuine hope of making   progress under the umbrella of Facilitation. However, it was a spur of the   moment decision which in turn signalled the complainants last day at work as   this period was followed by sick leave and annual leave. I found this meeting   to be a watershed moment in the case.

It was   reasonable for the respondent to follow this meeting up directly with the   complainant and I found that the complainant was avoidant in her response .I   accept that a period of sick leave/annual leave followed the meeting .It was   difficult for me not to overlook the effect that the events of April –August   2015 had on both parties. From the respondent perspective, I accept that they   were trying their utmost to bring some equilibrium to a troubled employment   relationship which remained elusive and caused the CEO in particular a lot of   anguish.

From the   complainant perspective, I noted that the complainant was seeking to reach   her career destination via Facilitation in one leap rather than by   incremental progression through negotiation. I see this division in approach   as going to the core of the case.

I must now look at the circumstances surrounding   the decision taken to dismiss the complainant on 17 September 2015.I have had   regard for the company Disciplinary Policy submitted at hearing in this regard.

In the Labour Court Case Kilsaran Concrete ltd V Vitalie Vet UDD 1611, the Court on   appeal identified the importance of adhering to the company Policy in   disciplinary matters

“The protection to be afforded to a person whose   conduct is being investigated will vary according according to the   circumstances .However; there are certain fundamental requirements in fair   procedures that cannot be dispensed with regardless of the particular   circumstances that arise in an individual disciplinary matter.

1 The requirement to make the employee who is   subject of investigation aware of all the allegations against him or her at   the outset of the process

2 The requirement that an employer who has   published a disciplinary procedure to its employees follows those procedures   scrupulously when conducting a disciplinary process.

3 In the event that an allegation against the   employee is upheld, any disciplinary sanction imposed is proportionate to the   complaint that has been substantiated.”

These circumstances of this case made it slightly   anomalous in regard to the respondent procedure as the CEO had played a   central role in the antecedent events and decided to step aside and   commission an external practitioner for the purposes of invocation of the   Disciplinary procedure, which was notified to the complainant on August 10,   2015. I note that the Policy did not have provision for this scenario.

The complainant was notified of two allegations   against her and advised that she may be subject to disciplinary action up to   and including dismissal without notice .I found that Serious Misconduct is   headlined in page 15 the Disciplinary   Policy and refers to Gross   Subordination as a composite criteria .Yet the complainant was not advised   that she was facing a charge of Gross Subordination from the outset .This   appeared to be first mentioned during the second day of hearing on 4   September 2015.

The respondent policy refers to the Investigation   Report having the rightful place as a   preface to   a disciplinary hearing   under Stage 4 of the Policy .On this   occasion , the respondent commissioned an external expert to undertake a   Disciplinary hearing arising from the unique facts of the case . The complainant raised a number of   objections that she did not appreciate that she had entered a Disciplinary   process in her two meetings in August and September 2015, yet the minutes   reflect that she was aware that the meetings were of a disciplinary nature.   The complainant devoted a lot of her submissions to being unhappy with mostly   all minutes recorded of meetings by the respondent . I focussed my attention on the elaborate communiques   furnished by the respondent to the complainant and I noted a void in a   reciprocal focussed response from the   complainant .

I found that the respondent departed from the   published procedures in regard to the omission to inform that complainant   that an investigation was underway in relation to stage 4 of their policy and   the implications of this action for her .It is clear to me that the document   which issued from this process was an Investigative Report.It is of note for me that the Final document was dated consistent with the   second meeting .

The   complainant took issue with the recorded discussions on severance during the   course of the investigation. I can appreciate that the complainant may have   been somewhat confused by this. However, it is not unusual in the course of   such an investigation that the option of a mutually agreeable settlement   might be at least touched on as a side issue without prejudice to the main frame.   I do not believe that the complainant was compromised in this regard. She   rejected the suggestion and it was not revisited .She also informed the   hearing that she had been previously advised to take a settlement . I believe   it pertinent for me to address the viewpoint that Mr HRP referred to the   complainant as a “ Misfit “ I probed the report and found that the complainant may   have been mistaken in this regard as reference was made to being a “ misfit   for the role “ ,an objective analysis rather than a subjective criticism .

However, I must find that the complainant was   compromised on the timing of the investigation which was blended with the   disciplinary hearing .I found that the complainant was denied a meaningful   opportunity to answer the charge of Serious Misconduct/gross insubordination.   It is of note that she had been out of work for 4 months at the time of the   Investigation/Disciplinary Hearing and seems to have been unaware of the   centrality of the work plan as a means of moving forward.

It was   clear to me at the hearing that the respondent could not take anymore of the perceived   reticent and avoidant approach attributed to the complainant in moving forward via the work   plan. I accept the evidence of the respondent that the complainant was   informed by the CEO that the Facilitation process would be re-instated if she   agreed to the work plan. I found the evidence of the CEO in this regard to be   very cogent and I accept that she saw   the agreement on the work plan as an essential “ downpayment” in the process   of facilitation .

Section 6(7) of the Act provides that an   Adjudication Officer may consider the reasonableness or otherwise of the   conduct of the employer in relation to the dismissal.

(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 F46[   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 (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 (2) of this Act.

When the Respondent   commenced the disciplinary process, the complainant did not have any live   warnings on her file .However, a significant period of time had been allocated towards conflict   resolution in her case, without a commensurate success .I found that the complainant   was not helped in her case by her refusal to accept the work plan and the   number of inconsistent messages submitted. I asked the respondent at both   dismissal and appeal stage whether any consideration had been given to a   sanction short of dismissal?. Both answers indicated that it was just too   late to try anything else and the trust was gone between the parties.

During my review of the Appeal Process,   I accept the evidence of the complainant that one member of the team had in fact had   a conversation with the complainant, at her behest on August 10, when she sought clarification   of the disciplinary process advised to her. This ought to have rendered the   particular Appeals Officer out of the frame in this instance .I appreciate   that the respondent Policy indicated that the CEO would preside over any   appeal of a disciplinary sanction and this was impossible in this set of   circumstances .However, given the importation of an external expert to   conduct the hearing/investigation ,I believe it would have been reasonable   for the respondent to have adopted a consistent approach in respect of the   management of the appeal .On balance ,   I also found the demands lodged by the complainant at the Appeals hearing   such as her seeking of retraction and   shredding of key documents to be unreasonable and counter productive and did   not place her in a good light at that important juncture .I would however   have expected a properly constituted Appeals Board to have considered the   complainants well laid out appeal in greater depth .

In conclusion, I accept that there   were substantial grounds justifying the complainant’s dismissal. However, I   found the dismissal to be unfair in terms of procedural deficiencies in   accordance with Section 6(7) of the Act.

Unfair Dismissal, Penalisation.