ADJ-00014952

Complainant

Respondent

Anonymised Parties

Chief Executive Officer

Charity Organisation

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-00019492-001

30/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00019492-002

30/05/2018

The Complainant was employed as Chief Executive Officer from 12th December 2001 to 30th March 2018. She was paid €5,390.00 per month. She has claimed that she was unfairly dismissed and has sought re-instatement. She has also claimed minimum notice.

The Complainant stated that on 4th October 2017 she was informed that she was to be suspended pending an independent investigation. She sought details of the procedures to be adopted but did not receive them. She agreed to meet with the investigator on 19th January 2018. The Investigator was advised of the judicial review being sought by herself and the Investigator adjourned the meeting to take legal advice. She reaffirmed her willingness to participate in the investigation at all times. On 6th March she was advised that the independent investigation would cease and an internal investigation would commence. Her solicitor sought an explanation into various items including an explanation for the new internal investigation, while she awaited the independent investigation and suggested that it might be prudent to await the outcome of the judicial review.

The independent investigation never reconvened. She did not request the independent investigator not to issue his report until after the judicial review. She was then advised by the Respondent that the independent investigation had stopped. In the meantime the Respondent invited her to an investigation meeting on 28th February 2018 to deal with allegation of error in pension payments resulting in €500 extra funds being paid monthly by the Respondent into the pension. She took no action to rectify it, resulting in an overpayment to her pension of €38,000 over 77 months. It was also alleged that she was made aware by Revenue that payments to Trustees were contrary to Revenue. This has resulted in payments of over €84,000 being made to Trustees. Also following the allegation made in the press and subsequent CRA investigation and report, it is alleged that her behaviour as CEO has brought the organisation into disrepute. On March 7th her solicitor set out her grave concerns relating to the new proposed investigation. She raised a concern about the use of a new disciplinary procedure that was not contained in the staff handbook. She advised that because of the manner of how she was treated she has lost faith and trust in the procedures and process being adopted by the Respondent. A meeting was arranged for 9th March 2018. She was advised that if she did not attend the meeting would go ahead in her absence. Her solicitor wrote on 9th March stating that the Respondent had failed to respond to any of the contents of her letter of the same date. Her solicitor stated that “we cannot advise our client to attend and should you proceed with the stated action and any prejudice is shown to our client by same we will have no alternative but to advise our client to appeal any such prejudice to the appropriate statutory or judicial body”.

On 30th March 2018 she was advised in writing that her employment was terminated for gross misconduct, stating that trust had been irrevocably broken. She was dismissed with immediate effect. There were no meetings prior to the dismissal. They failed to answer any questions raised. She was at all times willing to engage but she sought answers to questions set out by her solicitor. She was not given an opportunity to defend herself. She was not offered the right of appeal. She was denied fair procedure and natural justice. Her solicitor wrote seeking her re-instatement.

At this hearing she responded to the allegations made against her as follows:

Pensions overpayment

She stated that this overpayment was caused by a software error. She accepts that an overpayment was made and she offered to repay €500 per month and given the tax relief granted the outstanding sum was €19,000.

Payments to Trustees

She stated that the €88,000 was paid to the two founders of the Charity over a long period of time Her father received the payments from 2005 to 2015, her mother from 1990s to 2016. The Charity was founded by them and run from their home. These payments were approved by the Management Committee and received approval from the Auditor and Revenue.

A full Revenue audit was conducted in 2012 and it was found to be OK.

The dismissal was unfair both substantively and procedurally. In view of the Respondent’s failure to attend their letters are inadmissible. She is seeking re-instatement.

Mitigation of loss

She has registered with four agencies. She has applied for positions in UCD, The Hermitage Clinic, Blackrock Clinic and Sandyford Estate, without success. The problem that she is facing is the loss of her job, which has been a huge obstacle. She has applied for 20/30 jobs in the last six months. She has not worked since the date of dismissal.

“With reference to the above hearing which the Charity understands is due to take place tomorrow at 12 noon. Also reference to my discussions with you last Thursday, Friday and laterally today at 2-15pm.

As explained to you, the Charity is in the process of closing down fully and that is almost completed.

Consequently, the Charity is gone from its rented premises for some time now and correspondence from the WRC may have been going there and possibly being returned. The case manager in this case is JM and as you know, I was attempting to reach her last week but I understand she is on Annual Leave – consequently you have kindly dealt with my queries. There are 4 Directors of the Charity but it appears that correspondence notifying of the meeting tomorrow was

only sent to one- JP at her home address. This only became evident at the end of last

week. The Charity have sent in a letter with attachments which was hand-delivered to you on

Thursday when it became apparent that none of the Directors would be available to attend tomorrow- I believe two are out of the country on business , one works full time and the fourth is a full time carer for her brother.

Ideally the Charity would prefer to be represented in person(s) but at this late stage that is not

possible. The Board should be obliged if you would ensure that the adjudicating officer has received

the Charities correspondence from last week and also this e-mail as the Charity do not want it to

appear that the Board are ignoring or disrespecting the process- far be it from that. The Charity

respectfully requests that the Adjudicating Officer takes our previous correspondence and the

contents of this e-mail into account when assessing the case.

Also, if you could note on the file my own details and if there is correspondence, please forward it to

me or at least cc me on it and I will ensure it is forwarded to the various parties.

You might acknowledge receipt of this correspondence at your earliest convenience. Meanwhile thank you for your assistance herein to date.

I find that in an unfair dismissal’s case the onus is on the Respondent to show that the dismissal was not unfair.

I note that the Respondent did not attend and was not represented so I find that they have not discharged the burden of proof.

Therefore, I am obliged to accept the uncontested evidence of the Complainant.

I find that the Respondent did not carry out a detailed disciplinary investigation, due to the standoff that developed between the Complainant and the Respondent.

I find that as a result the Complainant was unable to defend herself.

There is an onus on both the Respondent and Complainant to act reasonably at all times.

I find that as a result of the stalemate no detailed disciplinary investigation was completed and the burden of proof was not discharged.

The Complainant stated that she was summarily dismissed without notice. The dismissal was unfair. She has claimed minimum notice.

The Respondent did not attend and was not represented.

I refer to the decision in the unfair dismissal’s case above.

I have found that the Complainant’s dismissal was both substantively and procedurally unfair.

I find that the Respondent has breached this Act and that the Complainant is entitled to 8 weeks’ notice.

Unfair Dismissal / Minimum Notice