UDD1833

Background

The Complainant commenced employment with the Respondent in June 2014. In May 2015 she took up a permanent position as a Company Secretary. Her employment ceased on the 20^thSeptember 2016 and she was paid up to the 30^thNovember 2016. It is the Respondent’s position that the employment was terminated as a result of a break down in the employment relationship. The fact of dismissal is not in dispute.

Complainant’s case

The Complainant’s first annual review following her assignment to the role of Company Secretary took place in February 2016. It is the Complainants case that from an early stage she was undervalued by the Respondent and that this was reflected in the fact that she requested a pay rise and same was refused. At a subsequent review in July and August of that year the Complainant was advised by her manager Ms Buss that she required further supervision and in support of that contention Miss Buss relied on a mistake in draft minutes. It was the Complainants case that given her experience and qualifications that she was being over monitored. The Complainant mentioned her concerns to Ms Tookey another manager who mentioned the issue to Ms Malone the CEO.

Ms Malone met with the Respondent on her return from annual leave. At that meeting the Complainant informed Ms Malone that she felt she was strong enough to attend meetings on her own and that others on the team were attending meetings on their own. A number of meetings took place and at the meeting of 25^thAugust 2016 Ms Malone suggested that there was an issue in relation to her technical knowledge. The Complainant agreed to submit herself to a process involving Ms Buss. However, after a short period the Complainant felt this was not working and asked that Ms Gabbott review her work. The Complainant was very surprised to learn that Ms Gabbott supported the view that she was not yet ready to attend meetings on her own. Following this the Complainant sent a personal email to Ms Gabbott which was unfortunately passed onto Ms Malone. On the 19^thSeptember 2016 Ms Malone met with the Complainant in relation to that email. At that meeting the Complainant stated recent events had made her question her future with the company but that she had no intention of leaving in the immediate future. It is the Complainants contention that she was referring to how her complaint about her manager had been dealt with. On the 20^thSeptember 2016 the Complainant had a meeting with Ms Malone where she was advised that her employment was terminated. At no stage during the process was the Complainant put on notice that her employment with the company was in jeopardy nor was she afforded the right to representation at any of the meetings. It is the Complainants case that she was not afforded due process of natural justice and was unfairly dismissed.

Respondent’s Case

It is the Respondent’s case that they were happy with the progress and the rate of progress that the Complainant was making in her role as Company Secretary. She received a salary increase in January 2016 and a cash bonus of €3,000. The increase and bonus she received was in line with those in the Company generally. The February formal review was agreed and signed off by both parties towards the end of March 2016. Following this review the Complainant sent an email setting out how disappointed she was with the increase she received and stressing how undervalued and deflated she felt. The email was responded to by the Respondents manager who highlighted that in order for the Complainant to progress she would need to be able to attend Board meetings independently and to significantly increase her technical knowledge.

At the meeting in July the Complainant’s progress was assessed specifically around her ability to attend Board meetings on her own. Ms Buss the Complainant’s line manager felt that the minutes she had reviewed still required significant amendments and input from another person. At the August meeting the Complainant expressed her disagreement with that assessment. The Complainant then approached another manager by email seeking her advice, that manager brought the issue of the Complainant’s unhappiness with what she perceived to be unfair treatment in relation to attending board meetings to the attention of Ms Malone CEO. Ms Malone met with the Complainant in relation to her concerns and undertook to speak to Ms Buss with a view to resolving the issues. The Complainant agreed with this approach. Ms Malone spoke to Ms Buss and Mr Bertrand COO and also reviewed emails and sample Board meeting minutes prepared by the appellant. At a further meeting with the Complainant it was agreed that Ms Malone would get involved in assessing the output of two sets of minutes and that she would attend weekly meetings with the Complainant and Ms Buss with the specific objective of supporting the Complainant in her performance and ensuring she was treated fairly. The Complainant expressed her appreciation of Ms Malones efforts.

At the second meeting in this process the Complainant walked out when there was a disagreement over whether she had completed all her deliverables for that week. The Complainant then sent an email stating that it was not working out and that she may have no choice but to leave the company. Ms Malone met with the Complainant who suggested that Ms Malone should discuss her work with Ms Gabbott. It subsequently transpired that Ms Gabbott agreed with the assessment of Ms Buss that the Complainant was not ready to go to Board meetings on her own. When this was brought to the Complainant’s attention she sent an email to Ms Gabbott which was not conducive to a cordial working relationship. On the 19^thSeptember Ms Malone met with the Complainant in relation to the email. It was Ms Malone’s evidence to the Court that in the course of that meeting the Complainant had stated that she was not happy in her role and didn’t feel she would progress and as such when she decided to leave the Company she would advise Ms Malone. When asked if she had any thoughts on how the Company could address her issue the Complainant responded that there was no point as she did not see herself hanging around.

In her evidence to the Court Ms Malone stated that following the meeting she discussed the situation with Mr Bertrand COO and that she made the decision to terminate the Complainant’s employment as there was a complete breakdown of the working relationship. Ms Malone met with the Complainant the next day and advised her that her employment was being terminated. The Complainant asked if there was any way back and she was advised there was not. Ms Malone in evidence acknowledged that the complainant would not have been aware in coming to that meeting that there was a possibility that her employment was being terminated nor was she given the option of bringing a representative. In questioning on her evidence Ms Malone accepted that she had not followed the Company’s disciplinary process or in fact any procedure.

The Law

Section 1 of the Act defines dismissal in the following manner

“dismissal, in relation to an employee, means-

• (a)The termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

  (b)…..”

• “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.”

Dismissal as a fact is not in dispute therefore it is for the respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

The Complainant’s case is that her dismissal was unfair as the only engagement she had with her employer was in relation to the difficulties she was experiencing with her manager. At no time was it indicated to her that her employment was in jeopardy.

The Respondent does not dispute the fact that the Company’s disciplinary procedure was not followed nor that the Complainant was not on notice that her employment with the company was in jeopardy.

Taking these issues into account the Court cannot see how this dismissal could be deemed to be fair.

Remedy

Section 7 of the Act states

• “7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
  (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
  (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
  (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
  (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership”.

Having assessed all the information before it the Court considers that the Complainant has suffered financial loss as a result of the wrong she has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €35,000.

The Decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
8 JUNE 2018______________________
THDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.