FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CONNEMARA MARBLE INDUSTRIES LTD (REPRESENTED BY LAUREN TENNYSON B.L., INSTRUCTED BY DWF SOLICITORS) - AND - ANNE MARIE LALLY DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision no ADJ-00006469. Ms. Lally, ‘the Complainant’, is an equal shareholder with her five siblings of Connemara Marble Industries Ltd., ‘the Respondent’, two of whom, Mr. Ambrose Joyce and Ms. Grace Keating, are directors of the company. The Complainant was also an employee. There is dispute between the parties as to when she commenced her employment but this is of no significance to the case. Her duties included some book keeping, sales manager, café manager and tour guide. On 17 October 2016, in disputed circumstances, the Complainant had a verbal altercation with her sister, Ms. Grace Keating, a director of the company. While the exact words used are in dispute, the Complainant believed that she was dismissed from her employment, as a result. On 19 October 2016, the Complainant had a verbal altercation with her brother, Mr. Ambrose Joyce, the Managing Director of the company. Again, some of the circumstances are in dispute but it is common cause between both parties that the Complainant was told that she was being dismissed from her employment. There were various inter-actions between representatives of the parties in subsequent weeks seeking to have the issues resolved. On 16 November 2016, the Complainant was issued with her P45. The Complainant lodged a claim with the Workplace Relations Commission under the Acts. The Adjudication Officer, ‘AO’, found that the Complainant had been dismissed unfairly, that the dismissal was devoid of process and that no reason was provided. In assessing an appropriate level of compensation, the AO stated that the Complainant had, by her behaviour, contributed significantly to her dismissal. Taking that into account, together with efforts made by the Complainant to mitigate her loss, an award of €19,000 compensation was made. The Complainant appealed the level of the award to this Court and the Respondent appealed the AO’s Decision in its entirety. In the submissions received by the Court, both parties dealt extensively with matters that the Court considered to be irrelevant to its consideration of the instant case, including matters related to the ownership of the company and matters that arose subsequent to the dismissal that are not relevant to the dismissal. These matters are not referred to in this Determination. Summary of Respondent arguments On 7 October 2016, Ms. Grace Keating, the company’s Operations Director, was admitted to hospital. When Mr. Joyce, the Managing Director, returned from visiting her, the Complainant said of Ms. Keating, ‘she deserves everything she gets’ and then ‘Grace is a f-----g b---h and has no one else to blame but herself’ and ‘she’ll get what’s coming to her’. She then said ‘I want to be bought out of this f-----g company’. On 17 October 2016, the Complainant was observed by her brother, Mr. Michael Joyce, taking photographs of company accounts on her mobile phone in the office of Mr. Ambrose Joyce, who was not present in the company premises on that day. When asked what she was doing, the Complainant said that ‘I’m copying the company accounts. I found that Grace and Ambrose have stolen €100,000 each out of the company’. She also said ‘Don’t tell Grace and don’t tell Ambrose’ and ‘stick with me and I will get your inheritance’. When Ms. Keating returned to the premises, Mr. Joyce informed her of what he had seen. Ms. Keating, in the presence of Mr. Michael Joyce, confronted the Complainant, who repeated the allegation that Ms. Keating and Mr. Ambrose Joyce were stealing from the company, that they were corrupt and that they would ‘be going to jail’. She claimed that the documents she had photographed were proof that Ms. Keating was stealing. When Ms. Keating told her that she could not be ‘doing that’, the Complainant stated that ‘I can do what I want, I am a director’, to which Ms. Keating responded by pointing out that the Complainant was not a director but that she, Ms. Keating, was a director. As the Complainant moved to leave, Ms. Keating said ‘if you walk through that door, don’t come back’. As she was leaving, the Complainant shouted ‘You’re going down, down, down, you’re going to jail. On 19 October 2016, the Complainant returned to the work premises. In the company shop, she showed her sister, Ms. Tessie Joyce, a page from the company accounts and said to her sister ‘choose your side and you better pick the right side’. She also said, ‘Grace is going to be removed as executor of the will’ and that Grace ‘has been delaying the will to facilitate their theft’. Ms. Joyce telephoned Mr. Ambrose Joyce. As he approached the Complainant in the shop, she became abusive and waved a one page document at him, alleging that he was stealing from the company and that he was paying himself and Ms. Keating substantial bonuses. Mr. Joyce recognised the document as a part of the company’s 2015 accounts, one section of which dealt with ‘Directors’ remuneration’. He tried to explain that the figure she was referring to related to the salaries of the then three directors. Mr. Joyce, Ms. Keating and their late father, Mr. Ambrose Joyce Sr., who died in 2015. Mr. Joyce said ‘I swear to you on our parents’ graves that the figures you have there are directors’ salaries. You’re totally wrong’. The Complainant told Mr. Joyce that he would be ‘going to jail’ and that she was ‘going to destroy him’. A CIE tour was expected to arrive at the premises and Mr. Joyce told the Complainant to leave. In the heat of the moment, Mr. Joyce terminated the Complainant’s employment. Some moments later, Mr. Joyce witnessed the Complainant re-attend the shop for about 5 minutes then leave. When he re-attended the shop, Ms. Tessie Joyce told him that the Complainant had gone into his office. When he went into his office, he noticed that his wages of €600 cash were missing. In truth, both Mr. Joyce and Ms. Keating envisaged that Ms. Lally would return to her employment once matters had calmed down and Ms. Lally had her own space to reflect on her mistake. Following correspondence from the Complainant and another sibling, the company’s accountant wrote to them both on 27 October 2016 and clarified that ‘the Directors’ remuneration as per the Financial Statements for the year ended 30 November 2015 of €95,612, (and €94,738 for 2014), was the cumulative total of Director salaries and bonuses for all three serving Directors in those periods’. On 31 October 2016, the company also responded to the Complainant’s letter disputing the allegations made by her. Ms. Keating was on sick leave from 31 October 2016 to 5 December 2016. Due to her absence and because of the situation, Mr. Ambrose Joyce cut short his annual leave and returned home early from abroad on 11 November 2016. On that day, a letter from the Complainant’s solicitor was received suggesting mediation and Mr. Joyce was happy to agree as he believed it would result in Ms. Lally returning to work. Paradoxically, on 14 November 2016, Mr. Joyce was advised by the company’s accountant that the Complainant wanted her P45. On that same day, the Complainant’s husband visited the company premises and demanded the P45 and there was a heated altercation, witnessed by Ms. Tessie Joyce. On the following day Mr. Joyce received an abusive text message from the Complainant’s husband containing a picture of the Complainant at the office of the Revenue Commissioners. As it became clear to Mr. Joyce that the Complainant did not wish to return to work, she was provided with her P45 on 16 November 2016. In March and April 2017, there was correspondence between the solicitors for the parties regarding a missing record book. The Complainant’s solicitor stated that his client ‘did not take any company property’, which the Respondent finds surprising and not credible, given the events of 17 and 19 October 2016. It was at all times envisaged that the Complainant would return to work as Mr. Joyce had explained her error and this had been clarified by the company accountant. It was not unusual in a business with 6 siblings working alongside each other for disagreements to arise and then, days later, matters would calm down. However, unfortunately, as matters unfolded, it became apparent that the Complainant did not wish to return to work. It is submitted that the Complainant’s actions on 17 and 19 October constituted gross misconduct. She made outrageous and untrue allegations against directors of the company and spoke in an aggressive manner in earshot of other staff and customers. As per s.6(4) (b) of the Acts, conduct is permissible as a reason for dismissal. Furthermore, the Complainant left the Respondent with no choice but to issue her P45, which was issued at her request. Without prejudice to the above, the Respondent relies on s.7 (2)(f) of the Acts, which requires the Court, if it is determining an amount of compensation to be payable arising from a dismissal, to take account of the extent to which the conduct of the employee contributed to the dismissal. The AO acknowledged that the Complainant had contributed significantly to her dismissal but had overlooked this finding in making his award. In addition, the Complainant has not made a reasonable effort to mitigate her loss and the Court must take this into account, as per s. 7(2)(c) of the Acts. In Sheehan v. Continental Administration Company Ltd. the Employment Appeals Tribunal set out that the time that a claimant has on his hands is not his own but should be used profitably in seeking to mitigate loss. Summary of Complainant’s arguments As the Will of her late father has not been executed by the Executor, Ms. Grace Keating, the Complainant has been relying on the directors of the company to run it properly and to protect the interests of all the shareholders. Two weeks prior to her dismissal, the Complainant asked Ms. Keating how much the company was worth? She got a reply to say that Ms. Keating was not an accountant but there was plenty of assets. This rang alarm bells as the Complainant was aware that there was approximately €350,000 in the current account and €150,000 in the fixed term account when she last saw the accounts while her father was alive. Her sister, Ms. Frances Murphy, got a vulgar response when she raised a similar query with Mr. Joyce. In the company, each pay station had two tills, only one of which was declared to the Revenue Commissioners. The Complainant noticed that Ms. Keating would clear the non-declared cash tills many times throughout the day and put the money in her jacket pocket. This money was normally in a bag under the table in the office but the Complainant had noticed that there was very little money in the bag. After this, the Complainant noticed that she was being isolated by the directors and that then turned to graphic abuse. On one occasion, Mr. Joyce had said that ‘She was nothing but a f-----g c--t’. When she reported this to Ms. Keating and Ms. Tessie Joyce, it was ignored. When Ms. Murphy raised his behaviour with Mr. Joyce, he said ‘Anne-Marie would not want to bite off the hand that feeds her’. After this, the Complainant was given a heavier workload but she noticed that Ms. Keating had taken on the task of adding monthly lodgements, something that the Complainant had done previously. The Complainant had a heated discussion with Mr. Joyce regarding €15 per week being withheld from Ms. Frances Murphy because, as Mr. Joyce said, ‘to keep up the company’. The Complainant began to feel that she was being squeezed out of the company. On 9 October 2016, Mr. Joyce had glared at her in an intimidating manner. The Complainant sought and got some outside advice regarding the company accounts. This advice was to the effect that it appeared the directors had paid themselves large remuneration that would need to be addressed with them in light of no AGM being called. The Complainant denies receiving the claimed letter from the company’s accountant, subsequent to her dismissal, regarding her concerns. On 17 October 2016, the Complainant went into the office to check and document the lodgements for her own record as she realised she was in the dark since her father’s death. Her brother, Mr. Michael Joyce, came in and she informed him of her concerns regarding the finances of the company. She asked him to give her 24 hours and she would call a family meeting. The Complainant asked him to trust her and promised that he would get his equal share of the business as their father had intended. He agreed initially but within minutes he returned and shouted at her that she would ruin the business. Following a discussion between Mr. Michael Joyce and Ms. Grace Keating, the latter came running over to the shop, spilling the contents of her bag, and demanded of the Complainant to explain what she was doing in the office. The Complainant replied that she had full access to the office. When told that she could not take photographs of the lodgements, the Complainant told Ms. Keating that she could not take €90,000 in directors’ remuneration. Ms. Keating was highly agitated and she told the Complainant to ‘get out and get herself a good Solicitor’ and to ‘get out and never come back’. The Complainant was shocked and left but returned to say ‘I am a shareholder, dad left me equal to you, you can’t just fire me. I have done nothing wrong, I can come and go out of the shop I please’. Ms. Keating responded by screaming ‘I am a director, you are nothing but an employee’ and ‘you are fired, you are fired, get out’. The Complainant left and, as she walked away, she remarked that what the Directors were doing could result in Ms. Keating going to jail. The next day, the Complainant’s solicitor advised her to return to work the following day, as Ms. Keating would have calmed down. When she reported for work the next day, the Complainant showed her sister, Ms. Tessie Joyce, the financial statements that she had downloaded from the Companies’ Registration Office. She outlined her concerns and the fact that that every time she sought the €50 cash ‘grinds money’ for her children’s education each week, she was told that it might not be there, which surprised her as Ms. Keating was constantly emptying the non declared cash tills. She also raised issues about Ms. Keating’s non execution of their late father’s Will. Her sister reacted angrily and the Complainant advised her to choose her side carefully. Mr. Ambrose Joyce approached the Complainant after this. He told her that she was ‘crazy’ and swore on their parents’ grave that she was wrong. He told the Complainant that she had a low IQ and that the whole town would laugh at her if they could hear what she was saying. The Complainant said that she would apologise if she was wrong but that she was getting her solicitor to request the accounting books. Mr. Joyce lost control and told her that she was fired. When she asked ‘why?’, Mr. Joyce replied ‘for being a bully’. He screamed at her and told her that she would not see a penny for two years. The Complainant went into the office and took her wages of €550. In hindsight, she realises that, legally, she should not have done this but in a business where non declared cash tills were being monitored by the directors and other shareholders had no inkling of where the money was going, she felt that this was not the worst crime in the company. The following day when the Complainant handed Mr. Joyce a letter from her sister and herself seeking access to the accounts, he made a cleaning gesture with it on his bum. Subsequent contact from the Complainant’s husband to the husband of Grace Keating, in an attempt to resolve the issues, led to a heated exchange followed by an email from the Complainant’s husband saying that ‘we’ would also be looking for all cash takings in the last 15 months. After nearly six weeks, the Complainant spoke to the company’s accountant to seek her P45 as she needed to apply for Jobseekers’ Benefit. The accountant rang back and told her that Mr. Ambrose Joyce had told him to tell her to write to him about it. The Complainant’s husband called to the company but Mr. Joyce refused to give him the P45. She was advised by the Department of Social Welfare to contact Revenue as it was an offence to withhold a P45. To avoid exposing the company, rather than pursue Revenue, her husband sent a photograph of her in the Revenue office to Mr. Joyce. She received her P45 the next day with a Compliments slip, which had a smiley face on it. This led her husband to send an abusive text to Mr. Joyce. This included a list of driver/guide names and the amount of commission that they were to be paid that the Complainant had in her possession and that she had been intending to shred but which had been mislaid and then found. In communications with the Complainant’s accountant, the latter observed that the company’s 2014 accounts show the forged signature of the Complainant’s father after his passing. The Complainant was dismissed for querying the company’s financial statements. In Hennessy v. Read and Write Shop Ltd, UD 192/1978, the Employment Appeals Tribunal had said that regard had to be had to the nature and extent of an enquiry by the employer prior to dismissal and the employer’s conclusion following such enquiry. The Court’s function is to decide if the employer acted within a band of reasonableness. In this case there were no grounds for dismissal and no procedures. In Bunyan v United Dominions Trust (1982) IRLM 404,the Tribunal stated that its function was to test the decision to dismiss against what it considered a reasonable employer would have done/or concluded. In addition, s.6(6) of the Acts requires that dismissal must be wholly or mainly due to one of the matters specified in subsection 4 of that section and his means that employers are put on strict proof of this. The Complainant contends that both of her dismissals were unfair. As a shareholder, her queries regarding the company’s finance were reasonable and she does not accept the reason given that she was a bully. It is long established that employers must comply with fair procedures in employment law-see Glover v BLN Ltd. (1973) IR 388 and Khan v HSE (2009) ELR 178. Section 6,7,(b), of the Acts provides that regard may be had by the Court to the extent of compliance by an employer by procedures in the Acts or the provisions of any code of practice. It is clear that the Respondent actions on 17 and 19 October 2016 were devoid of fair procedure and/or natural justice and in breach of S.I. No. 146/2000. Response of Respondent to serious allegations In response to a number of serious allegations made by the Complainant, the Respondent replied, as follows -The Respondent refutes the Complainant’s allegations regarding the handling of cash by Ms. Keating and notes that these allegations were not made before the AO, thus undermining the Complainant’s credibility. -The Respondent refutes also the characterisation by the Complainant of conversations between her and Mr. Joyce and Ms. Keating regarding how the business was doing. -The Respondent states that pay-slips were given to all employees. -€15 per week was not withheld from Ms. Frances Murphy to ‘keep up’ the company. The claim is preposterous. -Mr. Joyce has no recollection of glaring at the Complainant on 9 October 2016 and, again, this is the first time that such an allegation has been made. -Mr. Joyce denies an incident alleged in which he was said to have made a cleaning gesture on his bum with a letter given to him by the Complainant. -The Respondent denies that a complimentary slip with a smiley face was sent to the Complainant with her P45. -It is not true that there were six cash registers and it is a fabrication to say that there were non declared tills. Again, this is the first time that such an allegation has been made. -The Respondent denies allegations of forgery. Witness evidence For the Respondent Mr. Ambrose Joyce Mr. Joyce explained that he was Managing Director of the Respondent, which employed up to 23 people at the height of the season, including five siblings and himself. He said that he first became aware of a problem with the Complainant on 7 October 2016 when she made remarks about his other sister, Ms. Grace Keating, as outlined in the Respondent’s submission. The witness was at his son’s graduation on 17 October 2016 and did not witness the incident with his two sisters that day. On 19 October 2016, the witness received a call from his sister, Ms. Tessie Joyce, to tell him that the Complainant was in the shop and was very irate, claiming that the witness and Ms. Keating were stealing. When he approached the Complainant, who was dressed casually rather in her formal work clothes, she waved a piece of paper at him, accused him of theft and told him that he was ‘going down’. He recognised the document as a page from the 2015 accounts dealing with Directors’ remuneration. She accused him of receiving large bonuses. He swore to her on his parents’ grave that she was wrong. She claimed that she had the photographs as evidence. He told her that she had no right to take such photographs. She was shouting at him in front of staff and customers. He panicked as a CIE tour was arriving and, in his panicked attempts to get her off the premises, he told her that she was fired and told her that this was because she was a bully. He saw her go into his office and he discovered subsequently that his wages had been stolen. The witness said that he was under pressure when he reacted as he did. He said that he had not wanted to fire his sister. He discussed the situation subsequently with his sister and fellow director, Ms. Grace Keating. He hoped to resolve the issues with the Complainant, after he had the company accountant confirm to her that her interpretation of the accounts was incorrect. As he was going on holidays a few days later, he asked Ms. Keating to try to resolve the matter in his absence. However, while he was on holidays abroad, Ms. Keating had to go into hospital. He returned early from his holidays in order to try to resolve matters. The witness spoke to a conflict management company. They advised that an investigation would be required and he was agreeable to bringing in some body to do this. However, the Complainant then sought her P45. He was reluctant to give this, as he believed that it should have been possible to resolve the outstanding issues but, after seeking the request in writing initially, his accountant advised him that he had to give the P45. In his view, the Complainant left her job of her own free will. Note: When the Court sought clarity on this point, the Respondent’s representative made clear that it was not the Respondent’s case that this was a constructive dismissal. The witness stated that he used 17 October 2016 as the cessation date for the P45, as this was the Complainant’s last day in work. The witness disputed the Complainant’s claim to entitlement to access all books. He stated that she had access to the cheque book and the VAT book but that lodgements were handled by his father and, after his passing, by Ms. Keating and he noted that the Complainant’s writing appeared in the lodgement book only twice in 2015. The witness denied that the Complainant received €100 per week in cash, in addition to her wages. He stated that the Complainant’s wages in her final year were a total of €31,500 consisting of €550 per week and two bonuses. The witness denied that he had sent the Complainant her P45 with a complimentary slip containing a smiley face. In response to questions under cross examination, the witness stated that he believed the Complainant to have a short fuse and that she had been, on occasion, aggressive at work. He said that he did not believe that he had a short fuse. In response to suggestions that the company accounts did not add up, the witness said that the accountant had confirmed to the Complainant that her view regarding the matters raised by her was incorrect. The witness accepted, in response to a question from the Court, that the lack of process in the dismissal of the Complainant on 19 October 2016 was not fair and reasonable and reiterated that he wished to resolve the matter amicably afterwards. As he was going on holidays, he said that Ms. Keating was agreeable to speak to the Complainant. He felt that it was more rational to get the accountant to clarify the situation in advance of this discussion. The witness denied that the Complainant received an extra €3000 in cash bonuses, that she received cash payments for her children’s education and he reiterated that it was untrue that she received €100 per week in cash in addition to her wages. Ms. Grace Keating Ms. Keating explained that she is a director of the company. The witness said that the 6 family shareholders met informally about once a month to discuss the business. She denied that the company operated non declared cash tills and explained that there were four such tills, one of which took credit cards only. She noted that relatively few payments were in cash. The witness stated that her late father had always written up the lodgement book and that she had taken on this task after his death. She noted that the Complainant’s writing only appeared on 2 pages of this book in the year that their father died. The witness stated that on 17 October 2016, her brother Michael drew her attention to the fact that the Complainant was photographing accounts in the office. She was shocked and she approached the Complainant. She told the Complainant that she was not permitted to do what she was doing. The Complainant shouted at her and accused her of stealing. She told the witness to ‘walk out the door and don’t come back’ and what she meant was that she should not return until she had cooled down. The witness denied that she had told the Complainant to ‘get out and get a good solicitor’ or that she had said ‘you are fired’. The witness explained that she was wearing a heart monitor, having recently returned from hospital, and that the hospital contacted her at this point to advise that her heart was dangerously out of control. The witness denied that the Complainant was paid €50 per week ‘grind money’ for her children’s education. The witness stated that she discovered subsequently that the attendance book was missing. Under cross examination, the witness accepted that the Complainant had been an excellent worker. The witness denied that she was aware that Mr. Ambrose Joyce had called the Complainant a ‘f-----g c—t’. She also denied ever having said to the Complainant that things would change now that their father was dead. The witness reiterated her earlier evidence regarding the lodgement book. The witness confirmed that, until these events, the Complainant and herself had a close relationship. In response to questions from the Court, the witness said that she did not believe that she had dismissed the Complainant but she accepted, when it was put to her, that most people would regard the words ‘don’t come back’ as amounting to a final dismissal. When asked if she considered the Complainant’s actions to amount to a sackable offence, she accepted that the company at the time did not have a written manual for employees. On re-direct, the witness stated that the Complainant was not entitled to unfettered access to the company’s books. The Complainant Ms. Anne-Marie Lally, ‘the Complainant’, confirmed her submission as evidence. Under cross examination, she reiterated her assertion that she received €100 cash per week in addition to her wages. In response to a number of questions about assertions in the submission to the Court that were not referred to earlier in proceedings, the witness explained that she had since taken on her own self representation. The witnesses reiterated her accounts of the incidents in which Mr. Ambrose Joyce had called her a ‘f-----g c—t’ and when she had witnessed Ms. Keating putting money into her pocket. She denied ever saying that she wished to be bought out of the company. The witness said that it was 15 months before she really took note of the fact that Ms. Keating had taken over writing up the lodgement book. She felt that this was due to the fact that she was grieving her father’s death. The witness explained that the context of remarks about her sister, Ms. Keating, deserving what she gets was the contribution of Ms. Keating’s life style to her ill health and, she stated, that Mr. Ambrose Joyce had agreed with her. In relation to her reported remarks that Ms. Keating was a ‘f---g b---h’, what she had said was that Ms. Keating was a ‘f-----g b---h’ to their sister, Frances and she reiterated that €15 per week due to her sister, Frances, had been withheld from her. The witness said that she had formed the view that Mr. Ambrose Joyce and Ms. Keating viewed the rest of the siblings as disposable but that she felt she could not say anything. The witness did acknowledge that when her husband lost his job, Mr. Ambrose Joyce had given her father’s car to her husband and that her wages had been increased by €100 per week. However, she believed that the evidence she found showed that the two directors had taken ‘€100,000’ from the company. The witness said that she was entitled to be suspicious and that she knew that Mr. Michael Joyce was watching her on 17 October 2016 when she took photographs of the accounts. She did not accept that she over-reacted. She said that she was shocked rather than angry. On 19 October 2016 she had shared her concerns with Ms. Tessie Joyce. At that point, she no longer trusted the two directors, who, in her view, did not see the other siblings as equals. She did not make an accusation, as she would never accuse a family member, but she wanted a sit down meeting of shareholders to clarify what was happening. The witness denied that that there were tourists present on 19 October 2016 when she had a verbal altercation with Mr. Ambrose Joyce. When it was put to her that Mr. Joyce was under pressure due to the imminent arrival of a CIE tour, the witness stated that he was under pressure because of the accounts. She denied that he asked her to leave the premises before telling her that she was fired. She explained that she was owed her wages and that she took them in cash before departing. When she was asked if she accepted that this was wrong, the witness said ‘no’ as four years later, she had still not received a penny. She denied that she had taken €600 and said that she had taken her weekly wages of €550. The witness said that she had never received pay-slips. In response to questions regarding her subsequent attempts to mitigate her losses, the witness said that she had made many efforts to enquire informally in businesses around Galway about possible employment but that her age and lack of qualifications were a problem. She had secured work in a concession in a major retail company in March 2017 for one day per week and that, although her contract expired in July 2017, she was kept on by the shop until the end of October 2017. She earned €13 per hour for 7.5 hours per week. The witness gave the Court copies of correspondence with various employments regarding her stated wish to secure employment. Under questioning from the Court, the witness acknowledged that she had only produced 13 applications as evidence of looking for work since her dismissal but she reiterated that she had made numerous informal enquiries. The witness said that she had been forced to leave the major retail company because they wanted her to work Saturdays and she had started a course on Saturdays. The witness said that her husband had started a chauffeur tour business but until June 2019, they only had one car and it was not until the business acquired a second car then that she was able to work and generate an income from the business. She estimated that she earned about €1500 from the business in 2019. The Law Unfair Dismissals Acts Definitions “dismissal”, in relation to an employee, means— ( a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, ( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or ( c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose; “ employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative; S.6 4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(c) the redundancy of the employee, and
7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:
Deliberation and Determination Despite the extent of witness evidence given and the fact that this case is characterised by claims and counter claims alleging misbehaviour by the other party, there is relatively little disagreement between the parties on the facts that preceded the dismissal of the Complainant. The Complainant as a shareholder had concerns regarding the accounts of the company. The concerns generated vehement denials of wrong-doing by the directors, Mr. Ambrose Joyce and Ms. Grace Keating. While the Court notes that these vehement denials appear to have been supported in the correspondence to the Complainant from the company’s accountants, it is not for this Court to reach any determination on the substance of the issues raised by the Complainant with her siblings who are directors of the company. It is not disputed that the concerns were raised and that, as a result, there were verbal altercations that resulted in dismissal. The issue for this Court is, simply, given the facts, to determine if the dismissal was unfair or whether the Complainant’s conduct was such that the dismissal was justified, as provided for in s.6, (4), (b), set out above. A curiosity of the case is that the Complainant seems to have been dismissed on two, separate, occasions and, in respect of both, the person who dismissed her appears to believe that they did not do so, yet the Complainant was subsequently issued with her P45 and it was not argued for the Respondent that this was a case of Constructive Dismissal. In the hearing, the Respondent’s representative accepted that dismissal had occurred. The date given on the P45 was 17 October 2016, the date of the Complainant’s altercation with Ms. Keating and the explanation offered by Mr. Joyce was that this was the actual last day that the Complainant worked for the Respondent. It can scarcely be disputed that, as a shareholder, the Complainant had an interest in the company’s financial affairs. While the Respondent makes the point, and it is accepted by the Court, that shareholders do not have a right to enter a company’s office and to photograph documents there, the issue for the Court in respect of the incident between the Complainant and Ms. Keating is to determine whether it warranted the dismissal of the Complainant. It is not argued by the Respondent that there was an investigation of the Complainant’s behaviour or that there was any sort of disciplinary process, as recommended in the Code of Practice set out in S.I. 146/2000. If, as the Respondent accepts, the dismissal of the Complainant occurred on that day, then the sole justification that can be offered within the terms of the Acts is that the Complainant’s conduct was so unacceptable that summary dismissal was justified. The Court accepts that circumstances were far from ideal for any sort of rational discussion about the Complainant’s concerns to take place when Ms. Keating heard that the Complainant had gone into the office, accessed company documents and started to photograph them. While there are some differences as to the exact words exchanged between the two sisters, there is little doubt that the Complainant felt justified in adopting an accusatory tone and that Ms. Keating was outraged to be the subject of such accusations. It goes without saying that, in such circumstances, it would have been better if both parties had paused and taken stock. The circumstances, in which neither was prepared to do so, led inevitably to a strong and angry exchange of words. It was in that state of anger that Ms. Keating dismissed the Complainant. She may or may not have said that the Complainant was ‘fired’. The dispute about that word is irrelevant. Ms. Keating accepted in evidence, to her credit, that a director telling an employee to leave and not to come back would be interpreted by most employees as having the meaning that they were being dismissed. In the Complainant’s submission, a case cited is that of Bunyan v. United Dominions Trust (1982) IRLM 404, in which the Employment Appeals Tribunal re-stated the well established principle that ‘..fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.’ Numerous other examples of case law applying this principle can be cited but it is not necessary to labour the point. The only question, therefore, is whether a reasonable employer would have dismissed the Complainant in the circumstances? It seems clear to the Court that Ms. Keating acted in the heat of the moment. It is axiomatic that people are considerably less reasonable when angry and that, had Ms. Keating taken time to reflect, it is most likely that she would not have dismissed the Complainant on that, rather fraught, occasion. It follows, therefore, that the Respondent’s actions were not reasonable and that the dismissal is unfair and contrary to the provisions of the Acts. It could be argued that, as the Court accepts that an unfair dismissal occurred on 17 October 2016, it is not necessary to review the events of 19 October 2016. However, even if Ms. Keating, on reflection, had acted to rescind her dismissal of the Complainant, the events of 19 October 2016 made that less likely or even, arguably, less possible. The conclusion of the Court regarding the incident of 19 October 2016 is consistent with its view of the earlier incident and dismissal. Mr. Joyce acted in anger in telling the Complainant that she was dismissed. The fact that a confrontation was happening just before the arrival of a tour may very well have increased his sense of pressure but it does not justify a summary dismissal. Again, the circumstances were fraught and the feelings of both parties were running high. Such circumstances are rarely conducive to reasoned and rational decision-making. The Court accepts that the dismissal occurred on 17 October 2016 but, insofar as there was still a possibility of some sort of reconciliation between the parties, that was, at the very least, made much more difficult by the incident on 19 October 2016 which, in effect, copper-fastened the earlier decision. It is to Mr. Joyce’s credit that he accepted, albeit belatedly, when in evidence at the hearing, that telling the Complainant that she was dismissed, in the circumstances of that confrontation between them, was not fair and reasonable. It goes without saying that it is a great pity for all parties that he did not come to act on that acceptance in the immediate aftermath rather than so much later. Any possibility of reconciliation between the parties to this case has long since receded. While noting that this situation has particular pathos as the parties are siblings, the Court also has to have regard to this level of mutual hostility in determining a remedy to the unfair dismissal. The Court is of the view that remedies of re-instatement or re-engagement would have the potential to be harmful to the interests of both parties. Therefore, the Court believes that compensation is the only appropriate remedy. In determining an appropriate level of compensation, the Court is required to take account of the extent to which the dismissal is attributable to the Complainant’s actions. The Complainant, for her part, advised the Court that she did not believe she had contributed in any way to her dismissal. The Court does not believe that such a contention is supported by the facts, as outlined above, regarding the events that resulted in the dismissal on 17 October 2016. The confrontation between the Complainant on 19 October 2016, as noted above, copper-fastened a decision that could still at that point have been undone. It is to the Complainant’s credit that in the exchange with Mr. Joyce on that day she showed the humility to admit the possibility that she could be wrong. It is a great shame that all parties to these proceedings did not show more such humility and restraint. However, the fact remains that the Complainant’s actions on that occasion contributed to an exacerbation of the conflict. The other factor that the Court must take into account in determining compensation is the extent to which the Complainant sought to mitigate her losses. From the time of her dismissal to June 2019, the only job secured by her was for one day per week from March 2017 to October 2017. In a period of significant growth in employment opportunities, this is difficult to understand. While the Complainant noted that she had made many informal enquiries in that time, the only actual evidence of active job seeking in that period produced to the Court were 13 written job applications. As the Respondent pointed out, the level of requirement on a dismissed employee to seek alternative employment is very significant and was put very well by the Employment Appeals Tribunal in Sheehan v. Continental Administration Company Ltd., when the Tribunal noted that ‘The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’. Against that requirement, the evidence offered to the Court of the Complainant’s attempts to find work falls way short of what is set out. Taking all of these factors into account, the Court determines that compensation of €23,500 is payable to the Complainant for her unfair dismissal. The decision of the Adjudication Officer is varied accordingly.
NOTE Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary. |
