Complainant

Respondent

Parties

Noeleen  Matthews

Deeside Agri Services Limited

Complainant

Respondent

Anonymised Parties

Data Administrator

Agricultural Services provider

Representatives

  Self- represented

 O'Dea Law. Ms Dorothy Donovan, B.L.

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-00041458-001

08/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041458-002

08/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00041458-003

08/12/2020

The complainant commenced employment on the 24/10/2018 as a data administrator. She was dismissed on the 15 June 2020. Her annual salary was €33,000.

The complainant contends that she was unfairly dismissed, was deprived of her statutory notice entitlements and that she suffered a wrongful deduction from her wages.

The complainant’s complaint form also includes a request for an investigation of a breach of the Data Protection Act, 2018, an adjudication under Article 15 of the European General Data Protection Regulation, an adjudication under Article 8 of the Charter of Fundamental Rights of the  European Union, 2009,  an adjudication under section 8 of the Employment Equality  Act, 1998,  and an adjudication under section 5 of the of the Criminal Justice ( theft and Fraud Offences ) Act,2001.

The complainant was advised and accepted that her complaints are limited to those set out in the notice of the hearing as the other complaints- with the exception of the complaint listed under the Employment Equality Act, 1998, for which no protected ground was identified, nor claim set out, do not come within the remit of the WRC.

She submitted her complaints to the WRC on 8 December2020.

 CA-00041458-001. Complaint under Section 8 of the Unfair Dismissals Act 1977.

The complainant was employed as the Office Data Administrator in the respondent’s Agri Service company. Her job description states that she was responsible for the overall day-to-day administration of all data and records regarding grain purchases and sales and any other accounting duties agreed with management.

Alleged breach of Section 6 (2) (ba) of the 1977 Act as amended by section 11(2) of the Protected Disclosures Act,2014.

The complainant contends that she was unfairly dismissed on 15 June 2020 because she made a protected disclosure to her employer.

The complainant’s evidence.

The complainant submitted a protected disclosure to the respondent in or around the 6 June 2020. It was a verbal disclosure. The disclosure informed the Managing Director (MD) that the contractors engaged by the respondent to provide IT, accounting and financial services were misstating the amount of grain in stock and were showing an inflated and non-existent supply of grain in two of the respondent’s stores. These misstatements were contained in financial documents prepared by the contractors. The complainant states that she showed the MD the improper processes and tools which the respondent’s IT and financial services contractors used in drawing up financial statements which detailed the amount of grain, purchases and sales of the respondent’s goods. One of the persons about whom she made the disclosure admitted in a meeting in early June that that he had been using a wrong and incorrect process to measure stock since 2013. She asked him to confirm this in an email but received no response.

Unfair Dismissal contrary to section 6 of the Unfair Dismissals Act, 1977.

The complainant addressed the stated grounds for her dismissal.

Compliance with the respondent’s instructions.

The complainant did her job to the best of her ability. She complied with all instructions. She was hampered by a lack of clear instruction; for example, the accountant told her told her to do stock adjustments, but the MD stated that she was not to do such adjustments. She sought information as appropriate from the accountant and auditor but received no information.  She does not understand what the respondent means by his statement that she created a nominal ledger. She refutes the respondent’s assertion that she created nominal spread sheets.

She was never advised of customers’ difficulties with her prior to her dismissal. The MD shouted down the phone at her In April 2020 but aside from that, she was not told to do things differently until her dismissal was on the table.

The alleged toxic relationship which she was held to have had with the IT consultant was never communicated to her. The IT consultant did not communicate with the complainant; he did not reply to her emails. He told her she had to do monthly stock adjustments.

On 18 May the respondent MD advised the complainant that a colleague had told him that she  had refused to carry out his instruction. She explained that she received no email instruction from the manager. The respondent was unable to produce the email. This was false accusation for which she received no apology.

She points to the respondent’s response to her alleged failings in contrast to another employee. This other employee who had breached company rules and its disciplinary code in holding a mobile phone while driving a car was not, to her knowledge, subject to any disciplinary sanctions. This illustrates the lack of equality between employees and how a harsher standard was applied to her alleged breaches.

Procedure used to effect the dismissal.

The complainant was summarily dismissed on 15 June. She received no advance notification of the meeting’s purpose, was offered no right of representation and in contravention of the respondent’s own disciplinary procedure, was offered no right of an appeal against the dismissal.

The MD failed to bring any of his concerns about her work to her attention until the meeting in early June when she was accused of doing up a nominal ledger instead of using the company specified Herbst system.

In cross- examination, the complainant refuted the statement in the MD’s letter of dismissal of 15 June that the he had “specifically warned” her concerning the manner in which she did stock adjustments. He had never presented that scenario to her. The respondent asked why she never challenged the respondent’s assertion in the letter of 15 June, to which she replied that he had never told her. She also stated that she thought that the suggested HR meeting would deal with that matter.  The complainant states that no one had ever asked her to stop doing stock adjustments. When asked as to the content of the May 18 meeting the complainant stated that it was about the false allegation that she had failed to carry out a task. She stated that the matter of stock adjustments might have been raised with her earlier in June.

When asked to explain what a stock adjustment meant to her she responded by stating,” ask Mr X.”

CA-00041458-002. Complaint under the Minimum Notice and Terms of Employment Act, 1973.

 She was summarily dismissed without any paid notice. The complainant is seeking her statutory paid notice.

CA-00041458-003. Complaint under the Payment of Wages Act,1991

The complainant accepted the respondent’s evidence that she was owed €101 in respect of accrued annual leave which the respondent undertook to pay forthwith to the complainant. The complainant formally withdrew this complain.

CA-00041458-001. Complaint under Section 8 of the Unfair Dismissals Act 1977.

The respondent operates an agricultural services company. The company’s business encompasses the purchase of grain from growers, the sale of products to farmers, and a hardware style country shop.

The respondent ‘s position is that the complainant was dismissed for substantial reasons.The protected disclosure complaint is baseless and mischievous.

The complainant had presented a false narrative that she was compared unfavourably with another employee

Evidence of respondent MD.

The company has been in existence since 1992. The company enjoys a low turnover of staff with some staff remaining for up to 28 years,

Grounds justifying the dismissal.

Chronology of events.

He employed the complainant in October 2018 notwithstanding his knowledge of difficulties in her previous employment. He saw promise in her. He affirmed her contract after 6 months.

The witness expected some difficulty with her exposure to new crops and because she was new to the business.  Difficulties began to feature in the period May- June 2019.

He found her to be very black and white. This led to difficulties; for example, the company had an agreement to buy, say, 100 tons of barley from a farmer who delivered 106 tons and she would claim the extra 6 tons free. Any difficulties which a supplier presented with she would state, ‘”do these people want to mess up my day”. His customers, farmers, got annoyed at her rigidity. Difficulties began to emerge in the period May- June 2019 where a farmer refused to deal with her as she was, he stated, aggressive and demanding towards them. A customer of thirty years standing refused to deal with her. She damaged relationships with customers whom she would treat aggressively.

 From January 2020 onwards, there had been problems with her method of accounting. The witness stated that he had a good handle on the number of tons of various grains which he had in stock.

In March 2020, the complainant could not get information on the amount of grain delivered by a customer. She went to Head Office, embarrassing the local employees and customers. The witness told her that if this behaviour were to continue, her job would be in jeopardy.

The complainant refused to follow instructions concerning the use of company prescribed processes. She wanted to use an amended system for measuring grain. She made up her own unauthorised process for tracking grain deliveries and measuring stock. Grain crosses a weighbridge which identifies the amount being delivered. This amount is picked up by the company’s software package which tracks the delivery, amount and storage location of the product.

On 18 May 2020 the MD met the complainant. He told her it was not working out and he suggested a settlement to her.

In early June he met the complainant again. He wanted to see if matters could be resolved with the IT employee who had been with the company since 2013. He is responsible for software. He wouldn’t go to a meeting with the complainant.

The last straw was her refusal to obey his instruction given to her on the 2 and 9 June not to do stock adjustments. As a result of her refusal, she found extra stock. Her alteration of accounts suggested a profit of €700,000 which was laughable. This projected profit had he not intercepted and stopped it could have damaged the company’s reputation and credibility with the bank.

He gave the complainant the letter of dismissal on the 15 June. His purpose was to let the complainant know the seriousness of the situation. He wanted to get an outside person to see if the situation could be salvaged or would she have to go. He told the complainant to seek HR advice. The witness contacted and engaged a HR company. A variety of factors including the complainant’s objections to meeting on line- Covid -19 was afoot- prevented the meeting from going ahead.

Protected disclosure complaint.

The MD was not aware that she was making a disclosure. She tended to blame others for problems. By this stage – early June, his interest in listening to complaints about staff had waned. He had lost trust in her ability to manage the grain department and believes now that he was very mistaken in not acting earlier. She had decided to dispense with the company’s software system and drew up her own manual slips. There was nothing untoward in the company’s manner of accounting. He mentioned her suggested system to his accountant who advised against it as her system made it difficult to reconcile tonnages.

Evidence of the Office Manager,

The witness gave evidence of the complainant’s refusal to cooperate with arrangements to meet the HR consultant. The complainant was insisting on a meeting in the grain store even though restrictions on such meetings were in force due to Covid-19.

Legal Submission.

The respondent’s barrister in considering a dismissal for ‘substantial grounds’ as provided for in section 6(1) of the Act of 1977, cites the case of Perkins v St Georges Health Carew NHS Trust (2005) where the Court of Appeal held that that a breakdown in trust and confidence could measure up to a more appropriate reason for dismissal. In the within case, there was a breakdown of trust between the respondent and the complainant, between the complainant and one of its senior executives, its accountant, its auditor. Another substantial reason for the dismissal is the complainant’s refusal to accept that she had made errors and to engage with the respondent to develop the necessary degree of trust and confidence between the parties. Her actions were damaging the work of the running of the business and it was becoming impossible to work as a team. The respondent cites GM Gorfin  v Distressed Gentlefolks Aid Association 9973) IRLR 290 where dissension amongst the staff was considered inimical to the successful running of the home. In the instant case, the complainant caused much dissension amongst the employees and customers.

  The respondent states that the Labour Court determination of MC Stone Systems Ltd T/A Stone Systems and Wieslaw Tyka , UDD1762/2017 acknowledges that the category of other substantial reason for a dismissal applies in Irish Law. The Labour Court in the latter case cited the case of the Governor and Company of the Bank of Ireland v James Reilly (2015), IEHC 241 where the High Court stated

‘” the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in section 6(4) which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. “

That judgement went on the state that the conduct of the employer must also be considered, but the question for a deciding authority is“whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”

The respondent states that that is the question for the Adjudicator; if a reasonable employer would have dismissed the complainant.

The respondent made efforts to persuade her to comply with the company processes but to no avail.

Any procedural defects which may have occurred could have been cured if the complainant had engaged with the HR company contracted by the respondent. If the Adjudicator were to find that procedural defects impaired the process, she should be guided by the decisions which, while acknowledging procedural defects, factor in the complainant’s contribution to the dismissal. The respondent’s barrister asks that the complainant’s contribution to her dismissal must be acknowledged and that any  award which might issue should  the dismissal be found to be unfair, must  be reduced by no less than 50% and a more appropriate deduction would be 70%.in this regard the barrister refers to Carney v Balkan Tours1977 I.R. 153 where the award was reduced by 96.5%, a reduction confirmed by the Supreme Court; to Alan McNally  v Tesco Ireland UD 80/2015 where the ward was reduced 72§ owing to the complainant’s contribution to his dismissal; to Structured Finance (Ireland) Management Limited v Vadym Kalinin (UDD 181).

CA-00041458-002. Complaint under the Minimum Notice and Terms of Employment Act, 1973.

The respondent submitted a pay slip showing that the complainant was paid her salary for two weeks after her dismissal.

The respondent asks that this complaint be dismissed.

CA-00041458-003 .CA-00041458-003. Complaint under the Payment of Wages Act,1991.

This complaint has been withdrawn.

CA-00041458-001. Complaint under Section 8 of the Unfair Dismissals Act 1977.

In the first instance, the respondent suggested that his letter of 15 June 2020 dismissing the complainant was at that time reversible. It was intended to impress upon her the gravity of the situation. In addition, he advised her to seek advice. I have considered the evidence about his stated ambivalence concerning his intention to carry through the dismissal. I find that the decision to terminate the complaint’s employment was final and unambiguous with the only outstanding issue being a desire to conclude the termination with a cash payment.

I find that there was a dismissal on the 15 June.

Accordingly, the dismissal of the complainant is deemed to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal.

There are two aspects of this complaint which require a decision

I must decide if the complainant’s dismissal was wholly or mainly brought about by virtue of the protected disclosure and was accordingly rendered unfair as a result by reason of the operation of 6(2) (ba) of the 1977 Act as amended and as inserted by s. 11(2) of the Protected Disclosures Act, 2014.

The complainant also requests that in the alternate, her dismissal should be considered in the context of section 6(6) and 6(7) (b) of the Act as amended. 

Relevant law.

Section 6 of the Unfair Dismissals Act sets out the circumstances within which a dismissal could be considered to be unfair. Section 11 of the Protected Disclosures Act 2014 amends the Unfair Dismissals Act, 1977 by the insertion after paragraph 6 ((2)(b) of the following, additional subsection:

                             “(ba) the employee having made a protected disclosure,”;

The meaning given in the Protected Disclosures Act ,2014 to both ‘protected disclosure’ and a ‘relevant wrongdoing ‘’ are incorporated into section 1 of the Unfair dismissals Act, 1977 as amended.

Definition of a protected disclosure is set out in section 5. (1)  of the Act of 2014 as follows:

 “For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 “.

Relevant Information is defined in section 5(2) as

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant   wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

Relevant wrong doings are set out in sub-section (3 ) as follows:

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) n/a

(d) n/a

(e) n/a

(f) n/a

(g) n/a

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.”

Considering the above statutory provisions, the complainant must demonstrate that she made a protected disclosure for which she was penalised by being dismissed, and that there was a causal link between the disclosure and the dismissal.

It is necessary to examine the complainant’s disclosure against the above statutory provisions.

The complainant’s disclosure.

The respondent requested me to consider the admissibility of a verbal disclosure. While the respondent’s Protected Disclosure Policy requires that the disclosure should be in writing, the Act of 2014 does not exclude a verbal disclosure. In the Supreme Court decision of Baranya v Irish Meats Group Ltd (2021), IESC 77, Hogan J considered the Labour Court’s reliance on the WRC Code of Practice on Protected Disclosures to distinguish between a personal grievance concerning health and safety in the workplace and a protected disclosure. Hogan J cautioned against relying on codes which introduced restrictions not found in the Act of 2014 or which went beyond what the terms of the statute stated. Hence a verbal disclosure will suffice

The complainant’s evidence is that in or around the 6 June, she informed the respondent managing director of what she termed misstatements in the inventory of grain. She advised him that the amounts of oilseed rape grain in stock and available for sale - amounts included in the financial system -were misstated as none had been purchased in May 2020. She also told him that the software system was showing levels of grain in another store where none was available. She provided the MD with information showing that the data on amounts of grain available for sale and generated by the software system was incorrect.

She did not contest the respondent’s evidence at the hearing that he was unaware that she had made a disclosure.

Did the relevant information constitute a wrongdoing?

 Within the complainant’s evidence it was difficult to unpick what she actually believed to be the wrongdoing which she had notified to the respondent. The evidence submitted discloses that there were differences between the respondent and the complainant about the efficacy of the software programme which the respondent used to track the deliveries of grain to his premises and the amount available for sale in his multiple grain stores. The complainant was at odds with the respondent’s preferred, Herbst process. She favoured a modified or a variant of the company’s system which allowed for different and additional elements to the respondent’s approved model. The complainant was engaged in showing the deficiencies in the respondent’s software programmes. But deficiencies in a software package – if a deficiency is what it was-or deficiencies in the tool used to measure and chart the delivery of grain do not necessarily constitute a wrongdoing on the part of the employer as envisaged by section 3 of the Act of 2014. The complainant stated that the IT contractor told her in early June in the presence e of the MD that the system used by the company for measuring stock amounts and value of same since 2013 was wrong. She asked him to confirm this in writing and he declined to do so. It was the system in the complainant’s mind which was not up to the task of recording grain stock.

The complainant in her evidence did not demonstrate how this was a wrongdoing as opposed to ani incorrect record or an imperfect method of gathering data on the correct amount of produce in situ, the value of that to the company and other financial transactions.

Relevant authorities on the characteristics of relevant information and relevant wrongdoings.

The most recent Irish decision is that of Baranya v Irish Meats Group Ltd (2021), IESC 77, where the employee had made a complaint concerning the employer’s obligation to provide a safe and healthy workplace. The case has been remitted back to the Labour Court. However, Hogan J in identifying the characteristics of a ‘relevant wrongdoing’ stated

……..Nor does the conduct in question necessarily have to amount to a breach of any legal obligation (although it would generally probably do so)……….. The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of s. 5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings on the part of the employer. “

In An Employee v A Golf Club, ADJ 24960, the adjudicator investigated a complaint of bullying and harassment which that complainant contended was a failure on the employers part to safeguard his right to a safe and healthy workplace. The adjudicator in finding that the complainant had not made a complaint of relevant wrongdoing as required by the Act of 2014, relied on the UK decision of   Everett Financial Management Ltd v Murrell EAT/552/02, 18 December 2002 which found against the complainant and held that

” He claimed that he had been constructively dismissed by reason of his having made a protected disclosure. He asserted that he had made a disclosure in 2000 when he and 18 of his colleagues became concerned about a particular practice that they were required to carry out and signed a petition seeking assurances from the appellant’s directors that they were not engaged in an activity that was unlawful or that could be construed as unlawful. On appeal the English EAT held that the petition did not disclose any information. It concluded that simply raising and expressing concerns and seeking assurances that there had not been a breach of a legal obligation did not amount to a protected disclosure under the Act.”

In this same decision, the adjudicator considered Eiger Securities LLP v Korshunova [2017] ICR 561 which in considering the elements which a disclosure must possess to enjoy the protection of the UK statute held that

“The identification of the (employer’s) obligation does not have to be detailed or precise, but it must be more than a belief that certain actions are wrong. Actions may be considered to be wrong because they are immoral, undesirable or in breach of guidance without being in breach of a legal obligation. However, in my judgment the ET failed to decide whether and if so what legal obligation the claimant believed to have been breached. The decision of the ET as to the nature of the legal obligation the claimant believed to have been breached is a necessary precursor to the decision as to the reasonableness of the claimant’s belief that a legal obligation has not been complied with”.

On the basis of the evidence adduced and in light of the above authorities, I find that the complainant raised and expressed concerns about the capacity of the software systems to generate correct data. The complainant did not claim in her evidence that the respondent had breached a legal obligation let alone specify which one.

I find that the complainant did not make a disclosure which meets the requirement of section 5 of the Act of 2014.

Aside from this important first point of enquiry, the complaint’s own written evidence states that the respondent told her on the 18 May that he wished to terminate her employment. This predates her disclosure on the 6 June. It is difficult, therefore, to sustain an argument that the dismissal on the 15 was a retaliation for her disclosure on the 6 June.

Having decided that the complainant was not dismissed because of a protected disclosure, I must now consider the complaint submitted underSection 6(1) of the Unfair Dismissals Act, 1977 which states that

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 Act indicates what type of substantial grounds justify a dismissal and states

“…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a)     the capability, competence or qualifications of the employee for performing work of th kind which he was employed to do

b)     the conduct of the employee”

In determining for the purposes of the Acts whether or not a dismissal of the complainant was an unfair dismissal, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, capability etc.), or that there were other substantial reasons justifying the dismissal as per section 6(6) of the Act of 1977.l.

Substantial reasons for the dismissal.

The respondent maintains that the complainant was dismissed because of inability to do the job to the required standard and because of her conduct. She repeatedly failed to follow the respondent’s instructions concerning the management of the grain portfolio. She Ignored the respondent’s instruction not to do stock adjustments without showing them to the MD beforehand. In making the stock adjustments, she inflated the value of cereals and grain which if not intercepted by the MD could have endangered the company’s credibility and reliability with the bank.

Additional reasons for her dismissal included poor relationships with clients and customers some of whom refused to deal with her and threatened the respondent’s continuing relationship with them.

She had conflictual relationships with fellow employees and contractors.

All of these grounds are disputed by the complainant. Her denials were sometimes a refusal to engage with the question put to her in cross- examination. When asked to explain stock adjustments, she respondent by stating,” ask Mr. X.”.  It is surprising that she did not contest this reason for her dismissal. The complainant was mainly troubled by what she saw as data breaches.

The complainant’s evidence that prior to her dismissal she was in the dark about the respondent’s concerns is undermined by her complaint form, which states that the respondent asked her to consider a settlement on the 18 May. This fact also undermines her evidence given at the hearing that that only matter discussed at the 18 May meeting was the false accusation made about her by a sales colleague.

The question as to whether substantial reasons existed for her dismissal is made very difficult by the absence of records on the respondent’s part. But the oral evidence and the complainant’s own written evidence reveals conflictual relationships between the complaint and her colleagues. I find that when the respondent put a difficulty to her, she went into combat mode as opposed to trying to understand the respondent’s position and explore a resolution.

I find that there were reasons for the dismissal. I find that the complainant’s chronic obstinacy and doggedness was disruptive. But I do not find that these behaviours were of an order to warrant summary dismissal given the absence of earlier attempts to remediate the complainant’s shortcomings. The only evidence that the respondent could muster up until May 2020 was periodic bouts of exasperation with the complainant. There was an absence of any process to correct how the complainant functioned in her role. The respondent contributed little by way of avoiding a dismissal.

I find that in the circumstances as described above, the decision to dismiss the complainant was not within the band of reasonableness. Hence, I find the dismissal to be unfair.

An adjudication officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

Section 6(7) of the 1977 Act as amended states

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7(2) of this Act”.

The respondent’s disciplinary procedure allows the respondent to apply whatever sanction they deem appropriate in the circumstance. That being said, this is not a licence to dispense with the requirements for natural justice set out in S.1 146/2000.

The complainant was given no advance notice of the purpose of the meeting on the 15 June, was not offered the right of representation, was not afforded an opportunity to argue against the dismissal; the letter was given to her at the outset of the meeting which discloses that the decision to dismiss was a foregone conclusion. The complainant was not offered an appeal option contrary to the respondent’s own disciplinary procedure. Respondent’s Grievance and Disciplinary Procedures it is clear that the Respondent has not followed its own procedure.

I find that the dismissal was conducted with complete disregard for the requirements of S.1 146/2000 and the requirements for natural justice.

I find that the decision to dismiss the complainant in all of the circumstances was unfair. I find the complaint to be well founded.

Remedy.

The complainant’s preferred remedy is compensation.

Section 7(2) of the Act of 1977

This section provides that in considering the amount of compensation to be paid, regard shall be had to the contribution of the employee to the dismissal and the efforts made to mitigate the financial loss incurred as a result of the dismissal.

The complainant’s loss was €17,134.

The evidence reveals that the complainant turned away from any meaningful engagement with the respondent as to how to rectify the situation and chose combat mode instead. I reduce the complainant’s award by 30%

The complainant states that she commenced looking for alternative employment on the 22 June 2020. The complainant secured alternative employment in mid-December 2020, on a salary of €33,00 pa. That position lasted up until 6 August 2021. The complainant secured another position on 16 August 2021 to date earning an annual salary of €50,000.

The complainant submitted evidence of mitigation subsequent to the hearing. This reveals that she applied for twenty positions from the 14 September to mid- December 2020. While Covid-19 was in play from June to September, and the complainant may have had expectations of a settlement materialising, I do not accept that these factors relieve her entirely of the obligation to mitigate her loss during the period June- September 2020.

The Labour Court in the case of Phillip Smyth v Mark Leddy, UDD 1974 determined that the employee

” who is dismissed should spend a significant portion of each working day while they are out of work, engaged actively in the pursuit of alternative employment.”

I find that the complainant only applied for jobs in three of the six months during which she was out of work. I find that the complainant has made insufficient efforts to mitigate her loss.

I require the respondent to pay the complainant the sum of €€8,500 which I believe to be “just and equitable having regard to all the circumstances.”

CA-00041458-002. Complaint under the Minimum Notice and Terms of Employment Act, 1977.

Her service under the Act of 1977 entitles her to one week’s notice. The complainant was paid salary for two weeks following her dismissal.

I do not find this complaint to be well founded.

CA-00041458-003. Complaint under the Payment of Wages Act 1991.

 The complainant withdrew this complaint.

CA-00041458-001. Complaint under Section 8 of the Unfair Dismissals Act 1977.

I find this complaint to be well founded. I require the respondent to pay the sum of € 8,500 to the complainant in compensation for this breach of the Act.

CA-00041458-002. Complaint under the Minimum Notice and Terms of Employment Act, 1977.

I do not find this complaint to be well founded.

CA-00041458-003. Complaint under the Payment of Wages Act 1991.

 The complainant withdrew this complaint.

I do not find this complaint to be well founded.

Unfair dismissal; protective disclosure complaint not upheld.