Complainant

Respondent

Parties

Gillian  O ‘Regan

Derry Court Company Limited

Representatives

Justin Condon, BL, instructed by  Vincent Toher & Co. Solicitors

Hugh Hegarty Management Support Services (Ireland) Ltd

Act

Complaint Reference No.

Date of Receipt

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

CA-00043252-001

25/03/2021

On 25 March 2021, the Complainant, through her Solicitor. Vincent Toher and Co submitted a complaint of unfair dismissal against the Respondent Company.

The Respondent operates a facilities company and has denied the claim.  The Respondent has rejected the claim and filed a submission in defense of the claim prior to the first hearing day.

The circumstances of the case incorporate a transfer of undertakings, where the Respondent as Transferee took over the business on March 1, 2020. The circumstances also pertain to training activity within a client contract.

At the outset of the hearing, the Respondent sought that the Client at the center of the case should be anonymized for commercial sensitivity reasons. There was no objection by the Complainant Representative, and I agreed to record any reference to the client in my ultimate decision as “Client A “

The Respondent also registered a dissatisfaction on the late submission of the Complainant submission on day of hearing.   Time was afforded for the Respondent to read into this document.

I observed that the onset of the late submission had a destablising impact on the hearing as both parties appeared irritated by this. Eventually and in appealing to the parties to proceed with the facts of the case, the hearing progressed across two days.

Both parties conducted a very skillful case in respect of their respective clients, and I am grateful to them for that.

At the conclusion of the hearing, the issue of the complainants standing in the company immediately pre and post TUPE and at the time of the incident in the case was still not 100% clear to me. I requested further information from the Respondent, who shared records from file, which were commented on by the Complainant side. I will return to this later.

This process was concluded by the end of January 2023.

On the first day of hearing, the complainant introduced two witnesses, but neither witness gave evidence in the case.

On the second day of hearing, the Respondent introduced Mr. Z, as Investigator and Ms. F as recipient of the” post its”. Both gave evidence in the case. 

The Respondent operates a large cleaning business and confirms that the complainant’s employment, commenced in September 2012, passed to them through TUPE Regulations on March 1, 2020.

 Induction, Employee starter packs and additional training for supervisory staff was provided in company policies and procedures and site-specific rules. One hundred staff tupe’d and joined the respondent 130 staff.

The Complainant had spent her entire tenure on the Client A base.

Ms A was appointed as the site manager.

The Complainant was employed as an Assistant Site Manager, full time and paid in line with the (ERO) Employment Regulation Order for the contract cleaning industry at €979.66 fortnightly.

On 25 September 2020, Ms A found three staff who were collating paperwork for staff training. The Respondent submitted that Ms A believed that these training records “were being falsified “as the answers were not making sense or adding up.

Ms A understood that the complainant had confirmation the falsification at the initial discussion. The Complainant was suspended on 29 September 2021.

A Client A based Manager, Ms X and a HR Manager, Ms B were appointed to investigate allegations of falsifying company records and breach of trust. Ms X was subsequently replaced by Mr Z.

The Complainant was furnished with the disciplinary procedure and witness statements prior to the investigation.

The investigation Report of 200 pages, concluded that the complainant had confirmed that she falsified 200 training documents for every member of staff on site as she felt pressurised herself. The matter was referred for a disciplinary hearing conducted by Ms M and Mr N on 29 October 2020.

On 2 November 2020, the complainant was dismissed for behaviour amounting to gross misconduct in respect of the “deliberately falsifying training documents and a disregard for Derry Court policy. “

The Appeal meeting followed, which upheld the original sanction of dismissal.

The Respondent submitted that the dismissal was based on a valid substantive reason, procedurally fair and proportionate which led to a breach in trust.

The Respondent relied on the defence in section permitted in section 6(4) (b) of the Unfair Dismissals Act, 1977.

The complainant confirmed the allegations made against her during the internal process. She qualified the confirmation by stating that the pressure felt was self-imposed.

Consequently, the respondent maintained they were correct to rely on section 6(4)(b)

Mr Hegarty guided his submissions to

Looney v Looney UD83/1984 on what a reasonable employer would do

In Bunyan v United Dominion Trust [1982] ILRM 404 “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved “

He sought application of Abdullah v Tesco plc UD 1034/2014 and argued that the employer’s decision to dismiss the complainant on conduct was within the reasonable range of sanctions that could have been imposed within the contract cleaning industry. The client A contract was put at risk and there were no mitigating factors. This was gross misconduct, which justified dismissal.

In responding to the procedural fairness element of the defence, the Respondent submitted that the dismissal was conducted fairly, correctly and in adherence to the principles of natural justice. These procedures complied with the respondents’ own policies and SI146, the Code of Practice on Grievance and Disciplinary procedures.

The Respondent did not accept the weighted contention that the training forms were not submitted. The Respondent drew the attention of the hearing to the “forging “of the documents rather than their submission as the real cause for concern by the company. Mr Hegarty argued that the company had placed the complainant in a place of authority and trust, and they could not look past this breach of trust.

The Complainant had not raised a grievance regarding any alleged discord with Ms A. The Respondent contended that but for the training record incident, that the complainant would still be employed.

Preliminary Issue:

Mr Hegarty for the Respondent made a strident application that he was not prepared to answer a claim under TUPE Regulations as it was not detailed on the complaint form and consequently, the company was not on notice. The Complainant ought to have addressed this matter following notification of hearing.

Evidence of Ms A. Area Manager, under oath

Ms A commenced the onsite role of area manager in February 2020. Her role is to manage client relations.

Ms A was on her way to have coffee before meeting a client at 11am. On passing the lockdown area, an area not normally populated, she came across three cleaning staff in a large room in the lockdown area of the plant.

She said she asked them what they were doing there. They told her “Paperwork for Gillian “She noticed that there were no names on the top of the documents which ranged 1 foot in height.

 She called the complainant who told her that she would “explain later “She had a busy day and they missed each other on follow up. Ms A contacted another colleague at the cabin, as the complainant had not answered her phone and found the complainant there. She spoke on the speaker and asked whether they could discuss the paperwork? She said she found it a difficult situation. Ms A was troubled that the complainants story changed.

Ms A was staying on and the complainant was due to finish, so they agreed to leave at that for the day.

Later that evening, the complainant rang her and in an accusatory manner checked her on “how dare you check up “in the context of a conversation with two other named staff.

Ms A said that she explained that she just wanted to see what their recollection of the training was.

The Complainant responded by saying “you don’t understand, I’m the one going to get fired “

Ms A planned to address the situation the following Monday. She said she carried a high level of responsibility to the client.

By Monday, Ms A submitted that she began to have major concerns for the integrity of training and the duty of care to staff. She requested to the complainant, and they met on the client site.

She found the complainant to be emotional as she confirmed that she had fraudulently marked a matrix of papers.

The Complainant told her “I did it all, I did everything “in the presence of Ms H and Ms U, neither of whom were present at hearing.

Ms A requested that the complainant compose a statement to recap as inconsistent versions and recollections had followed over Thursday to Monday.

  The Complainant asked for some time.

The Statement was submitted. Ms A went through the statement Ms A took a few minutes to think about it, called Ms X, before informing the complainant that she was suspended on full pay. The complainant surrendered her phone and deleted what she wanted to. A colleague gave her a lift home.

Ms A had no further involvement in the case.

During cross examination, Ms A denied taking the complainant’s job. She understood that the complainant was acting up. Ms A understood the context was that Client A had asked that a particular site manager not return.

Ms A had not seen the 2019 contract. She did not know if the complainant was an area manager.

Ms A confirmed that her suspicions were aroused when she found staff, who shouldn’t be there in a lock down area.

Ms A denied pressurising the complainant into providing a statement. She said she would have accepted if she had refused. She denied that she appeared under duress when she sought her colleague, Ms U (her representative)  

Ms A said that she was troubled by the inconsistency that traversed the three conversations on this topic.

Conversation 1

She said that all documents were reasonable, and she could stand over them. Names were in a book and reasons were variable. She confirmed that the complainant had not declared “falsified “

Ms A said that Trainers within the company had expressed a view that the complainant’s proposal on training was appropriate. Ms A said that the complainant did not hold a full discretion surrounding training provision.

When Counsel asked Ms A why she didn’t make the complainant change her direction on the training, Ms A answered that the complainant seemed comfortable with it.

Ms A confirmed suspension arose from the complainant having a case to answer.

When Counsel probed if there were issues between Ms A and the complainant, she answered “all working relationships have issues “

In redirect, Ms A confirmed that she had not been the subject of a grievance by the complainant. The complainant had placed names in a notebook.

In clarifications, Ms A struggled to distinguish both hers and the complainants’ roles. She did not complete the complainant’s performance appraisal. There had been some disagreements operationally.

Ms A did not participate in the investigation but submitted a statement.

Ms X was the Regional Manager for the respondent.  at first Ms A was unsure of how she had communicated   the purpose of investigation to the complainant but added that it was to facilitate an investigation.  The Friday phone call lasted 10 mins between 6 and 7 pm. The complainant was very upset. Her story had changed, from stating that she stood over her actions to being confused.

Evidence of Ms D, Regional Manager, 150 sites, Dismissal Manager

Ms D confirmed that she was not acquainted with the complainant. Ms D struggled with the concept of the retrospective sign off forms. She said that she did not believe this could happen.

Ms D engaged with the complainant.

She aligned her thinking to a perceived occurrence of disaster if an outbreak occurred on the client site against falsified records.

Ms D considered all she heard. She found that trust had been breached and the company placed at risk.  The quarterly figures were affected as false information would be given out. She found that the complainant had 9-year tenure in the business and her actions could have had a catastrophic outcome at the business.

During cross examination,

When Counsel put the concept of the training being built on a strange approach, Ms D said the approach was not that of the respondent.

She confirmed that once the circles were applied on the papers, that constituted “falsification “.

Counsel asked if Ms D had considered intent? Ms D simplified her response by submitting that false documents tainted the quarterly figures.

Counsel asked whether the level of literacy was considered, and Ms D confirmed that she managed “non literate “staff on a frequent basis.

In redirect, Ms D confirmed that she understood that the complainant had a full knowledge of what she was doing, and it was not easy to lose your job.

In clarifications, Ms D confirmed the breadth of her experience in conducting disciplinaries over 10 years.

She had no knowledge if Derry court inducted staff.

I requested why Ms D had decided to progress dismissal over disciplinary action? and Ms D confirmed that trust was broken, and this trumped any possible corrective action.

Ms D confirmed that she had not considered the working relationship between Ms A and the complainant.

Ms D confirmed that Client A had no awareness of the issue and nobody else was disciplined.

Ms D confirmed that she had consulted with Human Resources one day after the disciplinary hearing.

Ms D could not recall how long the disciplinary procedure lasted.

She confirmed that she had considered the impact of a dismissal on the complainant. She submitted that she was not keen to dismiss, but it was a necessary action.

Evidence of Ms P, Appeals Manager, Project, and claims manager.

Ms P was senior to the disciplinary manager and new to the case in November 2020. She reviewed the key factors and investigation pack in preparation.

Ms P was looking for anything new to consider. She learned that the complainant had volunteered for the training with an identified deadline. Sign off was to be completed on site. She reviewed the training matrix.

Ms P examined intent after the forms were found. She crosses matched staff member’s statement. counsel objected to this evidence as hearsay.

Ms P said that she obtained clarity through IT and put that to the complainant, seeking a sequential account, not “zig zag “.

She found that the complainant had given instructions on stapling the documents and to get people to sign prepopulated forms.

There was also an option of self-directed learning.

Ms P said that she considered instructions from the training department and guidance supports, the pressure and the deadline.

She concluded that fraudulent attempts were relied on by the complainant in executing training. forms had been signed to indicate participation in both sets of training.

There were no blank forms. Staff were forced to sign what they had not completed.

The Complainant was asked to coordinate training, not deliver it.

Ms P submitted that the falsification was of a serious nature and reflected intent.

During cross examination, Ms P denied that the complainant carried a “free rein “in the training. Ms P said that an on-site assessment and further guidance followed. she argued that the complainant had sufficient training to support completion.

Ms P said “the post it “indicated a short cut through carrying out the training.

Ms P reaffirmed that the complainant’s intent was very strong, and her actions were fraudulent.

In clarification, Ms P confirmed that she had not probed the working relationship between the complainant and Ms A.

Ms P confirmed her experience in conducting appeals back to 2016.

Ms P confirmed that the complainant had not sought her job back. She clarified that the remit of the appeal was either to apply a lesser sanction or uphold. She clarified that she would categorise what occurred as a service accident amounting to gross misconduct.

Evidence of Mr Z, Health Care Regional Manager (Investigation) second day of hearing.

Mr Z deputised for the absence of Ms X at the behest of human resources, at investigation on 15 October 2020. This was his first and last day on the client site. He was experienced in conducting investigations.

He was aware that Ms X had collated statements and met with all.

He confirmed that the investigation had not had terms of reference or an interim final report.

From his perspective, he undertook to assess the hundreds of training documents created by the complainant, which were to be completed by staff across 5 different courses.

He was alarmed at the variance in the complainants’ responses at investigation. He was troubled to discover that some of the “circled answers” were wrong, which the complainant told him reflected the human factor, but he concluded this was falsified evidence.

The Complainant had agreed that instruction had issued to hand out these training documents. The Complainant had indicated that she had filled in these documents herself and her plan was to reduce to a questionnaire. However, attendance at training was not accounted for.

During cross examination, Mr Z disputed that “training was going to be done “He said it was “conditional” and in the meantime, the complainant proceeded to fill in the forms herself. He understood that the eventuality would emerge that Ms A would sign off on these, without the training being completed.

He accepted that the prepopulated training documents were not dated or named. He said that he did not know if the complainant intended to train staff or whether these documents were created to deflect from that. The quarterly business matrix had not occurred. He disputed that blank attendance sheets were given to staff. Supervisors did not devise training.

In relation to the statement dated 28 September 2020 and submitted by the complainant, he reflected that the complainant had been comfortable with this statement. If she had indicated otherwise, he would have taken steps not to rely on it.

He said that he did not believe the complainant variance of responses, between that of a training tool, documents were going to be filed and may not have gone through with filing.

Counsel put the concept of the complainant’s intention before Mr Z. He said that the disciplinary procedure had been emailed to her prior to the investigation.

Mr Z Confirmed that he did not know if the complainant had been advised of the nature of the allegations prior to furnishing her statement.

Mr Z confirmed that Complainant was his sole interviewee in the investigation. She did not request an opportunity to cross examine witnesses.

He confirmed the intention to deceive amounted to falsification as the complainant’s intention was to make it “all look different “

During re-direct, the post its were read out. Mr Z reflected on the blank columns where staff signatures ought to have been.

During clarifications, Mr Z confirmed that he was the same rank as Ms D. He said there was no specific protocol governing investigations. He confirmed that the allegations were explained during the meeting of 15 October 2020.

He clarified that there was no specific training validation carry over process, following the transfer of the business.

He explained that harm caused to the company manifested in an undermining of the training function. He confirmed that there was no live grievance against Ms A. He confirmed that he had a discretion on whether to advance to disciplinary process or not but weighed everything up.

Mr Z was unsure of the duration of the investigation or when the complainant was provided with the report.

Evidence of Ms F, Supervisor on Client A site (relation of the complainant)

Ms F confirmed that the complainant had asked her through two sticky notes on the desk, to “please get signed by staff “

She confirmed that there was no animus between the complainant and her.

During cross examination, Ms F confirmed the training form. She acknowledged that she had been interviewed by Ms X.

In closing, Mr Hegarty synopsised the pathway travelled by the parties to dismissal. He emphasised that the company was open to receiving a reasonable explanation for the discovery of the trio by Ms A, however, the explanation given was suspicious, prompting HR involvement. It was not an overreaction.

He submitted that there was no law against an interchangeability of Investigators and witnesses were interviewed. Ms X was on sick leave until May 2021and rather than start again, the company pressed on with their inquiries. The allegations were set out by Mr G.    

The Complainant did not request union or legal representation.

He contended that there was no requirement on the company to produce a draft investigation report. The objective was that of fact finding.

There was no live grievance in existence between Ms A and the complainant and no request to cross examine by the complainant.

He submitted the Investigation report yielded a strong contention that “something doesn’t add up “and staff filling in training forms on a universal basis was fraud. The Respondent had an obligation to act as there was no concrete explanation forthcoming and no straight answers from the complainant, who had been trained and advised in the training process by the respondent.

Her falsification of company documents was a sackable offence as trust had dissipated between the parties.

Mr Hegarty disputed any link to TUPE fall out in the case as the complainant had agreed to the new role.

In response to my inquiries, the Respondent provided some detail of the nature of the complainants transfer in role and salary via TUPE. This was shared with the Complainant legal team and a response followed.

The Respondent position, which I appreciate is post hearing, is summarised in my findings below .

The Complainant has claimed unfair dismissal from her position as Assistant Manager. The employment transcended a period 10 September 2012 to the date of her dismissal on 2 November 2020.

The complainant found new work on 2 February, 2021 of a temporary nature. She continued in this work up to the second day of hearing, January 6, 2023.

The Complaint form lodged on the complainant’s behalf captured an employment interspersed by a transfer of undertakings in March 2020.

The Complainant contended that she had been unfairly treated because of that transfer. She experienced a difficulty with Ms A, Manager, which endured.

An issue arose surrounding the throughput of training assigned to the complainant. The Complainant contended that the training was disturbed prematurely during the process, which placed her at a disadvantage, which culminated in her dismissal. The Complainant had a clean disciplinary record, and she strongly contested her dismissal as a result.

The Complainant submission to hearing:

The complainant was introduced as having starting work as a part time cleaner around 2012 before commencing full time work. She moved through the promotional pathway of supervisor, assistant manager to Area Manager, with responsibility for the Client A contract. Her salary was €35,000 per annum.

Following TUPE in March 2020, the Complainant was demoted to “Assistant Site Manager “and her salary reduced to €30,000. There was no written contract of employment.

The Complainant contended that Ms A displaced the Complainant in her role.

Counsel argued that the complainant had been unfairly dismissed and found guilty of conduct “which had not yet occurred “The action had been disturbed by the company, which had not been harmed by the action.

The Complainant was accused of falsifying training documents and dismissed on gross misconduct. She accepts that she filled in the training records, but not that she did so dishonestly or with an intention to deceive.

Counsel pointed to a vacuum in instruction surrounding how the training was to be carried out by the complainant. He referred to the “post it note “which confirmed “tell them come see me, training will be done “

In relying on the standard of proof in addressing fraud in a civil context,

 Feeney J in Ahern v Bus Eireann [2006] IEHC 207, approved by Court of Appeal in Platt v OBH luxury Accommodation[2017] IECA 221

….. regard must be had to the seriousness of the matter being alleged, the gravity of the issue and the consequences in considering the evidence necessary to discharge the onus of proof.

It was the complainant’s case that the Respondent acted unfairly towards the complaint by her dismissal contrary to her rights to basic fair procedures under Art 40.3 of the Constitution.

In relying on Redmond on Dismissal Law on assessing employer reasonableness on a determination of dishonesty, Counsel submitted that the Complainant had accepted that she had filled in the training forms   and attempted to place a clear context and background for this occurrence.

It was the Complainants position that the continuum of training had been prematurely interrupted by the respondent to the complainant’s detriment.

In again, reliance on Redmond on Dismissal, counsel submitted that an employer should not equate video footage, for example of an employee taking money from the till with an admission of dishonesty by him, such that it remains only for the employer to speak the words of dismissal ……….

Counsel argued that the Complainant jumped the gun by an overzealous intervention, which was wholly unnecessary, and they ought to have adopted a “wait and see approach “The move to dismissal was premature against the difficulties already experienced by the complainant with Ms A.

He argued that the complainant had improvised in her training methodology, given that she had not received training in how to complete the task.

She had not forged any signatures on any of the documents that she filled out.

The Complainant contended that her demotion followed an assertion by another manager that her position was not budgeted for in the Tupe transfer.

Preliminary Issue:

The Complainants outline submission on day of hearing reflected that a live claim existed under TUPE Regulations. Counsel submitted that the Complainant had been demoted from her role of Area Manager. He contended that the Complainant was not bound by the six-month statutory time limit as it had been a tumultuous time for her.

In response to the Respondent contention that the matter of TUPE was not properly before the WRC, Counsel for the Complainant, argued that the topic was incorporated in the submission to WRC and ought to be processed.

Evidence of the Complainant:

The Complainant outlined her journey from part time cleaner to the conferring of her €35,000 salary as Site Manager by the Transferor company. She stated that she had never been subject of a disciplinary procedure.

As the new contract unfolded, mobilisation followed. she was requested to work with Ms A, whom she had not known previously. she observed that she was marked as a supervisor on the new clocking in system.

The Complainant described a reduction in salary and a “strained relations “

In addressing training, she said that she wanted to be productive and set the training task for herself, rather than linked to any matrix (QBR). She had no track record in training. She engaged in two phone conversations with learning and development in preparation. They suggested classroom style delivery, but the complainant disputed its viability.

She confirmed that she outlined her own method of training by paperwork and “I wasn’t told not to do it “

The complainant submitted that online training was not possible, and she tried to fix the training objective the best way, she could.

She submitted that all the forms were photocopied. Information compiled and answers marked.

Ms A had loaned her a laptop and Ms H supported her. (The Respondent objected to this, as hearsay)

The Complainant said she was comfortable in her working area and was regarded as “a go to person “and was constantly approached.

She said that she had no intention of completing wrong answers on these training documents. She recalled the plan was, that staff were to press on with the training with her or online. If all documents were not completed, she planned to submit what was done.

The Complainant denied that she was based in a prohibited area. She was familiar with the complex and called on three staff (the trio) who had finished their own work to assist. She later learned that Ms A had dispersed the trio.

The Complainant submitted that she expected to be “got rid of “and awaited a contact from Ms A.

Eventually, after 5pm, Ms A inquired as to what had occurred?

The Complainant outlined that she had tried to explain and queried why she had not engaged when she had tried to get her on the phone, earlier? Ms A confirmed her delayed response was due to her being angry.

The complainant said that she was taken aback as Ms A pronounced that the action was “completely wrong “The complainant said that in her mind, it was just at the thought process stage.

Ms A said she didn’t want to discuss further in front of Ms H and directed the complainant to go home and calm down. Ms A told her that she was having friends for dinner.

The Complainant said that she received a call from a colleague later, who told her that another colleague “was being grilled on training “

The Complainant rang Ms A, but it was the following Monday, before the next discussion.

She was on site 10 minutes before being called to a meeting in an area never used at 9.30am. She had not been requested to provide a statement, offered representation, or notice of pre warning.

The Complainant said that she went along and met Ms A and Ms H (a witness)

She heard Ms A say that “we need to discuss this and move on “

The Complainant described her anxiety as she believed that she was being wronged.

Ms A passed her an A4 pad and requested a statement now. When the complainant queried whether this was a disciplinary process? She was told not.

She took advice from the Union, completed a statement with the support of representative, but was not clear what she was alleged to have done. She retained a photocopy.

After 10-15 mins, the complainant was invited back in and directed to surrender her phone and laptop as she was suspended on full pay. The Complainant submitted that she had not admitted to falsifying documents.

The Complainant confirmed that she was aware of the 5 allegations page 24 at investigation but disputed that she received a fair hearing. She acknowledged that she had not sought to cross examine witnesses and the Matrix review was still one week away.

The Complainant gave evidence of finding new work in February 2021 of a temporary nature. She continues to work there.

During cross examination,

The Complainant confirmed that she had taken pride in her work and had placed pressure on herself in terms of the training documents. She told the Respondent representative that she knew “it was wrong “.

She denied that she had moved the trio to a nominated lockdown area. She countered that the area was not a lockdown area, staff were working there and had access. She added that there was no room to complete this task in the office.

The Complainant told Mr Hegarty that her plan was to collate the documents and put into the correct modules. She said she didn’t know if the plan would work but her intention was to sort out the sheets and bring them together as completed training documents. However, she had not completed the task. She confirmed that she had asked Ms F to get staff to sign, but that it had not yet happened.

She said that she could not vouch for attendance sheets which signalled that training was done. She said that she was disappointed that the deadline had been missed.

Training had been done by a different manager from the transferor company, previously. There was no bonus payable for training.

The Complainant disputed that she had an intention of passing off these documents as completed. she said that her intention was to sit with staff and help them complete the sheets.

She told the respondent representative that the staff universal log in with password didn’t work and she hadn’t got a chance to fix it.

The complainant acknowledged that part of the course content had not been delivered. She re-affirmed her intention remained to discuss the project with Ms A and training dept.

The Complainant confirmed that she had not received an explanation around the change of investigator. She had not met the first appointed manager, but had met her previously when she discussed a conflict with Ms A.

She denied that the matter had caused her stress arising from her being caught.

In re-direct, the complainant re-affirmed the trios permitted access to the area viewed as out of bounds by the respondent. The complainant said she understood that she was covering training.

I asked the complainant about representation, and she confirmed that she had not sought professional representation during the process at the centre of this case. She said that “she gave up “she confirmed that she had participated when invited to correct minutes of the 5 meetings.

The Complainant confirmed that she had not asked for her job back.

I probed the many references in the papers to the “floor episode “I heard that the complainant had engaged with Ms X seeking to resolve a disagreement with Ms A, she had been given a week off from work but had made her peace with Ms A by July 2020.

In closing remarks, Mr Condon highlighted the civil standard of proof in fraud and dishonesty and submitted that the Adjudicator needed to be satisfied that the records were filled in with an intention to defraud.

He argued that the complainant had not been dishonest, and she had never intended to deceive. He contended that it would have been fairer and consistent with natural justice if the company had waited for the quarterly business review, which was imminent.

He submitted that Ms A had been the initial judge in her own cause. She had not informed the complainant of the allegations at the Monday meeting. The statement was secured by force. The disciplinary outcome was issued as soon as completed.

The interchanged investigation team confused the process and natural justice was denied.

Preliminary Issue:

I listened to both parties on whether a claim under TUPE Regulations was live at the WRC. I reminded the parties that the complaint was received on 29 March 2021, whereas TUPE had occurred on March 20, 2020.

The reference to TUPE on the complainant’s submission incorporated a reference to the complainant’s demotion and reduction in pay.

The Complainant representatives accepted that reference to TUPE fell outside the statutory time limits but stressed that the circumstances in the aftermath of TUPE were relevant to the case.

I confirmed that I was prepared to consider the chronological backdrop to the complainant’s employment from 2012 onwards.

I sought evidence of loss and mitigation from the complainant.

Substantive case:

I have been requested to inquire into the circumstances of this case and to decide on the facts, whether the complainant was unfairly dismissed or not. The burden of proof is on the respondent as dismissal is not disputed. The Complainant found new work relatively quickly post dismissal, but contended that it was not comparable on pay, tenure or status.

In reaching my decision, I have had regard for the evidence adduced at hearing, the oral submissions, and the outline submissions of both parties. In addition, I welcomed the post hearing clarification on the records live at the moment of transfer of the complainant to the respondent business in March 2020.

The law on statutory unfair dismissal is set down in Section 6 of the Unfair Dismissals Act, 1977, as an Adjudicator, I must be satisfied that there were substantial grounds justifying dismissal and that the decision was one open to a reasonable employer to make in the circumstances pertaining.

Unfair dismissal.

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

In this case, the Respondent has called on the defence allowed in Section 6(4) (b) on conduct to determine that dismissal was substantively fair.

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

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

(b) the conduct of the employee,

Furthermore, the Respondent had demonstrated the investigatory and disciplinary processes which operated in this case which they submit demonstrate fairness and reasonableness. This is disputed by the Complainant.

This brings the consideration of the facts into the realm of section 6(7) of the Act.

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, 

The Complainant has disagreed with both contentions and has argued that dismissal was a pre-emptive and premature strike on a long-standing employee. At the heart of their case stands a bold statement that whatever had been in contemplation by the complainant regarding the training documents, she had not executed the deed of alleged dishonesty and the employment could have been saved.

I have listened very carefully to both parties and found all parties very comfortable with their recollection of the events.

I did note that the parties had not recorded the length of time spent on the disciplinary process or the appeal. This is something that an outside observer is frequently interested in and a consideration for the parties going forward, please. Duration, for me at least, at a minimum, indicates a commitment to process.

I also observed the narrow window of lead in times prior to both the investigatory and disciplinary meetings, while not automatically determinative of a flawed process, taken together in the face of peer representation are indicative of a precipitation not set out in the company procedures.

The Employment arena:

The Complainant entered the circumstances of this case through the doorway of TUPE in March 2020. By a strict interpretation, what this means in accordance with, SI 131/2003, EC Protection of Employees on Transfer of Undertakings, Regulations 2003, the complainant is protected by the umbrella provision in Regulation 4

On the date of transfer, the complainant held an employment contract as Area Manager with responsibility for Client A contract and reporting to the Regional Manager on a gross monthly salary of €35,000. The document was signed by the complainant on 11 February 2019, one year before TUPE.

“Your duties are clearly defined in the Health and Safety management system; safety behaviours are in the management safety commitment document “

I probed the Respondent submissions on just what the due diligence prior to take over yielded in the case of the complainants transfer in March 2020. ?

I was not provided with any remnant documentation from either party on the TUPE transfer papers.

Instead, I learned that the Transferor had described the complainant as an Assistant Manager at pre tender stage and on securing the tender, the complainant was referred to in the post hearing documentation at least as:

In the due diligence received when we were successful in the tender, it stated Gillian O ‘Regan has been designated as Assistant Site Manager with a salary of €17.25 per hour. We asked the Transferor for clarity on this as it contradicts their previous information, listed above, that they gave to us. In response they advised: “Gillian has been filling a more senior role in recent months’, and her rate of pay on the original TUPE was her current rate in that role. Her correct rate of pay for the role which will transfer to Derry court has been added.

The Respondent went on to confirm in written submission that the TUPE Salary of €25,857 had been upwardly aligned by the Transferee to €30,000.

The Complainant raised a reasonable point that this was not raised in evidence at hearing and restated that the €35,000 salary had been reduced to €30,000 by the respondent.

For my part, I just wanted to know how the Respondent saw the complainant’s employment role on transfer through TUPE?

I am satisfied on the evidence, particularly that of Ms A that she struggled in distinguishing her own job from that of the complainant. I am conscious that she commenced work in February 2020, one month before TUPE occurred. Nobody raised any real time issues on the non-adherence to Regulation 4 before the date of hearing in this case.

It is very clear to me that the Complainant did not transfer in her role as the contracted Area Manager for the client A contract under TUPE regulations and this directly contributed to the lack of clarity around her role once transferred.

As TUPE is a transfer of tangible and intangible assets, it also transfers the staff and precision, clarity and on point documentation needs to travel with the assets in what for staff, at least amounts to “a compulsory adoption “in employment terms. Foundation documents of employment serve as a veritable employment visa and identification in this new employment.

I accept that the contract of 2019 is a real record of the complainant’s employment with the Transferor. However, I am also satisfied that Ms A knew nothing about that contract. Nobody else seemed to be aware within the Transferee business.

I found this to be short of best practice in both due diligence and in the responsibilities of a transferee. I have found that the complainant did not have the benefit of a seamless transfer.

I fully accept that there is no “in time “complaint before me under TUPE regulations.

 However, I gave an undertaking to the parties that I would consider the entire employment record and as the TUPE was superimposed on this employment in March 2020, I believe that it required me to try and fix the complainant and the respondent in an optimal position where I could inquire into the total circumstances presented. It would have assisted me greatly, if the complainant’s arrival to the respondent business was not so heavily shrouded by opaqueness which was not resolved for me, by either party in real time at hearing.

I will not delve any further into this matter, outside of saying that the complainant appears to have joined the Respondent as an assistant manager, without a job description and without Ms A being responsible for her appraisals.

It is not clear to me just how her employment was reconciled in the respondent business from March 2020.

I have found that the complainant was roaming loosely to the point of meandering, within the respondent business when the circumstances of this case unfolded towards the end of September 2020. For me, she had no visible traction or sphere of influence within the new business.

I would have preferred to have seen a higher level of inclusion, supervision, and clear identification of direct reports in her role. I appreciate that the Transferee was actively engaged in bedding down the successful tender, but nobody should be left behind.

I have found that the Respondent did not carry a commensurate organisational memory of the complainant’s continuous tenure at the business due to the “looseness “surrounding her transfer in March 2020.

 By September 2020, the complainant had had at least one disagreement with Ms A (floor incident), shared with Ms X and manged by the company via a week’s leave. However, I accept the complainant’s clarification, when she said that an equilibrium had   existed between both her and Ms A by July 2020.

The Training:

I fully accept the weighting placed by the Respondent in upholding training on the Client A contract. I understand that this was elevated further by the onset of Covid 19 pandemic against a workplace setting. I fully accept that the Respondent wanted to associate with a training regime built on the highest possible standards and integrity.

Arising from the free movement of the complainant around the business and her stated desire to be of use and relevant in the new employment, I also understand the complainant’s stated objective that she wanted to be associated with a successfully completed task and she chose the training. Her initial engagement with Respondent trainers on training methodology did not meet her approval on viability and it is undisputed that she improvised from that point.

I inquired into what validation existed for completed training at the Respondent business. There was no defined validation exercise. That might explain the apprehensive dread of Mr Z, Ms D and Ms A at hearing as these witnesses feared that the QBR was going to be wrongly and deliberately altered by the training records discovered by Ms A in the hands of the trio.

None of the trio appeared at hearing for either party.

I fully accept the Respondent submission that my role is not to re-run an internal investigation in this matter. I accept that the “baton passed “contains a completed dismissal and I must examine this decision to decide whether the dismissal was   fair and as described by Des Ryan, BL in his chapter 13 Redmond on Dismissal, “functionally necessary “.

In Bunyan v United Dominion Trust [1982] ILRM  404, the EAT emphasised that this decision to dismiss had been taken “and our function is to test such decisions against what we consider the reasonable employer would have done/ concluded “

To help me in my decision making, I have focused on the investigation, the reasons which operated in the employer’s mind at the moment of dismissal and whether the respondent had reasonably arrived at the conclusion, which prompted dismissal.

The Suspension:

I accept Ms As evidence that she suspended the complainant during the course of their engagements on September 28, 2020. I accept that the complainant was notified of this in writing by the Human Resource Manager on 29 September 2020.

Two allegations were set out.

Breach of Trust

Falsifying Company training records

The suspension followed a request for a statement, where these allegations were not set out in advance.

I had some unease at the approach adopted by Ms A on that morning. In her evidence to the hearing, Ms A said that she had taken a statement from the complainant and shortly afterwards suspended her, pending an investigation and she had no further part in an investigation.

However, I received a copy of a handwritten note from Ms A dated 28 September, which carried questions of an inquisitorial nature and a reference to “the floor incident “which was strangely incorporated in the complainant’s statement.

Ms A wrote:

The thing about the floor, there was a lot more said by you during that conversation which you haven’t included in your statement, would you like to know ……….

This seems to reflect the aspect of the complainant’s statement extract:

During this heated conversation, Grainne stated to me that I had already made a fool out of her with the floor situation which is nothing to do without topic of conversation. This will need to be discussed at a later date.

This is a remnant of a peripheral event, a completely separate matter to the training in my inquiry.

Ms A went out to submit a large volume of information to the Investigation, later referred to as the complaint but was not interviewed by the Investigators. She detailed 13 questions put to the complainant and her peer representative prior to suspension. Ms A also helped to scribe statements of other staff who submitted detail to the investigation.

Ms A concluded her records by recording that the investigation would be based on “breach of trust and possible gross misconduct “The allegations were not particularised.

I have concluded that Ms A had a known and recorded animus with the complainant and should have been interviewed by the Investigators as this animus was not investigated or taken into account in any deliberations of Mr Z or Ms D. I found her role in the investigation to be far broader than described in her evidence.

I have also reflected on the brevity of her evidence when asked about her employment relationship with the complainant .

Ms X was not available to the hearing.

Investigation:

Neither party is sure when the investigation report issued to the complainant. Counsel for the complainant submitted that it was confusing as the investigation was shared across Ms X and Mr Z. The Respondent representative explained that Ms X was affected by the covid pandemic and gone from the workplace until May 2021.

There are some references in the papers to Ms X being consulted by floor staff during October 2020, but no evidence led on this by either party.

Ms X is aligned to conducting the investigation across all participants bar the complainant, who was interviewed by Mr Z.

I found no evidence of collaboration on the completion of the investigation between Ms X and Mr Z. I found no terms of reference.

I also found that the particulars of the allegations changed from September 29 letter of suspension.

Breach of Trust

Falsifying Company training records

To the investigation report findings dated sometime before October 29, 2020

1 A supervisor was tasked with asking staff to sign their names on training attendance sheets even though they had not attended the training course.

2 Supervisors were assigned with completing training with staff without been given any course content.

3 staff were asked to complete training assessment sheets without been given anu course content.

4 staff were asked to sort and staple prepopulated training assessment forms.

5 the site manager believes Ms O Reagan to have falsified training records.

I shared Counsel for the complainants concerns that these allegations altered during the investigation.

The Labour Court in Kilsaran Concrete ltd v Vitalie Vet [2016] ELR 237, the Court was critical of an expansion in allegations contained in a letter of dismissal, not put to the accused in the prior disciplinary process.

The court in Glover v BLN Ltd [1973] I.R. 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. That principle applies in the present case. It is quite clear from the case law of the superior courts in this jurisdiction, that there is no fixed standard of natural justice which lays down that 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. However, there are a certain fundamental requirement of fair procedures 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 employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process; (ii) the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; 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. (The foregoing does not purport to be a comprehensive statement of fair procedures but merely focuses on those that fall for particular consideration by the Court in the instant case).

Mr Z was consistent in his evidence that the complainant was appraised of all particulars of the allegations during the investigation. A careful reading of the minutes of that investigation does not fully support this contention. The Complainant asked for clarification of the allegations and denied falsification of records on 30 September , 2020 .

Ms A document referred to as the complaint, was dated 8 October 2020, two weeks post suspension and unlike many of the other participants was not followed up with a “statement follow up “interview.

The company did not have a protocol governing investigations such as occurred in this case.

I must be satisfied that the complainant was subject to a fair investigation in this process.

I am not satisfied.

Firstly, I am not satisfied that the investigation process conducted on a “shared basis “was conducted fairly. While I appreciate that Mr Z read and considered the statements submitted, he interviewed the complainant by means of a separate process. I acknowledge that he followed up whether the complainant had proximity to QBR and found that she had not, yet this positive development was not weighted by him.

Yet, he attributed a motivation of falsification of records directly to the complainant, without sufficiently justifying this or recording proof of this against the balance of probabilities.

The shadow of client A featured in this investigation, yet nobody from client A was interviewed or complained about a training vacuum. I am satisfied that Client A was not informed of the occurrence in the training records.

“… The QBR is critical to the relationship between Derry court and Client A”.

I am also satisfied that the training objective was reached by the respondent .

As there were no terms of reference governing this investigation, it is difficult to see the relevance of this pronouncement (QBR) at investigation fact finding stage and it goes to the core of the circumstances of the case, the commercial sensitivity relied on by the respondent on managing a newly won service level agreement.

I was dissatisfied at the “cut and paste “nature of the investigation in this case. I am not clear just how Mr Z could make reasoned findings when he had only interviewed one participant and not Ms A.

I appreciate that the respondent was in difficulty by 14 October when they understood that Ms X was not available to them, but they did not explain this difficulty to the complainant outside of announcing Mr Z introduction on October 14 for October 15 investigation.

By then, the complainant had been suspended on full pay for over two weeks. It would have been prudent and compliant with natural justice and fair procedures for the respondent to commence a fresh investigation on October 14, 2020, rather than “cut and paste “it to conclusion. I find that was an unfair and fragmented action towards the complainant.

I also found that the complainants submissions were not sufficiently weighed by the Investigator against the late submission of October 8 by Ms A .

It was not clear to me that the complainant was inducted into the respondent employment policies . Ms D was unsure when I asked her .

I requested sight of the company disciplinary policy, which was submitted undated, unpaginated and unsigned by the complainant. It was presented as an extract of the staff handbook.  This document , taken at face value and not disputed by the complainant allowed for a number of supportive actions , short of disciplinary action .

I did not have policies from the transferor , outside of a contractual reference from 2019 .

The Disciplinary Process :

I am satisfied that the complainant received a copy of the investigation report prior to the disciplinary hearing in the case. Neither party knew exactly when it had been received.

Once again, this meeting was convened on one days’ notice.

I am satisfied that the complainant had a colleague present to support her at hearing, but this was peer representation rather than trained advocacy. There is no mention of any statement made by the peer representative in the minutes dated 30 October 2020.

The complaint or indeed her shop steward did not take issue with the investigation report at the disciplinary hearing. This demonstrated a missed opportunity given her earlier submissions on a pre-determined outcome.

Once more, the shadow of client A entered this process when Ms Ds first question asked the complainant whether she was aware that the respondent proprietor “would have sat at a meeting with client A and would have provided them the info regarding training which was false? “

The complainant answered that she was not aware of it, but it would not have been false, it would have had only the staff who has signed the assessment form and completed the training. It was never my intention to make Derry Court look bad, I was only trying to get a quick fix to solve the issue “

I found this line of questioning to be unusual as the foot high training records populated by the complainant and delegated to the trio had not been signed by staff or signatures recorded on the July 2, 2020, training log.

I understand the challenge of listening to and considering participants at a disciplinary hearing. It is an onerous burden, but necessary as a gateway to managing a crisis in an employment relationship.

I must consider what was on the mind of the decision maker as she decided to dismiss the complainant.

Ms D was faced with a “near miss” in accident/ incident terms. She analysed the data and oral submissions and made her decision to dismiss based on a  potential for catastrophe in the client relationship, which may have occurred rather than what did occur.

Yes, an employer is entitled to protect their trading position and service level agreements in business. I accept these are hard won and staff livelihoods are at risk when they are dented.

I learned from Ms D that she was aghast and incredulous at what she understood the complainant had done in self-directing both herself and staff in training records which did not contain training. She did not recover from that level of incredulity.

However, making a decision to dismiss an employee requires a much different approach, in my opinion. As it is the zenith of options open to a decision maker and in the words of a 1973 Leddin v Bredin minimum notice case “aimed at violent assault or larceny or behaviour in the same serious category “careful consideration should accompany the discretionary journey from the option at nadir in the company procedure :

“The purpose of the disciplinary procedure is to ensure that all employees adhere to the required standards by making them aware of any shortcomings and identifying how the necessary improvements can be achieved. The objective of such a procedure is to give employees the opportunity to improve their behaviour / performance “

To the zenith of:

Gross misconduct

In cases of particularly serious misconduct /gross misconduct, following a full investigation, Derry court may summarily dismiss an employee without recourse to any of the sanctions contained in stages 1-4

Fraud or deliberation falsification of any company documents

Dishonesty theft or fraud

Serious breach of company rules, deliberate action or neglect which causes either unacceptable loss or damage to the company, client, employee property or causes injury.

In this case, I found that Ms D was overwhelmed by the apprehensive dread of what might have occurred to both staff and the client relationship as a result of the complainants’ actions.

She did not probe the clear animus between Ms A and the Complainant. She did not consider the complainants 10-year tenure at the business. The events at the heart of the case amounted to a “near miss “without actual harm to either. The risk was remote not real. Jackson v John JMc Carthy and co ltd UD 297/1978

I have found a demonstration of third-party pressure in the circumstances of a cleaner employed in a hospital setting in the aftermath of a newspaper article concerning a family reliance on heroin.

Merrigan v Home Counties Cleaning Ireland ltd UD 904/1984

 Pressure was applied by the hospital on the cleaning company to relocate the cleaner and she refused. The EAT on that occasion, in a majority decision ordered re-engagement in the face of the remote risk. The fears , unlike the circumstances in this case , were not investigated .

In the instant case, the client A was not aware of the circumstances of the training documents and the respondent was not faced with a “third party pressure “to dismiss or relocate the complainant.

Instead, I found that the Respondent did as Des Ryan refers to in chapter 18 of Redmond on Dismissal, allow its concern to satisfy a customer to cloud its judgement. Jackson v John J Mc Carthy and co ltd UD  297/1978, refers.

This is reflected in the common thread of questions throughout the complainant’s portion of the investigation and disciplinary process.

If I am to look at the events objectively, I must find that the most harm in this case was the residual harm inflicted by the complainant on her own standing and reputation. The anticipatory harm judged by the respondent at investigation, disciplinary and through to appeal did not materialise as the training was completed properly and there was, in my opinion, room for corrective action in accordance with the company policy. I could find no weighting applied to the difference between the occurrence of “near miss “and real harm to the business. I could not identify how the complainants responses were weighted in this short disciplinary encounter .

In this, I disagree with the proportionality of Ms Ds decision to dismiss. I cannot agree that the events as presented amounted to gross misconduct warranting dismissal .

I was also dissatisfied at the lack of any consideration of the impact of a dismissal of such a high ranking long serving member of staff before Christmas.

I have not identified substantial grounds accompanying the decision to dismiss the complainant. I fully accept that the respondent was rightly horrified to discover the training material being stapled by the trio on the client site. However, I am not satisfied that their next steps were proportionate in terms of a decision taken to dismiss the complainant.

I cannot accept that a fair investigation occurred in this case, for the reasons already stated. I cannot accept that the respondent acted reasonably in their management of the disciplinary process as preservation of the client relationship was uppermost in everyones mind to the exclusion of the complainants right to be heard. The complainant depicted an animus with Ms A, which was not explored. The Complainant acted to her own detriment when she did not formalise a grievance in this regard.

The Respondent did not consider the complainants extended tenure at the business or her clean disciplinary record.

I cannot support the respondents defence on conduct, on this occasion.

The Respondent was faced with an extraordinary set of circumstances when Ms A discovered the trio undertaking delegated work on training sheets.

The Respondent was utterly within their rights to protect their business interests in the face of the training sheets discovery, but I believe that the Respondent faltered in a “work shared investigation “which permitted an expanded complaint on October 8 from Ms A without interview.

The Complainant was underrepresented during the internal processes and by her own admission, she “gave up “by the time the appeal came round.

I must find that the complainant made a large contribution to her own demise in this case. I have considered her early declaration to Ms A that she expected to be fired as a reflection of insight into her errors in training.

However, I have found that the dismissal took place against an uncertain and insecure employment superimposed with an ill-defined role demarcation post TUPE on November 2, 2020. Nobody was familiar with the complainant’s employment record with the transferor and only Ms X it seems had an actual working knowledge of the animus between Ms A and the complainant where one week’s leave was given to address prior to July 2020. Ms X did not interview the complainant .

I have found that dismissal was disproportionate and not the act of a reasonable employer given the circumstances which prevailed in this case. I have found that the respondent was blind sided by their desire to retain a newly won SLA to the point where the complainant was not sufficiently heard. The brevity of the notes of the disciplinary hearing are a stark testament to that.

I have already reflected on the flaws in the investigatory process.

I would have much preferred to have seen a corrective action approach adopted in this case as what occurred was not one person’s fault alone. The Company did not have a Training validation model and did not discipline anyone else .

I have found that the complainant was unfairly dismissed.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant was unfairly dismissed.

She found new work, albeit not comparable , shortly after dismissal, on November 28, 2020, to her credit.

 I have considered all options open  to me in redress. I cannot find merit in ordering re-instatement or re-engagement in this case. Merrigan, distinguished.

Instead, as time has moved on, I find that compensation is the only practical option open to me in this case.

I accept the Respondent submission that the complainant was paid €30,000 (€576.92 per week) at the time of her dismissal. This is a higher figure than that reflected on the complaint form as agreed with the parties at the outset of hearing. €976.66 per fortnight (€488.33 per week) The topic of the 2019 unrealised figure of €35,000 remaining to be addressed.

I have reviewed the pay slips submitted from the new work.

I find in the absence  of a contrary argument from the transferor,  that the Complainant had a contractual  salary of €35,000 from March 2020 on TUPE and was at a loss of that salary on her dismissal.

I order the Respondent to pay the complainant € 21,000 in compensation in respect of her financial loss. This figure reflects actual and prospective loss.

Dismissal post TUPE. Training Records. Client Relationship.