FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : DUNNES STORES (REPRESENTED BY MARCUS DOWLING, B.L., INSTRUCTED BY BYRNE WALLACE, SOLICITORS) - AND - KATI KIPLI (REPRESENTED BY HAYES SOLICITORS) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no. ADJ-00005681/ CA-00007896-002.
BACKGROUND:
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015. A Labour Court hearing took place onon 3 May 2018 and on 31 October 2019. The following is the Determination of the Court:
DETERMINATION:
Background to the Appeal
This matter came before the Court by way of an appeal brought by Ms Kati Kipli (‘the Complainant’) against two decisions of an Adjudication Officer both dated 7 July 2017 and bearing the following reference numbers: respectively: ADJ-00005681/CA-00007896-001, made under the Unfair Dismissals Act 1977 (‘the 1977 Act’) and ADJ-00005681/CA-00007896-002, made under the Minimum Notice and Terms of Employment Act 1973 (‘the 1973 Act’).
The Complainant’s appeal was received by the Court on 17 August 2017. The Court sat in Limerick to hear the appeal on 3 May 2018 and on 31 October 2019. The Parties had been notified of a resumed hearing date scheduled for 18 April 2019. However, on the application of Dunnes Stores (‘the Respondent’), the Chairman of the Court, Mr Foley, granted a postponement on that occasion. Consent was not given by or on behalf of the Complainant to the postponement as it appears her Solicitors were unable to make contact with her at the time.
The Factual Matrix
The Complainant was employed as a part-time sales assistant in the Respondent’s store at Harvey’s Quay, Henry Street, Limerick from 6 December 2007 until she was summarily dismissed on 2 June 2016. Her average weekly wage for the 52-week period prior to the date of her dismissal, in the Respondent’s submission, was €378.87. The Complainant’s Solicitors submitted the slightly higher sum of €397.55, being the average weekly amount earned by the Complainant in the calendar year 2016. The Court accepts that the method of calculation adopted by the Respondent to be the correct one for the purpose of the within appeal.
The Complainant ran belly-dance classes in her spare time at a local hotel two evenings a week. It appears this was generally known amongst her fellow workers in Dunnes Stores. In fact, it is common case, that the Respondent facilitated the Complainant in this regard by either rostering her off on the evenings in question or – where that was not possible – permitting her to swap shifts with a colleague.
On Tuesday 17 May 2016, the Complainant was rostered to work from 5.00 pm until 9.00 pm. However, she contacted the Human Resources Manager – Ms Shelly Galvin - by telephone at approximately 1.00 p.m. that day to let her know that she felt unwell with a kidney infection and to advise she would be unable to work her shift. Ms Galvin asked her to telephone her again at 4.00 p.m. to confirm the position lest she recovered in the meantime. The Complainant telephoned again at 4.00 p.m. and advised that her condition had not improved and that she was going to bed for the night.
Ms Galvin was aware that the Complainant was scheduled to run a dance class that evening. It appears that she telephoned the hotel where the class took place to enquire if it was going ahead that evening. She was informed that it was. Ms Galvin then asked a colleague – Ms Aoife Cowhey – to call to the hotel that evening to check if the Complainant turned up to run the class. Ms Cowhey did as she had been asked to do and at approximately 8.25 pm observed the Complainant present in the room where the class was to take place at 8.30 pm, along with a group of ladies attending the class.
The Complainant attended for work in the normal way on the following day, 18 May 2016. Ms Galvin called her to a ‘back-to-work’ meeting. At that meeting, the Complainant told Ms Galvin that she had gone to bed for the night and had stayed there having spoken to Ms Galvin at 4.00 pm on the previous evening and felt much better as a result. The Complainant initially denied that she had attended her dance class at the hotel. However, when she was told by Ms Galvin that she had been observed in the room immediately prior to the commencement of the class, she admitted that she had been there but denied that she had conducted it. A discussion took place between Ms Galvin and the Complainant about the inappropriateness, as Ms Galvin saw it, of the Complainant’s decision to attend at the hotel in circumstances where she had called in sick for work. Ms Shelley informed the Complainant that she intended to bring the issue to the attention of the Grocery Store Manager – Ms Elaine Powell – on the latter’s return from annual leave.
Ms Powell conducted two meetings to investigate the events of 17 May 2016. The first meeting took place on 31 May 2016; the second on 2 June 2016. The second meeting was followed some twenty-four minutes later by a disciplinary meeting during which Ms Powell communicated her decision to the Complainant that she was being summarily dismissed as a consequence of her conduct on 17 May 2016.
That decision was formalized in a letter to the Complainant dated 2 June 2016 and signed by Ms Powell, although the Complainant denies having received this letter. The letter stated the following, inter alia:
- “During this investigation and disciplinary process a number of meetings were held with you. You admitted to engaging in other paid employment whilst on sick leave from the company. This constitutes misconduct which is a serious breach of the Company Code of Conduct.
Kati, after careful consideration the Company cannot accept your disregard for its Code of Conduct and therefore has made a decision to terminate your contract with immediate effect. We have considered other sanctions but after taking everything into account dismissal is the only appropriate sanction to be taken.”
Ms Powell’s letter went on to advise the Complainant of her right to appeal the decision and the steps she should take to initiate such an appeal. The Complainant did not exercise her right of appeal internally within the company.
The Respondent’s Witnesses
The first day of hearing of the within appeal – 3 May 2018 – was taken up completely with the direct examination and the cross-examination of the following four witnesses on behalf of the Respondent: Ms Aoife Cowhey; Ms Fleur O’Shea, Solicitor with Byrne Wallace; Ms Shelly Galvin and Ms Elaine Powell.
Evidence of Ms Aoife Cowhey
Ms Cowhey told the Court that she had worked for the Respondent between 2008 and 2016 but had ceased her employment with the Respondent prior to the date of the within hearing. Firstly, the witness gave evidence in relation to a handwritten statement signed by her and dated 30 May 2016, a copy of which was before the Court. That statement reads as follows:
- “On the 17thof May 2016, I was asked by the HR Manager, Shelly Galvin, to call to the Strand Hotel gym around 8.30 pm to see if Kati Kipli was conducting her belly dancing class. I agreed to this. At 8.20 pm I parked my car by the rowing club. I walked to the gym and entered it. At approximately 8.25 pm I saw Kati Kipli in the studio at the Strand Hotel in her belly dancing class. She was putting on white knee high (sic) socks in the top left-hand corner of the room, by what looked like a CD player. A group of approximately 10 women were standing waiting for her to begin.
[signature] 30 May 2016”
In her direct evidence, Ms Cowhey simply recited the material events of 17 May 2016 exactly as outlined in the above written statement and confirmed that she had not gone to the Strand Hotel on that date on her own initiative and that she had been asked to do so by Ms Galvin.
Under cross-examination, the witness was asked if she could recall the exact time that Ms Galvin had asked her to go to the Strand Hotel. Ms Cowhey was unable to do so. She confirmed that she reported back to Ms Galvin that she had seen the Complainant at the venue. She had no recollection, she said, of what the Complainant was wearing on the evening in question other than the white socks already referred to. She stated again that she had seen the witness standing in the top left corner of the room beside what appeared to be a CD player. However, she had not seen the Complainant actually conduct a class. The witness confirmed this fact in response to questions from both Dr Hayes and from the Court. Finally – and again in response to a question from the Court – the witness stated that she regarded herself as a friend of the Complainant’s at the time and she had never had a disagreement with her.
Evidence of Ms Fleur O’Shea
Ms O’Shea is a solicitor with Byrne Wallace and it appears that she attended on Mr Dowling BL at the first instance hearing before the Adjudication Officer. It appears that a dispute arose in the course of that hearing about the genesis of certain information that had been obtained from the Complainant’s Facebook page. Mr Dowling BL called Ms O’Shea to give evidence in relation to this matter. Ms O’Shea told the Court that – to her knowledge – the Facebook printouts produced before the Adjudication Officer were all obtained from the Complainant’s public profile on Facebook and relate to a similar suite of belly-dance classes offered by the Complainant at the same venue (i.e. the Strand Hotel) but subsequent to her dismissal.
Having considered the witness’s direct evidence and her cross-examination by Dr Hayes, the Court is of the view that it has no direct bearing on the issues that fall to be decided by it on the appeal. It is not, therefore, necessary to go into any further detail in relation to it in this determination.
Evidence of Ms Shelly Galvin
Ms Galvin told that Court that she had been employed by the Respondent from November 2007 to May 2017, as a Checkout Manager initially and then as a Human Resources Manager from 2010 onwards. She was employed at the Respondent’s Harvey’s Quay store from 2012 onwards from which date she worked with the Complainant.
Ms Galvin gave evidence firstly in relation to her interactions with the Complainant when the latter was completing a degree course at the University of Limerick and required certain adjustments to her rostered working hours from time to time to facilitate attendance at her lectures, examinations and so on. The witness told the Court about an issue that arose when the Complainant was absent for a period of approximately fourteen days in or around October 2013 in the context of which the Complainant’s GP furnished a letter informing the Respondent of an ongoing condition with which the Complainant suffered at the time.
Secondly, Ms Galvin gave detailed evidence in relation to the operation of the Respondent’s sick pay policy. At the material time, an employee with twelve months’ continuous service was eligible to claim up to twelve paid sick days per year. A medical certificate was required only in respect of any absence in excess of three continuous days. In other words, an eligible employee was paid for sick leave of one, two or three days without the need to produce a medical certificate. Ms Galvin told the Court that it was standard practice for a manager to conduct a ‘back-to-work’ interview with a staff member who had been out on sick leave, the purpose of which was to check in on the employee and establish if he/she had any recurring illness or condition that the Respondent needed to be aware of. Ms Galvin explained the process by which payment for periods of sick leave was processed as follows:
- “[O]nce you automatically follow the company policy that you should ring at least an hour before your shift and that you were sick basically yourself, [payment] would automatically be put through in your wages. You didn’t have to do anything else.”
At this point, Mr Dowling BL handed in a copy of the Complainant’s sick leave record and asked the witness to explain how it had been generated. Ms Galvin explained that the Respondent uses two systems (Kronos and Oracle) to record attendance and absences for payroll purposes. One of her functions as Human Resources Manager was to make manual adjustments to the Kronos system on a Monday to reflect employees’ different absences (e.g. sick and paid; sick and unpaid; missed the clock, etc). A report could then be generated using Oracle.
The questioning then moved on to consider certain training records which had been created and retained in relation to the Complainant on her personnel file. The witness confirmed that when an employee of the Respondent’s undergoes training, he or she is usually required to acknowledge receipt of the training by signing a written record which is then retained on the Respondent’s record keeping system. The records, copies of which were before the Court, had been signed by the Complainant in the usual way. Mr Dowling BL submitted that the records indicated that the Complainant has a very distinctive signature.
Ms Galvin then gave evidence of having arranged for two copies of the letter confirming the Complainant’s dismissal to issue to her – one by ordinary post and the second by registered post. A copy of the An Post receipt with a signature purporting to be that of the Complainant was then exhibited. Dr Hayes, at this point in the hearing, made a number of observations about what her client was likely to say in evidence about the registered letter and the circumstances in which it may have been signed for. However, as things transpired, the Complainant was not put into evidence so the Court cannot advert to Dr Hayes’s observations in relation to this matter.
Ms Galvin was then asked about her knowledge of the Complainant’s belly-dance classes. The witness told the Court that it was common knowledge across the store that the Complainant taught these dance classes. She said she was aware personally that the Complainant’s classes were held on Tuesdays and Thursdays in the Strand Hotel, at 8.00, 8.30 or 9.00 pm. The witness accepted that the Complainant was rostered occasionally when the classes were also scheduled. On such occasions, according to the witness, the Complainant normally approached her or Ms Cowhey and requested permission to swap hours with another employee. Every effort was normally made to facilitate such a request. Ms Galvin told the Court that the Complainant, however, might have had some difficulty arranging a swap on 17 May 2016 because of the actual hours she had been rostered to work on that date and that week (Monday to Friday). It appears that she had also booked off the following weekend as she was due to attend a belly-dance competition in Paris.
Ms Galvin confirmed that she knew that the Complainant was scheduled to hold a class on the evening of 17 May 2016. She denied that she had ever asked anybody to follow the Complainant or check on her whereabouts before that date. She said that she had asked Ms Cowhey to go to the Complainant’s class on that date because she suspected that the Complainant would be at the class. She told the Court that the Complainant had telephoned her at 1.00 pm that day to tell her that she wasn’t well and was suffering from a kidney infection. The witness said she asked the Complainant to telephone again at 4.00 pm in case she was feeling better and could come in for her shift as “in retail everybody counts basically and especially in the area that [the Complainant] was covering”. Ms Galvin said that the Complainant did as she had been asked and telephoned again at 4.00 pm but confirmed that she would not be attending for her shift at 5.00 pm as she was going to bed for the night.
Ms Galvin’s evidence is that she then telephoned the Strand Hotel to see if the belly-dance class was going ahead that night. Somebody working the fitness centre at the hotel confirmed that the class would take place. The witness said she then contacted Ms Cowhey – the Checkout Manager – to inform her that the Complainant would not be coming in that evening and that they were consequently down one member of staff. Later, it appears she asked Ms Cowhey (sometime between 4.00 and 6.00 pm) whether or not she would mind calling over to the Strand Hotel later that evening to see if the Complainant attended for her class.
According to Ms Galvin, Ms Cowhey attended at the Strand Hotel that evening as requested and afterwards sent her (Ms Galvin) a text message to confirm she had been there and had seen the Complainant at her class and that the Complainant had been wearing “a purply-pink outfit”.
The following day, and in accordance with the Respondent’s normal practice, the witness said she called the Complainant to her office to conduct a ‘back-to-work’ meeting with her. At that meeting the Complainant told the witness that she was feeling better but initially denied that she had attended her class the previous evening when asked by Ms Galvin how could that be when she had attended her class. Ms Galvin, it appears, asked the Complainant a second time had she attended the class in reply to which the Complainant told the witness that she had been feeling better at 7.30 pm and attended, but did not conduct, the class. Ms Galvin says that she asked the Complainant to be honest. In reply, she says, the Complainant admitted to having attended and having conducted the class.
Ms Galvin told the Court that she then said to the Complainant that it was “unacceptable to ring in sick, to receive sick pay and then to go to an alternative employment”. The witness then said that she told the Complainant that she would be speaking to Elaine Powell, the Grocery Store Manager, on the latter’s return from annual leave.
In direct examination, the witness confirmed that the Complainant did not suggest during the back-to-work interview that the class had been conducted by somebody else. The witness also confirmed that the Complainant did not tell her, in the course of the meeting or at any other time, that she was not getting paid for teaching the classes.
Finally, the witness confirmed that she attended the subsequent meetings conducted by Ms Powell. The witness acted as note-taker at those meetings. She outlined the process whereby she handwrote the notes during the meeting and then typed them up immediately afterwards.
Under cross-examination by Dr Hayes, Ms Galvin confirmed that the only decision she took following the back-to-work meeting with the Complainant was that she would not be paid for her absence on the previous day because she had attended at an alternative employment having telephoned in sick. Ms Galvin also reiterated that it was normal practice to have a handover meeting with Ms Powell on Ms Powell’s return from annual leave to review any issues that had arisen during her absence. On this occasion, when Ms Powell returned from a week’s leave, the witness spoke to her about the incident with the Complainant and about the back-to-work meeting.
Evidence of Ms Elaine Powell
Ms Powell told the Court that she had been the Grocery Store Manager in Dunnes Stores, Harvey’s Quay since October 2013 and that she has worked for the Respondent for a total of eighteen years. She outlined the management and reporting structure in the Harvey’s Quay store. She told the Court that there are two store managers: a Textile Store Manager and a Grocery Store Manager. The witness confirmed that neither reports to the other and that she reports to a Regional Manager.
Ms Powell related how she had come to know from Ms Galvin of the events of 17 May 2016 involving the Complainant. The witness told the Court that she asked both Ms Galvin and Ms Cowhey to write out a statement in relation to those events. Ms Powell then told the Court about the meeting that took place with the Complainant on 31 May 2016. She said that the Complainant was not given advance written notice of the meeting but was simply paged from the shop floor. Both Ms Powell and Ms Galvin were in attendance.
Mr Dowling BL took the witness through the note of the meeting prepared by Ms Galvin. The witness confirmed, having regard to the note, that the Complainant told her that she had been feeling better by 7.30 pm on 17 May and had been at the class that evening and had played the music but hadn’t been dancing. When asked by Ms Powell, “How could you teach a class if you were not dancing?”, the Complainant replied (according to the note), “The class is advanced; they are not beginners.” Ms Powell confirmed that the Complainant never suggested at the meeting held on 31 May that somebody else had taught the class on 17 May.
The notes of the meeting then go on to record a discussion between Ms Powell and the Complainant about whether or not the Complainant had intentionally initiated a process to ensure she would be paid for her absence on 17 May 2016. The Complainant told Ms Powell that she didn’t know she was entitled to be paid on that occasion as she thought it was “three days with a cert.” and recalled having been sick and paid for four days in 2014 for which she had a medical certificate. There was also a discussion about what the Complainant was wearing at the class on the date in question. Ms Powell put it to her that she had an eye-witness who would confirm that the Complainant had been wearing ‘a pink-purple outfit’. The Complainant denied that she even owned such an outfit and said she had been wearing a black tracksuit and grey hoodie.
Ms Powell asked the Complainant if she got paid for the class. According to the note of the meeting, the Complainant said that she paid €30.00 rent (per night) for the room and that the students pay €20.00 or €25.00. In response to the question, “So you received income for doing the class, so you are self-employed?”, the Complainant replied, “Yes, maybe.”, according to the note of the meeting, as confirmed by the witness.
Counsel then asked Ms Powell if the Complainant had mentioned the existence of a ‘dance collective’ whereby all the income received from the classes was pooled between a group of instructors and used thereafter to fund various belly-dance activities. Ms Powell said that the Complainant had never mentioned any such arrangement to her.
Mr Dowling BL then moved on to the discussion, recorded in the note to the meeting, about how the Complainant intended to teach her class at 8.30 p.m. when she was rostered to work for the Respondent between 5.00 and 9.00 pm on 17 May 2016. The witness recalled that the Complainant told her that she had intended to ask to be allowed to leave her shift early and if that were not possible she would delay the start time of the class until 9.00 pm. The witness told the Court again that the Complainant confirmed she had been at the class and although she had said that she hadn’t danced during the class she hadn’t denied conducting it. The witness also accepted that the notes of the meeting record that she concluded it by reading an extract from the Respondent’s Employee Handbook in relation to misconduct and summary dismissal.
A second meeting took place on 2 June 2016. At this meeting, Ms Powell again put it to the Complainant that she had been fully aware that she would have been paid under the terms of the Respondent’s sick-pay scheme for her absence on 17 May 2016 because she had been paid in the past, on three separate occasions, for absences of one day. At this point Ms Powell informed the Complainant that the next meeting would be a disciplinary meeting. There was also a further discussion between Ms Powell and the Complainant about her illness on 17 May 2016, the phone calls that the Complainant made at 1.00 pm and at 4.00 pm that day to say that she was too unwell to work. Ms Powell then asked the Complainant why she had set her alarm clock for 7.30 pm that evening. The Complainant replied that she did so in order to see if she was still unwell and if it was necessary for her to cancel the class. The Complainant was then asked by Ms Powell to take a seat in the training room.
When Ms Powell called the Complainant back into the meeting she gave her decision in the following terms: “Kati, due to your actions which have breached the company’s code of conduct I am left with no alternative but to terminate your contract with immediate effect.”
In response to Counsel’s questions, the witness confirmed that she had advised the Complainant that she had a right of appeal and a right to receive her P45. The witness also stated that the Complainant had not availed herself of the right to appeal the decision to dismiss her.
The witness was then cross-examined in detail by Dr Hayes. The cross-examination began with Dr Hayes seeking to ascertain whether or not the Complainant had been offered the opportunity to avail herself of legal representation during the investigation/disciplinary stages. There was also a lengthy digression in relation to what the witness knew about whether or not the Complainant was a member of a Trade Union. Dr Hayes then proceeded to outline the evidence she said her client would give in relation to a number of specific issues. However, as mentioned above, the Complainant did not give evidence so it is not necessary nor appropriate to record the detail of this part of the cross-examination. Ultimately, the cross-examination moved to the events that followed the initial back-to-work meeting on 18 May 2016. Ms Powell confirmed that she had been informed of that meeting and was aware that the Complainant was on annual leave until 31 May. The witness told the Court that on 30 May 2016 she had asked both Ms Cowhey and Ms Galvin to prepare written statements about what had happened. The witness also confirmed that she had accessed the Complainant’s HR records – including her absence record, time-keeping tracker and her cash register returns -in preparation for the investigation meeting. The witness said that it was standard practice to review an employee’s full file before undertaking a disciplinary investigation. She also told the Court that she did not present a copy of any of the records she had obtained to the Complainant in advance of, or in the course of, the investigation meeting. Likewise, the Complainant had not been given a copy of the minutes of the back-to-work meeting conducted by Ms Galvin nor of the statements furnished to Ms Powell by Ms Cowhey and Ms Galvin.
Dr Hayes also confirmed in cross-examination that Ms Powell had not informed the Complainant in advance of the nature or purpose of the meeting that took place on 31 May 2016. Ms Powell accepted that she had only advised the Complainant at the outset of that meeting that it could result in disciplinary action, up to and including dismissal, being taken against her.
Ms Powell also conceded, in response to questions from Dr Hayes, that the Complainant was not furnished with any of the above documentation either in advance of the investigation or disciplinary meetings that took place on 2 June 2016. Nor, it appears, was she given a copy of the Respondent’s disciplinary policy on that occasion.
Ms Powell told the Court that she considered a number of possible sanctions – including issuing a written warning, suspension and dismissal – in the twenty-four-minute interval between the second investigation meeting on 2 June 2016 and the disciplinary meeting that followed afterwards. When pressed to explain why she opted to summarily dismiss the Complainant, Ms Powell said: “The reason she was dismissed was because she attended her belly-dancing class while she should have been at work”.
In response to a question from the Court, Ms Powell confirmed that the Complainant was not, in fact, paid any sick pay in respect of her absence from work on 17 May 2016.
The first day of hearing concluded on the completion of Ms Powell’s cross-examination. The hearing resumed in Limerick on 31 October 2019. No evidence was taken at the resumed hearing as Dr Hayes declined to put the Complainant in evidence. Dr Hayes made a number of applications and submissions to the Court, as follows.
Firstly, Dr Hayes made an application to the Court to have the within appeal under the Unfair Dismissals Act 1977 determined on the basis that the Respondent, in her submission, had failed to discharge the burden of proving that the dismissal was neither substantively nor procedurally unfair. Mr Dowling BL submitted that he did not accept that the Respondent had failed to reach any kind of basic burden of proof such that the Court could determine the matter in the absence of hearing the Complainant’s evidence.
Secondly, Dr Hayes requested the Court to determine the Complainant’s appeal under the Minimum Notice Act 1973 in her favour without hearing the Complainant’s evidence.
Thirdly, Dr Hayes informed the Court – for the first time - of personal injuries proceedings initiated by the Complainant before the Circuit Court arising from an incident in the workplace which had allegedly left her with a compressed nerve injury that has rendered her unable to work. Dr Hayes submitted that there was, therefore, an overlap in the within proceedings under the 1977 Act and the personal injury proceedings such that the former should be adjourned pending the determination of the personal injuries matter. In support of this application, Dr Hayes submitted that in the absence of medical evidence it would not be possible for this Court to make an assessment of the “damages” (compensation) solely attributable to the Complainant’s dismissal. The Complainant’s Solicitor further submitted that if the Court proceeded to determine the issue of compensation under the 1977 Act there would be a risk that “it would be intruding on the jurisdiction of the Circuit/High Court if it was to look at the assessment of the damages because there is an overlap.”
Dr Hayes told the Court that the Complainant had been fit for work as of the date of her dismissal and continued to be fit for work for some time after that. However, she continued, the point at which the Complainant’s pre-existing injury developed to a stage where she was rendered unable to work as a consequence could not be determined in the absence of medical evidence, which medical evidence would be heard before another court.
Mr Dowling BL informed the Court that the personal injuries proceedings had only issued in February 2019 and that the Civil Bill didn’t state when it was alleged that the injury became known to the Complainant. He submitted that, with regards to the within appeal, the issue for this Court is the point from which the Complainant ceased to be fit to work, that date being the cut-off date for any financial loss potentially attributable to the dismissal. Counsel submitted that this Court has a jurisdiction to deal with the matters before it under the statute and that in doing so the Court would not thereby be intruding on the jurisdiction of any other court, in the circumstances.
The Court considered each of Dr Hayes’s applications, along with Counsel for the Respondent’s replying submissions. The 1977 Act places the burden of proof on the Respondent in any proceedings under that Act. The Respondent in the within proceedings has adduced a considerable amount of evidence from four witnesses over the course of a full day’s hearing. Each of those witnesses was also subject to very detailed cross-examination by Dr Hayes. It behoves the Court to give careful consideration to that body of evidence before arriving at its determination. Hence, Dr Hayes’s first application to the Court was refused.
The Court also declined to adjourn the within appeals pending the conclusion of the Complainant’s personal injuries action as the Court does not accept that the Complainant’s Solicitor had established that the initiation of such proceedings in any way deprived this Court of its statutory jurisdiction to determine whether or not the Complainant was unfairly dismissed within the meaning of the 1977 Act and to decide the appropriate redress, if any, due to the Complainant if the appeal were to succeed. Likewise, the Court is of the view that it is not precluded from determining the appeal under the 1973 Act in circumstances where there is no dispute about the Complainant’s length of service with the Respondent and the Respondent accepts that the she had been summarily dismissed, notwithstanding the Complainant’s decision not to give evidence to the Court. However, the Complainant’s decision in this regard necessarily implies that there is no evidence before the Court in relation to her claimed loss arising from the Respondent’s decision to dismiss her without notice.
Dr Hayes, it appears, took exception to the manner in which the Court handled the above applications. The transcript from the hearing records Dr Hayes making the following remarks:
- “There is actually a complete denial of fair procedures before this court. They have failed to give reasons for a number of very prejudicial determinations made against the Respondent - made against the Claimant today. In circumstances where it knew or ought to have known the Plaintiff could not enter into evidence because of - of - of a personal injuries set of proceedings.” (page 54)
“The Labour Court has behaved very, very prejudicially towards the Claimant in putting her in the position where she could not give evidence to avoid prejudicing a personal injury case.” (page 55)
“Fair procedures works both ways. We have seen no fair procedures for the Claimant, either by the Respondent or by the Labour Court itself. And, furthermore, the Labour Court has failed to give any reasons for the determinations it made.” (page 55)
For the record, the Court does not accept that it made any determination – prejudicial or otherwise – ‘against the Claimant’. The Court carefully considered the submissions made by both Representatives with regard to the applications made on the Complainant’s behalf at the opening of the second day of the hearing of the within appeal. It endeavoured to explain its reasons for refusing to accede to each of those applications. The Court is not aware of any legal authority that requires it to give elaborate and detailed ex tempore reasons for its decision in relation to such applications that are advanced before it in the course of an ongoing hearing.
Submissions
The reasons for the Complainant’s summary dismissal recited in the letter of dismissal of 2 June 2016 was: “You admitted to engaging in other paid employment whilst on sick leave from the company. This constitutes misconduct which is a serious breach of the Company Code of Conduct.” When asked at the within hearing to explain the basis for her decision to summarily dismiss the Complainant, Ms Powell said: “The reason she was dismissed was because she attended her belly-dancing class while she should have been at work”.
Counsel for the Respondent submitted that the Respondent’s decision was within the reasonable range of responses open to a reasonable employer in the circumstances, having regard to the seriousness of the Complainant’s misconduct: she phoned to say she was sick on 17 May 2016 and would, therefore, be unable to work her shift that day, however, she went ahead and conducted a dance class that same day, knowing she would be paid under the Respondent’s sick pay scheme.
The Complainant’s Solicitor submitted that the entire process – beginning with the back-to-work meeting of 18 May 2016 -that culminated in the Complainant’s summary dismissal was unfair and that the decision to dismiss her pre-determined. Dr Hayes raised concerns about the Complainant’s opportunity to avail herself of effective representation at those meetings, the Respondent’s failure to give the Complainant advance written notification of the meetings and advise her expressly of the nature of those meetings; the Respondent’s neglecting to give the Complainant a copy of its disciplinary policy at any stage in the course of the investigation or disciplinary stages; the Respondent’s oversight in not furnishing the Complainant with a copy of the notes taken at each of the meetings and of the statements prepared by Ms Cowhey and Ms Galvin; the haste with which the Respondent conducted the various stages of the process; and, the severity of the sanction imposed on the Complainant.
Mr Dowling BL (referring to the Supreme Court’s judgment inO’Callaghan -v- The Disciplinary Tribunal[2002] 1 IR 1) submitted there is no right to fair procedures at the inquisitorial stage; the right to fair procedures only kicks in at the disciplinary stage. He also submitted that it is not the case that any breach of fair procedures automatically renders a dismissal unfair. In this regard he referred the Court to the judgment of the High CourtShortt -v- Royal LiverAssurance[2008] IEHC 332 which he submits is authority for the proposition that the test in unfair dismissal cases is whether or not the breach of fair procedures is so fundamental that it impels a fair process. In Mr Dowling’s submission, none of the procedural shortcomings referred to by Dr Hayes vitiated the dismissal or the fairness of the dismissal in the light of “the fairly simple issues” that were being dealt with.
Discussion and Decision
The Court does not accept that the decision referred to by Counsel for the Respondent -O’Callaghan -v- The Disciplinary Tribunal[2002] 1 IR 1 – is authority for the proposition that fair procedures are not applicable at the investigative stage of a disciplinary process. In that case, the applicant unsuccessfully sought to have the decision of a Solicitors’ Disciplinary Tribunal set aside for purported want of fair procedures at the initial stage at which the Tribunal is statutorily required to determine whether or not there is a prima facie case against the applicant that warrants an investigation into alleged misconduct on the part of a solicitor. Both McCracken J in the High Court and Geoghegan J in the Supreme Court held held that the requirements of natural justice had been complied with and dismissed the appeal. Geoghegan J stated:
- “As Barron J. points out [inO'Ceallaigh v. An B�rd Altranais[2000] 4 IR 54] there cannot be hard and fast rules as to procedures. There is therefore no technical requirement upon the Tribunal itself to serve notice and await a reply. If that has already been done and an opportunity has been given for a reply, and better still if there has been some response then provided that the Tribunal knows all this and has the documentation before it the requirements of natural justice have been complied with in accordance with the principles laid down by this Court inO'Ceallaigh. As that is precisely what happened in this case in that the Law Society notified Mr. O'Callaghan of the complaint and gave him the opportunity to respond to it and the correspondence passing between the Law Society and Mr. O'Callaghan was before the Disciplinary Tribunal when they were making their decision as to whether there was aprima faciecase, all the requirements of natural justice were complied with. This ground for judicial review must, therefore, also fail.”
Counsel for the Respondent places considerable weight in his submissions on what he characterises as ‘the test’ in relation to deficiencies in fair procedures at the disciplinary stage identified by Laffoy J inShortt v Royal Liver Assurance Limited [2008] IEHC 332.That being the case, it is appropriate to quote the relevant passage (paragraph 40) from the judgment in full:
- “As is recognised in Industrial Relations Act 1990, Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No. 117/1996), the principles of natural justice “may require … that the employee concerned be allowed to confront or question witnesses.” (Article 11). That is in line with the authorities, which make it clear that, while an employee who is facing a disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee’s employment and the circumstances surrounding the disciplinary action (per Barrington J. inMooney v. An Post[1998] 4 I.R. 288 at p. 298). The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result (per Hamilton C.J. inGallagher v. The Revenue Commissioners (No. 2) [1995] 1 I.R. 55, at p. 76).”
The Complainant in the within appeal, after some initial prevarication, admitted that she attended and conducted her belly-dance class on the evening of 17 May 2016, at a time when she would have been at work but for having called in sick earlier that day. There is no doubt – based on the uncontested evidence before the Court in relation to her sick leave record – that the Complainant knew, or ought to have known, that she would – in the ordinary course – have received full pay in respect of her absence from work, on uncertified sick leave on that date.
The Court, having reviewed the evidence of the Respondent’s witnesses, and having assessed the submissions of both Parties, has formed the view that the procedures followed by the Respondent in arriving at its decision in the Complainant’s case were less than perfect. The Complainant should have been given a copy of the Respondent’s disciplinary policy and procedures at the commencement of the investigation and she should have been advised at the outset that if the alleged misconduct was established, she would be at risk of disciplinary sanction, up to and including dismissal. Arguably, greater efforts should have been made by Ms Powell to encourage the Complainant to seek assistance at least at the disciplinary stage, in the light of the admissions that the Complainant had made at that stage. It would have been preferable had the Complainant been furnished with a copy of the minutes of the various meetings that occurred and of the statements prepared by Ms Cowhey and Ms Galvin. Nevertheless, notwithstanding these shortcomings in the procedure, the Court – applying the reasoning of Laffoy J inShortt v Royal Liver Assurance Limited [2008] IEHC 332finds that the deficiencies in the Respondent’s procedures were not of such gravity as to imperil the fairness of the process. From a factual perspective, there was nothing complicated at issue: the Complainant had admitted that she had both attended and taught the dance class having first denied that she had done so.
Determination
For the reasons stated above, appeal under the 1977 Act fails. The appeal under the 1973 Act, accordingly, also fails. In respect of both appeals, the decision of the Adjudication Officer is upheld.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
14 January, 2020Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.