Complainant

Respondent

Parties

Elaine  McDonald

Brickmore Construction Limited

Representatives

none 

Eric Furlong, Coghlan Kelly Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033493-001

05/01/2020

The Complainant commenced her employment with the Respondent on 12th July 2017. Her employment terminated on 1st August 2019.

The Complainant was paid €255 gross weekly and worked 15 hours a week.

The Respondent submits as follows:

The Complainant was employed as an Accounts Administrator. Her employment commenced on the 12th of July 2017. The Complainant’s responsibilities included sales and purchase invoicing, cross referencing payments on bank statements, payments in and out, VAT returns, payroll, dealing with creditors, etc.

The Complainant was employed to work 15 hours per week and was paid, initially, €15 per hour and this subsequently increased in 2018 to €17 per hour. Her gross pay was €255 per week. The Complainant normally worked Tuesdays, Wednesdays and Thursdays.

The Complainant is a first cousin of one of the company Directors and as such the usual relationship of trust existed between employer and employee, but the trust relationship was strengthened due to the familial relationship.

The Complainant used Thesaurus to do payroll and during 2018, the Complainant requested that the Respondent introduce an Accounts Computer Software package, Sage One, to streamline and to integrate Vat returns, invoicing and other items of accounts for the company. A subscription was purchased, and regular training was available to the Complainant as to its use. The Respondent’s Accountant would also have been a source of information and training which was made known to the Complainant.

Despite the introduction of these cloud and computer-based systems the Complainant also continued to operate a manual spreadsheet system of accounts.

In or around mid to late 2018, the Complainant came to the Respondent to state that her workload was excessive and that she was unable to cope with the work during her part time hours. The Respondent agreed to employ a second part time accounts person to assist the Complainant with the account’s administration. This new employee was the Complainant’s sister. This appointment was made in or around October 2018.

On the 4thApril 2019, the Respondent’s Accountant made a written request for accounts for 2018 to be furnished to the Accountant. This was a general request for all accounts for the year ending 31st December 2018 to include bank statements, cheque books, loan account, hire purchase agreement, VAT reports, payroll printouts, creditor statements, work in progress, etc. Access was to be given to the Respondent’s Accountant to the Sage One package which was a cloud-based system. The introduction of software was to streamline such requests. The request was a standard request that the Complainant should have been fully conversant with having been operating the books of the company for over 20 months.

In or around 16th April 2019, and unknown to the Respondent, the Complainant subscribed for a second time to the same Sage One package to re-do the entries done on the accounts package in 2018. When the Respondent became aware of this the Complainant explained that she had made incorrect entries throughout 2018 on the system and the second subscription was with a view to starting afresh. The Respondent asked that the Complainant contact their Accountant to take advice on how the package should be operated. This support was available to the Complainant. She was asked to provide the information to the Accountant as requested.

On the 28th of May 2019, the Respondent’s Accountant made a follow up request for the same information and on the week ending 31st May 2019, the Complainant was specifically directed to provide the information that had been requested by one of the Respondent’s Directors. The Complainant did not supply the requested information.  At this point the failure or refusal to supply the basic information was inexplicable.

On the 11th of June 2019, over 2 months after the request was initially made, an email was sent by the Complainant to the Respondent’s Accountant indicating that the information requested would be “hopefully…. ready by the middle of next week”, being in or around 18th June 2019.

This email was sent after a discussion with the Complainant by the Director where the urgency of submitting the account information was outlined to the Complainant.

The Complainant was asked to give an indication to the Respondent’s Accountant as to when the information that was being requested would be provided.

On the 24th of June 2019, the Respondent’s Accountant wrote again requesting the same information. At this point, no information whatsoever had been furnished. By this time there was a serious issue of trust arising in relation to the Complainant’s responsibility to the Respondent.

The information requested would have been readily available to the Complainant and if not all, then some of the information could have been provided to the Accountant for the purpose of preparing the Company’s accounts at any time during April, May or June. Had some information been provided, the Accountant could have engaged with the Complainant and provided advice and requested additional documentation which would have led to the satisfactory conclusion of the work that was required to be done to complete the Respondent’s obligations.

The Complainant went on annual leave on the 1st of July 2019 without furnishing the required information. On the 1st of July 2019, a further email was sent by the Respondent’s Accountant, directly to the Directors of the company indicating that an assurance had been given by the Complainant that the information requested by the Accountant would be furnished prior to the Complainant going on annual leave on Friday 28th June 2019.

On the week ending 5th July 2019, one of the Directors of the Respondent company furnished access codes to the cloud-based accounts packages and as much of the accounts documentation and information that he had available to him to the company Accountant. This information was furnished by the Director in circumstances where the Complainant was refusing to do so in contravention of specific instructions to do so.

The Complainant was informed on her return to work on the 9th of July that the Accountant had access to all the online accounts and that the accounts information was provided to the Accountant in her absence and that the failure to provide the information before leaving on 27th June 2019 was a serious issue. Having made numerous requests to the Complainant to co-operate with the Accountant, it was clear that the Complainant for whatever reason would not do so.

The Complainant went on uncertified sick leave on the 23rd of July 2019.

On the 25th of July 2019, the Complainant received an email in her absence which was copied to the company Directors indicating that there were a number of significant inconsistencies with the documentation that had been furnished by the Director and the entries on the online system. The Respondent considered this a serious breach of trust by the Complainant.

The Accountant raised a number of issues in relation to the information that had been put on the system. A request was made that this information be corrected as soon as possible. The Complainant was not in a position to do this due to her absence, but her sister undertook to make the corrections on the basis that the Complainant was on sick leave.

On the 30th of July, the Director was informed by the Accountant that no corrections or entries had been put on the company’s system in accordance with the request made on the 25th of July. On the 1st of August 2019, a request was made by the Accountant that all of the documentation should be furnished in order that the Accountant prepare the day-to-day accounts for 2018 and they would then file the appropriate returns on behalf of the Respondent for 2018.

From the beginning of April 2019 to mid-July, no information had been provided to the Accountant by the Complainant who was responsible for the Accounts Administration.

By the 1st of August 2019, it became apparent that the Complainant was operating the accounts of the company in a manner which was unacceptable and could have exposed the Respondent to financial or regulatory issues.

The Respondent was left in the position where the Accountant had to carry out a full retrospective review of all day-to-day invoicing, payroll, payments made, bank reconciliation, creditors, debtors for 2018 and to rectify all of the incorrect entries on the account’s software of the company in order to put the accounts in order.

A number of assurances were given by the Complainant in relation to the provision of the information to the Accountant, all of which she failed to comply with. A further meeting was called with the Complainant and the Complainant was advised that her performance since, at least the beginning of April 2020, was seriously lacking and that the Respondent was left in an invidious position and in the circumstances, her position was no longer tenable.  On the 1st of August 2019 the Complainant was summarily dismissed for this breach of trust. In view of the fact that there were personal relationships between the parties, a “redundancy payment” was made to the complainant in the sum of sum of €1,326 based on a redundancy calculation. Two weeks’ pay in lieu of notice was paid with holiday pay. Although a redundancy payment was made, the Respondent submits that this should have been more correctly referred to as an ex-gratia payment.  

The Complainant’s performance had been raised with the Complainant on a number of separate occasions between the beginning of April and August 2019.The Respondent accepts responsibility for employing an Accounts Administrator who was clearly not qualified to carry out the work that was required of an Accounts Administrator for an entity such as the Respondent. However, the dismissal of the Complainant was justified, reasonable and fair.

Contact was made with the Complainant in this case by the Respondent’s solicitor on the 7thFebruary 2020 to ascertain if the Complainant wished herself or with the aid of a representative to engage in a discussion to resolve the dispute. She declined.

At the hearing, the Respondent exhibited a letter dated 11th February 2020 furnished by the Respondent’s Accountant, which the Respondent asserted set out the issues that could have been identified and rectified early in 2019 had the Complainant not refused or failed to engage with the Respondent’s Accountant.

Evidence of the Director

The Director of the Respondent gave direct evidence at the hearing. He outlined the events as per the written submission, above.

He noted that he gave a bit of leeway in relation to the second Sage package as he wanted to get things right, but it appeared that the Respondent could no longer rely on the accounts submitted by its staff. He stated that at the meeting on 1st August 2019 he indicated to the Complainant that they are letting her go. He noted that the letter dated 6th August 2019 referred to a redundancy payment, however it was a “good faith” payment and there was no redundancy as such. He noted that he was aware that the Complainant’s marriage broke down around January / February 2019 and he knew that she was personally under pressure.

The Director confirmed that the Respondent has a grievance and disciplinary procedure in place, but it was not followed in respect of the Complainant’s dismissal. He confirmed that the Complainant was dismissed for failure to comply with the directions. He confirmed that there was no investigation to establish the reasons for that failure, the Complainant was not aware of the allegations against her, was not informed of her right to representation and was not given right to appeal the decision to dismiss. The Director said that he thought that, because of the family connection, the matter would be resolved amicably.

The Complainant submits as follows:

The Complainant said that initially all her work was done through Excel and she asked for the Sage package. There was a lot of details to input. As Sage was subscribed to in March, January to March details were not uploaded. She said that she started panicking because of all the emails and invoices. She noted that the invoices, wages etc. were correct and there were small mistakes, but these could be rectified.  She offered to cancel her holidays to finish the job but the Managing Director (MD) of the Respondent (not present at the hearing) told her not to worry about it. When she returned from her holidays, she was surprised that all was sent to the Accountant.

The Complainant submits that she was on sick leave with a head injury from 23rd July 2019. On 30th July 2019, when recovering at home following some time spent in hospital, she got a text message from one of the Directors asking her to come to the office for a meeting the following day. As she was unfit to drive, a colleague was asked to come and pick her up. When she got down to the office, the Complainant claims that she was given a list of errors and unfinished accounting projects. The Managing Director told the Complainant “I’m sorry but I have to let you go. The accounts were not finished.” The Complainant said that she asked if the MD wanted her to leave now and he replied that she could stay for a cup of tea. She said that she was shocked and apologised to the MD. The Complainant submits that no other reason was given. Her colleague then drove her home.

The Complainant submits that she then got a redundancy letter dated 6th August 2019 but there was no redundancy situation.

The Complainant said that her relatives made it known to her that she was sacked for “fiddling the books”. She was mortified as she always considered herself a loyal employee.

In cross-examination, the Complainant took full responsibility for the accounts not being finalised. When prompted by the Respondent’s representative, she confirmed that maybe she tried to have it done “too perfect”. She agreed that she should have given the password to the Accountant to access the system.

Mitigation of loss

The Complainant submits that she did not look for alternative employment following her dismissal. She said that she was offered a job but declined the offer. She said that she felt deflated as a result of the dismissal. She also suffered from an elbow injury and still attends physio. She said that she is a carer (in receipt of Carer Allowance) and she is caring for her vulnerable children. She said that due to Covid 19 she can’t work as she would expose her children. She said that she is not in a position to work at the moment, but she expressed her hope that by the time the pandemic is over her elbow will be fine and she will look for work then. She noted that had she stayed in the employment with the Respondent, an option of working from home could be considered.

Evidence of Ms L, work colleague and the Complainant’s sister

Ms L said that she was helping out with Sage. She confirmed that the Complainant offered not to go on holidays, but the MD told her not to worry. She said that she told the Director that the paperwork is not ready, but he told her it had to be sent. Ms L said that she was not aware that either she or the Complainant were to be let go, there was no warning, and she was blindsided.

She said that the issues presented at the meeting on 1st August 2019 were small ones and could be rectified.  She felt that the Director “threw them under the bus” for things that he did.  

The relevant law

The Unfair Dismissal Act, 1997 stipulates that:Section 6(1)

” Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 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: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair, and Section 6(7) provides for an Adjudication Officer to have regard to

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: “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 employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

I must also have regard to the procedures used in arriving at a decision. Guidance is provided in S.I. 146/2000, Code of Practice for disciplinary and grievance processes.

The fact of dismissal in this case is not in dispute between the parties and therefore the Respondent carries the onus of showing that, having regard to all the circumstances there were substantial grounds justifying the dismissal.

There were no contentious issues and no disagreement between the parties in respect of the events and the fact that preceded the dismissal. The uncontested background facts of the matter before me are as follows:

The Complainant commenced her employment with the Respondent as Accounts Administrator on 12th July 2017 and the employment terminated by reason of dismissal on 1st August 2019. There was no dispute that from April 2019 onwards a number of requests were made by the Respondent’s Accountant to the Complainant to furnish relevant records in order to complete the Respondent’s accounts for 2018. It was not disputed that these were not provided to the Accountant until July 2019 when the Director of the Respondent gave the Accountant “all [he] had in the office”. The Complainant was dismissed shortly thereafter.

There was no dispute that the stated reason for the dismissal at the time it took place was redundancy. This was confirmed by a letter dated 6th August 2019 to the Complainant. The Complainant received the sum of €1,326 in respect of the purported redundancy. Both parties confirmed however that no genuine redundancy situation existed, and the payment was, in fact, an ex-gratia payment. In the written submission, the Respondent asserted that the Complainant was summarily dismissed for breach of trust. However, at the adjudication hearing, the Respondent clarified this and confirmed that the actual reason for the dismissal was failure to comply with the directions i.e., to provide requested record to the Accountant.

The WRC and the Labour Court have consistently held that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place.

It follows, therefore, that before a decision is made to dismiss an employee, an employer should first tell the employee of the respects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving their performance.

The Respondent conceded at the hearing that it had not follow fair procedures in effecting the Complainant’s dismissal. The Respondent confirmed that the Complainant’s failure to furnish the Accountant with relevant records was not investigated in any way, the Complainant was not made aware of any allegations against her and was not formally informed of any issues with her performance. Prior to the meeting on 1st August 2019, the Complainant had no warning that termination of her employment was contemplated. The Complainant was not given the right to representation. The Respondent confirmed that there was no avenue of appeal available to the Complainant in the situation where she was dissatisfied with the decision to terminate her employment.

I find that the Respondent did not apply fair procedures prior to arriving at the decision to dismiss the Complainant.

As to whether there were substantial grounds for the Complainant’s dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, quoted above.

It appears from the submissions of the parties that the Complainant did not refuse to comply with the directions. However, it was not disputed that, whether it was due to unfamiliarity with the new system, unsatisfactory time management, workload or another reason, the Complainant did not furnish the Accountant with the requested records. As the Respondent did not explore the matter and the Complainant did not raise any difficulties with the Respondent at the time (albeit she did note in her email of 11th June 2019 that “…it’s been so busy here”) it is impossible to speculate as to the reasons for that failure. However, the Respondent decided to dismiss the Complainant with immediate effect for that failure. No evidence was presented by the Respondent that any consideration was given to a sanction other than dismissal.

Having considered the evidence available to me, I find that the procedure employed by the Respondent, or lack thereof was a serious oversight. Moreover, I do not accept that summary dismissal was a reasonable response open to a reasonable employer in the circumstances of this case. However, I do find that the Complainant contributed to the situation she found herself in.

The Complainant has sought compensation. Given the circumstances I take the view that compensation is the appropriate form of redress.

The factor that must be taken into account in determining the level of compensation is the extent to which the Complainant sought to mitigate her losses. I note the decision of the Employment Appeals Tribunal in the case Sheehan v Continental Administration Co Ltd (UD858/1999) where it stated, “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”. It is clear that there is a legal duty to mitigate financial loss by taking diligent steps to secure alternative employment. I also note the decision in Burke v Superior Express Limited UD 1227/2014 where the EAT held that the standard required is a high one.

The Complainant confirmed that she had not sought new employment and, in fact she declined an offer of a job. She confirmed that she was not available for work due to both the ongoing health issues relating to an elbow injury and her carer’s responsibilities. However, she noted that, given the nature of her duties with the Respondent, had she remained in her job an option of working from home could have been considered.

Having carefully considered all the evidence before me I find that the Complainant was unfairly dismissed by the Respondent. However, by the Complainant’s own admission she has not made sufficiently rigorous attempts to mitigate her loss in the period between her dismissal and the date of the within hearing.

Having considered the circumstances of this case, I determine that the appropriate compensation payable to the Complainant is €6,630.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant a sum of €6,630 in compensation. For the avoidance of doubt, this is in addition to the sum already paid to the Complainant at the time of her dismissal.

Unfair dismissal- failure to mitigate loss -