UDD2031

1.Appeal of Adjudication Officer Decision no. ADJ-00007968 CA-00010645-001

BACKGROUND:

2.The Respondent appealed the Decision of the Adjudication Officer to the Labour Court on 27 July 2018. This appeal was made in accordance with Section 8A of the Unfair Dismissals Acts, 1977 to 2015. A Labour Court hearing took place on 11 June 2019, 3 and 4 September 2020. The following is the Determination of the Court:-

DETERMINATION:

This is an appeal by Connemara Marble Industries Limited against the decision of an Adjudication Officer ADJ00007968, CA-00010645-001 under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim of unfair dismissal by Ms Frances Murphy against her former employer. The Adjudication Officer held that the Complainant was unfairly dismissed and awarded her the sum of €30,000 in compensation.

For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Frances Murphy will be referred to as “the Complainant” and Connemara Marble Industries Limited will be referred to as “the Respondent”.

Background

The Complainant worked in the family business since the age of 13 and was employed from 1st January 2011 until 21st February 2017. Her roles in the business were that of Sales Assistant, Tour Guide and Jewellery Designer. She was paid €550.00 per week for working 25 hours per week, plus an annual bonus, €2,900 was paid in December 2015.

She inherited a 1/6^thholding in the business after her father died on 7th August 2015. The Directors of the Company, Mr Ambrose Joyce, Managing Director and Mr Grace Keating, Operations Director, also inherited a 1/6^thshare in the business, managed the day-to-day running of the business. Both are siblings of the Complainant. Her remaining three siblings who also inherited an equal share in the business, Mr Michael Joyce, Ms Tessie Joyce, and Ms Anne Marie Lally and were also employees of the Company.

Difficulties arose between the Complainant and her siblings, also Directors of the Company in the period from December 2015. On 14th November 2016, she received a letter from Mr Ambrose Joyce, Managing Director, warning her of disciplinary action if she continued to refuse instructions from the Company Directors.

Following an incident which occurred on the Company premises on 18th November 2016, the Complainant received a letter from the Respondent’s Solicitors placing her on suspension pending an investigation into allegedly engaging in activities detrimental to the Company.

On 21st February 2017 the Complainant received a letter from Mr Joyce noting that she had issued claims in relation to her employment rights and that she was claiming that her employment had been terminated on 18th November 2016, therefore he was enclosing her P45. He sought the return of company property as a matter of urgency. The Complainant had submitted a claim of constructive dismissal under the Acts to the WRC on 12th December 2016, however this claim was withdrawn on 12th April 2017, in circumstances where a subsequent claim of unfair dismissal was referred to the WRC on 5th April 2017.

This case was taken in conjunction with other claims by the Complainant under the Protected Disclosures Act, 2014 and the Minimum Notice and Terms of Employment Act, 1973. Those claims were heard together with the Complainant’s claim of unfair dismissal and evidence was given by both parties in relation to all cases before the Court.

The fact of dismissal is not in dispute, in those circumstances, it is for the Respondent to demonstrate that the dismissal was fair.

Summary of the Respondents’ Case

Ms Lauren Tennyson, B.L., instructed by DWF Solicitors, on behalf of the Respondent, denied that the Complainant was unfairly dismissed. She said that in October 2016 Mr Joyce became aware that the Complainant was not happy and was becoming disruptive in the workplace and was unwilling to take direction from the company directors. The Complainant made a number of comments to both Directors that she wished to be“bought out of the company”. Following a very heated argument with the Complainant, Ms Grace Keating, Director was admitted to hospital on 7th October 2016.

On 20th October 2016, Mr Joyce received correspondence from the Complainant’s solicitor requesting access to the books and records of the company as a result of having discovered that large unknown remuneration may have been paid to the Directors in 2014 and 2015 and also threatening High Court proceedings. The Company’s accountant wrote to the Complainant on 27th March 2017 and clarified that the Directors’ remuneration as per the Financial Statements for the year ended November 2015 of €95,612 (and €94, 738 for 2014) was the cumulative total of Directors’ salaries and bonuses for all three serving Directors for those periods. Also, there was no dividend paid to any Director/Shareholder in those periods.

On 2ndNovember 2016, Ms Tessie Joyce observed the Complainant assisting Mr Fergus Lally in removing large numbers of company property/ documents including historic company accounts from the “Luckpenny” outhouse building.

On l4th November 2016 the Complainant refused to perform one of her principle duties of employment, silver soldering. When Mr Joyce raised this with her, she responded by saying“you are not my boss and would will be my boss”.

Counsel for the Respondent said that some days later, on 18th November 2018, the Complainant, together with her sister Ms Anne Marie Lally and their respective husbands, orchestrated an attack on the company and blocked the entrances and exits with their vehicles at the company premises. They caused damage to the premises and Mr Joyce was assaulted. Ms Tennyson said that this incident took place just before a CIE tour bus was due to arrive and the said tour visit had to be cancelled and the business closed for the remainder of the day. The timing of this had the effect of targeting the company’s largest customer, CIE Tours International, which represents up to 40% of the business. The Gardai were called. They asked Ms Anne Marie Lally, Mr Fergus Lally and Mr Joe Murphy to remove themselves and their vehicles from the company premises. While Mr Joyce was on the phone in his office to the Gardai, the Complainant was in the shop and was heard to make a comment about Mr Joyce, saying“the little coward hiding away, f…….g coward, where’s the coward now”. And then to say,“so this is where the coward is hiding”. Ms Tennyson said that during this incident, there were many unsavoury comments made during the course of the protest, including that the Complainant and her sister wanted their one-sixth share of the Company and that they wanted to get what their Dad had left them. The Gardai instructed all involved in the blockade to remove themselves from the premises, the Complainant’s husband was cautioned by the Gardai. Eventually they all left but they threatened to come back to protest. Following this incident, the Complainant was suspended from her employment, on full pay, on 18th November 2016, pending investigation of the matter.

On 22nd November 2016, a formal undertaking was obtained from the Complainant through her solicitor that she would not attend the company’s premises or contact the company directors directly.

On 24th November 2016, the Complainant’ solicitor, wrote to Mr Joyce advising him that“any attempt by the company or its representative to carry out any investigation will be vigorously defended by our client, including, if necessary, making an application to the High Court for interlocutory relief”.


Summary of the Complainant’s Case

Mr Alastair Purdy, Alastair Purdy & Co. Solicitors, on behalf of the Complainant submitted that the Complainant was unfairly dismissed on 18^thNovember 2016. He said that her employment was unilaterally terminated without reason or any justifying cause. She had been denied fair procedures and natural justice contrary to S.I. 146/2000.

Mr Purdy said that the Complainant had been locked out of her work premises for raising valid concerns as was her right as a shareholder and submitted that it was both unreasonable and unfair to suspend her from her employment and subsequently dismiss her.

Mr Purdy said that as her father’s estate has not been administered and the Complainant has been relying on the Directors to properly run the Company, she sought some assurances and information from Mr. Ambrose Joyce on 20th October 2015. He told her it was “none of her business”. She then asked “what she had inherited” as she didn’t know what was in the company. Her brother said “f…k off you c…t”. This was the first time that she had ever been spoken to like this and was exceptionally upset about her brother’s reaction and demeanour.

On 3rd October 2016 she discovered that her weekly pay had never included €15 that was owing to her for a number of years, she had received €450 net wages instead of the €465 she was entitled to. When she enquired, Mr. Joyce told her it was to keep the “cash up” in the Company and threatened that if she looked for the money back, she would regret it.

On 20th October 2016, the Complainant’s legal representatives, wrote to the Directors enquiring about the remuneration paid to Directors in 2014 and 2015. The letter noted that the Complainant believed that a substantial amount of money may have been paid to them without the approval of any other shareholders.

On return from sick leave on 1st November 2016 the Complainant stopped using the “cash” till. Mr Purdy alleged that she was then subjected to intimidation by other members of the family. On 1st November 2016 she received a letter from Mr. Joyce warning her that she would be subject to disciplinary procedures if she continued to refuse instructions from the Company Directors. On 3rd November 2016, she was locked out of the office, which heretofore she always had access to. On 18th November 2016, Mr. Niall Keating, who purported to be an employee of the Company, informed her that she was not to work at her usual work station that she had worked since she was a young age. He also said that “she was full of shit and that is why you were in the Galway Clinic” a cruel reference to her previous bowel operation.

The Complainant received a letter on l8th November 2016 from the Respondent’s then legal representatives, Kennedy Fitzgerald Solicitors, suspending her from her employment due to,inter alia, an alleged incident that morning which she and three others were engaged in and which was hugely detrimental to the Company with the intention of attempting to shut down the business.

This letter made reference to a warning issue to her for her refusal to carry out her normal duties and in circulating that letter to other staff members. It stated that she was been suspended from her employment with pay as from close of business on 18th November 2016 and that a full and complete investigation would be carried out by the Respondent in due course.

On 24th November 2016 her legal representatives responded to the letter and stated that it was the Complainant’s belief that the real reason for her suspension was the fact that she had refused to work the cash till. The letter concluded that the Complainant had been incorrectly suspended from her employment as the letter was not sent from her employer. On 9th December 2016, she received a letter from her employer confirming her suspension as from 18th November 2016.

On 2lst February 2017 the Complainant received a letter from Mr. Joyce stating that her employment was terminated on 18th November 2016, he sought to rely on details as set out in a complaint form, she had originally sent to the WRC on 12th December 2016 by way of justification for said date. Mr. Joyce also stated that it was his belief that the Complainant had been paid everything she was owed, and he attached her P45.

Mr Purdy contended that the Complainant’s employment was unilaterally terminated without reason or any justifying cause and was a breach of her rights to natural justice and fair procedures under the SI. 146/2000. He maintained that it was not reasonable to terminate the Complainant’s employment and relied upon the High Court case ofThe Governor and theCompany of Bank of Ireland -v- James Reilly(2015) IEHC 241, wherein Noonan J stated:-

• “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6 (4) which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employers conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that employer The question rather is whether the decision to dismiss is within the range of reasonableness responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland-v-Lindsay UKEAT/0506/09/DM.”

• “The fairness or unfairness of 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. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

Mr Ambrose Joyce gave evidence on behalf of the Respondent. He told the Court that he is the Managing Director of the company, a position he took over on the death of his father in August 2015. He said that he was formally appointed to that role at an AGM in August 2016.

The witness recounted the events which took place involving the Complainant, from 7th October 2016 until the termination of her employment on 21st February 2017. He said that on 7th October 2016 the Complainant had a conversation with him and Ms Grace Keating, Operations Director, regarding her wages. The Complainant told both Directors that she had discovered that she was being paid €15.00 less in her net pay that she claimed she was entitled to, and she was upset about this as she claimed that this had been ongoing for years. She was paying herself €450.00 per week when she should have been paid €465.00. He told her he would look into the matter. He told the Court that he was shocked to hear this as she paid herself from cash which was available in a drawer in the office and her payslips were available for her to examine. Mr Joyce said that the Complainant was aggressive about this issue and stated that her husband would deal with it. He said that she wanted to be bought out of the company and it was not worth her while working in the company. He said that originally when the Complainant commenced working in the company in 2011, she was paid €550.00 gross and a net wage of €450.00 per week. He said that he did check into the matter and discovered that with adjustments in tax allowances she was entitled to more than €450.00 net per week for some time. He denied saying that the €15.00 was to keep cash up in the company.

On 7th October 2016, the Complainant went on sick leave. Mr Joyce said that on 17th October 2016 Ms Lally was in his office photocopying company documents. On 19th October 2016, he said that Ms Lally spoke to him about details in the company accounts regarding Directors’ renumeration. She told him that she and the Complainant had learnt that Directors’ renumeration amounted to €95,000 in 2015 with a slightly lesser amount for 2014. Ms Lally spoke to him and told him that they had seen the details on the company accounts and were of the view that it referred to bonuses paid to the Directors. He said that he tried to explain that the details did not related solely to bonuses but included salaries also. He said that as the Complainant was on sick leave at the time, Ms Lally telephoned her, and Mr Joyce tried to explain matters to her, but she refused to talk to him and ended the call. The witness said that on 20th October 2016, he received a solicitor’s letter on behalf of the Complainant and her sister, Ms Lally. At the same time, he also received a letter directly from the Complainant and her sister, Ms Lally. These letters questioned details of remuneration paid to Directors. He said that he was upset that his sisters would think they the Directors would pay themselves large bonuses. He asked his Accountant to write to them and explain matters, which he did on 27th October 2016 and stated that the payments were the cumulative total of Directors salaries and bonuses for all three serving Directors for the periods 2014 and 2015. Mr Joyce said that he expected that that would be the end of the matter.

The witness said that on 27th October 2016 he went on leave to Central America and was due to return on 21st November 2016. As Ms Keating had been in hospital with a heart condition and the Complainant was out sick, he said that he asked Ms Keating’s husband, Niall to step in and assist while he was away. Ms Keating could not drive at this time due to her condition, and Ms Tessie Joyce required a lift to work, therefore Mr Keating drove them to work. He was also required to move heavy gates and shutters at opening and closing times. Therefore, Mr Joyce said that Mr Keating was employed from 24th October until 25th November 2016.

The witness said that the Complainant returned to work from sick leave on 1st November 2016. He said that while he was on holiday, he spoke to Ms Tessie Joyce on 2nd November 2016 and she told him that the Complainant had taken the keys to the “Luckpenny” store and allowed Mr Fergus Lally into the store, and that Mr Lally had removed boxes from the store. The witness said that he knew from the description of those boxes that they contained company documents. He said he was concerned as he knew that Ms Lally had photocopied documents from his office and now Mr Lally was taking company documents. He said that he asked Mr Keating to lock his office door, which was the inner office from the general office.

Mr Joyce said that he returned from holidays on 10th November 2016, earlier than planned as Ms Keating was very ill and was in hospital, there were no Directors in the company, and he was concerned about matters in the workplace. He said that the next day when he attended at work, he noticed that the Complainant was at the “top of the shop” on her iPpad, her phone and had a radio playing. He said that he spoke to her about what she was doing, but she would not answer him. He said to her that it must be boring for her to be doing nothing and asked her to do silver soldering work in the workshop. He said that she looked at him and said, “you’re not my boss, you will never be, you can’t tell me what to do”.

Mr Joyce said that it was normal during the winter months, from end of October to 17th March, for the Complainant and himself to do silver soldering work, as preparation for the factory, where the jewellery is made.
He said that on the morning of 10th November 2016, he went to the Museum with Mr Keating, while there the Complainant came in at 9.45am and said it was tea time. he told her it was too early, and she replied that he was not her boss and never would be.

Following which he said that he rang Galway Conflict Management Company for advice on how to handle the situation. He was advised to write to the Complainant which he duly did on 14th November 2016 and explained to her that as an employee of the company she was obliged to take instructions and warned her that if she continued to refuse to take instructions, she would be subject to disciplinary procedures up to and including dismissal. He said that he received no response. He said that the Complainant made copies of the letter and left them around for other members of staff to see them. He said that he then tried to speak to the Complainant, but she refused to speak to him.

The witness recounted the events of 18th November 2016. He said that they were expecting a CIE Tour Bus to arrive that day. He asked Mr Keating to meet and greet the tourists. He said that while he was in the Tearoom, he received a call from Mr Keating to say that he had heard the Complainant telephone her husband asking him to come to the company and to block the entrance to the Tearoom. Then Ms Tessie Joyce came to him to say that Mr Lally had blocked the entrance to the Tearoom with his van. He said that the Complainant was shouting and saying that they were going to close the business down and said that her husband was on his way. An altercation occurred with Ms Lally who physically assaulted him.He said that he then telephoned CIE Tours and told them not to come to the company due to an ongoing family crisis. He said that he then went to his office and telephoned the Gardai and told them there was an attack on the company and he had been assaulted. He said that as he was on the phone the Complainant said,“where’s the f……g coward hiding now”. She pushed in the door to his office and said,“there’s the coward now”and pushed a phone in his face. He said that he then went to the factory. All the employees there were shocked. The Complainant was shouting “where’s our inheritance”and“we’re closing the business down”. He said then the Complainant, her husband, Ms Lally and her husband went into the shop and knocked some stock to the ground. The witness said that at this point the Complainant was saying “you will do no more business, I did not get my inheritance, you are paying yourself and Grace large bonuses, we are going to close the business and we will protest the place every day”. The Gardai arrived and interviewed everyone involved and asked them to leave the shop. He said that then Mr Murphy started banging on the Tearoom door, which the employees inside had locked as there were terrified. Mr Keating was inside. Mr Joyce said that he asked the Complainant what she wanted, and she said that she needed to use the toilet, so he asked Mr Keating to let her in. Mr Murphy followed her in and said that he was a 1/12^thshareholder and he was not leaving.

Mr Joyce said that he told the Gardai that he was the Managing Director and they asked Mr Murphy to leave and told him that they would arrest him if he did not leave and cautioned him.

Mr Joyce said that he had an appointment that day with Galway Conflict Management and his solicitor. He attended those appointments. His solicitor then wrote a letter to the Complainant, outlining her refusal to carry out instructions, copying the warning letter and leaving it for staff to see, and her involvement in the protest on 18th November 2016. The letter proceeded to inform her that she was suspended pending an investigation and ordering her not to attend the company premises. An undertaking not to attend the company premises was confirmed by the Complainant’s solicitor on 22nd November 2016.

Mr Joyce said that on 24th November 2016 he received a letter from the Complainant’s Solicitors which made reference to a protected disclosure having been made by the Complainant regarding the inappropriate use of company funds and stated that any attempt at an investigation into the 18th November incident would be vigorously defended including making an application to the High Court. He said that as a result it was decided that the company would opt for mediation. Mediation did not resolve matters. He said that in the interim he received details from the WRC of claims made by the Complainant, alleging that the Complainant had been constructively dismissed. This claim was subsequently withdrawn. He said that he issued a P45 for the Complainant on 21st February 2017, as she had been suspended for gross misconduct and she was refusing to co-operate in an investigation.

The witness said that some new tills were introduced in 2015 following a revenue audit, some of the cash registers that were there before the audit are still there today.

Mr Joyce denied that any conversation took place with the Complainant in April/May 2016 as alleged by her concerning cash being placed in boxes. He said there are four cash registers, three of which take cash and credit cards and one of which only takes credit cards. The latter because it was out of sight and therefore security was an issue as it was not possible to have a clear view.

In cross examination the witness was questioned about the alleged conversation in April/May 2016 regarding cash tills, he denied that such a conversation ever took place and said that the Complainant was lying about this matter. He said that all cash was put through the cash registers. He said that there were four cash registers, one of which only took credit cards, it was not for cash as it was not in a very secure location. He denied that Drivers were given cash or given commission on sales the tourist bought. He denied that there was ever a conversation regarding alleged “fraudulent activities”. He said that this never happened, that the Complainant was trying to blackmail the Directors.

He said that relations with his sister, the Complainant were fine from his father’s death in August 2015 until 19th October 2016. After that he said that she stopped speaking to him.

He was asked about a conversation on 20th October 2015 when he allegedly told her to ‘f…k off you c…t’. He denied that this took place and said that he would not use should words.

He said that he was responsible for payroll but that family members were permitted to come to his office and take their wages and their payslips were available for them in the same drawer in his office as the cash for their wages.
He said that Tessie had advised him over the phone while he was on holidays that the Complainant was doing very little work and he observed as much when he came home. On Friday 11th November 2016, the witness said that he spoke to the Complainant to ask her why she was sitting at the top of the shop, instead of at her normal place of work, however, she would not speak to him. He asked her to go to the factory to do the silver soldering work, which was her normal work at that time of year, however, she refused. On 14th November 2016, having spoken to Galway Conflict Management Company, he wrote her a letter about her refusal to do the silver soldering work and gave her a warning that her refusal could lead to her dismissal. He said that he had never had to correct her before. He said that he sent the letter rather than try to speak to her as she would not speak to him. He accepted that he did not give her the right of representation. He also accepted that the company did not have any formal disciplinary procedures.

He said that from 1st to 14thNovember 2016 the Complainant spend her working hours from 9am to 1pm each day, sitting at the top of the shop, on her i-pad, or her phone and with a radio on that she had brought to work. He said that her refusal to do the silver soldering work was holding up the work of the factory.

Mr Joyce was questioned about the Complainant’s allegation that she had had a conversation with him (and Ms Keating) in April/May 2016 about the use of a “cash till”. He denied that such a conversation ever took place and said it was fabricated evidence. He denied the existence of a cash box/ cash drawer.

The witness was asked why he instructed his solicitor to suspend the Complainant. He said that she was “the leader of the pack”. She had called her husband to come and block the Tearoom entrance and she had said they were closing the place down and would come back every day with placards. He said that all she wanted to do was liquidate the company and close it down and her husband said that they had stolen documents “that high”. He said that as a result of the Complainant’s (and others) actions on that day, CIE threatened to cancel the rest of the season and there were three weeks left in the season.

The witness was asked why the investigation mentioned in his solicitor’s letter to the Complainant did not take place. Mr Joyce replied that he viewed the reference in the Complainant’s solicitor’s letter dated 24th November 2016 as a threat that if the Respondent instigated such an investigation it would be vigorously defended, she would not participate in such an investigation and the matter would be referred to the High Court. He said that they would have engaged an external person to carry out the investigation and had a Barrister in mind to do so. He said that in a second letter of the same date the Complainant’s solicitor suggested mediation. A mediation meeting was arranged for 19th January 2017.

He agreed that the letter dated 21st February 2017 sent to the Complainant notified her of the termination of her employment and enclosed her P45. He said that this was given in the context of her gross misconduct on 18th November 2016, her refusal to engage in an investigation and where the Complainant had issued proceedings under the Unfair Dismissals Act to the WRC in December 2016, claiming constructive dismissal, which were subsequently withdrawn. He said that the Complainant was a loving sister and he deeply regretted that he had to give her a P45. He said that his trust and confidence in the Complainant had gone.

Mr Joyce was questioned about shareholder meetings and whether or not such meetings ever took place after their father died. He said the siblings talked in work, however, there were no formal meetings.

Summary of Ms Grace Keating’s Evidence

Ms Keating gave evidence on behalf of the Respondent. She told the Court that she has been a Director of the company for over 20 years. When asked about an alleged conversation with the Complainant in April/May 2106 when the Complainant said she didn’t want to work for a fraudulent company, Ms Keating said she had no recall of such a conversation.

The witness recounted events that took place on 7th October 2016 when the claimant asked to discuss her wages with her and Mr Ambrose Joyce. the Complainant was alleging that she had been underpaid and was receiving €450 instead of €465 per week, for a number of years. Ms Keating explained that as a family member the Complainant could pay herself in cash every Friday lunch-time. She said Ambrose Joyce told the Complainant that he would look into it. The Complainant replied,‘I can’t wait to be bought out of this company’. The witness expressed shock at such a statement and said that the Complainant was quite accusatory towards Ambrose Joyce.

In response to a question regarding a letter seeking access to the books, the witness recounted events on the 17th October 2016 when Ms Anne Marie Lally accused her of stealing large amounts of money. Following this conversation, the witness had to be hospitalised for a serious medical condition. On her return to work on 25thOctober 2016, she was unable to drive so her husband Niall brought her to work. Around this time, Ambrose Joyce was away on holidays, so Niall helped out in the company with heavy lifting and other similar tasks. She became ill again and was hospitalised on 31st October 2016 for 3 weeks. She telephoned her brother Ambrose and told him to return early from his holidays as there was no one to run the business.

Under cross-examination she confirmed that her title was that of Operations Manager and her main areas of responsibility were overseeing the shop, staffing and stocking. She helped out in the tea rooms, her focus was on the shop not the factory. When asked about the conversation in April /May 2016 when the Complainant said that she didn’t want to work for a fraudulent company, Mr Purdy put it to her that if she had no recall that maybe it could have happened. In response the witness said she would have remembered such an event. In response to questions relating to the cash payment system, she explained that Ambrose would download the amount and write a cheque which she then cashed and put in the drawer in the office and the family members would then pay themselves, as all family members were trusted to take what they were owed in wages. When asked if there was any money left over, the witness said that there was also petty cash in the drawer. The witness said that nobody counted the money and that the petty cash was not reconciled. She disagreed that this amounted to a sloppy way to run a business. Mr Purdy asked her how much money she put aside for the Complainant on a specific occasion in early November 2016, the witness replied €465. Mr Purdy put it to her that in fact it was €450 that she put in an envelope for her. The witness said she put in €465 and she didn’t know what happened to result in the Complainant saying she got €450.

The witness was asked about the AGM in August 2016 and she confirmed that the accountant, Ambrose Joyce and herself were present at the AGM which was held in the Tearoom. She said that she was the executor of the Will and as such was the sole shareholder until 2017. She said she was the sole shareholder and they were happy with the accounts and immediately after the meeting went over to the shop and spoke with the other siblings andinformed them that they were happy with the accounts. She accepted that a copy of the accounts was not provided to the siblings at the time but said acopy of the accounts were left in the office. She confirmed that she was the executor of the Will and as such was the sole shareholder until 2017.

In response to questions regarding her husband Niall and his role when Ambrose Joyce was on holidays, Ms Keating said he helped out with the heavy shutters, swept the floors and did general handyman duties. Mr Purdy asked specifically why her husband was in the shop on 18^thNovember 2016, the witness said that he had been asked by Mr Joyce to help out when he was away on holidays, to open the shutters and gates, to sweep the leaves, open doors and windows. She said that he had no function in the operation of the shop or the tills and accepted that he had no function in directing employees.
Ms Keating was questioned by the Court as to why the Complainant was not aware of the salaries of the Directors. In response the witness said the Complainant did not appear to understand the meaning of the word “renumeration”. She said that the reference in the audited accounts to ‘Directors’ Remuneration of €95,000’, was to payment divided between three Directors, her father, Mr Joyce and herself and that she was paid €780.00 gross per week and her father’s share was minimal.

When asked about the Complainant’s attendance at the AGM/EGM, the witness said the Complainant had attended one AGM in the past, but no EGM. She confirmed that she was aware that Ambrose Joyce had issued the Complainant with her P45 and she supported him in this. She also said that she was aware that no investigation took place.
When asked if there was any meeting with the family members after the death of her father to discuss how things were going to work out, the witness said there was no formal meeting, but they had conversations every month, the business was getting busy and was growing each year. She said it was a difficult Will involving business and property.

In response to questions from the Court, Ms Keating denied that bus drivers received any perks or payments for bringing customers to the shop. The witness denied that there was any wooden box for cash, or cash payments to drivers, or any practice of putting €50 away for every €1,000. She said 95% of transactions were via credit card. Ms Keating confirmed that a Revenue Audit of the business had been undertaken in 2014, she said that the Auditors went through everything over two days and issued a tax clearance cert with one proviso related to car expenses incurred by her father.

In re-examination, Mr Purdy showed her photographs which were purported to be “wooden boxes”, the witness indicted that these were drawers under the tills for till rolls, biros and other such things.

In response to a question from Ms Tennyson, the witness stated that the Revenue Audit was undertaken in 2014 not 2015.

The witness was asked about her relationship with the Complainant, she said that they were sisters but were not exactly friends.

Summary of Mr Niall Keating’s Evidence

Mr Niall Keating gave evidence on behalf of the Respondent. He told the Court that he was married to Ms Grace Keating and was a retired bank manager.

He confirmed that his employment with the Respondent came about when Mr Ambrose Joyce was going on holidays and asked him if he would work during the period of 24^thOctober 2016 to 21^stNovember 2016. His duties included bringing his wife and Tessie to work each morning, opening up the shop, including the heavy security shutters and gates, sweeping the leaves and making the external area safe.

The witness told the Court that the Complainant returned to work on 1^stNovember 2016. Ms Tessie Joyce came into work at 8.15am to get the till and credit card machines ready and prepare the shop. At about 8.45am she checked the bathrooms, and the witness would answer the phones and take in the post while she was gone. He said the Complainant usually came in at 9am and they would have a chat as they had a good relationship. In response to a question regarding his wife returning to the hospital, he said he met the Complainant in the hospital when he was there visiting his wife. He thought it was between 2.30pm and 3.30pm when he bumped into the Complainant who was with her son. He could not recall the date but said it was the first week of November 2016.

Mr Keating also confirmed that he was present on the morning of 18^thNovember 2016 with Mr Joyce when the Complainant came in saying it was tea time. Mr Joyce responded by saying it was a bit early for that, to which the Complainant replied, ‘you are not my boss’.

The witness recounted an exchange between himself and the Complainant in the shop on 18^thNovember 2016. The Complainant came in and sat down and proceeded to use her i-pad and phone. She asked Mr Keating what he was doing in the shop. He explained that Ambrose had asked him to help out in the shop and with the CIE tour that morning. the Complainant became agitated and replied that that was where she worked. Mr Keating told the Complainant that she had better take the matter up with Ambrose as it had nothing to do with him. The Complainant replied that’he’s not my boss and never will be’. She started to clean the display and spray Windolene near him. The witness then told the Court that he said, ‘Frances are you trying to bully me’, to which she responded, ‘you are full of s…’. He then said, ‘given you were in hospital recently, you probably are not’.

Mr Keating gave his account of the events which occurred on 18^thNovember 2016. He told the Court that the Complainant said that she would ring her husband to come up and sort it out and ‘block the entrance of the tea rooms’. The witness said he called Ambrose and told him that Mr Joe Murphy (the Complainant’s husband) was on his way to block the entrance and he had better cancel the tour bus. Just then he saw Ms Anne Marie Lally arrive and block the shop and factory. He saw Ambrose talking with Ms Lally and saw her swing for him. Ambrose had blood running down his face. The witness said that the Complainant then went to the door and said, ‘good girl Anne Marie’. Then the Complainant’s phone rang and when she answered it, she said, ‘Joe come up and block the Tearoom’.Within a couple of minutes Mr Murphy arrived driving at speed and pulled up tight against the tea rooms. The witness said he felt concern for his own personal safety as there were lots of knives and pieces of marble around and he tried to close the doors and lock the office. He said that the Complainant got the door open and Mr Murphy came thundering in shouting and looking for the ‘coward’.Then Mr Fergus Lally arrived and burst in with Ms Lally. He said that all three were shouting,“they are robbing the place, close the place down, we don’t know what our inheritance is”. The witness said that Mr Lally knocked some displays and said, “we will have it sold and closed by Christmas”. The witness recounted further exchanges between various family members and the arrival of the Gardai, who interviewed everyone including the witness. He told the Court that he remained in the Tearoom with the door locked but on request from Ambrose he opened the door to allow the Complainant to use the bathroom, however, Mr Murphy pushed his way in shouting.

Under cross examination the witness denied that he was an angry man and agitated with the Complainant. He denied that he informed her she was not to work at her usual location. He said his only involvement with customers was to direct them to the factory. When he was standing at the entrance to the factory, he said the Complainant told him that the factory was her area, not his. He told her that she needed to discuss this with her brother.

In response to a question from the Court about who was in charge in circumstances where Mr Ambrose Joyce and Ms Keating were not there, Mr Keating replied that he did not know. Frances was there until 1pm and Tessie all day and he recognised them equally.

Summary of Ms Tessie Joyce’s Evidence

Ms Tessie Joyce gave evidence on behalf of the Respondent. She told the Court that she worked in the company practically all her life, primarily in the shop, but she also did research on marble. She said on 19^thOctober 2016 her sister Ms Lally came into the shop shouting that they were going to have Ms Grace Keating removed as executor of the Will as the Directors were stealing money. She said sadly neither the Complainant nor Ms Lally had spoken to her since that day and their actions had had a very detrimental effect on her. She said that while the Complainant was out sick, she kept ringing her, but she never answered. She tried to speak to the Complainant when she returned to work on 1^stNovember 2016 after sick leave, but she would not respond and was very dismissive of her, which she found very upsetting as they had been very close.

She said that in the winter time, the Complainant normally worked in the factory, however, on her return to work in November 2016, the Complainant attended the shop and was on her iPad, her phone and with a radio on, which she said was bizarre behaviour. On 2^ndNovember 2016, the witness said that she saw the Complainant take the keys for the building called the ‘Luckpenny’, where files are stored. When she looked out the window, she saw Mr Fergus Lally drive up and then remove approximately eight boxes from the Luckpenny building while the Complainant looked on. She said that she was terrified of the Complainant at that stage and did not wish to cause a row. The witness said that Ambrose Joyce normally telephoned in the afternoons from his holiday and that she told him about the Luckpenny incident and on his instruction, she locked his office. Later that morning two customers that the Complainant had been serving were waiting at the counter and were agitated. They said they had already paid for their goods, but the lady didn’t come back to attend to them, in that regard she said that they were referring to the Complainant.

In relation to the events on 18^thNovember 2016, the witness said she will never forget the events of that day, it was so traumatic. She said they were expecting a CIE tour at 9.30am. She said that she was in the Tearoom, Anne Marie had parked her car at the factory and was marching up and down shouting. She asked Ambrose to come up. She said she heard Ambrose ask Anne Marie what was wrong. She told the Court that she witnessed Ms Lally hit Ambrose and heard the Complainant say, ‘good girl Ann-Marie’. Mr Joe Murphy and Mr Fergus Lally were both shouting. Mr Murphy and the Complainant were shouting “we are closing this place down by Christmas” The witness said the Complainant was screaming ‘I want my 1/6^th’. The witness said that Mr Murphy and Ms Lally said nasty things to her. The Gardai interviewed all except her.

Under cross examination by Mr Purdy, she said she had completed a BA and H Dip, she had a law degree and had worked in Spain. She gave evidence that she was put on the books when she returned to work for the company in 2010 following the completion of her law degree. She said that she received €550 gross per week which she took from the bag in the office each week in cash. She was asked if she was aware of the disagreement over the Complainant’s wages, she said that she got the impression that the Complainant was accusing Ambrose of stealing large bonuses from the company. The witness was asked about locking the Director’s office door. She responded that she got the impression that that was in the context of the letter from the Complainant’s solicitor threatening legal action over the accounts. It was put to her that the Complainant denied that she left customers unattended on the 2^ndNovember 2016 as she was at a hospital appointment that day and not at work. Ms Joyce did not accept this.

In response to questions from the Court, Ms Joyce said the suggestion of a cash box was completely fabricated. When asked if customers were directed to a particular till she denied this and said customers could pay at any till. When asked about the suggestion that cash was paid to bus drivers, she said that never happened, there were never any perks for drivers.

Summary of the Complainant’s Evidence

The Complainant’s evidence can be summarised as follows:-

The Complainant told the Court that she had worked in the family business since she was 13 years of age in one capacity or another. She undertook a Diploma in Gemology in NUIG and took seven years off to care for her son. She returned on 1st January 2011 to work mornings only, which he worked until 21st February 2017 when she was dismissed. She said that she had reported to her father before his death and that her brother and sister, Ambrose and Grace, ran the Company. She said that there were approximately 23 employees during the summer months and in the winter as few as 3 employees.

On the death of her father she inherited 1/6^thof the business and spoke to her brother Ambrose about running the business. She said that she wished to cease the practice of paying bus drivers a 10% share of the business they brought in and she wished to formalise the running of the business going forward and ensure it was revenue compliant.

She said that the Company had a Revenue Audit in May 2015 at which time the Company did not have a proper till system in place and the auditors advised the Respondent to introduce a proper system and to discontinue the practice of putting cash in one till and wooden boxes. Therefore, new tills were purchased, and she was instructed to put all credit cards in one till and a percentage of such purchases in another cash till. At this point she said that she informed Ambrose that she did not wish to do so as she was of the view that it was not revenue compliant. She said that he said that if she did not do so there would be no business and the drivers would advise the tourists to buy their jewellery elsewhere. She agreed to comply at the time.

The Complainant said that she was out sick for a few weeks and returned to work on 1st November 2016 and decided not to use the cash till anymore. She said that Tessie was in the shop at the time as Ambrose and Grace were on annual leave and sick leave respectively at the time. She said that Tessie knew she was not putting money in the cash till at the time. She said that a list of purchases by tourists was kept in order to calculate the payments to be made to the Drivers.

The witness said that after she made her decision not to use the cash till on 1st November 2016, a shopping bag was placed over her till for the remainder of that week and Tessie advised customers to use a different till to make their purchases. Therefore, she could not work behind the till. She told the Court that Tessie would put the cash in a separate box underneath the till.

On 3rd November 2016, she said that she was locked out of the office and therefore she had to put her coat and handbag under the counter. She told the Court that Ambrose returned home from a holiday in Central America earlier than planned, she surmised that this was because she was refusing to use the cash till. She said that when she arrived into work on 14th November 2016 Ambrose told her that she was to go to the factory to do some silver soldering work. She said that she was not appropriately dressed for such work and in any event soldering work was normally done after Christmas when there were no tourist buses and the shop was closed. She said that she refused to do the soldering work that day, and she suspected that the reason he had asked her to do the soldering work was to get her out of the shop. When she refused Ambrose said that’s fine, I will take note of that. Later that day she received a letter from Ambrose threatening disciplinary action for refusing a work instruction. This letter also outlined the policy on taking breaks. She said that she only ever took breaks when business was quiet.

The Complainant said that after 1^stNovember 2016, Mr Niall Keating, Grace’s husband was in the shop every morning she arrived at work. She said that this puzzled her as she was not aware that he was employed by the Respondent. She said that he would stand behind her at the counter and this intimidated her.

She recounted the events of 18^thNovember 2016 and said that when she turned up for work that morning, Niall Keating was there and when she went to put her coat in the office it was locked. She said that he said to her that she would not be working in the shop that day and told her she was“full of s…t”and that that was why she was in the Galway Clinic. She was upset by this and rang her husband who along with Anne Marie Lally and her husband came to the business.

She said that when they arrived Ambrose rang the Gardaí from his office, a big argument ensued, she was standing there with her phone recording the scene. She said that Niall stood at the door and would not let her husband in. She said that her husband then pushed in saying “you are throwing Frances out because she would not put cash in the box”. She said that Niall blocked her from entering the Teahouse when she wanted to use the toilet. The Garda told Ambrose to let her in. She said that when the Garda was leaving, he told her that she could contact him if she needed further assistance.

The Complainant told the Court that three days later she received a letter of suspension from the Respondent’s solicitors and was instructed not to contact her family.

In cross examination the Complainant said that she wanted to move forward in the business and told Ambrose in April 2016 that and that she did not want to be part of a fraudulent business, that it was the perfect opportunity to run the business properly. She said that she wanted to cease the practice of paying drivers for the business they brought and instead wanted to give them a Christmas present.

She said that at this time, it was 15 months after her father’s death, and she had no details on the running of the business. The Complainant was questioned on when she made this known to the Respondent as it was put to her that the first time this was raised was at the hearing before the Adjudication Officer. She denied this. She accepted that she did not say that she would not operate the cash till but that she acted on it. She accepted that she did not speak to Ambrose or Grace on 1^stNovember 2016 but said that she acted upon her decision not to use the cash till. The Complainant also agreed that Ambrose never said that he noticed that she was not using the cash till and never made an issue of it. She said that from April to the end of October 2016 she continued to operate the tills as normal however, she discovered that she was not being paid her correct pay as €15.00 per week had been deducted from her wages for a number of years. Upon enquiring of the reasons for this deduction she was informed by Mr Ambrose Joyce that this was to keep the “cash up” in the Company. He told her that that if she looked for the money back, she would regret it.

The Complainant said that she worked on different tills at different times but that she normally worked at a specific one, she accepted that others worked on that till when she was not there in the afternoons.

With reference to her statement that she was locked out of the office on 3rd November, she was questioned about the events of 2nd November 2016, when it was put to the Complainant that she assisted Mr Fergus Lally with access to the “Luckpenny” building, where it was alleged that he removed documents. The Complainant denied the allegation and said that she was at a hospital appointment on 2nd November and had not gone to work that day. She said that there were no documents in that building and there was no mention of this in the warning letter she received from Ambrose on 14th November 2016. She said that the only document she took was a sheet of paper with details of her earnings on it.

With regard to the events of 18^thNovember 2016, she said that Niall was intimidating, laughing and joking and she was under the impression that he was taking instructions from Ambrose. She denied the accusation made that Niall had overheard her ask her husband over the phone to block the entrance to the Tearoom. She also denied calling Ambrose a coward. She denied that she wanted to buy out her 1/6^thshare and denied that she said as much.

The witness was asked about the letters dated 18^thNovember 2016 from the Respondent’s Solicitors which were sent to her, she accepted that she had copied them and left them in the shop where they could be seen by other staff.

Conclusions of the Court

The Court finds it deeply regrettable that this case involving family members falling out over a business which they equally inherited and which was founded by their father in 1962, was not resolved by more amicable means.

The termination of the Complainant’s employment did not arise by mutual consent and the fact of dismissal is not in dispute, therefore, the Respondent carries the onus of showing that having regard to all the circumstances there were substantial grounds justifying the dismissal. The Respondent contends that the dismissal was justified on grounds of the Complainant’s gross misconduct.

It is clear to the Court that the Complainant as a shareholder had concerns regarding how the company accounting was conducted. She was of the view that the Directors were misappropriating the company fund, despite the Accountant’s assurance that the Director’s remuneration details were above board, this gave rise to a breakdown in trust and confidence, which seemed to have existed without challenge prior to the father’s death. While the Court was presented with conflicting evidence, there was a consistency in the evidence given regarding the events of 18^thNovember 2016 which appear to the Court to be a culmination of events leading to that occasion which was clearly very disruptive of business, the Gardai had to be called, the bus tour was cancelled, and the business closed down for the remainder of the day. While there were others involved in that incident on the day the Court is of the view that the Complainant contributed to that disruption.

The Court is satisfied that these actions by the Complainant could be regarded as of sufficiently grave to justify dismissalas it impacted on the business and reputational interests of the Respondent. However, while the Court accepts that such conduct goes to the heart of the relationship and was sufficiently serious as to warrant dismissal, the question of the Court is whether or not it was reasonable to dismiss the Complainant in such circumstances. This approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Donaldson LJ inUnion of Construction Allied Trades and Technicians v Brane[1981] IRLR 224(Court of Appel for England and Wales) in the following terms: -

• It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”

• “It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even if other employers may not have dismissed him”

• [T]he fairness or unfairness of 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. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.

• 
  "a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... 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."

For all the reasons set out herein the Court is satisfied that the Complainant was unfairly dismissed. The Court orders the Respondent to pay the Complainant compensation in the amount of €25,000.00.

The Decision of the Adjudication Officer is varied accordingly.

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
H.M.	______________________
28/10/2020	Deputy Chairman