Complainant

Respondent

Parties

Agatha  Boland

Keanes Garden Centre Keanes Garden Centre

Representatives

Pauline McEvoy

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-00041525-001

12/12/2020

The complainant submits that she was unfairly dismissed and the respondent submits that the dismissal was fair.

A brief summary of agreed established facts are as follows:

The complainant commenced employment on 5th February 2018 earnings a gross weekly of €625 at the time of dismissal.

An incident occurred on 19th June 2020 at around 3pm where the complainant told the owner Mr Kevin Keane “fuck you”or “fuck off” and put up the middle finger.

Later that evening at approximately 6pm, the complainant apologised to Mr Kevin Keane.

Mr Kevin Keane handed the complainant a letter at that meeting, advising that there would be an investigation into a number of matters.

The investigative meeting took place on 29th June 2020, conducted by Mr A, an external consultant, for the respondent and the complainant attended with her representative.

The complainant was advised by Mr Kevin Keane on 2nd July 2020 that she was suspended with pay.

The complainant was advised that a disciplinary meeting would be held and this took place on 17th July 2020 and was conducted by Ms B an external consultant.

Between 9th July 2020 – 16th July 2020 the complainant was out on certified sick leave.

The complainant was advised on 17th July 2020 by Mr Kevin Keane that she was dismissed.

On 19th July the complainant was advised by Mr Kevin Keane that she could appeal this decision.

The appeal was held by Mr Kevin Keane on 27th July 2020.

No decision was issued following the appeal.

The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

Parties in attendance were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that this hearing before the Workplace Relations Commission would be held in public and that this decision would not be anonymised and there was no objection to same. 

Parties were also advised that an Adjudication Officer may take evidence under oath or affirmation and that cross examination is permitted.  Evidence was taken under affirmation from the complainant, Agatha Keane and from the owner of the respondent, Kevin Keane.

The respondent denied that the complainant was unfairly dismissed and submitted that they were left with no alternative but to terminate her employment.

The respondent submitted that the complainant commenced employment as a Horticulturist and was promoted a year later to a manager.  The respondent noticed a change in her attitude towards the owners Mr Kevin Keane and another owner Mr C where she regularly used foul and abusive language when dealing with the owners in front of Staff and around the shop.

It was submitted that the complainant also started making derogatory remarks about the owners to staff and customers including asking one of the managers if he was off to meet his girlfriend in front of people when he was leaving the office.  Mr Kevin Keane met her and asked her to refrain from using abusive language and making comments in front of Staff and Customers. Mr Kevin Keane was hoping that it would sort itself out as he believed the complainant could do a good job.

On the 2nd June a staff meeting was held. Three new staff had joined the company and Mr Kevin Keane wanted to introduce the appropriate reporting structures, policies and procedures that would help to better manage the business.  At this meeting the respondent found the complainant extremely disruptive and critical, stating in front of the new staff, that if Mr C, another manager didn't retire she would be off.  Eventually a number of actions were agreed, some to be carried out by the complainant and the complainant was spoken to afterwards and asked to cooperate to ensure things got done.  However nothing changed and the complainant did not carry out any of the agreed actions.

On 11th June 2020 at 10am Mr Kevin Keane met the complainant and asked her if there was something wrong and if he could help and the complainant replied that she was alright.  The complainant was advised again that her attitude and behaviour needed to change.

On the 19th of June 2020 the complainant told Mr Keane" fuck you" or “fuck off” and made a derogatory gesture of putting her middle finger up to  him in front of other members of staff and loud enough so that it was heard in the shop by others.  The respondent was unable to accept such behaviour and invited the complainant to an investigation meeting and she was suspended with pay pending the investigation.  Following this investigation the complainant was invited to a disciplinary meeting eventually held on 17th July 2020 and conducted by Ms B and after which Mr Kevin Keane made the decision to dismiss the complainant.  The complainant appealed this decision and at the appeal Mr Kevin Keane offered the complainant a package in appreciation of her work with the respondent.  This was rejected by the complainant.

Mr Kevin Keane gave evidence that that after the incident he contacted his HR advisor and decided to write up the letter inviting the complainant to an investigation.  Mr Kevin Keane’s evidence was that he is not a HR person and he tried to do what he could do in carrying out the investigation and got two external people involved.  In cross examination he was unable to confirm if he gave consideration to her apology before he issued the letter advising of the investigation and advised that he regarded the matter serious enough to warrant dismissal.  Mr Kevin Keane also confirmed that the appeal meeting lasted approximately 1 minute.

Following the hearing, the respondent, by way of response to the complainant’s efforts to mitigate her submitted that the complainant had given evidence at the hearing that she was not interested in compensation and that the respondent did the best in the circumstances.  It was also submitted that monies claimed by the complainant had been paid to her and that expenses that she was claiming for did not amount to loss of income.

The complainant submits that she was dismissed and that the respondent failed to provide substantial grounds to justify the dismissal and that the punishment of dismissal was not proportionate.

The complainant submitted that she was good at her work and many customers requested her help specifically because of her horticultural expertise in order to make their purchases. During covid the respondent was allowed to remain open as they sold agricultural seed and the complainant often worked extra unpaid hours and it was submitted that the complainant increased sales during this period.  In May 2020 a new employee Ms D commenced employment and despite the complainant’s senior role she was not involved in her recruitment or her training.  It was the complainant’s belief that Ms D was brought in to replace her.

The complainant gave evidence that she had a very informal friendly relationship with Mr Kevin Keane and they would regularly WhatsApp each other informally using inappropriate language but that the complainant felt a coolness in their relationship upon the arrival of Ms D and that Mr Keane did not seek her input as much with changes including the layout of the garden centre. 

In early June 2020 there was a staff meeting and Mr A, whom the complainant believed was a financial advisor to the company, was introduced to employees and chaired the meeting where proposed changes were discussed.  The complainant questioned what experience Mr A had in running a garden centre but did not receive an answer.  No minutes of this meeting were issued at the time.  On 19th June 2020 the complainant was advised of a voucher scheme that was to be implemented whereby customers would spend money and get a stamp on a card which they could eventually redeem with a voucher to spend in the store.  Shortly afterwards the complainant saw a different scheme appear on social media which was very different to what she had been advising customers about and when she enquired into it with other staff members, nobody knew about it. 

Around 3pm the complainant met with Mr Kevin Keane and asked him about the different voucher schemes and was annoyed that she was not given accurate information.  As she walked away the complainant gave evidence that she told Mr Kevin Keane “fuck you” or “fuck off” and raised her middle finger to him and was upset and felt under a lot of pressure.  The complainant gave evidence that no customers saw this incident. 

Around 6pm as the complainant was finishing up for the day, she went looking for Mr Kevin Keane and apologised to him.  Mr Kevin Keane responded that she could keep her apology and handed her a letter which she believed had been prepared.  It was submitted that the respondent treated her unfairly at the investigation meeting which was conducted very unprofessionally and that the investigator exceeded his role as fact gatherer.  The complainant submitted that she advised Mr A that he should not be involved in the investigation but that he ignored her.  As an employee/agent of Mr Kevin Keane, the investigator was not independent, his own son was an witness and when she told Mr A that he should not be involved as his son was a witness, he replied his son only gave a little statement.  It was submitted that Mr A introduced into the investigation issues that had not previously been brought to the complainant’s attention such as her performance and dismissed her claim that Mr Kevin Keane also used bad language to her.

It was also submitted that using alleged statements from staff members, which were unsigned and only received by the complainant 5 days before investigation meeting, was not acceptable or fair. The complainant submitted that she rebutted the alleged witness statements but the respondent failed to follow up with the questions the complainant raised.  The respondent failed to give the complainant adequate notice of meetings and moved the complainant from paid suspension and advised her to get a sick cert.  The decision to dismiss was made and issued by Mr Kevin Keane and it was set out that it was owing to “the relationship (between them) broken down beyond repair and accordingly in the best interest of the business” and refers to the complainant’s “unacceptable conduct towards management and (her) continuing failure to take instruction”.   The complainant was advised that the invite to the appeal was a draft appeal and the appeal was carried out by Mr Kevin Keane who had no impartial person present and there was no mention of gross misconduct during this process.  There was no basis given for her suspension and no investigation, disciplinary report and no outcome to the appeal issued.  The onus was on the complainant to supply Mr Kevin Keane with typed transcript of recorded meetings; another indicator of the unfairness of the process.

The complainant’s evidence was that she had never received a warning before and had a good relationship with Mr Kevin Keane and that they had both used the “fuck” word to each other before and she did not believe this had caused offence in the past.  In her evidence the complainant advised that she never received a copy of any investigative report.

In cross examination the complainant advised that she felt the letter she received from Mr Keane advising of an investigation had been prepared as Mr Kevin Keane issued her with the letter within 3 hours of the incident happening.  The complainant accepted that using bad language and giving the middle figure was not appropriate and that she knew that Mr Kevin Keane was annoyed and that was why she apologised.  The complainant submitted that she did not raise concerns with the investigation through the grievance procedure as it all happened so quickly. 

In response to questions regarding efforts to mitigate her loss, the complainant submitted her loss in earnings to date were €8,672 and she had incurred additional losses of €5,280 including expenses incurred as a result of having to proceed with the complaint.  In response, post-hearing, to the respondent’s submission that the complainant did not want compensation the complainant their claim.

It was not disputed that the complainant had been dismissed. The complainant submits that the dismissal was unfair and the respondent submits that they were left with no alternative but to terminate the complainant’s employment owing to “unacceptable conducttowards management and (the complainant’s) failure to take instruction”.

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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 as follows:

4)     Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

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

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

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

Section 6(6) of the Act states as follows:

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

Section 7 of the Act, in relevant part, makes provision as follows:

(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….

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

It was accepted that the complainant told her manager Mr Kevin Keane “fuck you” or “fuck off” and gave him the middle finger. It was accepted that the complainant apologised for her inappropriate language and behaviour before the complainant was advised that there would be an investigation.  It was not in dispute that Mr A conducted the investigation, but no investigation report was issued; that Mr Keane advised the complainant that the matter would proceed to a disciplinary meeting which was conducted by Ms B.  It was not in dispute that Mr Kevin Keane was the person who advised the complainant that the result of the disciplinary meeting was her dismissal; that Mr Keane conducted the appeal and that no decision was issued regarding the appeal.  It was furthermore not in dispute that both the complainant and Mr Keane had previously used inappropriate words to each other and that unsigned statements were furnished to the complainant.  It was disputed by the complainant that management had spoken to her about poor performance prior to the investigation.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet,UD1294/2008. Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited[1973] IR 388, also detailed:-

"This court in re Haughey[1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

The court in Glover v BLN Limited(1973) IR 388 decided there is no fixed standard of natural justice which lays down how certain specific matters must be complied with.  The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances.  Furthermore, Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case.   In that case, Keane J. stated that the two principles of natural justice, namely “audi alterem partem and nemo iudex in causa sua cannot be applied in a uniform fashion to every set of facts”. Therefore, while employers are required to afford natural justice and fair procedures to employees when carrying out disciplinary procedures, regard must be had for the particular circumstances of the case to ascertain what the requirements of natural justice and fair procedures demand in the particular circumstances.

If the process that is followed by the respondent, while not entirely faultless, is within the scope of what could be considered a reasonable response in the particular circumstances, then the employer's actions will be deemed to be acceptable.  There are certain fundamental requirements of fair procedures outlined in Glover v BLN Ltd [1973] IR 388 (and referenced in Kolsaran Concrete Kilsaran International Ltd v Vitalie Vet [2016] 27 E.L.R. 237)

“that cannot be dispensed with, regardless of the particular circumstances that arise in an individual disciplinary matter. They include:

(i)                  the requirement to make the employees who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;

(ii)                (ii) the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process;

(iii)               and (iii) in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.”

In the instant case, it was accepted by the complainant that her behaviour and language was inappropriate and resulted in the commencement of an investigation.  The complainant also apologised before she was aware of any decision by the respondent to investigate her behaviour.  The letter inviting the complainant to an investigative meeting, however, refers to a number of other matters to also be  investigated.  The next letter inviting her to a disciplinary meeting advised that this disciplinary is based on her responses to the submissions shown to her at the investigative meetings.  Having heard the evidence and submissions it is unclear whether the purpose of the disciplinary meeting was regarding all the incidents referred to in the investigation letter as no report was issued after the investigation and no specific details of allegations, such as dates, were put to the complainant at the outset of the process.  I also note that there was a conflict in evidence as to whether the complainant had been made aware that the respondent was unhappy with her performance.

The respondent’s disciplinary process does not provide much detail of how their disciplinary process will be conducted but providing unsigned witness statements to the complainant in an untimely manner and with no opportunity for the complainant to question these statements would not appear to meet the respondent’s policy of “each case will be treated consistently and fairly”.  It was indeed unclear what questions had been asked of alleged witnesses resulting in them providing the alleged statements.

It is accepted that the respondent is a small organisation and that can bring challenges in how a fair and independent process is conducted.  This does not excuse the respondent of their responsibilities ensuring, as per their own policy, “each case will be treated consistently and fairly”.  The respondent appeared to recognise some part of this responsibility and saw the need to appoint persons outside the organisation to investigate and proceed with the disciplinary process.  However, I find it extraordinary that Mr Kevin Keane, who was the subject of the inappropriate language, saw it fair and appropriate to involve himself in all aspects of the investigation process, the disciplinary process and the appeal process.  He wrote to the complainant advising of the investigation, he then suspended the complainant with pay, and then he wrote to the complainant advising that she was dismissed and followed this up by conducting an appeal meeting, of sorts.  It is also extraordinary that the respondent failed to issue the complainant a decision regarding her appeal of her dismissal and confirmed in evidence that the appeal hearing took just one minute.     

Taking all the evidence and submissions into consideration I find that the manner in which the investigation, disciplinary meeting and appeal meetings were conducted were deficient in fairness and objectivity and reviewing the minutes of the meeting it would appear that decisions were predetermined and that the respondent was not interested in the complainant’s responses or questions.  There is no doubt that the complainant’s language and behaviour to the respondent was inappropriate and I find that complainant did contribute to her dismissal, but in all the circumstances I find that the disciplinary sanction was not proportionate, and that the dismissal was unfair and the complainant’s claim is well founded.

Having considered the remedies available I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case

With regards to redress the complainant submits that her losses incurred, less employment secured amounts to €7,422.  The complainant also submitted other losses incurred including costs as a result of having to proceed with this complaint. S.7 of the Act requires me to consider the actual losses incurred due to dismissal, attempts to mitigate any such losses and the level of contribution by the dismissed person to the dismissal. 

Taking into consideration her actual losses due to the dismissal, I award the complainant €7,000 and taking into consideration her contribution to her dismissal, I reduce this by 10% and award the complainant €6,300 for her unfair dismissal.

I find that the complainant was unfairly dismissed and that the claim is well founded. I find it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €6,300.

Unfair dismissal, procedures