Complainant

Respondent

Anonymised Parties

An Operations Director

A Limited Company

Representatives

Michael O'Neill M. ONeill & Co

David Montgomery Thomas Montgomery & Son

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-00032485-001

26/11/2019

The complainant was the Operations Director for the respondent. She commenced working there are approximately 26 years ago. She had never worked anywhere before that. Originally the business was a small bar. Over the years it grew into a large business, running bars, a hotel and spas, apartments and restaurants.

The complainant met the owner Mr C approximately 31 years ago. They were in a relationship for approximately 10 years. After the relationship had ended, they remained best friends. Mr C is the godfather to the complainant’s only daughter.

For the first 10 years approximately, Mr C and the complainant ran the business together. His brother did get involved with the business for a period of time when the hotel was being built.

In more recent years the business acquired several premises in salubrious areas of the northside of Dublin. The complainant was involved in the purchase, setting up of and running of those new businesses. She was also the interior designer in relation to the apartments that had been purchased and she carried out the interior design of Mr. C’s private home in Foxrock.

March 2018 was quite a difficult month. There were a number of serious matters that needed to be addressed. There where public objections in relation to one of the businesses on the North side and they were over budget on the project. However, when the business did open, it went very well for a period of time but then the revenue started to drop. The complainant felt that this was quite normal for a new business and wasn't worried about it. Mr C got very annoyed and demanded an explanation from her. The complainant together with Mr C's son Mr C Jr stated that they would monitor the situation very closely for a period of 3-weeks and would then report back to Mr C Sr. Approximately one week later, Mr C Sr came to see the complainant. She immediately knew he was in bad form. He stated that he wanted to talk to her and offered to take her out for a coffee or lunch. They got into his car and drove to a park nearby. He got extremely angry and aggressive with her and said "I thought you were going to fucking report to me daily." The complainant explained that the agreement they had come to was that she and Mr C Jr would analyse the situation for a period of three weeks and then would report back to Mr C Sr. He said “what are you fucking going to do about it. We have spent so much fucking money on this place, what are you going to fucking do about it?" He was approximately 2 inches in front of the complainant’s face when he was shouting and swearing at her. The complainant said that they needed a new General Manager and that she felt that she needed a holiday. She was exhausted after the purchase renovation and set up of the new businesses. Mr C Sr responded by saying “well you can fucking go now, get the fuck out of here. Get the fuck out of my car now.” The complainant became terribly upset.

Following that incident, she decided to take a holiday, as she needed a break. Whilst on holidays she called a guest who had an upcoming event in one of their venues. The person who was holding the event was well known to her and he expressed surprised when the complainant called him as he stated that he had been told she has left. The complainant assured him that she had not. When the complainant got back from her holidays, she went into the business in Temple Bar. She called a colleague Ms. YK. She didn't answer the call. She then called Mr C Jr, he didn't answer the call. Nobody was answering her calls. The complainant then met Mr C Sr in a coffee shop nearby. He told her that she would not be needed in one of the businesses (hereinafter referred to as CB) on the north side as he was getting a new General Manager. She was to concentrate on a different business in the north side (hereinafter referred to as S). He stated that he wanted the revenue increased by € 1 million next year. He then went on to say that the complainant was “passed it” and had “lost her grip on everything” and “at your age you should be taking it easier”. The complainant got very upset. She stated that because she had built the CB business from the ground up, she wanted to work an exit strategy.

Earlier that year, in around June, the complainant had a conversation with Mr C Sr. She asked him if he was happy with what she had done in relation to the northside businesses CB and S. At that stage her salary was €52,000 gross per annum together with a car and €10,000 paid in cash. She stated that she was due a pay rise. The respondent said that he would pay her an extra €250 cash per week. The day that the complainant and Mr C sr met in the coffee shop, referred to above, he told her that the increase in her salary of €250 per week cash “was gone”. He said from then on, the complainant would only be involved with the pub and hotel situated near Temple Bar and in the S business. On Monday the 1st of November 2018 the complainant went to the CB business for the handover. When she arrived the staff all looked shocked to see her. The night before Ms YK had told her that Mr C Sr had told herself and Mr C Jr not to take any of her calls. She said that the day the complainant had tried to call them, she was in the office with Mr C Jr and they both watched their phones ringing, and listened to the landline ringing, knowing it was the complainant, but they couldn't answer the call after receiving instructions from Mr C SR not to.

A few days later the complainant met with Mr C Sr again in a restaurant in Foxrock. He was extremely angry. He told the complainant to “fuck your exit strategy” that there was a new general manager starting in the business soon and she should just stay away from now on. He also said that if it ever came to making a decision between her and his son, blood was thicker than water, and he would always opt for his son.

The complainant left that meeting extremely distressed. She was so distressed, that when she pulled up into a petrol station, she put petrol and not diesel into her car as she couldn't think straight. Then as the week's went on everyone involved in the business stopped communicating with her. She wasn't getting any of the weekly figures, she wasn't getting calls from suppliers, she wasn't getting calls from staff members she was being completely cut out of the business. The complainant decided to write a personal email to Mr C Sr.   That email set out how she felt   about everything that was happening. She told him in that e-mail that she felt at this stage she had no option but to lodge a complaint with the WRC.

Then she received a call from a colleague in the industry asking why she had employed the new GM Mr xx. He told her that Mr xx was in fact a friend of his but that if left to its own devices he would run the business into the ground in no time. Despite everything that had happened the complainant felt it was her duty to inform Mr C Sr of this fact. She called him and imparted the information. He responded by saying that the complainant had “a fucking nerve calling me after the email you just sent”. She told him to speak to the business colleague directly and leave her out of it.

Mr C Sr then contacted her and asked her would she meet him in the Starbucks in Bray. When she arrived, he came right up to her and stood approximately 2 inches in front of her face and in an intimidating fashion said “what are you doing, who the fuck do you think you are”. He stated “you will deeply regret what you have done. You know how I handle litigation, I will hire the best and you should be very careful how you handle this going forward”. Once again, the complainant was left feeling intimidated, vulnerable and deeply distressed.

Then in January the complainant had a row with Mr C senior in front of all the staff. She had approached him and asked him to sign a sponsorship card for a small local team. He started screaming, shouting and swearing at her in front of everyone, so she walked away. He didn't speak to her again until the date he told her he was making her position redundant.

Following that the complainant was told to stay out of the businesses in Temple Bar. At that point she really had nowhere to go and operated her office out of the boot of her car. Both Mr C Sr and his son totally blanked her. Between December 2018 and July 2019 both Mr C Jr and senior made the complainants life extremely difficult. He, Mr C Sr completely ignored her and only responded to essential emails with one word answers like, “ yes, no, proceed”.

In July 2019 the complainant went on holiday. The day she returned, she wasdoing some paperwork sitting at a small table in the bar of one of the businesses. Mr C Sr came into the bar and was all smiles. He sat down beside her and ask her how her holiday was etc. He then said "now group operations director, you're not really that, are you?" He went on to say that they had a new general manager and that they would be making the complainants position redundant. The complainant tried to argue her case and stated that there was no part of the business that she had not worked in, and was not capable of working in and suggested that they make Mr M position redundant. He replied by stating “yes, I can make Mr M redundant and you can do his role, but you won’t be paid what he is paid”. He then went on to say in an aggressive fashion, "you're going". He offered the complainant €30,000 plus her car. He then said, “why would you want all this hassle at your age?”. Isn't this what you want? The complainant asked if she could have 4 weeks to think about it and he laughed and said no she could have one week.

A week later the complainant and the respondent met at a coffee shop in Carrickmines. The first question he asked her was, “are you taking it?” The complainant said no and then he said “you have just wasted my fucking time. We can do this the easy way or the hard way” and then he got up and left.

The complainant was distraught. The next day she wrote him heartfelt email. She felt it was her last chance to get through to him. Within one minute of receiving the email, he called her. He asked if he could meet her. They arrange to meet at a pub in Monkstown. When she arrived, he was waiting to greet her from her car and had already purchased her parking ticket for her. When they sat down in the pub, he spoke fondly about her parents, her siblings, and her daughter, his Godchild child. He then asked her “how many best friends do you have”. He knew that her best friend, who had worked for him, died the previous year. He then said, “I am your best friend now and if you take the redundancy, it will remain that way and I will remain in your daughter's life”. He followed that by saying” I have been to peninsula and I got advice on the matter. I am willing to, and capable of, taking the hit of two years of your salary. You don’t have anything, lawyers are very expensive and I will drag this out for over a year” He then offered her €60,000.00. When the complainant didn't respond he said “what is it going to take to get you to leave. Come on, Humour me, name your price, everyone has a price.” The complainant said €150,000 and explained how she had come to that figure. He said “that's my girl, now look, we're just talking about money”. He then said, “worst case scenario for me is two years and I am willing to take the hit. I am going to fire you tomorrow and you won’t be working out your notice. Give me your phone and your car keys”. She asked how she would get home and he said “I didn't care”.

The following day he contacted her and asked her to meet at another coffee shop. The complainant said that she wasn't going to allow him to fire her in a coffee shop. She would meet him at one of the businesses on the northside. She said that is she was going to be fired she wanted to leave with her head held high. She then asked him if he would bring a letter detailing the redundancy package. When they met at the business on the northside, he brought a proposed settlement agreement with him and a termination letter. The complainant did not sign the proposed settlement agreement. When she did eventually get around to reading the termination letter, it said that she had been terminated because she lacked capacity. That horrified to the complainant.

The complainant has been emotional destroyed due to the treatment she has received at the hands of Mr. C. She sought advice in relation to where she should go from here. She was advised to do a course in I.T. She has no I.T skills. She always had someone to do that for her when she was working for the respondent. She also needs advice on how to deal with the question of how her employment came to an end with the respondent. She has no idea how to answer that question.

She is doing her I.T course at the moment. She did apply for a position but was unsuccessful. She would take up employment if she got offered a job. To date she has not. She is registered with an agency. She feels that she has a lot of work to do on herself, emotionally before she feels secure again. Her confidence has taken a hammering.  

The Unfair Dismissal claim is not contested.

The complainant has failed to mitigate her loss. She is currently doing an I.T course which is two years in duration. It is unfair to expect the respondent to be responsible for the complainant’s loss for that period. It is open to her to get a job in some other area.

The complainant has only applied for one position since her employment with the respondent ended.

The respondent stated that the he wants the car back but acknowledges that the complainant has 5,600 equity in the car having traded in her own car for it.

The respondent stated that the complainant can keep her phone and her phone number.

The respondent is not contesting the unfair dismissal claim. Therefore, the only matter I must concern myself with is that of the appropriate remedy.

           Remedy.

S7(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 rights commissioner, the Tribunal or the Circuit 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) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

Having listened to the complainant’s uncontested evidence, I am fully satisfied that re-instatement or re-engagement are wholly inappropriate remedies in this matter. Compensation is the appropriate remedy.

Mitigation of Loss.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

The complainant puts forward in evidence that having only ever worked for the respondent and never having engaged in any form of training to keep her skills up to date and having been subjected to a prolonged campaign of bullying and intimidation both physical and emotional by Mr C Sr, she is unable to and unfit to enter back into the workforce at present. She has been advised that the circumstances surrounding the termination of her employment, together with her lack of skills, will be a bar to her securing employment.

Having listen very carefully to the complainant’s uncontested evidence I am satisfied that Mr. C Sr took advantage of his personal relationship with the complainant in an attempt to force her out of the respondent company so as to ensure minimal financial impact on the company. He went so far as to use his relationship with the complainant’s daughter to force her to accept a wholly inadequate package to secure her exit from the company. I am satisfied, she was subjected to a prolonged campaign of verbal abuse, stone walling, bullying, intimidation, and emotional manipulation all of which were at the very serious end of the spectrum. She was shouted at, sworn at, emotionally blackmailed, emotionally manipulated, stone walled by her colleagues on the instruction of Mr. C Sr, intimidated by Mr C Sr on countless occasions, bullied into accepting inadequate settlement/ redundancy packages and in the latter months ignored by Mr C Sr and Jr.

I am fully satisfied that it will be some considerable time before the complainant will recover from the treatment she was subjected to at the hands of Mr C Sr and accept that having never worked anywhere else and never having done any courses when she worked for the respondent,   she will need to upskill and work on her interview skills with a view to handling the inevitable question in relation to how her employment ended

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee.

The complainant was totally blameless in relation to her dismissal and there was no action or omission on her part that contributed to her financial loss. She sought professional advice in relation to how she could move forward with her life and secure future employment. She is following that advice.

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and

The complainant is doing everything she is presently capable of doing to make herself employable. She sought professional advice on how to move forward and she is following that advice. She is doing an I.T course in line with the advice she received and is registered with an employment agency. She is hopeful that at some point in the future she will secure employment.

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.

       Section 14 (3) The reference in subsection (1) of this section to a procedure is a reference to a procedure that has been agreed upon by or on behalf of the employer concerned and by the employee concerned or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned, and the references in subsection (2) of this section to an alteration in the said procedure are references to an alteration that has been agreed upon by the employer concerned or a person representing him and by a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing the employee concerned.

No procedures agreed or otherwise, where followed by the respondent. If, which I don’t accept, the respondent had issues with the complainant’s performance or capabilities it was open to him to address those matters either via a PIP, (Performance Improvement Plan) or via the disciplinary process. He did neither. If, which I don’t accept, the respondent was making the complainant’s position redundant, he is obliged to carry out the correct procedures in relation to selection criteria etc. He failed to do so. If, which I don’t accept, the complainant was to be dismissed, the respondent is obliged, at the very least, to follow the most basic of procedures, to ensure the principles of nature justice and fairness are not breached. He failed to do so.

Compensation

Having carefully considered the complainant’s uncontested evidence together with the respondent’s cross examination in relation to mitigation of loss, I am awarding the complainant €104,000.00 (104 weeks salary)

The Unfair Dismissal claim was uncontested. In all the circumstances I am awarding the complainant € 104,000.00 compensation.

Unfair Dismissal. Mitigation of Loss. Bullying. Intimidation, Manipulation.