Complainant

Respondent

Anonymised Parties

An Employee

A Property Management Company

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-00016888-001

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00016888-002

17/01/2018

The Complainant was employed as an office administrator / manager by the Respondent company from 17/03/2014 until her dismissal on 26/07/2017.

She was paid €25,000 per annum.

1.       I worked with commitment and passion whilst employed as the Administrator of the Company and had an unblemished employment history whilst in the employment of the Company. I very much enjoyed the challenges that I faced in the job which involved working with many private landlords and also approximately 360 young university students every semester trying to meet their accommodation needs and also additional lettings during the summer months. The job often involved being on call and having to attend to matters concerning the administration of the complex whether they occurred during the day or at night. Things became considerably more challenging during the economic downturn as there were many landlords who had gone into receivership and I was required to deal with all the issues, discussions, negotiations surrounding these matters as well as the usual duties of the Administrator of the Company.

2.       In or about October 2015, a number of disputes arose between various landlords and the directors of the Company. The two principal directors of the Company at this time were my brother and my father. The dispute eventually involved the issue of High Court proceedings.   Immediately prior to this time (in or about July / August 2015) I was scheduled to have surgery on my left shoulder but deferred this surgery so I could attend to the needs of the Company and the landlords being serviced by it.

3.       Between October 2015 and March 2016, there were considerable ongoing disputes between the directors of the Company and some of the landlords. The essence of these disputes involved the ownership and control of the Company and also ownership and control of the various apartments within the complex and payment of commissions and management fees. During the course of these disputes, staff of the Company, including myself, were subjected to repeated and continuous undue stress and harassment and intimidation by some of the owners of the various apartments within the complex. This was a by-product of the ongoing disputes with the directors of the Company and the owners of a number of the apartments within the complex.

4.       Throughout the period March 2016 onwards, various serious allegations were made against me by two particular landlords who were the owners of the majority of the units in the complex. I wholly and absolutely disputed and denied the allegations being made against me and I continue to do so.

5.       Various staff members including myself (as Administrator of the Company) suffered and endured various forms of bullying and harassment from the parties in dispute with the directors of the Company.   This became too much for two staff members and they left during Summer 2016. At the time, I told one of the directors that I had enough and the stress was becoming too much for me. Another director told me to leave for the sake of my own physical and mental health.  

The Managing Director insisted he could not continue to maintain the complex and deal with the ongoing battle with the disgruntled landlords without my continued assistance and efforts. As a result, and due to my commitment to continue the good work I had undertaken for the Company, I felt obliged to continue on in my role as Administrator.

6.       On or about 26th June 2016, I was told directly by A.N.Other that he was in control of the Company and that my contract of employment was terminated forthwith, without due process, explanation and/or reason. However, I advised A.N.Other that I had a contract of employment and no formal notice of termination had been issued to me and nor had a P45 issued to me.   Accordingly, I remained on working for the Company for the sake of my brother, the Managing Director, and to ensure the continuing management of the complex. The Managing Director stated to me that he was fighting A.N.Other, the banks, receivers and NAMA for ownership and control of the Company and also the apartments within the complex and he was very close to “cutting a deal” with A.N.Other and his own lending institution in relation to the issues subject of the ongoing disputes between them. The Managing Director had pleaded with me to continue my employment with the Company and expressly stated to me that if all else failed, at the very least, I would have my employment with the Company as Administrator. I stayed on to work through the course of the dispute which proved very stressful and upsetting to me.

7.       On or about 17th October 2016, the Managing Director and one other Director were formally removed as directors of the Company and replaced by A.N.Other and others. The validity of this action was disputed by the Managing Director and other Director.   Subsequently I was served with High Court proceedings in my personal capacity in the dispute between A.N.Other who was the owner of a substantial number of the apartments within the complex. The proceedings were also issued against the Managing Director and the other Director.

8.       Between January 2017 and July 2017, the saga with the High Court proceedings continued and dragged out. However, amidst all of this there were issues morning, noon and night with the management of the Company which I was required to attend to in the course of my employment.

9.       In or about July 2017, I was forced to take a leave of absence from my employment with the Company to undergo knee surgery. I recall taking Thursday and Friday off. In or about 26th July 2017 when I was formally out of the office recuperating from surgery, the alarm in the Company’s office went off.   Upon checking the CCTV cameras remotely, I observed that the former Managing Director had forced entry into the offices of the Company and physically took back control of the Company’s offices without notice to me of his intention to do so. This action was taken very shortly after the former Managing Director had agreed a deal with A.N.Other for ownership and control of the company and also a substantial majority of the apartments in the complex. The former Managing Director then proceeded to notify the staff that all the contracts of employment were terminated and expressed to two other staff members that I had been “doing a crap job at running the Company” and further that “I ran it into the ground”. The former Managing Director retracted the termination of the contracts of employment of two staff members the next day but not the termination of my contract of employment. No formal procedure was entered into, no formal notice was given and no explanation or reason for termination of my employment was given by the former Managing Director.

After the termination of my employment with the Company, the former Managing Director proceeded to disparage and besmirch my good name, reputation and character to third parties such as other landlords in the complex, suppliers to the Company and the Company’s banks. I was deeply upset, hurt and distressed by the former Managing Director’s behaviour and conduct in this regard and this substantially worsened the impact of the summary termination of my employment by him.

10.   From the time of termination of my contract of employment until about 15th November 2017, I requested the former Managing Director furnish me with a P45 in respect of the termination of my employment with the Company. During this period, I was told by the Company’s accountants that they were under serious pressure from the former Managing Director and strict instructions not to furnish any P45s to staff whose contract of employment had been terminated. It was only on 15th November 2017 (after a number of months requesting it) that I finally received my P45.

11.   To date, I have received no payment from the Company in respect of the unlawful termination of my employment and nor have I received any payment concerning my position of employment being made redundant.

12.   In the circumstances I believe the termination of my employment with the Company amounts to unfair dismissal pursuant to the Unfair Dismissals Act, 2977 or, alternatively, if this is not accepted, the termination of my employment amounts to a redundancy and in these circumstances the provisions of the Redundancy Payments Act, 1967 apply.

The Respondent did not attend the hearing of this complaint.

The Respondent employer was not present at the hearing of this complaint.

In any complaint under the Unfair Dismissals Act, 1997 an employer has to satisfy the WRC Adjudication Officer that its decision to dismiss was reasonable having regard to all the circumstances. This may include procedural defects. The employer is allowed some discretion. In the case Vokes Ltd v Beer the Court of Appeal suggested that the net must be cast wide:

‘The circumstances embrace all relevant matters that should weigh with a good employer when deciding at a given moment in time whether he should dismiss an employee’

In her book ‘Dismissal Law in Ireland – Second Edition’ the late Dr. Mary Redmond outlines the Function of the EAT (these functions were taken over by the Workplace Relations Commission in 2015).

[13.23] The EAT must not assume the mantle of an employer regarding the facts in any case before it. Its function is to decide whether, within the so-called band of reasonableness of decision-making, an employer’s decision is not unfair.

The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd v Swift. The court found that there is a band of reasonableness within which one employer might reasonably dismiss an employee whilst another would quite reasonably keep him on. It depends entirely on the circumstances of the case whether dismissal is one of the penalties which a reasonable employer would impose. A dismissal is unfair if no reasonable employer would have dismissed, but it is not unfair if a reasonable employer might reasonably have dismissed.

[13.24] It is possible for different responses to be made by an employer in a given set of circumstances. Each of the responses may in its own way be perfectly reasonable.   Because of the fact that there are a number of possible responses the EAT should not substitute its view for that of the employer concerned. As Donaldson LJ said in Union of Construction and Allied Trades and Technicians v Brane

‘It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question, ‘Would we dismiss?’, because there is sometimes a situation in which one reasonable employer would and one would not.   It is sufficient that a reasonable employer would regard the circumstances as a sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances.’

[13.25] In Bunyan v United Dominions Trust the Irish EAT endorsed the view that:

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

It is alleged by the Complainant that in July 2017 the former Managing Director had taken control of the Company and then proceeded to notify staff that all the contracts of employment were terminated and that he went onto quite clearly state to two staff members that the Complainant had been “doing a crap job at running the Company” and had “run it into the ground”.

Given the version of events from the Complainant the only conclusion I can come to is that the dismissal of the Complainant was both unfair and unreasonable. No procedures whatsoever were followed.

The complaint referred to under section 39 of the Redundancy Payments Act is not applicable.

The Complainant was unfairly dismissed and I have decided that compensation in the amount of €12,500 should be paid to her within 42 days of the date of this Decision.

Unfair Dismissal.