Complainant

Respondent

Anonymised Parties

A training instructor

A community focused 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-00016049-001

29/11/2017

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

CA-00016049-002

29/11/2017

The Complainant commenced employment with the Respondent in or around the 23rd January 2003 as an Equine Instructor. A short time after that the Complainant was promoted from Equine Instructor to Tutor in the Early School Leaver Programme.

The Complainant’s position with the Respondent was always difficult which resulted in the Complainant taking time off from work on numerous occasions often with stress related illness.

The Complainant’s employment ended on 13/10/2017 and a complaint was received by the Workplace Relations Commission on 29/11/2017. At the time her employment ended the Complainant was earning €54,593 per annum for a 35-hour week.

The complaint received by the Workplace Relations Commission is in two parts:

1.       CA – 00016049 – 001 – referred under section 8 of the Unfair Dismissals Act, 1977

2.       CA – 00016049 – 002 – referred under section 11 of the Minimum Notice and Terms of Employment Act, 1973.

The hearing took place over three days, dates were as follows: 22/05/2018; 10/07/2018 and 28/11/2018.

BACKGROUND

The Claimant began working for the Respondent in or around 23rd January 2003 as an Equine Instructor. A short time after the Claimant was promoted from Equine Instructor to Tutor.   However, the Claimant’s position with the Respondent was always difficult, which resulted in the Claimant taking time off work from 2010 on numerous occasions often with stress related illness.

In or around January 2016, the Claimant was ill and again took sick leave, this time for pregnancy related issues. While on leave the Respondent wrote to the Claimant, on 2nd February 2016 to inform her the medical certificates supplied to the company was not in accordance with the company policy. Following that on 12th February 2016 the Respondent again wrote to the Claimant informing her that following a review of the Claimant sick pay records, the Claimant had exceeded the number of sick day permissible according to the policy, and further that the overpayment must be recouped from the Claimant, and that the overpayment totalled 17.5 days. The Claimant queried this and on 3rd March 2016 the Respondent answered the query, breaking down the sick leave of the Claimant, however, in addition this letter also explained that the overpayment of sick days was not 17.5 as was originally explained but rather 33 days, and apologised for the error. On 8th March 2016, the Respondent again wrote to the Claimant informing her that the original arrangement for recouping the monies, was no longer suitable for the company and the Respondent would recoup the overpayment from the Claimant’s maternity pay, at a rate of 5.5 days per month.   The Claimant, through her Solicitor, disputed the amount of days (33) outlined by the company, and queried the alteration of the repayment schedule. Additionally, the letter from the Respondent outlined that a formal review of attendance is due to commence to determine if there have been breaches or abuses of the sick pay scheme.

The Claimant returned to work in January 2017, however, following two days in work the Claimant was issued a letter on 10th January 2017 informing the Claimant that a disciplinary investigation was beginning into some alleged incidents, and further that the Claimant was now on suspension pending the investigation into:

·         Formal review of the Attendance.

·         Grievance made by another employee, JK.

·         Complaint made by a parent of a trainee in January 2016.

·         Unauthorised access of company files.

·         Employment reference sought from an unauthorised person.

·         Use of Company property for personal purposes.

·         Carrying out research involving trainees without necessary clearances/approvals.

·         Carrying out personal work whilst at work.

On or about 19th January 2017 the Respondent wrote to the Claimant inviting her to an investigation meeting scheduled for 25th January 2017 to respond to the allegations. Due to details by both parties the investigation meeting took place on 12th April 2017. In attendance were the investigator, a note taker, the Claimant and a Trade Union Official from SIPTU. A follow up telephone call on 27th April also took place between the investigator and the Claimant.

On or about 2nd June 2017, the Claimant received an email from the Centre Manager informing her that “I wish to confirm that the Board have lifted your suspension from work with immediate effect. The Board have also withdrawn all allegations as noted in the investigation against you. As a result, there will be no disciplinary hearing and the matter is now concluded and closed. The Board will write to you in due course”. The email continued stating that the Claimant was to report back to her position on 7th June. Correspondence between the Claimant and the Centre Manager around this time involved scheduling a return to work date, it was decided that the 12th June 2017 would be suitable and this matter was confirmed with the Board.   The Claimant returned to work on 12th June and following her return was issued an email on 14th June 2017 thanking her for such a positive re-introduction meeting and confirming to the Claimant how great it is to have her returned to the Centre. Again, on 16th June the Claimant received an email from the Centre Manager stating that he was again delighted with the re-introduction process.

On or about 21st June 2017, the Claimant was issued with a letter from the Centre Manager referring to his email of 2nd June 2017. The contents of this letter was, that the email sent on the 2nd June lifting the suspension and informing her that no disciplinary hearing will take place, was done before the Board had considered the draft investigation report. The letter continued stating that the claimant was again on suspension, with immediate effective, pending the completion of the investigation report.   The report was completed by the investigators on 7th July, however the report was not supplied to the claimant until 7th September.

The disciplinary investigation report was issued to the claimant on or about 7th September 2017 and in short made the following findings in relation to each of the allegations.

·         Allegation 1 Formal Review of Attendance

Finding: the investigator found that “matters pertaining to the alleged breach as outlined under note 1 formal review of attendance were dealt with and included in the payments schedule” However, the investigator continued “the investigator finds the alleged breach as outlined under note 1 formal review of attendance showed weakness in the employers absence recording and monitoring systems, and clear evidence of abuse of the reporting system by the Claimant ... in this instance the investigator finds that the Claimant’s behaviour was of a misconduct nature.

Following the investigation report a disciplinary meeting was set for 25th September 2017.   The Claimant was represented by her Trade Union Official from SIPTU, and the meeting was chaired by a member of the Board. At the hearing each allegation was addressed including the addressing of a preliminary issue relating to the email of 2nd June terminating the Claimant suspension and the formal withdrawal of all allegations in the investigation against the Claimant. At the hearing the disciplinary officer requested that in order to facilitate the hearing, if the Claimant’s representative would supply a written outline of the points raised at the hearing. It was agreed that as the Claimant’s representative was on annual leave, the outline would be submitted by 9th October 2017.   However, due to an unforeseen delay the outline was not submitted until 11th October 2017.

The Claimant was then dismissed on 13th October 2017. It was stated in the outcome of the disciplinary letter that following a further 10 days grace period to allow the Claimant’s representative to prepare and submit a written response to the findings contained in the report.   The dismissal letter stated that the Claimant in respect of each allegation “at the hearing you failed to provide any material explanation, response or mitigating circumstances ...” despite a detailed response from the Claimant and her representative.   The letter continued stating it is the Board’s decision to terminate your employment with immediate effect.

The decision was appealed, on 20th October 2017 stating clearly that the opening paragraph of the letter of dismissal which stated that the Claimant and her representative failed to provide a written response to the allegations was factually incorrect, and what was agreed was we would, to facilitate the disciplinary officer provide an outline of our position, not a written response. In addition, the appeal letter reiterated that all responses were made orally on the day, so that is incorrect to indicate that “at the hearing you failed to provide any material explanation, response or mitigating circumstances.”.

Additionally, the appeal letter requested the Board reconsider the decision to dismiss prior to the scheduling of the appeal hearing. However, no appeal hearing took place. The Claimant’s representative sent an email requesting an appeal meeting on 8th November 2017, and no response was received.

On or about 14th November the Respondent wrote to the Claimant informing her that the Board received the appeal from her Representative, the letter further states the Board will not be meeting with the Claimant and further had made the decision to use the outline document from the disciplinary hearing as the appeal.   The letter then further states that the disciplinary hearing was not an opportunity re-examine evidence or re-open aspects of the case, but rather to account for yourself in light of the findings of the investigation.

The matter was referred to the WRC for adjudication.

UNIONS POSITION

It is our position that the Respondent has breached the Unfair Dismissals Act when they dismissed the Claimant, and at every stage of the investigation, disciplinary and appeal stages.

At the investigation stage in relation to Allegation 1, the Claimant stated clearly to the investigator that numerous requests were made to the Centre Manager for information relating to absences, information that was never supplied to the Claimant to afford her to required information to properly refute any such allegations.   Not only was this information not supplied by the Company, the investigator made no attempt in the findings to address why the information was never provided, additionally, the investigator states that the employer’s absence recording system had weakness, yet makes the finding against the Claimant, despite the Claimant not being provided with the necessary documentation to properly defend herself.   This is a clear breach of the Claimant’s right to natural justice and fair procedures.

At the Disciplinary hearing held on 25th September, the Company again breached the rights of the Claimant. At the hearing, the employee and her representative made substantial representations, on her behalf. Each and every representation made at the hearing was ignored. While we accept the outline that was agreed to be sent to the company was in fact sent late, the company were fully aware that what was agreed at the hearing was not a written submission would be sent, but rather, to facilitate the disciplinary officer an outline of the points would be given, further the disciplinary officer was also aware the reason for the delay in responding was that the representative was on annual leave. It was not a situation where we were afforded time to respond, in fact it was a request from the disciplinary officer to facilitate the hearing and the 10 days was the length of the representative’s annual leave. However, the letter of the dismissal is clear that the company refused to consider the representations made at the hearing. For each and every allegation the company states “at the hearing, you failed to provide any material explanation, response or mitigating factors”.   It is clear that the respondent ignored any and all representations made by the company, despite the fact that in the appeal letter it clearly states “the hearing officer confirms that at the disciplinary hearing, neither you nor the Centre Manager gave an account as to why the misconduct took place, instead proceeded to challenge the investigative process, evidence examined and witness called”, clearing indicating that responses to the allegations were given, at the disciplinary hearing.

At the appeal stage the Claimant was again denied her right to fair procedures and natural justice when the Respondent conducted the appeal in the absence of the Claimant.   Instead stating “your written submission was to be treated in the context it was written”. This is a curious statement as in the appeal letter the context in which the outline was written is clear and unequivocal.   Firstly, it was made in the context of the disciplinary hearing and was as clearly stated in the appeal letter, an outline of points raised only. Secondly, the context for which it was written was not for the appeal stage and not a written submission as clearly stated in the letter of appeal.   The letter further states that the Board will consider the written submission while hearing your appeal, an appeal hearing which did not happen.

The final breach occurred on 22nd June 2017, when the Company reinstated the investigation, and disciplinary process, despite the email dated 2nd June.   On 2nd June 2017 the respondent wrote to the Claimant:

Further to our telephone conversation earlier this morning, I wish to confirm that the Board have lifted your suspension from work with immediate effect. The Board have also withdrawn all the allegations as noted in the investigation against you. As a result, there will be no disciplinary hearing and the matter is now concluded and closed. The Board will write to you in due course.

It is clear and unambiguous that the matter and all allegations against the Claimant were dropped, as of 2nd June 2017. It is further clear that the Board decided there would be no disciplinary action against the Claimant, yet a few months later, the matter resulted in a disciplinary hearing, in which all representations including this one was ignored. The principle here is clear, when the Board made the decision to withdraw all allegations that is in fact what they did. No allegations at the time of the hearing which determined the disciplinary were active, no disciplinary hearing was to take place, and no sanction could have been fairly imposed under the Act.

CONCLUSION

In June 2017, the Respondent withdrew all allegations against the Claimant, the matter was closed.   They not only withdrew the allegations, they lifted the suspension, and gave an assurance that no disciplinary action would follow. Yet they broke that promise and breached the Claimant’s rights to natural justice and fair procedures. It is our submission that in doing so the company have also breached the Unfair Dismissals Act, when the company reinstated the investigation, what the company did was expose the Claimant to the principle of “double jeopardy” that is she was accused of the same accusations twice. In addition, the principle of double jeopardy comes again into play when the Claimant was sanctioned for the allegation of sick pay twice, without being provided the necessary evidence, despite the repeated requests. Firstly, the Claimant was sanctioned when the monies were withheld, and secondly when she was dismissed.

In addition, the investigation process was flawed, the disciplinary hearing was ignored, and the appeal denied. It is a fundamental tenant for a dismissal to be fair, there must be a substantive reason justifying the dismissal, and fair procedures must be applied in effecting the dismissal. It is our position that this entire process is flawed, the investigation, failed to interview any witnesses, went outside the terms of reference, failed to afford the Claimant the right to reply to allegation, failed to provide evidence to the Claimant. The disciplinary process ignored any representations made. The letter of dismissal and appeal make it clear that the Respondent had no intention of considering the representations made, and merely considered the process a forum for “giving account of yourself in light of the findings”.

Chair, the claimant has mitigated her loss and attempted to find suitable alternative employment.

BACKGROUND

The Claimant commenced employment with the Respondent as a Trainer on 22nd January 2003 on a full-time basis (35 hours per week). The Claimant’s hours were reduced to part-time, at her request, for a period in 2012 but resumed to full time thereafter. The Claimant’s method and rate of pay as outlined in the complaint form is accepted. The employment relationship was governed by a contract of employment signed by both parties together with terms and conditions and attachments/appendices thereto. The Claimant worked for the Respondent from the time it was first set up and reported directly to the Centre Manager. The Claimant was the most senior Equine Instructor and was responsible for the delivery of the core Equine related QQI modules with learners in the Centre.

The Claimant was dismissed from her employment on 13th October 2017 following on from the completion of an investigation report (conducted by an independent external organisation at the request of the Board of Directors and later considered by the Board of Directors together with representations made by or on behalf of the Claimant) into certain disciplinary matters connected to her employment. The date of dismissal was followed by the exhaustion of an unsuccessful internal appeal taken by the Claimant against the findings of the investigation report and ultimate decision of the Board.

On 6th November 2017 the Claimant was notified of her final leave and pay entitlements by the Centre Manager.

DISCIPLINARY INVESTIGATION

The Claimant was unfit to work for a significant portion of the calendar year 2016. It was not until December 2016/January 2017 that both the Claimant’s and Respondent’s respective medical doctors declared the Claimant fit to return to work.

On 9th January 2017 the Claimant was notified of the commencement of a disciplinary investigation (to be conducted by an external agency) concerning no less than 8 allegations of misconduct concerning both her work and attendance during the course of her earlier employment with the Respondent. The Claimant was referred to section 24 of the Staff Handbook which details the policy and procedure relating to disciplinary matters and was asked to read same in detail. The Claimant was notified that she would be suspended immediately with full pay without prejudice pending the outcome of the Respondent’s investigation.

The allegations against the Claimant comprised of the following (in outline form):

1. Formal Review of Attendance at Work

A)      Availing of 8 days uncertified sick pay in 2014 (maximum allowable under contract is 7 days in a 12 month period).

B)      Availing of 9 days uncertified sick pay in 2015 (maximum allowable under contract is 7 days in a 12 month period).

C)      Identified anomalies covering the periods 2014 and 2015 relating to unauthorised absent days (2 over permitted level in 2014 and 3 over permitted level in 2015) where absent forms were not signed in and/or there was no signed leave form presented/available.

D)      Pattern or trend relating to absences from work on Mondays and Fridays which appeared to directly augment study and annual leave without authorisation requests.

E)      Use of text messages to inform Manager of absence from work.

F)       Absence from work without authorisation when Manager on scheduled leave.

1. Grievance made by Youth Worker (JK) in January 2016 (which could not be informally resolved at the time due to the Claimant going on sick leave before it could be completed) regarding the Claimant’s alleged discrediting of her capacity and work methods in an unprofessional manner to the family of a longstanding member of the Centre.
2. Complaint made by parent of a CTC trainee in 2016 regarding the loss of a record worksheet / portfolio of a student trainee.
3. Unauthorised access to company files, ie access to an email sent by the Centre CEO to the CTC General Manager to which the Claimant did not have access, found on the server driver belonging to the Claimant and relating to the Claimant’s “Horse Hours meetings” in 2015.
4. Employment reference concerning the Claimant sought from an unauthorised person not employed by the Respondent whereby it was alleged that the Claimant had knowingly provided false details and information to an external organisation and purportedly obtained a “glowing reference” from this external individual.
5. Use of company property (IT equipment) for personal purposes relating to personal study and college work.
6. Carrying out research involving CTC learners without the necessary clearances or approval.
7. Carrying out personal work whilst at work.

On 19th January 2017 the Claimant received a detailed breakdown of the above allegations to be investigated and was asked to respond to each incident/allegation in writing and to attend a meeting in order to present and discuss her response(s) on 27th January 2017 at the Equine Centre run at the Respondent’s premises.

On 31st January 2017 the Centre Manager agreed to re-arrange this meeting to 8th February 2017. The Claimant was expressly told that the meeting was not to be a disciplinary hearing simpliciteur and was advised that she could be accompanied by a colleague or trade union official if she so wished, in accordance with the company handbook. The meeting had to be adjourned further to the end of March/early April because of further difficulties the Claimant had with attending on various dates.

The Respondent initially engaged the services of a Consultant to undertake the investigation. The Claimant failed to attend three meetings arranged for her with the Consultant over a period of two months. The Consultant withdrew her services due to non-participation by the Claimant after the third cancelled meeting.

On 1st March 2017 the Respondent was served with High Court personal injuries proceedings on the Claimant’s behalf detailing work stress related issues over the course of her employment. These proceedings remain ongoing.

The Respondent engaged the services of a second independent investigator who was finally able to meet with the Claimant (and her SIPTU representative) on 12th April 2017 at the Respondent’s premises, some two months after the initial request. The investigator outlined his terms of reference to the Claimant and explained the need to ensure that fair procedures would be accorded to the Claimant at all times during the process. Amongst other actions the investigator conducted a long interview with the Centre Manager (lasting some 3 – 4 hours), spoke at length with the SIPTU Official updating him on the progress of the investigation and met with the Claimant (despite not all appointments being kept by the Claimant) to obtain her response(s) to the allegations themselves.

It must be remembered that the Claimant remained on full pay during the period January to April 2017 and continued to remain until the autumn of 2017. The Respondent made every reasonable effort to ensure that the investigation process was transparent, efficient and effective at all times in a way in which the Claimant’s rights to fair procedures and natural justice were maintained to the highest degree possible.

The Claimant had earlier been provided with fulsome copies of her absence/leave records (after a full document review had been conducted by the Respondent) by letter from the Centre Manager dated 9th December 2016.

RESPONDENT’S RECOUPMENT OF OVERPAYMENT OF SICK PAY, 2013-2016

Whilst the Respondent believes it is irrelevant to its decision to dismiss the Claimant, for the sake of completeness and to anticipate any potential submission that the Claimant may make regarding any potential / alleged link to her dismissal, we ask that the Commission are simply cognisant of the following:

• Following a thorough examination of the books and records regarding the Respondent’s payment of sick pay to the Claimant between 2013 and October 2016, it was discovered that a sum of €4,652.11 had been overpaid to the Claimant.
• Between January and September 2016, a total of €5,773.93 was recouped from the Claimant’s salary relating to such overpayments.         This recoupment was initiated on the instruction of the Centre’s funder.
• A further €3,526.17 was paid to the Claimant for 17 days salary for days which she was not present in work. This recoupment was also initiated on the instruction of the Centre’s funder.
• As at 20th October 2016, the net liability due to the Respondent stood at €2,404.35. The Claimant’s November and December 2016 salary payments were subsequently deducted by an equal amount of €1,202.18 over each month to cover the liability remaining. The Centre Manager wrote to the Claimant to advise her of all the above on 20th October 2016, one among several other dates.

THE INVESTIGATOR’S REPORT DATED 7TH JULY 2017 AND DISCIPLINARY HEARING DATED 25TH SEPTEMBER 2017

A copy of the terms of reference for the disciplinary investigation was sent to the Claimant, her representative and the Centre Manager on 5th April 2017. The aforementioned investigation meeting itself took place on 12th April 2017.

The Respondent respectfully refers the reader to the contents of the said detailed report, together with lengthy appendices, which records the evidence sought and obtained along with findings and recommendations thereto.

The Claimant was provided with a copy of the investigation report on 7th September 2017 and invited to attend a disciplinary hearing under Stage 4 of the Respondent’s Disciplinary Procedure as outlined in the Respondent’s own employee handbook. The purpose of this meeting was to provide the Claimant with an opportunity to comment on its findings prior to a decision being made by the Board relating to same.

This meeting was initially scheduled for 19th September 2017 at the Training Centre which was to be chaired by GF, a member of the Respondent’s Board and the Claimant was advised of the possibility, should she so wish, of her being accompanied by a colleague or trade union official. The Claimant was further advised that she could avail of the opportunity of providing a written submission for consideration at the hearing.

The Respondent’s Board subsequently agreed to postpone this meeting, at the Claimant’s request, by reason of the fact that the Claimant’s SIPTU representative was out of work on long term sick leave. By letter dated 15th September 2017 addressed to the Claimant, the Centre Manager once again outlined that the investigation phase of the process had completed and that the upcoming meeting would be re-examining the allegations once again. It was explained to the Claimant that the purposes of the meeting would be to provide an opportunity to the Claimant to make representations regarding the findings of the report.

The Respondent held a Disciplinary Hearing with the Claimant on 25th September 2017. The Respondent had previously agreed to an adjournment of this hearing, at the Claimant’s express request, to permit the Claimant’s trade union representative to be present on her behalf.

The Respondent conducted this hearing in an environment in which the Claimant had written to the Centre Manager on 17th September 2017 to inform him (1) that she wished to make a personal submission at the hearing and (2) that notwithstanding, her “legal team” was then considering a court injunction to prevent the hearing from taking place.

GF, a member of the Respondent’s Board, chaired the meeting. The meeting’s purpose was to obtain the Claimant’s response to the draft report issued by the investigator. In summary, the Claimant (with her union representative) submitted (1) the wage deduction issue had already been dealt with and should not now be addressed and it was “unintentional” on the Claimant’s part and (2) she felt threatened by the trainee whose FETAC portfolio had gone missing and that she was not given the proper support by the Centre Manager over the issue and (3) that no other staff members were interviewed in the course of the investigation around the issue of the missing portfolio and that this was unfair and (4) that the investigator’s so called knowledge of the Claimant’s extant personal injuries proceedings against the Respondent was unfair; (5) that she disagreed with the findings of the report in relation to her seeking an employment reference from a person who did not have the authority to issue same (6) that it was now a “historical” issue that the Claimant was working on her thesis in 2015 at the time she was at work and that this could not now be addressed by the Respondent.

The Claimant specifically requested, and agreed, to return a “detailed written submission” to be considered by the Board by 9th October.   The Claimant failed to meet her own deadline in this regard.

DECISION BY THE BOARD OF DIRECTORS:

By letter dated 13th October 2017 the Centre Manager informed the Claimant of the Board’s decision regarding the aforementioned Stage 4 Disciplinary Hearing. The sending of this letter followed the completion of extensive and numerous meetings of the Board of Directors who considered the merits and demerits of the aforementioned investigation report and debated the sanction(s), if any, to be given to the Claimant.

It was noted in the letter that the Board had failed to receive a written response from the Claimant within ten days after the disciplinary hearing had taken place on 25th September a request which the Claimant had made of the Respondent (and which was granted) that she be permitted time to compile such a response (The Claimant lodged a written submission some 11 days after the agreed deadline of 9th October 2017).

For ease of reference the “Summary and Decision” of the Board was as follows:

“The investigation report did not determine what sanction if any should be made in relation to the misconduct identified. The wide range of breaches of company policy and misconduct, some minor and some very serious, presents a person who has a lack of regard for the rules and regulations that govern the operation of the service and a lack of regard for the clients and work colleagues within the centre despite being a long standing employee holding a senior position. The failure of the employee to make any redeeming representations regarding her actions at the disciplinary hearing and the fact that at no stage did you show any regret or remorse regarding any of the findings in the report, has been taken into consideration. The Board’s decision is to terminate your contract of employment with immediate effect. The company will arrange to pay you in lieu of annual leave and public holidays accrued up to and including 13th October 2017.

In accordance with the employee handbook, you have the right to appeal this disciplinary sanction. You have ten working days in which to lodge an appeal. In order for your appeal to be valid, you must outline the basis for your appeal in writing, and forward this to arrive within ten working days by email to the General Manager. The Board reserves the right to implement the disciplinary sanction pending any appeal.   If no appeal is received within this time period, it will be taken that the sanction has been accepted”.

THE CLAIMANT’S INTERNAL APPEAL

The Claimant’s appeal was received by the Respondent by email on 20th October 2017 and was written by HH. By this time the Respondent had also received the late written submissions compiled by or on behalf of the Claimant and as such, in the interests of fairness, the Board proceeded to give consideration to these submissions at the appeal stage.

The Claimant’s appeal was based on three grounds, as outlined in the above email of 20th October.

Firstly, the Claimant maintained that all of her submissions at the meeting on 25th September had been made orally on the day and that subsequent to the meeting she wanted to submit “an outline of points raised” in order to assist the decision-maker in coming to a decision.   The inference was that the Claimant did not need or want further time to make any further written submissions.

Secondly, the Claimant stated that she did address, in mitigation, the allegations and findings made against her and provided explanations where same was required.

Thirdly, that it was unreasonable on the Respondent’s behalf not to contact the Claimant to seek her responses/submissions prior to issuing the letter of termination.

The appeal hearing itself was conducted at all times in accordance with the provisions of, and in pursuance of the Employee Handbook. A member of the Board, separate to GF chaired the hearing. The Claimant failed to accept, at any point, in relation to any of the allegations against her that she had acted improperly or misconducted herself in any way in the course of her work. The Claimant once again pressed the issue relating to the allegation of the loss of the trainee’s FETAC portfolio and discussed the findings of the investigator’s report with the chairperson.

By letter dated 14th November 2017 the Course Manager acting under the instructions of the Board, provided the Claimant with the Respondent’s decision in respect of the former’s appeal.

The Respondent’s Board of Directors considered in detail the report received from the Investigator. The Board decided to engage the services of such an external agency (it must be said at considerable expense given the funding issues experienced by the Centre at any one time) in the interests of fairness and independence.

The Board of Directors is comprised of a myriad of individuals from separate and distinct backgrounds. It judged, argued and debated the outcome of the independent external investigation which took place and applied the report to the particular employee that the Claimant presented as at the time in the autumn/winter of 2017 together with what the particular needs of the organisation were going forward. It is in this context that the unfortunate decision to terminate the Claimant’s employment had to be made.

CONCLUSION

The Respondent disputes the allegations by the Claimant that she was unfairly dismissed. The Claimant was offered full and fair procedures with all the principles of natural justice throughout, in accordance with the Respondent’s grievance, disciplinary and related employee policies.

1. The burden of proof rests with the Respondent to show that the dismissal was fair. It is the Respondent’s position that policy, procedure and fairness were applied throughout the processes leading up to and including the dismissal of the Claimant. The Claimant’s complaint regarding the “Complaint Specific Details or Statement” of her Complaint form lodged with the Commission and received by the Respondent is therefore not well founded.
2. The Respondent respectfully reserves the right to make further submissions and/or to adduce further evidence in advance, during or following the hearing.
3. The Claimant has failed to lodge, issue, file or serve its written submission(s) in respect of her claim. In these circumstances the Respondent asks the Adjudicator to determine at the outset of the hearing what facts are in dispute and what specific claims the Respondent must meet. The Respondent will endeavour to do its best to meet same, on the day, if and when required.

In light of the above, the Respondent respectfully asks that the claim be dismissed.

The Respondent commissioned an independent report and the subject matter of this report was to investigate the following allegations:

1.       Formal review of attendance.

2.       Grievance complaint

3.       Parent Complaint

4.       Confidential e-mail access

5.       Employment Reference

6.       Use of IT Equipment

7.       Carry out research involving Learners

8.       Non-related Work.

Nos: 5,6,7 and 8 were dropped in the final report outcome.

The Representative of the Complainant draws attention to:

“It is clear and unambiguous that the matter and all allegations against the Claimant were dropped, as of 2nd June 2017.   It is further clear that the Board decided there would be no disciplinary action against the Claimant, yet a few months later, the matter resulted in a disciplinary hearing, in which all representations including this one was ignored. The principle here is clear, when the Board made the decision to withdraw all allegations that is in fact what they did. No allegations at the time of the hearing which determined the disciplinary were active, no disciplinary hearing was to take place, and no sanction could have been fairly imposed under the Act”.

In correspondence from the Centre Manager to the Complainant, the Centre Manager leads with the words “I am directed by the Board” to….. I have to conclude that the emails sent to the Complainanton 2nd June and 7th June from the Centre Manager met with the full approval of the Board and that all allegations made against the Complainant were withdrawn and the matter concluded.

On 9th June 2016 the Centre Manager, by email to the Complainant, says:

Further to our telephone conversation earlier today, I wish to confirm that the Board have requested that I follow up and confirm with you the rescheduled date and time of Monday 12th June 2017 at 10.30am as discussed to accommodate your arrangement for childcare.

I would like to confirm that we will discuss your re-induction and phased return to work schedule with the CTC at this meeting as discussed earlier also and again on arrival, please come and see me in order for us to commence this meeting.

There could have been no doubt in anyone’s mind, including that of the Board, that the Complainant was returning to work.

By letter dated 21st June the Complainant was informed that she was being suspended by the Board pending the completion of the disciplinary investigation and the report, with immediate effect.

It is not easily understood as to what exactly was to be investigated and why was there mention of disciplinary proceedings, any accusations being made against the Complainant had been dropped some two and a half weeks prior to this.

In reaching a conclusion in this case I accept that the Complainant may not have been the ‘model employee’ but feel that she was unfairly dismissed and the performance of the Centre Manager and to a greater extent, the Board, leaves a lot to be desired.

I note that the Complainant has made some efforts to mitigate her loss and has also looked into furthering her education.

I order the Respondent to pay compensation to the Complainant of €15,000. This sum should be paid within 42 days from the date of this decision.

In relation to the second complaint, CA – 00016049 – 002 – referred under section 11 of the Minimum Notice and Terms of Employment Act, 1973. I order the Respondent to pay the Complainant six weeks pay in lieu of notice i.e. €6,299.18. Again this sum should be paid within 42 days from the date of this decision.

As outlined above.

Unfair Dismissal; Minimum Notice.