ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00030501

Parties:

	Complainant	Respondent
Parties	Tara Keating	Camfil (Irl) Limited Camfil

Representatives

Mr Lars Asmussen BL instructed by Neil Cosgrave Cosgrave Solicitors

John Keenan JRK Business Services

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00040497-001	20/10/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00040497-002	20/10/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00040497-003	20/10/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00040497-004	20/10/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00040497-005	20/10/2020

Date of Adjudication Hearing: 15/03/2022

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant was employed by the Respondent as a Purchasing Representative. Employment commenced on 01/01/1990 and ended on 21/02/2020 (being challenged).

This complaint was received by the Workplace Relations Commission on 20th October 2020.

Summary of Respondent’s Case:

Preliminary Issue.

The important preliminary issue of jurisdiction is raised in this case on the basis that it is submitted that the Complaint made and in respect of which adjudication under Section 8 of the Unfair Dismissal’s Act 1977 is sought by the Complainant is out of time.

The Complaint was not submitted to the Workplace Relations Commission within the prescribed timeframe stipulated in Section 8 (2) of the Unfair Dismissals Act 1993 which amended Section 8 of the 1977 Act.

The relevant provision within Section 8(2) of the 1993 Act may be recited as follows:

“A claim for redress under this Act shall be initiated by giving notice in writing ……

(a) within the period of 6 months beginning on the date of the relevant dismissal

(b) if the rights commissioner or the Tribunal (amended to Adjudicator per 2015

Workplace Relations Act) …is satisfied that exceptional circumstances prevented the giving of notice within the period aforesaid, then, such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable.”

Date of Dismissal: 21/02/2020

The Complainant’s employment was terminated by notice in writing in a letter dated January 30th, 2020. The date of termination was prescribed as February 21st, 2020.

This letter issued following a disciplinary hearing in which the disciplinary manager advised the Complainant that for reasons set out;

“In light of my findings, I am obliged to decide, and advise you that your employment with Camfil (Irl) Limited will formally terminate on Friday February 21st, 2020.”.

Following a subsequent Disciplinary Appeal Hearing on July 3rd, 2020, and a determination upholding the decision to terminate the complainant’s employment was issued by the external Disciplinary Appeal Chairman, dated July 24th, 2020.

By letter dated August 4th, 2020, Ms. Keating was advised that following the Appeal Decision issued that the termination of her employment on February 21st, 2020, was confirmed, and as result any outstanding payments accruing would be paid.

Stated in January and restated in August 2020, by the Respondent, the date of termination

of the Complainant’s employment was clear and unambiguous.

Moreover, on the online Complaint Form used to lodge her complaint with the Workplace Relations Commission, the Complainant refers to the date on which her employment ended as “21/02/2020”.

Accordingly, the Complainant was, also, very clear and unambiguous in respect the date of her dismissal.

Date of Complaint: 20/10/2020

The Workplace Relations Commission, in a letter putting the Respondent on notice of Ms. Keating’s complaint seeking adjudication under the Unfair Dismissals Act 1977, advised that the said complaint was received on October 20th, 2020.

The fact is that there was a total of 172 working days (34 weeks and 2 days) between the date of dismissal and the date of Complaint.

As noted, Section 8(2)a specifies a period of 6 months or 26 weeks (130 working days) within which a Complaint seeking adjudication must be lodged, save where “…exceptional circumstances prevented…” notice of complaint being lodged within the 6 months period specified.

It is submitted that no such exceptional circumstances preventing notice of complaint arose in the instant case.

Accordingly, no reasonable cause arising from identifiable factors preventing notice of complaint preventing notice of complaint per Section 8(2)(a) arose.

Neither can it be said that the factors listed in pleadings on behalf of the Complainant (Paragraph 85), as factors justifying an extension of time per Section 8(2)(b) be considered as reasonable and demonstrating a causal link between such factors and the timing of the notice of complaint concerned.

Pleadings Re: Reasonable Cause Justifying an Extension of Time

Five grounds are listed in support of an application for an extension in time per Section 8(2)(b).

In the first instance neither any one of the five factors itemised as “…reasonable cause to extend the time limit for the Complainant’s lodging her claim from 6 to 8 months…” or la five in aggregate, can be sustained as substantive factors preventing compliance with the Section 8(2)(a) requirement.

Neither can the ‘but for’ test be successfully applied to each or any of the said factors such that they prevented compliance.

No causal link can be reasonably established in the context that this requirement is referred to in the recitation of precedent contained in the pleadings concerned.

Reference is made to Paragraphs 83 and 84 of the relevant submission, and text reproduced from DWT 0338 Cementation Skanska v Carroll and Salesforce.com v Leech EDA1615, respectively.

In ADJ-00029355 dated August 23rd, 2021, the Adjudicator recited and relied upon the two cases referred to herein and in rejecting the complaint based on non-compliance with the notice period requirement, in summary, emphasised the onus placed on a complainant to demonstrate a compelling causal link between circumstances said to justify time extension and failure in compliance with notice requirements.

The Adjudicator characterised requisite test as the “Explain and Excuse” test.

In a more recent Decision dated January 6th, 2022, an Adjudicator considered the question of compliance with the Section 8 notice requirement (ADJ-00028373).

In this Decision the Adjudicator placed emphasis on the nature of a factor cited as the cause of delay in submitting a complaint under the Unfair Dismissals Act. In so doing, the Adjudicator referred to the amendment to the 1993 Unfair Dismissals Act in which the Section 8 notice requirements language retained the definition of circumstances justifying an extension in time as circumstances “preventing” compliance.

In explaining the emphasis concerned the Adjudicator stated that “The word suggests something active which was outside the Complainant’s immediate or direct control…”. In deciding that the complaint in question was out of time the Adjudicator found that she was “…satisfied that the failure to notify the Director General of the complaint within the six- month period provided for in Section 8(2)(a) was prevented due to reasonable cause as required under the 1977 Act as amended and therefore decline to extend the initial period of six months set out in that same section of the Act.”.

Pleadings Re: Date of Dismissal

Separate from pleading in respect of an extension in time, submissions are also made on the

Complainant’s behalf in respect of the date of dismissal.

As already stated, the date of dismissal is unambiguously acknowledged in the Complainant’s complaint submitted to the Workplace Relations Commission on October 20th, 2020.

In pleadings submitted on this issue the case of UPC Communications Ireland Limited (now Virgin Media Ireland Limited) and the Employment Appeal Tribunal and Ann Marie Ryan [2017] IEHC 567 is substantially relied upon.

It is pleaded on behalf of the Complainant that these Judicial Review proceedings were conclusive in establishing that a third party, the Employment Appeals Tribunal, were entitled to apply a broad discretion in exercising a discretion in jurisdiction when proceeding to hear a particular case under the Unfair Dismissals Act. It is submitted that this is a very wide interpretation which does not take account of the exceptional delay in the application of the disciplinary procedure applied, and which was adjudged to be very substantially fell at the feet of the employer and was counter to the “…claimant’s entitlement to natural, speedy and effective justice.”, as recited. The application of procedures was not concluded for a period of almost one year.

No such exceptional delay giving rise to a question of fairness or natural justice can be said to arise in the instant case. Moreover, length of time taken in the application of procedures in this case, can be substantially attributed to the availability of the Complainant or lack thereof.

In any event, it is submitted the decision of the High Court referred to is far more discreet and complex than as portrayed. In fact, in rejecting the applicant employer’s application for orders quashing the Employment Appeals Tribunal determination of unfair dismissal, the Court determined that statutory proceedings were available which could have been pursued as an alternative to a judicial review and characterised this conclusion as the “default

position” per “EMI Records (Ireland)Ltd v Data Protection Commissioner [2013] 2 I.R.669”.

In relation to the specific question of jurisdiction The High Court referenced a Supreme Court Judgement (Clarke v O’Gorman [2014] IESC 72), which noted, apart from any other consideration, that the statutory provision in respect of notice of complaint was “…not specifically directed towards the decision maker…” but rather concentrated on the complainant’s responsibility in complying with the statutory notice period provided for in the Unfair Dismissals Act. The High Court, earlier in the case, cited case law in respect of the requirement to comply with the statutory notice period but observed that rather than a jurisdictional condition precedent, an Employment Appeal Tribunal could consider the question of compliance as part of rather than exclusive from and in advance of proceedings.

The requirement for compliance with notice was not diminished in this context.

In the Labour Court Determination UDD2114 dated February 12th, 2021, the Court considered the question of date of dismissal. In this case the Court was very categoric when it stated that “It is well established that the date of dismissal is the date that dismissal is communicated to an employee. The date on which an appeal hearing outcome is communicated is not relevant.”.

The Labour Court in a lengthy and considered Determination cited a number of authorities in this regard.

One such case referred to was “Savage v Sainsbury” approved by the House of Lords in “West Midlands Co-Operative v Tipton (1986) IRLR112” in which it was observed that “…the effective date of dismissal is date of the initial notification of the dismissal to the employee.”.

Summary

In summary, for the reasons set out it is submitted that Ms. Keating’s complaint is out time.

Her Complaint to the Workplace Relations Commission acknowledges the date of dismissal as February 21st, 2020.

The Respondent clearly and unambiguously communicated this date of dismissal and acted on it.

No reasonable cause preventing compliance with the Section 8(2)(a) notice requirement has been advanced or pleaded.

It is formally requested that the Complaint under the Unfair Dismissals Act should accordingly fail.

Substantive Issue.

Basis for Disciplinary Action

The initiation of a formal disciplinary procedure was prompted by, and `based on, two discoveries:

(a) The discovery of a large volume of email exchanges in Mrs. Keating’s Camfil email

account relating to two business which had no connection with Camfil Ireland.

The two companies concerned were a dry-cleaning company in which Mrs. Keating was and is understood to be continuing as an owner and the second was a construction company in which her husband had an ownership interest. The email correspondence was very extensive, with more than 230 items dated in the previous twelve months i.e., September 3rd, 2018, to August 30th, 2019.

The twelve months sample clearly indicated that Mrs. Keating was conducting business on behalf of the two companies concerned during her working hours as a Camfil Ireland employee and using her Camfil Ireland electronic signature.

(b) Firstly noticed, in her Camfil Ireland Email account, was a documented confirmation of a holiday booking including flights and hotel accommodation in the name of Ms. Keating. This email confirmation covered a stay at a Spanish resort from September 14th to September 21st, 2019.

The booking confirmation was dated, two months previously, on July 22nd, 2019.

This booking drew notice because Mrs. Keating, as Purchasing Officer, was scheduled to make an important presentation to a conference of international Camfil representatives, from 12 countries across the world, during the Irish hosted conference on September 16th, 2019.

The conference in question is held biennially and is hosted by the internationally dispersed Camfil production businesses in rotation.

The full focus of the conference was on purchasing/procurement. This is because the Camfil Group is reliant on cost effective and efficient production supply chains and stock management. The sharing of information and good procurement practice is a key component in building Group competence, corporate know how, and key market intelligence.

Mrs. Keating failed to declare her intention to be absent and therefore unavailable to present at the Camfil Group conference on September 16th, 2019.

Moreover, she misleadingly behaved as though she was intending to make the important presentation to international colleagues at the prestigious conference concerned.

She did not submit a leave application in respect of the holiday period that she booked.

In fact, on August 9th, 2019, the Managing Director, Mr. Paul Flanagan, the Camfil Group conference host, emailed Ms. Keating and asked her what holiday plans she had. Ms. Keating replied that she was scheduled on leave for three days at the end of that month, which she subsequently took (August 22, 23 and 26).

In the event, Ms. Keating submitted medical certification to explain and excuse her absence for a period of absence beginning on September 5th and continuing for a continuous period of eight weeks until October 30th, 2019.

Ms Keating sent a text message to Mr Flanagan at 08.45 hrs on September 5th, advising him as follows; “My back went, and I am up the wall with the event coming up……. I am sorry for dropping this on u. My doc trying to get me an app with a specialist asap. He is ringing me later…”

Ms. Keating had forwarded a copy of her holiday booking/itinerary to her husband’s business email account at 13.38hrs on September 4th, 2020, the day before she commenced her illness absence. Her period of absence included the Spanish holiday she had booked i.e., for September 14th to September 21st, 2019. She departed two days prior to her scheduled presentation in line with a booking confirmation discovered in her Camfil Email account, dated July 22nd, 2019.

The document discoveries referred to, occurred during Mrs. Keating’s absence and in circumstances where a colleague required access to Mrs. Keating’s email account in order to follow up on an urgently required delivery of filters.

Disciplinary Process

The application of a formal disciplinary process was conducted in line with Camfil

Ireland’s written procedure, a copy of which was issued to Ms. Keating on October 30th, 2019, along with a letter referencing the disciplinary issues involved.

October 30th was the date on which Ms. Keating returned to work after her reported illness absence, in respect of which she submitted medical certificates issued by a General Practitioner.

Application of Disciplinary Process

The following is the chronology associated with the application of the formal disciplinary process concerned:

October 30th, 2019: Disciplinary Issues Raised and Suspension Effected

By letter dated October 29th, 2019, Mr Thomas Dullaghan, Finance Manager, Camfil Ireland Ltd advised Ms Keating that formal disciplinary procedures were being applied in a situation where: “…a large number of emails sent and received through your Camfil Email account appear to point to you having engaged in an established routine of business activity during your hours of work with Camfil, without the knowledge or approval of Camfil (Irl) Ltd. A sample listing of the emails concerned was attached.

It was noted that the email activity concerned related to two named businesses unconnected with Camfil Ireland and also that Ms Keating used her Camfil Ireland electronic signature in the correspondence referenced.

The second substantive disciplinary issue set out, related “…to evidence, again through email records, that you deliberately misled Camfil (Irl) Ltd in respect of your required attendance at and presentation to, Camfil Group conference on September 16th2019. This evidence shows that you pre-booked flights and planned your absence on dates including the Group meeting.”.

Ms. Keating was suspended from duty, on basic pay, with immediate effect and in advance of a disciplinary hearing scheduled for November 7th, 2019.

She was advised that at the proposed hearing she could “...be accompanied and represented by a colleague or an official from a registered trade union.”.

November 1st, 2019: Medical Certificate Submitted

In an immediate response to the disciplinary letter Ms Keating submitted a medical certificate which was dated October 30th, 2019 and indicated that Ms Keating “remains medically UNFIT to return to work at this time.” It stated that Ms Keating was attending a medical centre for “…ongoing treatment of a serious medical condition.”. She was deemed to be unfit to return to work from October 30th, 2019 to January 2nd, 2020.

Mr. Dullaghan responded by writing to Ms. Keating on the same day, November 1st, 2019.

He noted that the medical certificate had been submitted after her suspension from duty and the initiation of a formal disciplinary procedure.

Ms. Keating responded by submiting a medical certificate declaring her unfit for work from October 30th,2019.

In this context was offered the opportunity for a medical review with an occupational health specialist.

In the circumstances the disciplinary hearing initially scheduled for November 7th did not take place.

Ms. Keating accepted the opportunity for a medical review, however as the date for her review approached, she advised that she would not be attending it.

November 25th, 2019: Ms Keating advises non-attendance at Medical Review

By email of November 25th, 2019, Ms Keating advised Mr Dullaghan that she did “…not feel well enough to attend the scheduled review.” She advised that she had medical appointment scheduled for December 14th.

An occupational health review was consequentially arranged for December 18th.

December 18th, 2019: Medical Review and Fitness to Attend a Disciplinary Hearing

The occupational health review in question resulted in a determination that Ms. Keating should be expected to return to work in “1 month” and that she would be fit to “attend a meeting or disciplinary process from January 2nd, 2020.

January 16th, 2020: Disciplinary Hearing

After an initial date was declined, Ms. Keating subsequently accepted an invitation to attend a disciplinary hearing on January 16th, 2020.

Ms. Keating chose to be accompanied at this hearing by “family member”. Though strictly outside of procedure, Ms. Keating was accommodated with her chosen companion whom she referred to as her “support person”, per a request that she submitted on January 14th. Ms. Keating had been advised that she could be accompanied and represented by a colleague or an official from a registered trade union.

Ms. Keating attended with her chosen companion, Ms. Eimear Mahad, who actively participated in the hearing.

Mr. Dullaghan attended with a notetaker.

At this hearing It was put to Ms. Keating that she had, over a period of years, extensively used her Camfil Ireland Email account in activities related to two businesses outside of Camfil Ireland. One of these was a laundry business in which had an ownership interest, and the other was a construction company in which her husband had an ownership interest.

Ms. Keating acknowledged that she had used her email account in the manner referred to but countered that her work output and commitment to Camfil Ireland outweighed her involvement in the activity described.

In response to Ms. Keating’s companion, it was explained that the emails in question were discovered by a work colleague who necessarily accessed her account in her absence as part of his duties.

Ms. Keating stated that when she started the laundry business, she had made it known to the then Factory Manager in Camfil Ireland and was never told she could not use her Camfil Ireland email account in this regard. She did not have any documented evidence of her declaration to the Factory Manager who was no longer employed by Camfil Ireland.

She stated that the Camfil Ireland’s Employee Handbook, at Page 48, permitted personal use of her email account.

The relevant extract reads as follows:

“Limited use of the Company’s e-mail for personal matters is permitted and is to be restricted to lunch hour and after work hours and in accordance with the terms of this policy. However, the Directors reserve the right to restrict or ban personal use if this becomes excessive.

An employee who engages in excessive personal use of the e-mail even outside working hours or not in accordance with the perms of this policy, may be subject to discipline.”

Apart from any other consideration the policy in question prohibits excessive use of the Company e-mail and expressly prohibits

“i) Using company equipment or electronic resources for personal gain or purposes unrelated to the Company business;”

When asked about her holiday booking which clashed with her commitment to attend the Camfil Group conference on September 16th, 2019, Ms. Keating said that she had not declared her booking in a situation where she was “under pressure” in respect of her health and her relationship with a manager colleague. She stated that in this context the dates in question had gone completely out of her head. Ms. Keating acknowledged that while no formal complaint had been made by her in respect of her manager colleague and that she had intimated that she had a health issue, Mr. Dullaghan had been supportive.

It was put to Ms. Keating that she had not declared her booking in a situation where she had, over a period, engaged with Camfil Ireland’s Managing Director in the preparation for the important Group conference and her scheduled presentation.

It was put to Ms. Keating that within weeks of scheduled departure there was evidence of changes in the itinerary of the holiday that she had booked. Ms. Keating denied that she had made these changes and suggested someone else had done so.

She stated that she had sought her doctor’s advice in respect of the holiday and was advised that she should take it as she needed a break.

January 30th, 2020: Disciplinary Decision

By letter of January 30th, 2020, Mr. Dullaghan, issued his disciplinary decision.

Having found that Ms. Keating had made admissions and had not offered substantive mitigation in respect of her extensive misuse of her Camfil Ireland Ltd email account or her failure to reasonably account for the fact that two months prior to her scheduled presentation at the biennial Camfil Group conference hosted in Dublin, Mr. Dullaghan put Ms. Keating on notice of termination of her employment to take effect three weeks later on February 21st, 2020.

He stated: “In summary, I find that your behaviour and actions, over time. And in a conscious manner amount to very significant gross misconduct and the severing of the trust relationship necessary to maintain your employment with Camfil (Irl) Limited.

In light of my findings, I am obliged to decide, and advise you that your employment with Camfil (Irl) Limited will formally terminate on Friday February 21st, 2020.”

He explained that the three weeks’ notice period was provided to allow MS Keating to appeal his decision to the President Camfil CEBI, Camfil Group. Ms. Keating was advised that she could lodge an appeal within seven working days of Mr. Dullaghan’s decision.

March 6th, 2020: Disciplinary Appeal Hearing

On February 6th, 2020, Ms. Keating wrote to Mr. Don Donovan, President Camfil CEBI, Camfil Group requesting a disciplinary appeal hearing.

On February 10th, 2020, Mr. Donovan wrote to Ms. Keating and nominated February 25th, 2020, as the date for an appeal hearing.

He requested that she submit her grounds for appeal in advance and advised her that she had the right to be accompanied and represented by a colleague or an official from a registered trade union.

On February 17th, 2020, Ms. Keating submitted her grounds for appeal, as requested.

She again advised that she would be accompanied by a family member, her cousin, who had accompanied her at the disciplinary hearing, and named a work colleague as a witness on her behalf.

She also advised that she would not be available to attend a hearing on February 25th, as she was scheduled for a medical procedure.

The appeal hearing was subsequently rescheduled to March 5th, 2020.

On March 2nd, 2020, Mr. Donovan wrote to Ms. Keating seeking clarification in respect of specific issues raised in her written grounds of appeal. He asked that she reply in writing in advance of the appeal hearing so that the points that she raised could be given full consideration. Ms. Keating declined to respond in writing.

The disciplinary appeal hearing was convened by Mr. Donovan who was accompanied by Mr. John Keenan, HR Advisor. Ms. Keating attended with her chosen representative.

Ms. Anita Butler, a work colleague attended as a witness at Ms. Keating’s request.

Mr. Paul Flanagan, Managing Director and Mr. Thomas Dullaghan attended as witnesses

at Mr. Donovan’s request.

Mr. Donovan referred to the disciplinary hearing on January 16th, the finding of Gross Misconduct and the sanction of dismissal that was prescribed.

He requested Ms. Keating to provide the clarifications that he had sought in his written request of March 2nd. Ms. Keating responded by reference to a prepared document but declined to provide a copy. Her representative indicated that a copy would be provided after the hearing.

Testimony was heard from each of the three witnesses, separately.

During an exchange which arose following Ms. Butler’s testimony in which she supported Ms. Keating’s contention that a previous manager had given her permission to use her email account in respect of her business interests, she asserted that Mr. Donovan had himself had knowledge of her involvement with the scaffolding business and approved her “doing bits and pieces” for it. Mr. Donovan immediately rejected this assertion however Ms. Keating maintained that her assertion was true.

At this point Mr. Keenan intervened as he believed that the assertion made could prejudice the hearing process. He asked Ms. Keating if she was prepared to continue the hearing with Mr. Donovan.

There was a short break in proceedings to allow Ms. Keating and her representative to consider their position. Ms. Keating’s representative indicated that they would make a phone call, consider their position and respond.

On resumption of the hearing Ms. Keating indicated that she was not happy to continue.

Mr. Donovan concluded the hearing and advised that in light of the serious issue that had arisen, albeit that he unreservedly rejected Ms. Keating’s allegation that he knew and approved of her work for the scaffolding company, a new appeal hearing would be arranged possibly with an external party.

On March 10th, 2020, on foot of an instruction from Mr. Donovan, a large volume of sample emails relating to Ms. Keatings activity on behalf of external businesses were emailed to Ms. Keating.

She was asked to provide a copy of the document she had referred to in elaborating on her grounds of appeal and promised by her representative at the appeal hearing. She declined to do so.

July 3rd, 2020, New Disciplinary Appeal Hearing

A fresh disciplinary appeal hearing was convened by Mr. Maurice Dowling and external HR practitioner on July 3rd, 2020.

The hearing took place on this date following a number of email exchanges/contacts with Ms. Keating largely related to restrictions and precautions arising from the Covid-19 pandemic and medical certification from Ms. Keating, arising from which an earlier date could not be agreed.

There were also exchanges in which Ms. Keating challenged the application of fair procedure alleging that she had not been provided with all of the documentation that she should have been. Documents including Ms. Keating’s ‘Personnel File’ were provided to her on June 23rd, 2020. `.

The exchanges concluded when Mr. Dullaghan, with whom Ms. Keating exchanged, wrote advising her that in his view, the ongoing exchanges were unproductive he would not be continuing. He advised that matters had moved on and a new appeal date was to be arranged taking into account of Covid-19 precautions.

At the appeal hearing on July 3rd, 2020, Ms. Keating was again accompanied by Ms. Eimear Mahad, her chosen representative. Mr. Keenan also attended again.

Mr. Dowling went through each of the points set out in Ms. Keating’s grounds for appeal and referred to the two substantive disciplinary issues involved: Ms. Keatings absence from the Camfil Group presentation and Ms. Keating’s email activities in respect of two external businesses.

After extensive questioning and exchanges with Ms. Keating and her representative, Mr. Dowling suggested that it would not be necessary to hear any testimony from nominated witnesses, Ms. Keating and her representative agreed, and no witnesses were called.

Both Ms. Keating and her representative confirmed to Mr. Dowling that they were satisfied with the hearing. It then concluded.

July 24th, 2020, Final Disciplinary Appeal Decision Issued

On July 24th, 2020, Mr. Dowling issued his detailed decision in the disciplinary appeal made by Ms. Keating.

Mr. Dowling upheld the decision to terminate Ms. Keatings employment. He explained:

“My decision in this matter is based on the evidence presented at the Appeal Hearing, perusal of all documentation provided and ultimately, on what I believe to be reasonable and plausible in the circumstances. There is no denial by you that you did not advise Camfil of your holiday plans or that you used your work email account for personal business purposes. As such my role is to give due consideration to all the circumstances and any ‘mitigation’ presented by you. Thereafter, it is a matter of making an independent assessment of the seriousness of theses infractions and determining if the sanction issued by Camfil was appropriate.

I believe that your use of the company email in particular was not appropriate and that it does exceed the bounds of flexibility normally extended by both parties to the employment relationship. It is my opinion that the issues around the misuse of your company email account contributed significantly to the mutually acknowledged erosion of trust and confidence between you and Camfil and constitutes a serious breach of policy.

Accordingly, I regret that I must advise you that your appeal is declined and that the decision to terminate your employment is upheld.”.

On August 5th, 2020, following Mr. Dowling’s decision, Mr. Dullaghan wrote to Ms. Keating setting out details of the final payment due her i.e., in respect of accrued annual leave based on 19.4 days and Public Holiday payments due.

SUMMARY

CA-00040497 - 001

It is submitted that the decision to terminate Ms. Keating’s employment was reached through the application of fair procedure and natural justice.

The disciplinary procedure applied was fully in line with the Code of Practice on Grievance and Disciplinary Procedure contained in Statutory Instrument No. 146 of 2000 in which the principles of fair procedure and natural justice are set out and may be summarised as follows:

- The right to have any allegation of wrongdoing clearly set out

- The right to have an opportunity to fully respond to allegations concerned

- The right to representation

- The right to have any and all representations impartially heard and considered including matters of mitigation

Section 6 of the Unfair Dismissals Act 1977 requires that a decision to dismiss an employee will be deemed to be unfair unless, “having regard to all the circumstances there were substantial grounds for justifying the dismissal.” In the instant case the grounds for dismissal were substantial and went to the core requirement necessary to maintain the employment relationship, trust. Trust irretrievably broke down between the parties based on behaviour acknowledged by the complainant.

Ms. Keating was determined to have deceived her employer over a considerable period of time in maintaining her false intention to make a presentation and at important and prestigious company event involving international guest colleagues.

Ms. Keating booked a holiday abroad on dates that included the date on which she was scheduled to present at the international Camfil Group conference hosted in rotation by Camfil Ireland. She worked on this presentation directly with the Managing Director, without disclosing her booking,

Ms. Keating forwarded a copy of her holiday booking from her Camfil Ireland email account to a personal email account on September 4th, 2019. She subsequently submitted a medical certificate covering absence commencing the next day, September 5th, 2019, and on the same day she sent a text message to the Managing Director advising for the first time that she would not be available to make the presentation that they had both worked on.

Ms. Keatings attempted justification in respect of her voluminous use of her Camfil email account and signature in matters related to other businesses, in one of which she had a direct ownership interest, was completely baseless. She did not produce any evidence of any alleged permission and somewhat incredibly sought to justify her usage based on the reasonable acknowledgement that on occasion employees may wish to send a personal message on email.

In fact, the very excessive use and nature of the email activity involved is expressly prohibited in published Company policy with the notice that: “Non-compliance with this policy may result in disciplinary action up and including dismissal.”

In all of the circumstances it is submitted that the decision to dismiss Ms. Keating was not unfair.

It is also submitted that it is settled law in respect of employers’ decisions to dismiss that Third Parties should not substitute the Respondent’s decision with a decision that they might decide, but rather they should have regard to whether the decision to dismiss fell “within a band of reasonable responses misconduct” determined.

The quote recited here, is recorded in ADJ-000165925 as per the Respondent’s submission in the case concerned, which may be said to have some parallels with the instant case.

The cases cited in support of the settled law in question were “Martin V Audio Centre Limited UD 617/1991, Looney and Co, Ltd UD 843/1984 and Thompson v Power Supermarkets Ltd UD 531/1998)”

The Adjudicator summed up the important point made when in her Decision she stated:

“In a dismissal case the function of an Adjudicator is to look at the offence, decide whether it reasonably comes within the definition of misconduct, decide whether the disciplinary procedures were fair and followed and decide whether the Respondent’s dismissal of the employee comes within a band of reasonable responses to misconduct.”.

It is submitted that in the instant case the Respondent’s decision clearly fell into the band of reasonable responses to the misconduct determined and following the application of fair procedure as set out.

CA-00040497-002

Ms. Keating was employed by the Respondent for just over 30 years, commencing employment on January 1st, 1990.

There is no copy of an employment contract on her Personnel File.

However, it is understood that Ms. Keating in common with a number of colleagues, including a witness that Ms. Keating nominated during the application of disciplinary procedures referenced in the instant case, was issued with a written contract of employment in June/July 2008 following a HR review.

In the event, it appears that Ms. Keating did not return a signed copy at that time or in the alternative for a reason unknown a signed copy was not filed.

There is no request from Ms. Keating for a contract of employment on file prior to the submission of the instant complaint lodged under the 1994 Act.

Camfil Ireland staff have online access to the Employee Handbook, which comprehensively sets out the Respondent’s Policies, Procedures, and Terms of Employment of Camfil Ireland’s staff.

It is submitted that on the balance of probability, based on the fact that staff were provided with written contracts of employment per a HR review conducted in 2008 Ms. Keating was issued with a written contract of employment.

In addition, it is submitted that Ms. Keating was provided with effective access to a comprehensive Employee Handbook containing express terms and conditions of her employment.

Accordingly, she is not entitled to succeed in a claim for compensation provided for under the provisions of the 1994 Act.

CA-000409497-003

Ms. Keating has been paid in full in respect of all of her pay entitlements up until the termination of her employment on February 21st,2020.

A copy of Ms. Keating’s final payslip issued in 2019 (and attached to the submission) shows the Gross Pay recorded amounted to €501.92 and relates to 3 days’ pay in respect of her final sick pay entitlement in that year.

Staff are entitled to full pay in respect of a maximum of six weeks’ pay in any one calendar year. Ms. Keating had been absent on sick leave for 4 weeks in February 2019 and the three days in question were 3 from a total of 10 days remaining in her 2019 entitlement.

The total Gross Pay recorded in respect of 2019 as €32,273.68 based on a basic weekly

salary of €836.54 (€43,500 per annum).

Ms. Keating did not make any claim of underpayment prior to the submission of the instant claim under the 1991 Act.

No further payment is due to Ms. Keating.

CA-000409497-004

Ms. Keating payslip dated August 6th, 2020, records an amount paid of €3,247.45 Gross.

This payment relates to accrued annual leave at a rate of €167.31 per day for 19.41 days due and was calculated on the basis of leave accrued but not taken in 2019 and a calculated accrual in respect of 2020, proportionate to Ms. Keatings employment up to February 21st, the date on which her employment terminated.

Payment issued following receipt of the Disciplinary Appeal Decision dated July 24th, 2020.

Ms. Keating did not query this payment which issued through the Respondent’s payroll system in the normal way and was accordingly transferred direct to Ms. Keating’s nominated bank account by credit transfer.

The first time that this issue arose was in the context of the instant complaint under the 1997 Act.

All of Ms. Keating’s entitlement to payment in respect of accrued annual leave was satisfied in the amount referenced herein.

CA-00409497-005

Ms. Keating received her full entitlement to Public Holiday payment.

The final amount paid to her in this respect was also issued through the Respondent’s

payroll and recorded in her payslip dated August 6th, 2020.

The amount involved was €669.23 Gross, an amount equivalent to 4 days’ pay.

The Public Holidays concerned were October 28th, 2019, December 24th and 25th, 2019 and January 1st, 2020, respectively.

Accordingly, Ms. Keating was paid her full entitlement in respect of Public Holiday payment entitlement arising under the 1997 Act.

CA-000409497-003-004-005

It is formally submitted that Ms. Keating received, in full, her entitlements to payment in respect of salary, annual leave, sickness absence or public holidays and commensurate with her full service up to February 21st, 2020, the date of the termination of her employment with the Respondent.

Summary of Complainant’s Case:

Preliminary Issue.

It is submitted that the date of the Complainant’s dismissal was 24 July 2020, when the outcome of her appeal was decided and communicated to her, and not 21 February 2020 when Mr. Dullahan’s decision to dismiss the Complainant was issued.

In UPC Communications Ireland Limited (Now Virgin Media Ireland Limited) and Employment Appeals Tribunal and Ann Marie Ryan [2017] IEHC 567, the employer challenged the EAT’s determination, in circumstances analogous to the case at hand. Therein, the employer issued the employee with a letter of dismissal on the ground of gross misconduct on 18 October 2011. This letter stated that the dismissal was effective from that date but that the employee would be paid one month’s salary in lieu of notice. On 20 October 2011, the employee appealed this decision. The one month’s salary in lieu of notice was paid. The appeal hearing occurred on 6 September 2012. On 12 September 2012 the employer issued a letter to the employee upholding her dismissal. The employee submitted a complaint to the EAT on 7 January 2013. This was outside the 6 month time limit if the dismissal occurred on 18 October 2011 but inside same if it occurred on 6 September 2012. A preliminary issue arose as to the date of the dismissal. The employer argued that it never represented to the employee that its decision to dismiss her would not take effect pending the appeal. The employee argued that the appeal acted as a stay on her dismissal. The EAT found in favour of the employee, the High Court noting:

‘It ruled that the applicant should have dealt with the initial hearing of the appeal expeditiously, that the delay was largely the applicant’s fault and contrary to the claimant’s entitlement to natural, speedy and effective justice. It also found that the terms of employment led to a lack of clarity on the implications of the effectiveness of the initial dismissal. The Tribunal accepted the claimant’s submission that her dismissal was stayed pending the outcome of the internal appeal.’

Considering the employer’s judicial review of the EAT’s determination, the High Court refused the employer relief, stating that the EAT was entitled to consider this preliminary issue and whether it had jurisdiction to hear the complaint. The High Court found that the EAT in so doing had not acted in error of jurisdiction.

It is submitted that, applying the UPC decision to the case at hand, the date of dismissal was 24 July 2020 for the following reasons:

a) The Complainant’s was never furnished with a written statement of the terms of her employment by the Respondent.

b) The Respondent’s employee handbook, which the Complainant only received after the disciplinary process had started, provides no clarity whatsoever as to the implications of the effectiveness of an initial dismissal when it is subsequently appealed. Indeed, same state at page 30 of the handbook “The decision of the appeals officer will complete the formal disciplinary procedure, will therefore be final, and will be implemented”. It is submitted that same suggests that the original disciplinary sanction is stayed until the outcome of the appeal.

c) Mr. Dullaghan’s letter of dismissal dated 30 January 2020 concludes that the Complainant’s dismissal will terminate on 21 February 2020 and “This period of notice is being provided to allow you the opportunity to appeal my findings and decision”. It is submitted that same suggests that the original disciplinary sanction is stayed until the outcome of the appeal.

d) This 21-day period of notice acting as a stay on sanction to allow for the outcome of an appeal is corroborated by the employee handbook mandating that the appeal be issued within 7 days, the hearing scheduled within 5 working days of the appeal and the outcome issued within 5 working days of the hearing; a timeline which would have brought the entire appeal process to completion prior to the end of the notice period.

e) The appeal process was not completed within this 21 working day period and within the 21-day notice period but instead took from 30 January 2020 to 24 July 2020, a near 6 month period. It is submitted that same was due to factors entirely outside of the control of the Complainant, including severe COVID-19 restrictions in place at this time, including a 2 km and / or no inter-county travel limit; the Complainant’s serious ill health rendering her a person in extreme vulnerability to COVID-19; and the Mr Donovan’s initial appeal process collapsing due to it transpiring that he was conflicted and requiring the process start again from the beginning; and

f) At all times, the Complainant was of the view that she continued to be employed by the Respondent during the appeal and this was acquiesced to by the Respondent. Indeed, the Complainant continued to submit medical certification to the Respondent during this time and the Respondent continued to accept same without comment.

Preliminary Issue: Extension of Time

In the event that the Adjudicator finds against the Complainant’s submission presented above and that the date of dismissal was 21 February 2020, which is denied, the Complainant formally applies for an extension of time in lodging her complaint, as follows:

Section 8(a) of the Unfair Dismissals Acts states that any claim under that Act must be presented within 6 months of the date of dismissal. Section 8(b) states that a claim may also be presented:

‘Within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause.’

The Labour Court’s decision in Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0338 established the test for demonstrating ‘reasonable cause’ so as to successfully apply for an extension to the 6 month time limit. Therein, the Court stated:

‘It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say, it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression of reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied on. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present, he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case’.

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held:

‘It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly the onus is on the applicant to establish a causal connection between the reasons proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented by the complainant in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

It is submitted that, in the case at hand, there is reasonable cause to extend the time for the Complainant’s lodging of her claim from 6 months to 8 months as of 20 October 2020 when the WRC complaint form was lodged, for the following reasons:

a) At all times, the Complainant was of the genuinely held view that she continued to be employed by the Respondent during the appeal.

b) This was contributed to and acquiesced to by the Respondent which: failed to furnish the Complainant with sufficiently clear terms of employment or handbook to clarify the issue; suggested in correspondence that she was being afforded a notice period for the purposes of appealing the dismissal; and accepted without dispute her medical certification throughout the appeals process.

c) The Respondent afforded the Complainant with a 21 day notice period to appeal that the dismissal sanction which should have allowed for the completion of the appeals process within that time frame as set out in the employee handbook (7 days to lodge the appeal, 5 working days to hear the appeal, 5 working days to issue the decision). However, this timeframe as set out in the handbook was not complied with and it took from February to July to complete the process. A delay due to due to factors entirely outside of the control of the Complainant, including severe COVID-19 restrictions in place at this time, including a 2 km and / or no inter-county travel limit; the Complainant’s serious ill health rendering her a person in extreme vulnerability to COVID-19; and the Mr Donovan’s initial appeal process collapsing due to it transpiring that he was conflicted and requiring the process start again from the beginning.

d) The Complainant has suffered from severe ill health throughout this period of time that has delayed in her in partaking in the internal appeals process, delayed her in taking legal advice from her solicitor and delayed her in instructing her solicitor to issue legal proceedings; and

e) These delays arising from her ill health have been exacerbated by the ongoing COVID-19 pandemic and restrictions and her status as a medically vulnerable person to same.

It is submitted that the above both provide a reasonable explanation for the delay and a reasonable excuse for the delay of 2 months in lodging this claim.

Background to the complaint.

The Complainant commenced her employment with the Respondent on 1 January 1990.

The Complainant was paid a gross weekly salary of €850.

The Respondent failed to furnish the Complainant with a written contract or any form of statement as to the terms of her employment at the commencement of her employment or during the course of her employment as she was promoted and as the terms of her employment changed. The Complainant maintains that same amounts to a breach of section 7 of the Terms of Employment (Information) Act, 1991.

The Respondent failed to furnish the Complainant with a copy of its Employee Handbook at the commencement of her employment. Same was only furnished to her on 13 November 2019, following the Respondent’s commencement of disciplinary proceedings against her in October 2019.

The Complainant worked primarily from the Respondent’s premises at Clonshaugh Industrial Estate, Dublin 17 (‘the office’).

The Complainant performed well during the currency of her employment, consistently achieving good appraisal and promotion and was never the subject of any adverse disciplinary or performance related complaint, investigation, finding or sanction prior to the matter that culminated in her dismissal.

In and around 13th of April 2007, the Complainant set up a launderette business called ‘Final Touch’ with her business partner, Ms Anita Hartnett. Ms Hartnett is also an employee of the Respondent. At this time, the Complainant and Ms Hartnett met with Mr Mark Kavanagh, Manager of the Respondent, and informed him of this, but that the Respondent would continue to be their priority. They informed Mr Kavanagh that they would, at times, need to use their company email accounts during working hours to conduct launderette administration. Mr Kavanagh confirmed that this was not a problem. Later, the Complainant also informed Mr Angelo Gallagher and Mr Don Donovan, Managers of the Respondent, of these matters and that in addition that she would occasionally need to assist her husband with some administrative support in respect of his scaffolding business. Mr. Donovan confirmed that he had no difficulty with this.

Commencement of the disciplinary process

On 5 September 2019, the Complainant was certified as unfit to work from that date to 3 October 2019 due to sciatica and lumbago by Dr Sean J McGrath, her GP. The Complainant furnished this certificate to the Respondent.

On 1 October 2019, the Complainant was certified as unfit to work from that date to 30 October 2019 due to spinal surgery. The Complainant furnished this certificate to the Respondent.

On 25 October 2019, the Complainant telephoned Mr. Dullaghan regarding her return to work on 30 October 2019. The Complainant asked if there were any surprises waiting for her on her return. Mr. Dullaghan advised that there were no such surprises except for some stock issues.

The Complainant returned to work on 30 October 2019. Shortly after starting her shift, the Complainant was summonsed to Mr. Dullaghan’s office. The Respondent failed to give the Complainant any notice as to the fact or purpose of this meeting or what would be discussed. The Complainant attended Mr. Dullaghan’s office wherein he stated that he had made discoveries while she was on sick leave of her using her company email account to send correspondence in relation to Final Touch and MK Scaffolding, the Complainant’s husband’s business. Mr. Dullaghan stated that the Complainant had “deliberately misled” the Respondent about the purpose of her sick leave in that her emails disclosed that she had gone on holiday during this time, a time when the Respondent was hosting a major event. Mr. Dullaghan moved an envelope across the table to the Complainant and stated that she was being suspended immediately on full pay. Mr. Dullaghan failed to inform the Complainant of any reason why such a suspension might be necessary. The Complainant collected the envelope and left the office.

The envelope contained a letter dated 29 October 2019 from Mr. Dullaghan. Mr. Dullaghan stated that the Respondent was suspending the Complainant on basic pay with immediate effect pending a formal disciplinary process. Mr. Dullaghan stated that the disciplinary procedure would be activated as per the Respondent’s attached disciplinary process. Mr. Dullaghan stated that the matters giving rise to this were:

a) Emails sent and received by the Complainant through her company email account which appeared to establish a routine of business activity during working hours without the knowledge or approval of the Respondent.

b) Emails sent and received by the Complainant through her company email account showing that she “deliberately misled Camfil (Irl) Ltd” in respect of the reasons for her non-attendance at a presentation in the week of 16 September 2019 and her attendance on a holiday abroad at this time.

Mr. Dullaghan stated that emails in relation to points (a) and (b) came to light during her recent absence on sick leave, during which time her email account was accessed and searched. Mr. Dullaghan attached a ‘sample listing’ of emails sent from her account relating to Final Touch and MK Scaffolding. Mr. Dullaghan stated that these matters would be “dealt with” at a disciplinary hearing on 7 November 2019.

The Complainant maintains that the Respondent’s conduct was fundamentally unreasonable and in breach of fair procedures in that:

a) The words used by Mr. Dullaghan during this meeting demonstrated that it was him who had searched (or at the very least overseen such a search) for and uncovered these emails. Despite his role in same creating a clear conflict of interest, Mr. Dullaghan subsequently appointed himself to the role of disciplinary decision maker.

b) The words used by Mr. Dullaghan in this meeting and letter, that the Complainant “had deliberately misled Camfil”, demonstrate that he had entirely prejudged the matter prior to even commencing any disciplinary process.

c) The Respondent illegally accessed the Complainant’s email account and used evidence on foot of same, in breach of data protection law and in breach of its own email policy which requires the explicit direction to conduct such searches or commence such disciplinary proceedings on foot of same, neither of which were present here.

d) The Respondent failed to conduct any or any adequate investigation whatsoever prior to the commencement of disciplinary proceedings or issue any investigation report on foot of same.

e) The Respondent failed to provide the Complainant with any documentary evidence whatsoever as to the alleged emails that it was to rely on in disciplinary proceedings; and

f) The Respondent failed to provide the Complainant with any reason as to why her suspension was necessary.

The Complainant’s ill health and pre-disciplinary hearing correspondence and conduct.

On 30 October 2019, the Complainant was certified as unfit to work from that date until 2 January 2020 due to ongoing treatment of a serious medical condition by Dr. McGrath. The Complainant furnished this certificate to the Respondent.

On 1 November 2019, Mr. Dullaghan wrote to the Complainant. Mr. Dullaghan referenced the Complainant’s suspension and the invoked disciplinary process before stating: “in the particular circumstances, I cannot accept the medical certification which you submitted”. Mr. Dullaghan stated that, if the Complainant wished to “challenge this decision”, the Respondent would arrange a review by its occupational assessor, Medmark. Mr. Dullaghan stated that, failing this, he would expect her to attend the disciplinary hearing on 7 November 2019. The Complainant maintains that it was fundamentally unreasonable of the Respondent to refuse to accept medical certification in the absence of medical evidence to the contrary and that same betrays the prejudicial attitude of the Respondent to her.

On 6 November 2019, the Complainant wrote to Mr. Dullaghan stating that she was deeply shocked and extremely surprised by this refusal to accept her medical certification without first obtaining an alternative medical opinion. The Complainant stated that she wished to challenge this decision and would attend at Medmark for review and would not be in a position to attend the disciplinary hearing on 7 November 2019. In the meantime, the Complainant requested a copy of the Respondent’s Employee Handbook.

On 8 November 2019, Mr. Dullaghan wrote to the Complainant informing her of an appointment for her with the Respondent’s occupational assessor on 28 November 2019 in Dublin.

On 13 November 2019, Mr. Dullaghan wrote to the Complainant attaching the handbook as requested by the Complainant.

The Complainant maintains that this was the first time that she had sight of the handbook. Section 6 of the handbook provides for the Respondent’s grievance and disciplinary procedures. Same states that employees are to normally be put on notice of issues and given an opportunity to correct them prior to the activation of the formal procedure. Same states that the formal procedure will only apply in circumstances where it is warranted after due consideration and where appropriate, preliminary investigation. Same states that “the formal disciplinary procedure properly encompasses fair procedures and due process in line with good practice, per the Code of Practice issued by the Labour Relations Commission, in Statutory Instrument No 146/2000” (the Code of Practice in turn provides for the affording of fair procedures to employees during disciplinary proceedings). The handbook goes on to provide for evidence to be relied upon in disciplinary processes being furnished to the employee in advance of same. Same states that employees are to be paid during any period of suspension in advance of the process commencing. Same states that an appeal hearing should be convened within 5 working days of the appeal and that outcome be issued within 5 working days of the hearing. Same provides for an appeals mechanism but does not clarify whether an employee remains employed pending the outcome of an appeal in circumstances where the original sanction was dismissal. It does however state that “The decision of the appeals officer will complete the formal disciplinary procedure, will therefore be final, and will be implemented”.

Section 13 of the handbook provides for the Respondent’s email policy. Same states that limited use of the company email for personal matters was permitted but was to be restricted to lunch hours and after work hours. Same states that Directors reserved the right to “restrict or ban personal use if this becomes excessive”. In terms of monitoring email usage, same states that the Respondent reserved the right to inspect emails, but that “The supervisor / manager will carry out the inspection on instruction of the Managing Directors. If a breach of this policy or other wrongdoing has been disclosed, the Managing Directors will decide the next steps to be taken, including disciplinary action”.

On 25 November 2019, the Complainant wrote to Mr. Dullaghan stating that she did not feel well enough to attend the Medmark review due to a series of epidurals she had received and a limitation on her ability to drive. The Complainant requested an alternative appointment at a location closer to her address. Further, the Complainant noted that she had been advised by social welfare that her illness benefit was being paid into the Respondent’s account and that she would request same be transferred to her account without delay. The Complainant also requested a copy of her contract.

On 29 November 2019, Mr. Dullaghan wrote to the Complainant confirming cancellation of her Medmark review and undertaking to confirm an alternative appointment. Mr. Dullaghan stated that the disciplinary hearing would be scheduled for no later than 20 December 2019. Mr. Dullaghan was silent as to the requests raised by the Complainant regarding payment of her illness benefit and furnishing of her contract.

On 6 December 2019, Mr. Dullaghan wrote to the Complainant stating that her Medmark appointment had been rescheduled to 18 December 2019 in Dublin.

On 9 December 2019, the Complainant wrote to Mr. Dullaghan confirming that she would attend the Medmark appointment. The Complainant again requested confirmation that the cost of her taxi would be covered by the Respondent and again requesting that the Respondent furnish her with a copy of her contract.

On 10 December 2019, Mr. Dullaghan wrote to the Complainant stating that: “as you started back in 1990, I have been unable to locate your original contract”. Mr. Dullaghan stated that the Respondent would consider her request for taxi reimbursement upon receipt of Medmark’s report. The Complainant maintains that the reason Mr. Dullaghan was unable to locate her contract or any written statement of the terms of her employment was not due to the length of her service but due to the fact that it did not exist.

On 19 December 2019, Dr Rosa de las Casas, of Medmark, wrote to Mr. Dullaghan stating that she had assessed the Complainant on 18 December 2019, that she was unfit for work and that she would be fit to attend meetings in 2 weeks’ time, from 2 January 2020. Medmark’s Report that followed confirmed same, stating that the Complainant was suffering from anxiety related symptoms and work difficulties.

On 19 December 2019, Mr. Dullaghan wrote to the Complainant, informing her that her disciplinary meeting would take place the following day on 20 December 2019. Mr. Dullaghan then wrote again to the Complainant stating that, following the advice of Medmark, her disciplinary meeting was being rescheduled to 2 January 2020 in the office. Mr. Dullaghan asked the Complainant to acknowledge same and advise as to who would be accompanying her to the meeting.

On 31 December 2019, Mr. Dullaghan wrote to the Complainant requesting she confirm her attendance at the disciplinary meeting on 2 January 2020 and advise as to who would be accompanying her to the meeting.

On 31 December 2019, the Complainant wrote to Mr. Dullaghan stating that she would be unable to attend the meeting on 2 January 2020 on the advice of her GP and that she hoped to be in a position to attend same in late January, subject to her GP’s view. The Complainant requested a copy of the Medmark Report pursuant to Data Protection legislation. The Complainant enclosed a medical certificate certifying her as unfit to work from 2 to 31 January 2020)

In January of every fifth year, the Respondent published a directory of employees celebrating all staff who had started their careers in Camfil for over 10 years. Up to and including 2015, the Complainant’s profile was included in this directory. However, the Respondent’s directory for 2020, published in January 2020 had no trace of the Complainant’s profile, which had been airbrushed and removed. The Complainant maintains that same amounts to evidence of its predetermined decision to dismiss her prior to the conclusion of the disciplinary and appeals processes.

On 8 January 2020, Mr. Dullaghan wrote to the Complainant apparently calling into question the veracity of her GP’s advice regarding her fitness to attend the disciplinary meeting. Mr. Dullaghan sought confirmation as to the date that the Complainant had attended with her GP preceding her certification of her and noting that same did “not counter” the Medmark Report. Mr. Dullaghan stated that the Complainant was required to attend a rescheduled disciplinary hearing on 16 January 2020 and sought her confirmation that she would attend same. Mr. Dullaghan attached a copy of the Medmark Report. The Complainant maintains that it was fundamentally unreasonable of the Respondent to question the veracity of her GP’s certification and that same betrays the prejudicial attitude of the Respondent to her.

On 14 January 2020, the Complainant wrote to Mr. Dullaghan confirming that she would attend the disciplinary hearing on 16 January 2020 and would be attended by her family member, Eimear Mahady, as a support person.

On 15 January 2020, Dr. McGrath wrote to Mr. Dullaghan regarding his requests to the Complainant for information as to his assessment of the Complainant preceding her certification of her for 2 January 2020. Dr. McGrath noted the Complainant’s continued care and treatment for a serious surgical condition that was ongoing and noting that same was unlikely to change of the next few months. Dr. McGrath stated that it was disingenuous of Mr Dullaghan to suggest that the dates on which he assessed the Complainant and issued certification was flawed or worthy of scrutiny to determine the correctness of same.

Disciplinary hearing and outcome.

On 16 January 2020, the Complainant and Ms Mahady attended the disciplinary hearing with Mr. Dullaghan and Mr Declan Hogan, note taker. Mr. Dullaghan referenced “some cases” where the Complainant had sent emails relating to a dispute that her husband’s company was having with another party, characterising them as “implicating” the Respondent and amounting to a “breach of GDPR regulations as Camfil would have access to these employee’s information without their knowledge”. Mr. Dullaghan stated that he did not have these emails to hand during the meeting and that he had barely read them himself. The Complainant requested that all of these emails be sent to her access to her account had been blocked and she had no idea about what emails he was referring to. The Complainant accepted that she had used her company account to send personal emails, but that same was outweighed by additional work that she performed for the Respondent and permitted by the handbook. The Complainant highlighted that she felt she was being targeted by the Respondent for having made complaints about mangers including Mr Gallagher. Mr. Dullaghan alleged that the Complainant’s use of same was excessive. Mr. Dullaghan alleged that: “some days it appeared as if more non-Camfil work was performed”. Following an enquiry from Ms Mahady, Mr. Dullaghan stated that the Complainant’s email account had been accessed “to find information regarding work matters”. The Complainant stated that when she had set up the laundry business with Ms Anita Hartnett, they had informed Mr Mark Kavanagh, then factory manager, and made him aware of same. The Complainant explained that her failure to notify the Respondent of her planned trip abroad was due to the dates escaping her head due to stress resulting from her ill health and problems with Mr Angelo Gallagher. The Complainant stated that she was holding her hands up in this regard and accepted that she had made a mistake.

The Complainant highlighted her exemplary working record with the Respondent over 30 years.

On 22 January 2020, the Complainant wrote to Mr. Dullaghan attaching a letter from her GP and requesting a copy of the minutes from the disciplinary hearing. In response, Mr. Dullaghan send her a copy of the minutes.

On receipt of the Respondent’s minutes of this meeting following the outcome of the disciplinary process, it came to the Complainant’s attention that same were fundamentally inaccurate and failed to record a large volume of relevant matters discussed at this meeting. The Complainant has compiled a list of items discussed during this meeting but not properly recorded in these minutes.

On 24 January 2020, Mr. Dullaghan wrote to Dr. McGrath again asking him to confirm the date that he examined the Complainant preceding her certification of her on 2 January 2020.

On 30 January 2014, Dr. McGrath wrote to Mr. Dullaghan confirming that he had examined the Complainant on 31 December 2019.

On 30 January 2020, Mr. Dullaghan wrote to the Complainant regarding the outcome of the disciplinary hearing. Mr. Dullaghan stated that he found the Complainant’s use of her company email account to send and receive personal emails to be “excessive in terms of the extensive occasions of use and the evident time involved, whilst on paid time for Camfil”. Mr. Dullaghan stated that the content of such emails including reference to a legal dispute that her husband’s company was involved in was negligent, reckless and had the potential to damage the Respondent’s business. Mr. Dullaghan stated that he found that the Complainant’s service did not mitigate these matters but was, in fact, an aggravating factor. Mr. Dullaghan stated that the Complainant had failed to notify the Respondent of her intention to travel abroad on a holiday and that there was enough time for her to have done so. Mr. Dullaghan characterised the Complainant’s conduct as amounting to gross misconduct and stated that her employment would terminate on 21 February 2020. Mr. Dullaghan stated: “this period of notice is being provided to allow you the opportunity to appeal my findings and decision” and advised that such an appeal should be made in writing within 7 working days to Mr Don Donovan, President of the Respondent Group.

On 6 February 2020, the Complainant wrote to Mr Donovan, confirming her wish to appeal the findings and decision of Mr. Dullaghan and stating that she would outline the basis of her appeal in early course. The Complainant subsequently furnished Mr Donovan with grounds of appeal that included the following:

c) The disciplinary procedures used were unfair and / or inadequate.

d) The scope of the investigation was too narrow and excluded potentially exonerating or mitigating evidence.

e) The decision failed to address matters raised during the disciplinary hearing.

f) No regard was had to training or policies and procedures.

g) The sanction of dismissal was disproportionate.

h) Despite requests, no evidence or documentation was furnished other than the ‘sample list’ spreadsheet, despite the emails forming the basis for the decision.

i) The Complainant’s explanation of confusion regarding the dates of the booking for her holiday were rejected and not considered.

j) Custom and practice of other employee’s use of the company email account for personal use as permitted by the handbook was not considered.

k) The Complainant was not furnished with a contract whatsoever and was not furnished with the handbook until after the disciplinary process had commenced.

l) That the Respondent failed to consider the Complainant’s ill health and issues surrounding same; and

m) The Respondent was aware and had assented to the Complainant’s running of a launderette business.

On 10 February 2020, Mr Donovan wrote to the Complainant confirming that he would hear her appeal and proposing same occur on 25 February 2020.

On 28 February 2020, the Complainant was certified as unfit to work from that date until 30 April 2020 due to a serious medical condition by Dr. McGrath. The Complainant furnished this certificate to the Respondent.

On 2 March 2020, Mr Donovan wrote to the Complainant informing her that her appeal hearing would be heard on 6 March 2020 and requesting clarification and expansion in relation to some of her grounds of appeal.

On 5 March 2020, the Complainant wrote to Mr Donovan stating that she would provide any further information required at the hearing of her appeal on 6 March 2020.

On 6 March 2020, the Complainant and Ms Mahady attended the appeal hearing with Mr Donovan and Mr John Keenan, HR Advisor. The Complainant stated that MK Scaffolding had ceased trading 3 years previously and that any mail regarding same would have been text like or forwarding in nature. The Complainant asked who it was that reviewed her emails; however, her request for this name was declined. The Complainant stated that personal use of the company email account was permitted and regularly done by all employees. The Complainant highlighted that, despite request, she had not been furnished with copies of the emails on which the disciplinary process was based. Mr. Dullaghan was then invited to the meeting and rejected this, saying that while he did refer to some emails during the disciplinary process, they were never requested. Ms Mahady stated that she had requested copies of all these emails at the start of the disciplinary process. Mr. Dullaghan then referred to the “fact of the scale of the email traffic involved, the use of the Camfil mail account an, potential breaches of GDPR regulations” being relevant. Mr. Dullaghan then stated that the emails referred to were only in relation to the sample period of the 12 previous months and that there was an even greater volume involved. The Complainant stated that she wished to see the emails referred to during the disciplinary hearing. The Complainant stated that she had already held up her hand and accepted that she messed up the dates for her travel abroad before again highlighting her ill health and that she was on and remained on medication at all times. Ms Hartnett then joined the meeting and confirmed the Complainant’s account of Mr Kavanagh having given both her and the Complainant permission to use their company email accounts and internet in the course of their launderette business. The Complainant stated that this was permitted pursuant to the handbook. The Complainant then stated that Mr Donovan himself had personal knowledge and approved of the Complainant’s use of the company email in relation to MK Scaffolding. Mr Donovan rejected this assertion. This gave rise to a potential conflict of interest, resulting in an adjournment of the appeal hearing and Mr Donovan ultimately recusing himself as appeals decision maker.

On 10 March 2020, Mr. Dullaghan wrote to the Complainant attaching samples of the emails that he had relied on as part of the disciplinary process. Mr. Dullaghan stated that “considerable” further evidence of wrongdoing had come to light and that: “I am also instructed to alert you to the discovery of the documentation and to further advise that consideration will be given to the newly discovered documentation before an alternative Appeal Hearing is arranged and further investigation, prompted by this discovery is undertaken”. The Complainant maintains that it was fundamentally unreasonable and unfair for the Respondent to have appointed Mr. Dullaghan as its primary stakeholder and point of contact with the Complainant from this point forward in relation to her appeal given his role in the original decision. This was exacerbated by the fact that Mr. Dullaghan went on to continue to conduct himself in an entirely unreasonable, adversarial and aggressive manner towards the Complainant as will be outlined below.

Later, on 10 March 2020, Mr. Dullaghan again wrote to the Complainant requesting confirmation of receipt of his earlier mail.

On 18 March 2020, Mr. Dullaghan wrote to the Complainant, stating:

‘In respect of the additional material relating to more extensive business activity outside of Camfil discovered after your abandoned appeal hearing, I can advise that a considerable amount of documentation was found in hardcopy in your desk, and as a result an extended search of your Camfil Email account is being pursued to include the three calendar years 2017, 2018 and 2019. Details of relevant documentation discovered will be provided within the context of a new disciplinary process. I will advise further in due course.’

On 26 March 2020, Mr. Dullaghan wrote to the Complainant requesting confirmation of receipt of his earlier mails. He then stated:

‘By way of an update, I can say in respect of my advices re the discovery of further volumes of material and an extended search of your email account, the latter is not yet complete. On completion, the disciplinary matters already raised will be broadened and included as soon as possible thereafter.’

On 27 March 2020, the Complainant wrote to Mr. Dullaghan acknowledging his previous correspondence and issuing the Respondent with a Data Subject Access Request (‘DSAR’) in respect of all documentation held by the Respondent containing her personal data. Therein, the Complainant specified a number of documents in particular that she wished to be furnished with.

On 27 March 2020, Mr. Dullaghan acknowledged the Complainant’s DSAR and stated that he would revert to same in due course.

On 15 April 2020, Mr. Dullaghan wrote to the Complainant stating that alleged additional documentary evidence arising from searches of the Complainant’s company email account following the outcome of the disciplinary process would not be added to evidence previously offered. Mr. Dullaghan stated that Mr Maurice Dowling would be conducting her appeal and suggested the appeal hearing be held on 23 April 2020. Mr. Dullaghan stated that Mr Dowling would not be advised of the alleged additional evidence, but only that already used in the disciplinary process. Mr. Dullaghan advised that Mr Dowling would not be furnished with minutes of the appeal hearing from 6 March 2020, as this would be considered a new hearing. Mr. Dullaghan made no reference to the Complainant’s DSAR.

On 16 April 2020, Mr. Dullaghan wrote to Mr Maurice Dowling regarding his appointment as appeals manager in relation to the Complainant’s appeal enclosing documentation including searches in the Complainant’s company email account.

On 17 April 2020, the Complainant wrote to Mr. Dullaghan stating that she would be unable to attend the appeal hearing on 23 April 2020 as it was not essential business, and she would not feel comfortable travelling and potentially being stopped by Gardaí during the lockdown. The applicant also stated that she was certified unfit to attend such meeting. The Complainant reiterated her DSAR and particularised specific items of documentation.

On 21 April 2020, Mr. Dullaghan wrote to the Complainant advising that an alternative date for the appeal hearing would be arranged. Mr. Dullaghan then declined the Complainant’s DSAR and questioned its relevance to the disciplinary process.

On 24 April 2020, the Complainant wrote to Mr. Dullaghan emphasising that it was inappropriate for him to undermine her COVID-19 and lockdown related reasons for not attending the proposed appeal meeting given global events, lockdown measures and her health condition. In relation to the final matter, the Complainant stated: “As you are aware, I have many underlying health conditions and I am currently out on sick leave. I am considered by medical practitioners as a person of “high risk””. The Complainant asked that the Respondent reschedule the hearing once government restrictions lift. Regarding her DSAR, the Complainant stated that she had a right to request same and that she had attended the previous disciplinary hearing and appeal hearing blind to documentation subsequently used against her. The Complainant reiterated her DSAR.

On 27 April 2020, Mr. Dullaghan wrote to the Complainant alleging that she had not properly provided the Respondent with a grounds of appeal as she had not furnished additional notes that she had to hand during the appeal hearing on 6 March 2020. Mr. Dullaghan stated that his email of 10 March 2020 had enclosed documentation requested by the Complainant at the appeal hearing and that the documentation since requested “does not appear to be relevant to the disciplinary process”. Mr. Dullaghan requested that the Complainant explain to him the relevance of such documentation.

On 30 April 2020, the Complainant was certified by Dr. McGrath as unfit to work from that date to 31 May 2020 due to medical and surgical conditions. The Complainant furnished this medical certificate to the Respondent.

On 25 May 2020, the Complainant wrote to Mr. Dullaghan stating that she was concerned with his allegation that she had not furnished her grounds for appeal and asserting that she had done so on 27 February 2020. The Complainant went on to provide an outline of the note that she had to hand at the appeal hearing of 6 March 2020, including that Mr Keenan had advised that it was not standard practice to issue a decision to terminate an employee without having furnished relevant documentation to the employee in advance of the process. The Complainant stated that she had only received this documentation after Mr. Dullaghan’s decision was issued. The Complainant again reiterated her DSAR.

The Complainant stated that she felt that the outcome of the disciplinary process was based on the fact that she had made complaints against persons in the company and that she required this documentation specifically referred to in the DSAR to properly defend herself. The Complainant stated that the disciplinary procedure provided for her receiving full basic pay during her suspension, but that she did not receive same, and the Respondent delayed her receipt of her social welfare entitlements for 5 weeks. The Complainant stated that the manner in which Mr. Dullaghan was conducting the entire process, failing to comply with fair procedures and delaying in issuing her payments and refusing to comply with documentary requests was causing her significant distress and concern.

On 31 May 2020, the Complainant was certified by Dr. McGrath as unfit to work from that date until 30 June 2020 due to medical and surgical conditions. The Complainant furnished this medical certificate to the Respondent.

On 23 June 2020, Mr. Dullaghan wrote to the Complainant stating: “I do not believe, at this stage, that I should become involved in further exchanges” and to raise such matters directly with Mr Dowling. Despite this, Mr. Dullaghan went on to state that he had scheduled the appeal hearing for 3 July 2020. Later, on 23 June 2020, Mr. Dullaghan wrote to the Complainant attaching her personnel file.

On 3 July 2020, the Complainant attended the appeals hearing with Mr Dowling.

By letter dated 24 July 2020, Mr Dowling wrote to the Complainant enclosing the outcome of her appeal. Mr Dowling stated that he could find “no evidence” that the disciplinary process previously adopted by the Respondent was unfair. Mr Dowling stated that there was no reason the Complainant could not have informed the Respondent of her holiday plans and that, while the employee handbook allowed for personal emails, same was limited to non-excessive use and periods during lunch hour. Mr Dowling stated that he was declining her appeal and upholding her dismissal.

The Complainant maintains that Mr Dowling’s decision that there was no evidence of the disciplinary process adopted by the Respondent being unfair is fundamentally unreasonable. On any reading of the Respondent’s conduct during that process it failed to comply with fair procedures, its own policy or the LRC Code of Conduct in failing to furnish the Complainant with documentary evidence it would subsequently rely on, amongst a plethora of other issues. Further, the Complainant maintains that the Respondent failed to comply with its disciplinary procedure in the conduct of this appeal itself in failing to convene a hearing date within 5 working days of the appeal or issue a decision within 5 working days of the hearing (albeit that the Complainant accepts that same was largely due to circumstances outside the parties’ control in terms of COVID restrictions and the initial appeal hearing on 6 March 2020 collapsing due to Mr Donovan’s conflict of interest arising).

On 5 August 2020, Mr. Dullaghan wrote to the Complainant stating that, following Mr Dowling’s decision, “I wish to confirm that your employment with Camfil (Irl) Limited formally terminated on February 21, 2020”. Mr. Dullaghan stated that he was quantifying her annual leave and public holiday entitlement on the basis of same and outlined a brief summary of her entitlements. There was no final payslip provided and indeed payslips were rarely if ever issued to the Complainant.

The Complainant maintains that the Respondent failed to provide her with notice of her dismissal or payment in lieu of notice.

The Complainant maintains that the Respondent failed to pay her the 6 weeks paid sick leave to which she was contractually entitled for 2020.

The Complainant maintains that the Respondent failed to pay her the 16 days annual leave that she had accrued as of September 2020, the Complainant being contractually entitled to 22 days annual leave per year.

The Complainant maintains that the Respondent failed to pay her for the 6 bank holidays that occurred in 2020 up until September 2020 (New Year’s Day, St Patrick’s Day, Easter Monday, May Bank Holiday, June Bank Holiday, August Bank Holiday).

The Unfair Dismissals Acts

Obligation on the Employer to justify dismissal

Section 6(1) of the Unfair Dismissals Act, 1977 reads as follows:

“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) of the Unfair Dismissals Act 1977 provides that if an employer can establish that the dismissal resulted from, inter alia, the employee’s conduct, it will be deemed a fair dismissal.

Section 6(6) of the Unfair Dismissals Act, 1977 reads as follows:

“In determining for the purposes of this Act whether or not the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

It is respectfully submitted that the burden of proof falls on the Respondents to prove that the Complainant was dismissed fairly.

The Respondent has submitted detailed submissions dated 8 December 2020. It is submitted that same do not mention, let alone address, many aspects of the Respondent’s unreasonable conduct and unfairness in process afforded to the Complainant such as the lack of any or any adequate investigation and the failure to furnish the Complainant with evidence to be used against her in advance of the disciplinary hearing.

Obligation on Respondent to act “reasonably” if dismissal to be justified on the basis of employee’s “conduct”:

It is submitted on behalf of the Complainant that the obligation on an employer (including the Respondent) to itself act reasonably in circumstances where it seeks to rely on the ‘conduct’ of an employee as the justification for dismissal is well summarised in Cox, Corbett & Ryan on Employment Law in Ireland (2009, Clarus Press, at Para. 21.72):

“...In order to justify a dismissal on the grounds of the employee’s conduct, it must be established by the employer that he acted reasonably in dealing with the employee at all times. This would include carrying out a reasonable and proper investigation into the alleged behaviour and drawing a reasonable conclusion from the information unearthed by any such investigation.”

It is submitted that, in the case at hand, the Respondent failed to act reasonably in circumstances where it:

a) Failed to carry out any or any adequate investigation.

b) Appointed Mr. Dullaghan as disciplinary decision maker despite the facts it was him who had discovered the alleged emails and twice expressed his view in advance of any process that the Complainant had deliberately misled the Respondent.

c) Unreasonably, adversarial, and aggressively refused to accept the Complainant’s medical certification and undermining the diagnoses of Dr. McGrath;

d) Illegally accessed the Complainant’s email account and used evidence on foot of same, in breach of data protection law and in breach of its own email policy which requires the explicit direction to conduct such searches or commence such disciplinary proceedings on foot of same, neither of which were present here.

e) Introduced new allegations at disciplinary hearing that the Complainant’s sending of personal emails through the company account was a breach of GDPR, was excessive and resulted in the Complainant not performing any work for the Respondent on certain days.

f) Failed to keep an accurate record of the matters discussed at the disciplinary hearing or give the Complainant an opportunity to confirm the accuracy of same prior to a decision being reached. This resulted in the Respondent relying on in an inaccurate record of this meeting and failed to take into consideration important comments and explanations offered by the Complainant.

g) Appointed Mr. Dullaghan to the role of arranging the appeal, liaising with the Complainant and collating and forwarding all documentation, despite him being the original decision maker.

h) Made an unreasonable finding on appeal that there was no evidence of unfairness in procedures when there was sufficient evidence on any reading that same had occurred; and

i) Failed to comply with the Employee Handbook in scheduling the appeal hearing within 5 working days of the appeal and issuing a decision within 5 working days of the appeal (albeit that it is accepted that external factors outside the control of the parties contributed to this).

In Bank of Ireland v Reilly [2015] IEHC 241, the High Court held that suspension ought be seen as a measure designed to facilitate the proper conduct of an investigation and any consequent disciplinary process. The Court stated that suspensions: “whether paid or unpaid, [suspensions are] an extremely serious measure which can cause irreparable damage to [an employee’s] reputation and standing”. As such, the Court held that the implementation of a suspension and the fairness or otherwise of same is a factor to be taken into account in determining whether an investigation was reasonable and whether a dismissal was fair. The Court held that, for a suspension to be deemed appropriate, the Respondent must inform the employee of the fact of his suspension and the reasons for same; and demonstrate that the suspension was justified and necessary by reason of prevention of repetition of the alleged misconduct; prevention with interference of evidence; prevention of a risk to another person; or to protect the employer’s business reputation.

In the case at hand the Complainant was summarily suspended without the Respondent properly informing the Complainant of the reasons as to why her suspension was necessary. Further, to date, the Respondent has failed to explain why this suspension was necessary or how it comes within the exceptions provided for in the Reilly decision. It is submitted that this inherently unfair suspension is a factor that should be taken into account in rendering the Respondent’s conduct unreasonable and the Complainant’s dismissal unfair.

The Terms of Employment (Information) Act, 1994

The 1994 Act mandates that an Employer must furnish an employee with a written statement of the terms of their employment on commencement of employment. Further, same states that, where an employee’s terms of employment change during the course of employment, an employer must notify the employee of such changes in writing.

In the case at hand, the Respondent failed to furnish the Complainant with a written statement of the terms of her employment on the commencement of her employment. Further, the Respondent failed to notify her in writing of changes to the terms of her employment as they changed during the course of her employment due to promotions and salary increases. Same is confirmed in the Respondent’s failure to produce such a written statement or written notice of changes in its submission to the WRC, in response to the Complainant’s DSAR or in open correspondence between the parties.

The Payment of Wages Act, 1991

Given the length of the Complainant’s service, she was entitled to 8 weeks’ notice pursuant to the Minimum Notice and Terms of Employment Act, 1973. However, the Respondent made an unlawful deduction to the Complainant’s pay, failing to pay her same.

It is noted that the 1973 Act provides for an exception to this entitlement where an employee has been fairly dismissed for gross misconduct. It is submitted that the Respondent cannot avail of such exception as it acted unreasonably and failed to afford the Complainant fair procedures in the course of her dismissal.

Further, the Respondent failed to discharge the Complainant’s 6 week sick pay entitlement.

The Organisation of Working Time Act, 1997

The Respondent failed to discharge the Complainant’s accrued annual leave entitlement.

The Respondent failed to discharge the Complainant’s accrued bank holiday entitlement.

RELIEF SOUGHT / QUANTUM:

In the present case, the Complainant remains medically certified as unfit to work. Same is due to the stress and anxiety that she has suffered as a result of the Respondent’s conduct in the course of the Complainant’s disciplinary procedure and subsequent dismissal. Same has been certified by Dr. McGrath. As per the decision of the EAT in Allen v Independent Newspapers (Ireland) Limited [2001] JIEC 0501, it is submitted that, albeit the Complainant is unfit for work, same is attributable to the Respondent’s conduct and, as such, it would be just and equitable for an award to be made in favour of the Complainant despite such unfitness to work.

It is submitted that the financial loss suffered as a result of the unfair dismissal of the Complainant was entirely attributable to the conduct of the Respondent. In these circumstances, it is submitted that the appropriate level of financial compensation should be the equivalent of two years remuneration from the date of the Complainant’s dismissal, necessarily going into the future, in the sum of € 90,000.00.

The Complainant seeks financial compensation for the Respondent’s failure to provide her with a written statement of the terms of her employment or notify her in writing of such changes during the course of her employment, in a sum equivalent to 4 weeks’ salary of €3,460.00.

The Complainant seeks financial compensation for the Respondent’s failure to provide her with notice of her dismissal in a sum equivalent to 8 weeks’ salary of

€6,920.00.

The Complainant seeks financial compensation for the Respondent’s failure to pay her paid sick leave entitlement in a sum equivalent to 6 weeks’ salary of €5,190.00.

The Complainant seeks financial compensation for the Respondent’s failure to pay her accrued annual leave entitlement in the sum of €2,768.00 (16 days @ €173 per day).

The Complainant seeks financial compensation for the Respondent’s failure to pay her accrued bank holiday entitlement in the sum of €1,038.00 (6 days @ €173 per day).

Findings and Conclusions:

Preliminary Issue.

There are two items to be decided under this heading:

1. The date of dismissal.

2. If necessary, are there exceptional circumstances that would justify the extension of time?

The date of dismissal.

The Complaint Form completed by the Complainant and submitted to the Workplace Relations Commission on 20th October 2020 clearly indicates that the date of dismissal was 21st February 2020. By letter dated 30th January 2020, Mr. TD issued his disciplinary decision. Having found that the Complainant had made admissions and had not offered substantive mitigation in respect of her extensive misuse of her Camfil Ireland Ltd email account or her failure to reasonably account for the fact that two months prior to her scheduled presentation at the biennial Camfil Group conference hosted in Dublin, Mr. TD put the Complainant on notice of termination of her employment to take effect three weeks later on February 21st, 2020.

By letter dated 30th November 2020 the solicitor for the Complainant wrote to the Workplace Relations Commission stating the following:

“The date of dismissal was incorrectly entered on the application form and should read 24th July 2020 which was the date that the internal appeal was concluded and the decision to dismiss was communicated. We enclose a copy of the Appeal Officer’s decision herewith. It should further be noted that the claimant was required to submit sick certs right up to July 2020.

We rely upon the authority of the High Court decision in UPC and EAT & Anne Marie Ryan (copy attached). The facts in that case are broadly similar in that there was a delay in the Appeal taking place and that the Company’s appeal procedure did not specifically address the status of the of the employee whilst appealing a dismissal decision. It should be noted that the appeals procedure of Camfil Ireland specifically states that “Stage 5: The decision of the appeals officer will complete the formal disciplinary procedure, will therefore be final, and will be implemented”. We enclose a copy of the procedure herewith and rather than being silent on the status of an employee who has been dismissed and has lodged an appeal, it expressly states that it is only at the completion of Stage 5 that the decision to dismiss becomes “final and will be implemented”.

In the matter of the preliminary issue, I have concluded that the date of dismissal was 24th July 2020 and not 21st February 2020.

This conclusion is reached having considered the following:

1. The Company’s appeal procedure did not specifically address the status of the of the employee whilst appealing a dismissal decision.

2. The appeals procedure of Camfil Ireland specifically states that “Stage 5: The decision of the appeals officer will complete the formal disciplinary procedure, will therefore be final, and will be implemented”

3. The appeals procedure expressly states that it is only at the completion of Stage 5 that the decision to dismiss becomes “final and will be implemented”.

4. The Respondent continued to accept medical certificates submitted by the Complainant well after the date of 21st February 2020. If there was a genuine belief that the Complainant had been dismissed in February 2020, why did they continue to accept medical certificates from her?

Substantive Issue:CA-00040497-001

As per submission the representative for the Respondent has stated: