Complainant

Respondent

Parties

Emer  Williams

Bagenalstown Family Resource Centre

Representatives

Mr Barry Crushell of Crushell & Co Solicitors

Ms Jill Griffin,  Solicitor of Farrell McElwee Solicitors

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-00046822-001

25/10/2021

The Complainant was employed as a Senior Administrator in a Midlands Family Resource Centre. The employment began on the 5th December 2014 and ended on the 17th September 2021.

The rate of pay was stated to be € 410 Gross for a 35 Hour week.

The Complainant gave a written submission, and an Oral presentation was made by her Solicitor Mr. Crushell.  Mr Crushell decided not to call the Complainant in Oral Testimony.

The Complainant began work in December 2014 as Receptionist and later in 2018 as a Senior Administrator. Following Covid in March 2020 staff were called to a Back to Work meeting on the 4th June 2020. The Complainant was not brought back and heard from other staff that she was likely to be out for some time. Her personal details/confidentiality had been breached. The Complainant requested a meeting with the Board of Directors.

On the 23rd of June a meeting took place with relevant Managers. She was told that she faced a protracted lay off, due to a lack of funding or she could if she wished look for Redundancy. She asked for a copy of her Contract of Employment which was given to her of the 30th of June. The Contract given to her was different to the original Contract especially as regards funding sources. In August 2020 the Complainant was told she was eligible for the Government July stimulus. The Complainant then lodged a Grievance procedure which was not accepted. She then wrote personally on two occasions, appealing her case, to the Directors at their home addresses. The Board replied collectively refuting her allegations.

Eventually on the 22nd of February 2021 the Complainant resumed work but on the basis of a 15-hour week only as opposed to her normal 35 Hours. The Conditions under which she now worked were very demeaning, she was not allowed work at the Charity Shop and was effectively “banished” to a small room behind Reception.

On the 5th August 2021 the Complainant was called to an Investigation Meeting with HR consultant Ms Roisin Foley of PEAR HR. On the 17th August Ms Foley communicated to her that she had been dismissed for Gross Misconduct. An Appeal was made to the Chairperson but to no avail.

In addition, during 2021 the opportunity arose for Centre Staff to get the Covid Vaccine early on an exceptional needs basis in view of the work the Centre was doing, The Complainant was refused, by her Managers, inclusion on the early vaccine list.

Her Dismissal was for false reasons and even if accepted the decision was completely Disproportionate. Her attempts to secure a local resolution were continuously frustrated by the Managers “pass the parcel approach” and continuously avoiding any clear answers.

Her Health and Wellbeing were totally destroyed and her confidence to seek employment was shattered.

Mr Crushell in his Leagl submissions argued strongly that there was clear “Objective Bias” in this case. The Investigation by PEAR HR was seriously flawed on natural Justice grounds and the Appeal Offered was completely false with a non-Independent Appeal person. In short, the entire Dismissal was based on a completely flawed legal basis.

Significant case law was cited by Mr Crushell. O’Callaghan & Ors v McMahon ( Justice Fennelly) and Goode Concrete v CRH Plc (Justice Denham) in support of the Objective Bias argument.

The Respondent presented a detailed written statement and gave lengthy Oral Testimony from key Managers, Ms SH, Director of Services & Ms O’D, Chairperson , supported by Oral Testimony from Ms S, a staff member and the HR consultant Ms F.

In essence the Respondent case as advanced by legal representative ,Ms Griffin, was that despite acting absolutely reasonably with due regard to all processes the Complainant acted completely unreasonably in both correspondence and physical actions resulting in her being properly dismissed for Gross Misconduct.

The Respondent is a, largely publicly funded, voluntary body to provide “essential” Social Services. The Centre does also have a range of self-financing “ancillary” activities such as the Charity Shop, Elder Community Get together and general Room hire etc.

The impact of Covid 19 was severe. All the activities of the Centre shut down in March 2020. However, by Government & HSE guidelines an early phased return of the “Essential Services” began in late Spring and early Summer.

The Ancillary Services could not reopen, due to Covid Guidelines, at a similar early date.

The Complainant was invited to a Staff meeting on the 23rd of June where her position was discussed by Ms SH. It was explained to the Complainant that, due to overall Covid uncertainties, a long term lay off was in the offing for her or she could consider taking a Redundancy option.

The Complainant became upset, and the meeting ended.

A Solicitor’s letter from the Complainant followed.

A further meeting took place on the 7th August 2020 where the issue of funding shortfall was discussed. The Respondent offered a 20-hour Receptionist role until March 2021. This was to benefit from the Government “July Stimulus” funding. Redundancy was also suggested as an Option but not in a formal way. Nothing further was heard from the Complainant until she sent a series of letters (20TH November and 1st December 2020) querying her case to the home addresses of Board members.  The Board members were understandably upset at the use of their private home addresses. GDPR breach issues arose but were not really pursued.

In January 2021 the Respondent offered a 15-hour week to the Complainant. The Respondent requested that the Complainant sign an amended Contract of employment to reflect the reduced weekly hours. The Complainant declined to sign any new contract.

Further extensive correspondence followed, and the issue of the Complainant’s grievance was discussed. The Respondent wished to have any Grievances death with via the Respondent Grievance procedures. A ZOOM meeting was suggested (to comply with Covid regulations) but the meeting never took place.

The Complainant retuned to work on the 22 of February 2021. Further Solicitors letters continued to be exchanged regarding the entire situation.

A most unfortunate and unsavoury incident took place on the 17th June 2021 where it was alleged that the Complainant had engaged in very crude name calling, made numerous verbal allegations, some of a private nature,  in the presence of staff members, regarding Ms SH -the Director of Services. The question of the non-scheduling of a Vaccine appointment for the Complainant was raised by the Complainant.  Ms SH, who was shocked and intimidated by this behaviour, then made a formal complaint to the Board concerning the Complainant.

The Board then commissioned, following a tendering exercise, PEAR HR to carry out a full investigation. Ms Foley of PEAR was the executive involved.  Ms Foley carried out a full professional investigation and recommended that the Complainant be dismissed for Gross Misconduct. This took place on the 17th September 2021 and Ms Foley gave full Oral Testimony as to her involvement.

An Appeal was made to Ms O’D, Chairperson of the Board. Ms O’D declined the Appeal as she was of the view that nothing new, in either evidence of other matters, had been advanced by the Complainant in support of any Appeal.

Significant case law was advanced by Ms Griffin for the Respondents in support of the proper Proportionality Arguments and the importance of reasonable behaviours from all sides in a dismissal case.

In summary the Respondent had at all times acted with restraint and proper procedures in the face of very serious Unreasonableness from the Complainant.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:2        The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

Accordingly in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “band of Reasonableness”.

However, all cases rest on their own factual matrix and local circumstances.

We need to consider these at this stage.

3:3          Key questions

From listening to the Oral testimony and considering the written submissions three areas of major interest arise in the contest of an Unfair Dismissal claim.

·       Unreasonable Behaviours by either side

·       Procedural issues in the Complainant / Respondent handling of the case.

·       Proportionality of the Dismissal Decision.

3:3:1          Unreasonable Behaviours

The Complainant, via her Solicitor, Mr Crushell, alleged that she had been treated most unfairly by the Board and especially Ms SH in relation to return to work following Covid and a consistent failure to engage properly with her regarding proposal for reduced hour and changes to her Contract. This was compounded by the Vaccine refusal.  All her actions could be traced back to these, unanswered, root causes. Mr. Crushell choose not to call the Complainant in oral Testimony.

The Respondent in their extensive Oral Testimony from two Managers and written materials emphasised that at all times they had gone the extra mile to be reasonable with the Complainant especially in the very fluid situation following Covid. The position was effectively that of an Ancillary worker depending on locally sourced self-generated funds . These were severely limited post Covid. There was no denial that the Complainant had a 35 hour week going into Covid but these income streams (Shop, Elder Support Parties, Room Hire etc) had simply evaporated with little certainty as to when they might return. The strong evidence of the Respondent was that the Complainant was an Ancillary worker reliant on locally generated funds. This was challenged on the basis of precedent years funding streams from Mr Crushell. On balance the view of the Respondent seemed to be better based.

Taking the extensive Oral Testimony , with an outside view, there was no evidence of any manifest employer Unreasonableness. It was the time of Covid with all the uncertainties surrounding it. The question of when Ancillary activities might resume at a level to support the Complainant was a complete unknown. The Complainant may well have felt that Ms SH was being unreasonable but there was no objective basis for this view.

The suggestion of Redundancy had to be seen in this context. In a most uncertain future, the opportunity to take Redundancy was offered as a reasonable option for the Complainant.

The writing of letters by the Complainant to the home addresses of the Directors was seen as completely outside of procedures but was largely overlooked. The unauthorised use of confidential private addresses was in an Adjudication view correctly seen by the Respondents as Unreasonable behaviour.

The main issue in the Respondent view was the verbal out bursts of the 17th June 2021 directed against the Respondent Manager Ms SH. These outbursts had to be seen in the light of already extensive efforts , in the Respondent view, to reach an accommodation with the Complainant.

In her oral presentations Ms SH gave the impression as a very competent and capable Manager. The fact that she lodged a formal complaint against the Complainant was significant -it was a decision not taken lightly.

The PEAR HR investigation by Ms Foley, who also gave Oral testimony, was comprehensive. In the lengthy Report presented in evidence it was clear that Ms Foley had allowed the Complainant a good opportunity to ventilate her complaints against Ms SH. Her decision to Recommend a Dismissal was well reasoned in her Report. A careful reading of the Report indicated that the Complainant, who was assisted by her Sister, had serious issues with Ms SH that, as noted by Ms Foley, lacked any serious or supporting evidence.

Regarding the Vaccine scheduling the evidence was that Ms SH was simply following HSE Guidelines regarding varying categories of staff and there was no deliberate exclusion of the Complainant

From an Adjudication perspective and looking at the “Reasonableness” of the arguments/positions of the Parties it has to be concluded from the PEAR Report and the Oral evidence of the parties especially Ms SH and Ms O’D, giving Oral Testimony, that the balance has to be with / in favour of the Respondent.

3:3:2         Procedural Issues

The main issue of concern here was the fact that the Dismissal Decision was effectively recommended / taken by Ms Foley, the Outside consultant from PEAR. In Oral testimony Ms SH and Ms O’D effectively stated that they had in so many words “outsourced “ the matter to PEAR. Mr Crushell for the Complainant vigorously cross examined the Respondent witnesses on this point. Their answers were not really satisfactory.

Mr Crushell demonstrated that Ms Foley was both Investigator and Dismissal decision maker.

Taking SI 146 of 2000 -Statutory Guidelines on Grievance and Disciplinary procedures and Mr Justice Flood’s statements above regarding Natural Justice, this position has to make an Adjudication Officer uneasy.

The question of the proper independence of any Appeal by Ms O’D, the Chairperson of the Board, is also a matter of unease to an Adjudication Officer.

The key question is then one of deciding whether these procedural shortfalls are sufficient, in themselves, as to require a finding of Unfair Dismissal be made albeit on technical grounds.

The cross examination of Respondent witnesses by Mr Crushell , for the Complainant, was critical. Initially he pointed to what he felt were difficulties in cross examinations of witnesses by Ms Foley.

It was clear from Respondent responses in cross examination that the dismissal decision was largely advanced by Ms Foley of PEAR but in close communication with Ms SH and Ms O’D of the Respondents. Mr Crushell advanced the Natural Justice view that the entire process suffered from “Objective Bias” and was in many aspects grievously in breach of Si 146 of 2000 Guidelines on Grievance and Disciplinary procedures. The case law quoted by Mr Crushell was persuasive on this point. O’Callaghan & Ors v McMahon ( Justice Fennelly) and Goode Concrete v CRH Plc (Justice Denham).

Of note was the fact thatMs Foley stated, under cross examination, that she would have preferred that the Appeal had been more obviously Independent.

Natural Justice does not come with convenient shortcuts. A Dismissal has to be seen in the overall context with an allowance for minor procedural short comings but not for major lapses. Mr Justice Flood stated “Put very simply, principles of natural justice must be unequivocally applied “.

Accordingly, the conclusion has to be that the Dismissal was Unfair, albeit on largely procedural grounds.

3:3:3        Proportionality of the Dismissal Decision.

Adjudication officers or EAT Tribunals as referred to above do not “rerun” Dismissal decisions. The Decision maker in this case, Ms Foley, was happy that her Recommendation was appropriate. Her oral evidence was professional and competent. Accordingly, the Proportionality Argument has to go with the Respondent.

3:4         Summary and Conclusions

Oral evidence was crucial in this case. The Managers in lengthy Testimony all emphasised how they had at all times tried to be “Reasonable”. The Testimony was persuasive. The PEAR Report was very comprehensive and most illuminating of the attitudes/ issues of the Parties.

The Complainant did not give any Oral testimony but relied on the cross examination of the Respondent witness by Mr Crushell.

On overall balance and carefully weighing the Procedural issues raised above in Section 3:3:2 the final conclusion has to be that a case of Unfair Dismissal has been properly made out on Natural Justice /Objective Bias grounds but with a major Employee contribution to the Dismissal.

Unfair Dismissal has been established.

Unfair Dismissal, Objective Bias, Procedures.