Complainant

Respondent

Anonymised Parties

A Worker

A Retail Company

Representatives

Edel Sheerin Hickey Coghill Solicitors.

Declan Thomas IBEC

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-00051080-001

10/06/2022

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

CA-00051080-002

10/06/2022

The complainant was employed as a Store Manager with the respondent from the 7th.Feb. 2016 to the 1st.February 2022 when she, submits she was unfairly dismissed. The complainant submitted that the respondent was also in breach of the Payment of Wages Act 1991 for failing to pay her statutory notice. The respondent rejected the complaint and contended that they had met their obligations under the legislation, that the complainant had been treated fairly and that the complainant was always afforded her rights under natural justice and in accordance with company procedures.

 The respondent’s representative submitted as follows:

 The case before you today has been referred under section 8 of the Unfair Dismissals Acts 1977 to 2015, by the’ Complainant’, against her former employer ‘the Respondent’. The Complainant alleges that she was unfairly dismissed on 1 February 2022. The Complainant lodged her complaint form to the Workplace Relations Commission on 10 June 2022. The Complainant also alleges a breach under S. 6 of the Payment of Wages Act 1991 in that she did not receive proper pay in lieu of notice. Finally, the Complainant claims under S. 13 of the Industrial Relations Act, 1969 that the Respondent bullied her and did not follow proper procedures leading to her dismissal.

The Respondent has fully complied with its obligations and rejects that there has been any unfair treatment towards the Complainant. At every point, the Respondent followed the correct procedures and applied the rules of natural justice. The Respondent’s decision to dismiss the Complainant was fair and appropriate having regard to all the circumstances.

 1. Background to the Respondent

 1.1. The ‘Respondent ’is a British value retailer and operates in several locations in the Republic of Ireland.

 1.2. The Respondent offers a wide range of products, including many well-known international brands, and local Irish brands for €1.50. Today, there are over 50 such stores open in Ireland.

1.3. The Respondent’s Disciplinary Policy is attached at Appendix 2 (the Disciplinary Policy was reviewed in July 2022 so both versions are attached).

 Background to the Complainant

 2.1 On 7 March 2016, the Complainant commenced employment with the Respondent company as a ‘Store Manager’. (Contract of Employment 24.2.2016)

 3. Background to the Complaint

3.1 On 17 April 2021, an incident occurred re. an employee of the Respondent (who will henceforth be referred to as ‘Colleague X’) – Colleague X’s car was vandalised while parked at a local Shopping Centre. Colleague X worked in the same location as the Complainant as ‘Assistant Store Manager’.

 On 25 April 2021, Colleague X raised a grievance by e-mail to Mr .C (Area Manager) re. the incident. Colleague X stated in his e-mail that on 20 April 2021, a colleague who worked in the store at the time (henceforth known as ‘Colleague A’) mentioned to Colleague X that an individual who had worked in the store previously had been saying that he knew who did damage to his car. This individual had named two people – the Complainant and another individual who had formerly worked in the store (henceforth known as ‘Y’) – as being the parties responsible for the vandalism of the car. Colleague X also stated that the Complainant subsequently showed up to the store with Y and with another former colleague (who will henceforth be known as ‘Z’). Colleague X stated that he was disappointed that the Complainant had allowed Y and Z into the “private areas” of the store and stated that both Y and Z had come to the store after the incident and denied having any involvement in the incident. (Appendix 4 – Colleague X’s Grievance 25.4.2021)

 3.2 On 1 May 2021, the Complainant attended an investigation meeting. The Complainant was represented at the meeting by the Duty Manager at the store. Mr .C (Area Manager) led the investigation meeting and Mr BG Store Manager was assigned the role of independent note-taker. Please see a summary of the meeting below:

• Mr. C explained that the investigation meeting had been organised to follow up on a grievance which had been raised by Colleague X on 17 April 2021 re. the vandalism of his car and the Complainant’s handling of / involvement in the incident. Mr. C read the employee’s grievance in full.

 • The meeting was adjourned to allow the Complainant to source a colleague from the store as her representative.

• The Complainant described the support measures she had taken to support the employee in question – for example, she had collected him and took him to location C on the day of the incident, she had supported him with a day-off the following Monday (19 April 2021) and she had advised him about CCTV and liaised with the shopping centre / the Gardaí about the CCTV. The Complainant also stated that she agreed to amend the employee’s shift pattern to allow for his involvement in any Gardaí investigation and she also informed the Respondent the following Monday re. the incident.

• Mr .C mentioned that he had checked the Respondent’s TMS, and the Complainant had noted on the system that the employee in question had to “make up any hours missed” in ‘Week 31’ (i.e., the 31st week of the year in terms of roster) – the Complainant responded that this was “agreed” between the Complainant and herself.

 • The Complainant stated that she left the store and returned with two former colleagues (Y and Z) – Y, Z and Colleague X subsequently engaged in conversation.

 • The Complainant stated that she did not “organise” for Y and Z to come into the store and speak to Colleague X.

• The Complainant stated that she did not “share information” with Y or Z.

 • The meeting was adjourned for approximately forty minutes.

• The Complainant stated that Colleague A came into the office and stated that it was the Complainant and Y that were responsible for the vandalism of Colleague X’s car and the Complainant stated that this was “disappointing” to her.

 • The Complainant stated that Colleague X was responsible for Y and Z being allowed into the back of the store to speak to Colleague X.

 • The meeting was again adjourned for approximately twenty-three minutes.

• Mr. C stated that it was his decision that due to the seriousness of the matter, he had decided that the matter warranted further investigation and so he had decided to suspend the Complainant on full pay pending further investigation.

• The Complainant read the notes and asked for a copy of the employee’s grievance to be provided to her.

 Appendix 5– First Investigation Meeting 1.5.2021

 3.3 On 7 May 2021, Mr C held an investigation meeting with Colleague X. Mr G was again in the role of note-taker. Please see a summary of the meeting below:

 • Colleague X stated that, after the car vandalism incident (which had taken place on 17 April 2021) “there was really no support at all” from the Complainant. Colleague X texted the Complainant to ask her to do the morning shift (7.30 to 9.30am) for him on 20 April 2021 and she suggested he try other staff members – he subsequently asked the Duty Manager to cover the shift.

 • Colleague X stated that the previous Saturday (17 April 2021), the Complainant did not ask him how he was doing, rather, she asked on the Sunday if he had seen the shopping centre’s CCTV footage or spoke to the Gardaí.

• Mr. C asked Colleague X if the Complainant had provided him with a day-off (as she had said in the investigation meeting on 1 May 2021 – see point 3.2 of this submission) and Colleague X stated that she had just put a note on TMS saying that Colleague X was unable to do the hours which did not mention the vandalism incident. Colleague X stated there was no annual leave or compassionate leave offered.

 • In relation to the Complainant’s point that she had agreed with Colleague X to keep him off opening / closing shifts, Colleague X stated that she had said that they could swap shifts and try to work it out with the rest of the managers. Colleague X stated that ‘mid-shifts’ (9 to 6 or 10 to 7) were not accommodated.

 • When asked if the Complainant had advised him to view the shopping centre’s CCTV footage (as she had stated during the investigation meeting on 1 May 2021), Colleague X stated she had not done so, rather, the Gardaí had advised him to do, so and the Complainant asked him subsequently if he had recognised anyone in the footage.

 • Mr .C next asked Colleague X about the change to the roster which had taken place on the Saturday (24 April 2021), where the Complainant was asked to work instead of the Duty Manager as had previously been rostered – Colleague X stated he did not agree to this, nor was it communicated to him.

• Colleague X stated he was not aware that Y or Z would be coming into the store to speak with him on the day in question. He also stated that he did not think this occurrence was “supportive” to him and their presence made him feel insecure in the workplace.

 • Colleague X stated that he did not ask Y to come into the store.

 • Colleague X stated that the Complainant had not discussed the availability of the EAP with him and stated that he did not know what this was.

• Colleague X stated that on Tuesday (20 April 2021), Colleague A entered the office, where the Complainant and Colleague X were present, and stated that he knew who vandalised Colleague X’s car – that Z had come to him on his break and said, “everyone knows who damaged [Colleague X’s car], it was [the Complainant] and Y”. Colleague X stated that the Complainant had “went red” and had stated that the comment was “f*cking bullshit”. Colleague X stated that the Complainant then enquired as to Z’s whereabouts and Colleague A said he didn’t know where the Z was.

 • Colleague X stated that he had not authorised Y and Z to enter the back area of the store, rather, the Complainant had done so, and they had “all come in together”.

• Colleague X stated that he had subsequently spoken to Z, who had said that he had been joking about the Complainant and Y being involved in the vandalism of the Complainant’s car.

• Colleague X stated that he had subsequently spoken to Y, who had said that he had nothing to do with the vandalism of the car and Colleague X responded that he didn’t know who Y was.

• Colleague X then stated that he felt uncomfortable that the Complainant allowed Y and Z to be present in the workplace on 20 April 2021 and that she had asked him if his “family had any issues or trouble with anyone” which may have caused the incident.

• Colleague X was asked if he had anything to add, and he stated: That same week, there was no communication with myself at all until the Saturday. At the weekend, [the Complainant] said I have the weekend to think about it. I said think about what? That I was disrespectful and had a bad attitude from me and where we go from here and that we’d have a meeting on Monday to put this to bed. She said she’s the boss here and can authorise what she wants to do, and stuff like that.

  Appendix 6– Interview with Colleague X 7.5.2021

 3.4 On 13 May 2021, Mr C wrote to the Complainant to confirm the suspension with full pay pending investigation into the allegations of gross misconduct against her.

Appendix 7- Suspension letter

  3.5 On 10 May 2021, Mr C held a witness investigation meeting with a colleague who was based in the location and who was present in store on the day on which Colleague X’s car was vandalised (17 April 2021). This colleague will henceforth be known as ‘Colleague B’. Mr G was again in the role of note-taker.

 • Colleague B stated that he was present on the day that Y and Z came into the store (at approximately 4 or 5pm).

 • Colleague B stated that he was in the hallway when Y entered the store and saw Y standing in the canteen. Colleague B asked the Complainant about Y’s presence and the Complainant explained that Y used to work in the store.

• Colleague B stated that he did not really speak to Y.

• Colleague B stated that he witnessed Y and Z enter the store “together” with the Complainant from the hallway.

• Colleague B stated that he did not know why Y and Z had come into the store.

• Colleague B stated that he had seen Y in the back areas of the store a “couple of times” previously, around the time of the incident in question.

 • Colleague B stated that he had witnessed Z “[just] at the tills.

  Appendix 8 – Interview with Colleague B 10.5.2021

3.6 On 10 May 2021, Mr. C held a witness investigation meeting with Colleague A (‘Store Assistant) who was based in the location and who was present in the store on the day on which Colleague X’s car was vandalised (17 April 2021) (hereinafter referred to as ‘DM’). Mr G was again in the role of note-taker.

 • Mr. C asked if Colleague A was okay to answer questions about the events in question. Colleague A responded that he didn’t “really know anything about this”.

• Mr C asked Colleague A if he was present in the store when Y and Z were present in the back areas of the store. Colleague A responded that he “honestly [couldn’t] remember; it [was] quite a while ago now”.

• Mr. C asked if Colleague A had been in the canteen on the day in question and Colleague A responded that he did not remember as he had personal issues going on at the time.

 • Mr. C didn’t pursue any more questioning due to Colleague A’s lack of recollection.

  Appendix 9Interview with Colleague A 10.5.2021

  3.7 On 14 May 2021, Mr. C held a witness investigation meeting with the Duty Manager who was based in the location and who was present in the store on the day on which Colleague X’s car was vandalised (17 April 2021) (hereinafter referred to as ‘DM’). Mr G was again in the role of note-taker.

• DM stated that she agreed to work on 20 April 2020 instead of Colleague X from 7.30 to 9.30 (to “support” Colleague X) and her childcare arrangements were subsequently disrupted when the Complainant arrived to work at 10.30 (she had agreed to come in at 9.30 to let DM go home). DM stated that the Complainant had said that she had come in late due to an appointment, however, DM noted that the Complainant had notified any managers about this appointment, and it was not reflected on the roster. DM stated that the Complainant informed her that she would attend work at 10.30 by way of a text message which was sent at approximately 9am. The Complainant replied that Colleague X would attend the store at 9.30 but DM disputed this at the time because Colleague X’s car was getting “sorted that morning”. DM stated that the situation “annoyed and upset” her and she “felt really disappointed and let down by [the Complainant]”.

• Mr. C questioned the Complainant about working less hours than normal during the week in question (DM did not work on the Thursday as she got ‘time back’ for taking the Complainant’s shift earlier in the week and the Complainant asked DM not to come in on the Saturday, a day on which she normally worked) and DM stated that she had queried this with the Complainant who confirmed her wages wouldn’t be affected. DM stated that she did not work on the Saturday and was replaced on the roster by Colleague X for that day and that this did not “make sense” to her at the time. DM stated that the roster was updated on the Friday to reflect this change at around 3pm. DM stated that the arrangement had made her feel “uncomfortable”,but the Complainant had assured her that her wages wouldn’t be affected. Mr. C noted that the fact the Complainant had not made a note on TMS re. the fact that the Complainant had been directed to work fewer hours than normal.

 • DM also criticised the “communication” in the store and used the last-minute roster change issue as an example of this. She also criticised her induction which had been handled by the Complainant – she alleged that Colleague X had trained her but when the Complainant returned from holidays she had “thrown out” the records of the training and DM felt this was disrespectful to Colleague X.

  Appendix 10Interview with DM 14.5.2021

3.8 On 20 May 2021, Mr. C wrote to the Complainant to invite her to a reconvened investigation meeting, set to take place on 26 May 2021. The purpose of the meeting was to discuss the “alleged gross misconduct in relation to… gross breach of the Behaviour and Conduct policy”. Mr. C referenced the disciplinary procedure, a copy of which he mentioned was available in the handbook and which could be accessed online via ‘HR Online’. Mr. C advised the Complainant of her right to representation etc. (Appendix 11 – Invitation to Investigation Meeting 20.5.2021.

 3.9 On 2 June 2021, Mr. C wrote to the Complainant to invite her to a rescheduled reconvened investigation meeting (as the meeting organised for 20 May 2021 had failed to go ahead). The rescheduled meeting was set to take place on 8 June 2021. The Complainant was advised of her rights in natural justice etc.

 3.10 On 9 June 2021, Mr. C again wrote to the Complainant and stated that the investigation meeting planned for 20 May 2021 had “failed to go ahead due to [the Complainant’s nonattendance”. Mr. C invited the Complainant to attend another rescheduled reconvened investigation meeting set to take place on 15 June 2021. Mr. C advised the Complainant of her rights in natural justice and the disciplinary policy etc. 

3.11 On 2 July 2021, Mr MB (Area Manager) wrote to the Complainant and invited her to attend a disciplinary hearing via Microsoft Teams set to take place on 6 July 2021,  to discuss the Complainant’s alleged gross misconduct in relation to:

 • Gross breach of the bullying and  harassment  policy and failure to comply with company core values specifically in regard to “Respect Each Other”, whereby it is alleged that you contributed to a situation which resulted in a colleague feeling intimidated leading to a formal grievance being made against you.

 • Gross negligence in your role as store manager to “support, engage and inspire the team in store” and lack of duty of care.

• Failure to follow a reasonable Management request whereby you have failed to cooperate with an investigation and have not followed the company investigation and disciplinary procedure and have failed to attend investigation meetings scheduled for 26th May 2021, 8th June 2021, 15th June 2021.

 The Complainant was informed that the outcome could be dismissal (without notice), but that such a decision would not be made until such time as the Complainant had the opportunity to put forward her own representations about the matter. Mr. MB advised the Complainant of the Respondent’s disciplinary procedure and her rights in natural justice etc. The investigation meeting notes were enclosed with the letter.

 3.12 On 30 July 2021, Mr. MB wrote to the Complainant again and noted that the Complainant had not attended the disciplinary hearing scheduled for 6 July 2021 “due to [her] request to postpone so that [she] could seek legal advice”. Mr. MB notified the Complainant that the hearing had been rescheduled for 11 August 2021. Mr. MB advised the Complainant of her rights in natural justice etc.

 3.13 On 11 August 2021, Mr. MB wrote to the Complainant again and noted that the Complainant had not attended the disciplinary hearing scheduled for 11 August 2021 due to the Complainant’s “IT and connectivity issues with Microsoft Teams”. Mr. MB invited the Complainant to attend a rescheduled disciplinary hearing set to take place on 16 August 2021 via Microsoft Teams. The Complainant was advised of her rights in natural justice.

 3.14 On 16 August 2021, the reconvened disciplinary hearing took place. Mr. MB led the meeting, with Ms.EM (Store Manager) in the role of note-taker. Below is a summary of the hearing:

 • Mr. MB asked the Complainant about representation and the Complainant confirmed that she did not have a representative with her.

 • Mr. MB summarised the allegations of gross misconduct (see point 3.11 of this submission).

 • The Complainant read out a pre-prepared statement.  The Complainant expressed in her statement that she had not received a copy of Colleague X’s initial grievance which had activated the disciplinary process.

 • The Complainant stated that she had requested this and other documents from MR. C “on several occasions”.

 • The Complainant stated that DM never stated that she was unhappy about being given the Saturday off work.

• The Complainant enquired as to whether or not a disciplinary hearing was appropriate seen as an investigation outcome had not been received by her. Mr. MB responded that “this is a meeting to discuss alleged gross misconduct – alleged – [the Complainant], there is a lot of information you have discussed in your statement and I will need to review the documents. I will need to revise everything and I’ll come back to you towards the end of this week – how is that for you, does that suit?”

 • The Complainant asked if she would receive the minutes from this meeting and Mr. MB responded that same would be enclosed with the invitation to the next meeting. Mr. MB also asked the Complainant to send him her statement that she had read out.

 3.15 On 1 February 2022, Mr.TH (Area Manager) wrote to the Complainant in order to advise her of the disciplinary outcome. Mr.TH thanked the Complainant for her patience and explained that a delay had been caused by Mr. MB leaving the Respondent company before issuing the disciplinary outcome. Mr.TH was chosen as an independent party to review all of the evidence to date and issue the outcome in Mr. MB’s stead. Mr.TH listed all of the documentation which he had reviewed (i.e., the original grievance from Colleague X, the investigation and witness meeting minutes, the disciplinary hearing minutes and the Complainant’s pre-prepared statement) and which had been shared with the Complainant. Mr.TH made a finding on each of the matters (which are listed at point 3.11 of this submission)

: • In relation to the matter that the Complainant had shown “gross negligence… and lack of duty of care”, Mr.TH found that, due to conflicting accounts and limited evidence, he did not consider this allegation as part of his decision.

 • In relation to the matter that the Complainant had committed a “gross breach of the bullying and harassment policy and failure to comply with company core values specifically in regards to “Respect Each Other”… which resulted in a colleague feeling intimidated”, Mr.TH found that, upon review of all investigation documentation and CCTV footage, the Complainant did leave the store and return with Y and Z, who were not employed by the Respondent at the time, and this led to Colleague X feeling intimidated and was inappropriate having regard to the serious vandalism incident which had taken place and which had been logged with the Gardaí. Due to the events of 20 April 2021 being a “gross breach of the company’s security processes” and due to the Complainant’s years of experience with the Respondent, Mr.TH decided that the duty of care shown to Colleague X was not sufficient and this also led to a breach of security within the store.

• In relation to the matter that the Complainant had failed to comply with the Respondent’s investigation procedures (a “reasonable management request”), M.TH found that as the Complainant had failed to attend three investigation meetings, and as he was unable to find evidence the Respondent had not followed its process correctly – “Information was sent to you that you requested on several occasions from [MR. C ] and also the ER Team on several occasions. Failing to attend further investigation meetings resulted in us not being able to question you further around the initial allegations. Had you attended, then there may have been an opportunity to establish greater detail in your defence of the allegations made against you.

 Mr. TH’s final decision was as follows –

 Based on the above, and due to the seriousness of your actions particularly where I believe that you have… compromised the security in store, I have concluded that an outcome of summarily dismissal from the company without notice or payment in lieu of notice is to be sanctioned. You will be paid up to and including the date of your dismissal including any accrued but untaken holiday entitlement. This will be paid in the next payroll.

 Mr.TH informed the Complainant of her right to appeal the decision within 5 working days of the decision.

3.16 On 3 February 2022, the Complainant appealed the decision, citing that ‘the procedure was not followed’, ‘new information has been discovered’ and ‘the outcome was too severe, inappropriate or unfair in the circumstances’. The Complainant also stated that “detailed reasons will be furnished shortly after receiving legal advice”.

3.17 On 22 February 2022, Mr. DF (Regional Manager) wrote to the Complainant and advised her of a scheduled appeal meeting set to take place on 10 March 2022.

 3.18 On 15 March 2022, the Complainant lodged comprehensive grounds of appeal, including as follows:

 • There was a failure to afford me any appropriate representation.

• There was a continued (and indeed is a continuing) failure to provide me with a detailed allegation of wrongdoing - at all times I have highlighted that you have failed to provide me with the exact details of the allegation made against me, what company procedures, policies or terms and conditions of employment I allegedly breached. Furthermore, at all steps of the process you have failed to furnish documentation that I require to adequately prepare for the said meeting/s. In addition, I say that I am entitled to same under GDPR.

 • Therefore, there was a failure to afford me due process.

• At no time was I ever presented with the two policies, namely the “respect each other” policy or the obligation to “support, engage and inspire the team” or was it ever explained how I had breached same.

• In addition, at no time, was it explained to me how I had breached the security policy.

• The Respondent did not adhere to its own processes.

 • There was undue delay in deciding on the outcome of the disciplinary meeting and I was placed on extensive time on suspension with pay.

 • Being place on suspension with pay has had a punitive effect on my career.

 • It was unfair that you as my employer added additional grounds for dismissal as the investigation processed.

 • The decision to dismiss was too severe.

• There was a failure to attach any or any adequate weight to my own statement given at the disciplinary meeting.

 3.19 On 18 March 2022, M.DF again wrote to the Complainant. Mr. DF noted that the planned appeal meeting set to take place on 10 March 2022 was postponed due to the Complainant’s request for more time to lodge detailed grounds of appeal. Mr. DF informed the Complainant that the appeal meeting had been rescheduled for 25 March 2022 and advised her of her rights in natural justice etc.

 3.20 On 25 March 2022, the Complainant attended the appeal meeting, led by Mr. DF and with Mr GT (Regional People Partner) in the role of note-taker. The Complainant did not avail of her right to representation at the meeting. Below is a summary of the meeting:

 • The Complainant confirmed she was happy to proceed without a representative.

• Mr. DF asked the Complainant to take him through each of the eleven points raised in her appeal letter dated 15 March 2022.

 • The Complainant stated that it was problematic that DM had attended the investigation meeting (of 1 May 2021) with her even though DM reported to her. Mr Forrest asked the Complainant if she had carried out disciplinary procedures before and if she understood the process, and she responded that she did.

• The Complainant stated that she didn’t know the purpose of the investigation meeting before the meeting took place. Mr. DF asked the Complainant if MR. C  informed her as to the subject to the meeting and she confirmed that he had. The Complainant confirmed she had received the minutes of that meeting 28 days after the meeting took place, and prior to the next meeting in the process.

 • In relation to the Complainant’s first ground of appeal re. “appropriate representation” – Mr. DF  referred to p. 3 and 4 of the investigation meeting minutes (Appendix) where it was noted that Mr. C  read out Colleague X’s grievance in full and then gave the Complainant the opportunity to find a representative, at which point she asked DM to accompany her, as DM was working in the store at that time. The Complainant stated that there “were no appropriate members of staff to accompany me”. Mr. DF noted that the Complainant chose DM to accompany her.

• In relation to point 2 of the Complainant’s appeal re. “failure to provide the Complainant with a detailed allegation of wrongdoing”. The Complainant stated that she had still not seen the grievance from Colleague X. Mr. DF noted that the grievance was read out in full at the aforementioned investigation meeting. Mr. DF also noted that the three allegations as set out in the dismissal letter were broader than simply the allegations in the grievance.

 • In relation to point 3 of the Complainant’s appeal re. “failure to afford her due process”, the Complainant stated that she had requested the information “14 times” and never received same and that was why she couldn’t attend the few scheduled investigation meetings.

• In relation to points 4 and 5 of the Complainant’s appeal re. not being presented with the applicable policies. Mr. DF asked if the Complainant was able to access these policies online on the HR System and she said that she was not able to due to the suspension.

 • In relation to point 6 and 7 of the Complainant’s appeal re. the “undue delays” with the process, Mr. DF agreed with the Complainant that the timeframes were not maintained well.

• In relation to point 8 re. the “punitive effect” on the Complainant’s career, the Complainant stated that it was unacceptable that colleagues knew that she was on suspension and this should have been kept confidential. She also stated that she had not been working as the process was still ongoing.

• In relation to point 9 of the Complainant’s appeal re. the addition of additional allegations during the investigation, the Complainant did not have anything to add on this in addition to what was written in her appeal.

• In relation to point 10 of the Complainant’s appeal re. the outcome being unfair, the Complainant stated that as the process was unfair, it should not have gotten to that stage.

 • In relation to point 11 re. the alleged lack of weight attached to the Complainant’s statement which was read out at the investigation meeting, the Complainant stated that Y and Z should have been interviewed and Mr. DF noted that this wouldn’t normally happen, i.e., that external people would be interviewed.

• The Complainant stated that the outcome she wanted was reinstatement.

3.21 On 14 April 2022, Mr. DF wrote to the Complainant to confirm that her appeal had not been upheld.

 4. Respondent’s position

 Claim under s. 8 of the Unfair Dismissals Act, 1977

4.1. In accordance In accordance with section 6 (4) (b) of the Unfair Dismissals Acts: (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: … ( b) the conduct of the employee…

 4.2. Having considered all the facts, the responses and explanations of the Complainant were not considered reasonable nor sufficient such as to mitigate the extreme seriousness and far-reaching implications of her actions.

 4.3. When considering what sanction to apply, the Respondent had regard to the seriousness of the allegations and the representations made by the Complainant within the process itself. The Complainant’s actions clearly amounted to gross misconduct as defined in the Complainant’s contract of employment and the Respondent’s Disciplinary Policy

 Matters that the respondent company views as amounting to gross misconduct include (but are not limited to): • Behaviour the Company deems as indecent,

• Physical violence or bullying relating to customers and colleagues,

• Gross negligence,

• A serious breach of the Respondent’s Business Code of Conduct

• Other acts of misconduct may come within the general definition of gross misconduct.

 4.4. The Complainant’s suspension with full pay was a necessary measure pending full investigation of the allegations against the Complainant and was not an inference of guilt against her in any way.

The Complainant’s contract of employment (Appendix 3) states the following in relation to this:

 The Respondent reserves the right to suspend a colleague on full pay pending investigation of a potential disciplinary issue. Suspension is a neutral act and does not imply any implication of guilt. It is merely to allow and investigation to take place to establish the facts…

4.5. In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows: It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.” It is the Respondent’s position that a “reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision can be judged “.

It is the respondent’s position that “ a reasonable employer in the same position and circumstances “ would have reached the same determination in the circumstances of the within case. As such , the respondent’s decision to dismiss was reasonable and fair in the circumstances , and no unfair dismissal took place .

4.6The actions of the complainant destroyed the Respondent’s trust and confidence in her and rendered the continuation of the employment relationship impossible, therefore justifying the decision to dismiss. This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd. UD 27/2004 where the Tribunal Stated that :

“The complainant’s actions destroyed the respondent’s trust and confidence in the complainant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal “.

4.In relation to the procedures used to implement this dismissal, the complainant was afforded all benefits of fair procedure, in line with the company’s policy , the WRC Code of Practise on Grievance and Disciplinary Procedures  (Statutory Instrument 146 of 2000) and the universal principles of natural justice:

*The complainant was informed in advance as to the nature of the allegations against her,

*The complainant was afforded the right to representation;*The complainant was further provided with a number of fair and impartial hearings at which she was given every opportunity to respond to the allegations against her ,

*All of the evidence was considered in its entirety including the Complainant’s representations) before any decision was made or action taken ,

The complainant was afforded the opportunity to appeal the outcome.

In light of all of the above, the respondent contends that the dismissal of the complainant was procedurally fair in all respects.

4.8. It is imperative that the Respondent can trust its employees to act with integrity and in accordance with company policies and procedures. As such, the Respondent's decision to dismiss was reasonable, fair, and appropriate in the circumstances, and no unfair dismissal took place.

 4.9. Furthermore, in line with fair procedures, the Complainant was informed of the allegation against her and was made aware of the consequences of her actions. The Complainant was afforded the right to representation, was given the opportunity to state her case, and separate investigation, disciplinary, and appeals processes were carried out with different managers taking responsibility for each stage of the process.

4.10. In the case of Gustave Bigaignion V Powerteam Electrical Services Limited UD939/2010, the Employment Appeals Tribunal considered the dismissal of an electric power lineman who had tested positive for cannabis. The EAT, in considering whether the sanction of dismissal was proportionate, said: … in considering this question, the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses...

 4.11. The importance of trust to the employment relationship has been emphasised on many occasions in case law. For example, in Audrey Burtchaell v Premier Recruitment International Ltd T/A Premier Group, UD1290/2002 (although different circumstances to the case today) the Tribunal stated: Having conducted an investigation into the situation the respondent was satisfied that the trust and confidence which has long been established by this Tribunal to be fundamental to proper working conditions and is necessary for the correct administration of any reputable business, to be virtually destroyed to such an extent  that the Complainant could no longer be retained by the respondent. Accordingly, the claim fails.

 4.12. When trust has been undermined, as it has been in this case, the employment relationship cannot be sustained. When that breach of trust comes about by virtue of the employee's actions, then it is fair and reasonable in the circumstances for the company to take the decision to dismiss. The Complainant was well aware of the applicable rules, responsibilities and procedures within the company relating to the support of colleagues, bullying and harassment, security processes and attendance at investigation meetings

. 4.13. The Respondent contends that the actions of the Complainant contributed wholly to her dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, and O'Keeffe v Mid-Kerry Coop Livestock UD1304, whereby both Tribunals determined that both Complainant had contributed 100% to their dismissal and any financial loss that they had incurred, and decided not to award any redress to the Complainant in light of their inappropriate actions.

 Loss of Remuneration

4.14. The Complainant notes on the complaint form that her monthly gross pay was €3294.60. 4.15. Without prejudice to the Respondent’s position that there was no unfair dismissal within the meaning of the Unfair Dismissal Acts, the Respondent is aware that the Complainant began working for a new company from approximately the beginning of August 2022 to the present.

 4.16. As per section 7 (2) (c) of the Unfair Dismissals Acts 1977 to 2015: (2)… In determining the amount of compensation payable… regard shall be had to – (c) the measures (if any) adopted by the employee or, as the case may be, [her] failure to adopt measures, to mitigate the loss aforesaid…

4.17. Without prejudice to the Respondent’s position that the dismissal was in fact fair, the Complainant’s actual financial loss and efforts to mitigate aforesaid loss must be taken into account when calculating financial loss for the purpose of redress under the Unfair Dismissals Acts 1977 to 2015.

Claim under the Payment of Wages Act 1991 4.18. The Complainant was summarily dismissed and so there was no entitlement to notice or pay in lieu of notice.

 4.19. The Complainant’s contract (Appendix 3) clearly states: Your employment may be terminated by the [Respondent] without notice of payment in lieu of notice if you commit any act of gross misconduct.

Claim under the Industrial Relations Act, 1969

4.20. There are two specific complaints – one under the Unfair Dismissals Act and one under the Industrial Relations Act.

 4.21. In the ‘Complaint Specific Details’ section for both complaints, the Complainant is raising an issue about the same thing – the disciplinary process and subsequent dismissal.

 4.22. The Respondent respectfully submits that these are dual claims. The Complainant has taken two claims to the WRC about the same issue – i.e., the disciplinary process that ultimately led to her dismissal for gross misconduct in February 2022

. 4.23. The Respondent relies on the Labour Court’s recommendation in Mental Health Commission and A Worker [18 December 2020], LCR22316: The Worker accepted at the outset of the Court hearing that she was pursuing this appeal under the Industrial Relations Act in addition to a separate case under the Employment Equality Acts and that both cases are based on the same set of facts. Therefore, the Court notes that the dispute between the parties is being pursued as a matter of employment law under the Employment Equality Acts and that it would be inappropriate for the Court to recommend concession of the Worker’s claim under the Industrial Relations Act. The Respondent submits that, similarly to the above excerpt, both complaints in the instant case are “based on the same set of facts”.

 4.24. The Respondent had the opportunity to ‘object’ to hearing of the complaint under the Industrial Relations Act, 1969, and chose not to do this, in the spirit of good industrial relations. The Respondent now respectfully submits that the hearing of the same issue under two different pieces of legislation would be improper. The Respondent also submits that – without prejudice to its position that no unfair dismissal occurred – the possibility that redress may be afforded to the Complainant under two pieces of legislation would be improper and would set a dangerous precedent.

Conclusion

5.1It is the view of the respondent that it has acted reasonably in dealing with the complainant and the dismissal was fair in all of the circumstances , in light of the processes followed and the damage that was done – and indeed , may have been done – to the Respondent’s business and reputation.

5.2Based on the  detailed arguments above , the respondent respectfully requests that this claim is dismissed in its entirety.

Witnesses for the Respondent

The respondent’ s representative advised as follows in relation to the absence of witnesses involved in the dismissal process :

Mr. MB – who chaired  the  disciplinary hearing –“ he  left the company” .Mr. MB left the company before the outcome of his disciplinary hearing with the complainant was issued.

Mr.TH “ could not attend the hearing at short notice “.In the letter of dismissal issued by him to the complainant on the 1st.Feb. 2022 ,Mr.TH advised

“The delay has been caused by business needs beyond my control whereby Mr. MB , the Area Manager  who originally chaired your disciplinary on the 16th.Aug.2021 , left the business before he had concluded the outcome. This meant that a new chairperson needed to be selected to review the evidence Area Manager based in the UK and agreed that whilst on a short secondment in Ireland that I would pick up and review this case and now write to you to confirm my decision”.

Mr. DF who conducted the appeal “had left the company”.

Ms.B had left the company

Summary of Pertinent Evidence of Mr. C  - Witness on behalf of the respondent

Under direct evidence the witness advised that he worked with the company for 11 years and was Area Manager – he advised that experience of disciplinary procedures was part of his role. He outlined his actions on receipt of a complaint from the Store Assistant Manager Mr.X regarding an incident at work. He confirmed the complainant was named in Mr.X’s grievance. He  commenced an investigation and met with the complainant on the 1st.May 2021.The witness said he read out Mr.X’s statement for the complainant. The witness said he tried to get as much information as possible from the grievance letter .The witness said he discussed options with the complainant and referenced his notes of the meeting where the following options were outlined –

1.May need further investigation

2.Dealt with informally

3.No further action

4.Progress to the next stage of the process .

The witness said he made the decision to suspend while he carried out further investigations. He referenced the letter of suspension dated the 13th.May 2021.

The witness met with Mr.X and other colleagues including 3 Duty Managers.

He invited the complainant back to meet with him on the 26th.May 2021 to continue the investigations. The witness said the meetings notes were furnished to the complainant – he sent them to the respondents UK Office and was satisfied that the complainant had received a copy of the grievance and the minutes of his meetings with the other managers. The witness said the complainant did not attend the meeting on the 26th.May 2021. A rescheduled meeting was arranged for the 9th.June – in the invitation to the meeting dated the 2nd.June2021 , he advised the complainant that failure to attend the meeting “ will result in the meeting being held in your absence and a decision being made based on the information available to me”.The witness advised that the complainant did not show up and this presented him with a difficulty .He informed the Employee Relations Dept. that the claimant did not attend the third meeting and they referred the case to be dealt with under the disciplinary procedure.

Under cross examination.it was put to the witness that the complainant was never sent a copy of the original grievance and the first time she had sight of it was when the respondent’s submissions were despatched to the office of the complainant’s representative. The representative said he sent it to the UK Office with the meeting notes for forwarding to the complainant. The witness disputed that the complainant did not receive the documents. It was put to the witness that reading out the complaint was not good enough – the witness replied that there was only one copy so he read it out.

It was put to the witness that the complainant went to the initial investigation meeting , explained what happened but was at all times at a disadvantage as the full complaint was never put to her. It was put to the witness that the complainant had sent a number of emails to the UK – and copied to the witness seeking the information  but the original allegations were never  furnished. It was put to the witness that the complainant had never been furnished with the  company’s conduct policy until that morning. It was put to the witness that the policy applied only to the workforce in the UK and did not apply to the South of Ireland.

The witness was asked was it fair  to conduct an investigation under a policy that did not apply and in respect of which a copy had not been furnished to the complainant. The witness said he requested the Employee Relations Dept. to forward the  documents to the complainant. The witness was referred to the emails sent by the complainant with reminders seeking full details of the allegations of gross misconduct , the grievance that had been made against her and details of the evidence referred to by the witness in his email of the 26th.May 2023.It was put to the witness that the required documentation was not furnished , that this was unfair to the complainant and that she fell between 2 stools.

It was put to the witness that the emails demonstrated that the witness tried to engage and get the information she sought and that this was not good enough in the context of the allegations of gross misconduct. The witness was referred to the minutes of the meeting of the 15.06.2021  which was conducted in the absence of the complainant and the references contained therein to furnishing a copy of the disciplinary policy and the bullying and harassment policy. It was put to the witness that he did not email or write to the complainant about the outcome of the meeting.  The witness stated  that Employee Relations  had advised him to document the complainant’s failure on 3  occasions  to attend the scheduled meetings.  It was put to the witness that the complainant was never written to to say that disciplinary proceedings would be initiated because of her failure to engage. It was put to the witness that there was nothing fair about not furnishing the complainant with the outcome of the meeting and then jumping to the disciplinary stage.

The witness said he agreed to suspend the complainant because of the breach of security that took place. He said “we agreed to put her on full pay “.The complainant remained on suspension for 10 months. The witness said that he engaged with Employee Relations – he felt that the complainant should be suspended until “we carry out further investigations” – and they agreed. The witness reiterated that he only had one copy of the grievance and that this was a fact finding exercise .The witness confirmed  that he told the complainant that she would get a copy of the notes of the meetings.

Summary of Pertinent Evidence of Ms.CG – witness for respondent.

In her direct evidence the  witness advised that she worked on Employee Relations issues   as well as development and training.

She had worked closely with Ms.B .The witness said there had been much ado about the complainant receiving documents – she was asked if she had been in contact with Ms.B who had since left the company. The witness said that Ms.B had confirmed to her that  the documents had been sent by email to the complainant.

It was put to the witness under cross examination that she could not definitively say what was sent to the complainant – Ms.B was not in attendance to give evidence .The witness advised  that 4 witness statements were sent .It was put to her that the complainant was never furnished with the original grievance / statement from Mr.X. The complainant’s  representative referenced Mr.X’s statement contained in page 37 of the IBEC submission and stated that this document was never furnished to the complainant.

The respondent’s representative made the following submission on mitigation of loss on the 30th.June 2023:

“As a follow up to your query below and the response of the Claimants Representative, I must draw attention to what was provided for both in document form and in evidence at the end of the hearing in respect to the Claimants losses.

As per the documents submitted to the WRC prior to the hearing ( Claimant Submission Booklet 5 Mitigation of Losses) the Claimant had only provided details of efforts to mitigate her losses for the period 20th April 2022 up to 6th July 2022 and nothing thereafter.

The Claimant was in receipt of social welfare from the period 1st February 2022 – 28th July 2022 as per the attached documents. The Claimant commenced employment in her new job in Company A at the beginning of August 2022 and her first payslip is also attached hereto. The documents attached are taken from the Claimants own booklet referred to in the paragraph above.

Therefore, the figures provide by the Claimants Representative both to the hearing and below were disputed at the conclusion of the hearing whilst the Claimant was under evidence. No efforts or evidence to mitigate losses were provided to the hearing in respect to the period after the claimant commenced her new employment in early August 2022. Stemming from this the Respondent disputes the figure of €30,358.20 as provided for below in respect to that period. Precedent Case law was provided to the Adjudicator and the Claimants representative at the hearing in respect to this point and the claimants obligation to provide details in respect to their efforts to mitigate.

The above should be recorded from transcripts taken at the hearing”.

The complainant’s representative presented the following submissions and referenced  the documents prepared by the complainant for consideration of the Disciplinary Officer and the Appeals Officer during the dismissal procedure.

 1.1 The Claimant was employed as a store manager from 7th March 2016 up and to the 14th April 2022 in the store  and was on a salary of €35,000.00 per annum.

1.2 Her Contract of Employment is exhibited hereto in the booklet to follow.

1.3 In 2019, she had to lodge a grievance along with a number of other members of staff as she felt unsupported by her manager and arising from same, after a prolonged investigation the company was found to be at fault. Further arising from this, the Claimant also raised a grievance that the said grievance had not been dealt with correctly and as a result, she was penalised in her treatment in respect of her employment in respect of same. She was also subject to abuse from her manager leading to a period of time off work for stress.

1.4 Thereafter the Claimant was placed on a personal improvement plan and she was criticised at work. She was wrongly corrected for poor stocktake amongst other issues. The Claimant submitted a grievance against the personal improvement plan; the plan ultimately was retracted on foot of same. A number of weeks later, she was suspended on the 1 May 2021 until 1st February 2022.

 1.5 On the 15th April 2021, a colleague’s vehicle, namely Mr.X was damaged in a public carpark and this led to a number of events, whereby the company presented an allegation that the Claimant had breached her contract of employment.

 2. Investigation:

 2.1 The Claimant was subject to an investigation in respect of an allegation of breach of contract in or around April 2021, communicated to the Claimant by MR.C.

 2.2 The Claimant was asked to attend meetings but she could not attend same as she was unaware of the allegation made against her. At no time during the investigation was she afforded the precise details of the allegation made against her and the precise breach of contract. This meant that she was not afforded the opportunity to meet the allegation mounted against her.

 2.3 The allegations, which lacked detail, ranged from:

 (1) Gross misconduct of the bullying and harassment policy and failure to comply with company core values in regard to ‘respect each other’ whereby she contributed to a colleague feeling intimidated

 (2) Gross negligence in your role as a store manager to support, engage and inspire a team in store and lack of duty of care

 (3) Breach of the Behaviour and Conduct policy. There was a lack of clarity which meant that she did not have ample time to meet the cases made against her. The Respondent by presenting an array of issues in such a manner made it difficult for the Claimant to address each individual matter separately. Subsequently the allegation that she had breached the behaviour and conduct policy was withdrawn.

 3. Suspension with punitive effect:

 3.1 After an initial meeting on 1st May 2021, the Claimant received a letter of suspension dated 13th May 2021 and despite communication, her employer also failed to provide her with the allegation once again. It is submitted in accordance with Morgan v. Trinity College Dublin [2003] 3 I.R. 157 that the Claimant ought to have been afforded natural justice and fair procedure before a decision to suspend was taken, such was the severity of such an action by the employer.

 4. Lack of clarity:

4.1 As a result thereof, the Claimant immediately emailed management and she received a response that this would be addressed within 3 working days. There was a complete failure to respond in respect of same.

 She sent a further email on the 17th May but did not receive a response.

 On the 19th May 2021 she was advised a response would be forthcoming within five working days but this was not subsequently addressed.

 On the 20th May 2021, she was invited to a meeting on the 26th May 2021 and she emailed once again on the 21st May 2021 requesting the allegation in advance of the hearing.

 On Monday the 24th May 2021 two days prior to the meeting, the Claimant was simply furnished with some limited information that there was an investigation in relation to allegations of the Claimant creating an unsupportive and hostile working environment and in response she outlined that she required further details in respect of same.

On the 29th May 2021, the notes of meetings were emailed to the Claimant but the actual allegation was not forthcoming. The Claimant once again outlined by way of email of the 31st May 2021 that she requested the information.

 On the 4th June 2021, the Claimant was advised of a reconvened meeting of the 8th June 2021.

On the 7th June 2021 when no further information was received, the Claimant advised that she could not proceed to attend the meeting.

 She further requested the information on the 14th June 2021. No further information was made available and therefore, the Respondent decided to proceed with the meeting in the Claimant’s absence.

4.2 This was totally unfair as the Claimant had engaged with the Respondent at all times and made a reasonable request for advance notice of the issues which was repeatedly ignored.

4.3 There was no parity of power between the two entities, the employer on the one part and the Claimant on the other part.

 5. Investigative meetings:

5.1 A first investigation meeting occurred on 1st May 2021 and a second investigation meeting occurred in or around 15th June 2021. As outlined above, the Claimant repeatedly asked for the precise details of the allegations prior to scheduled meetings but the Respondent failed to reply to same and so therefore the Claimant could not attend meetings on the 26th May 2021, 8th June 2021 and 15th June 2021. The Claimant was not able to address the allegation as it was not outlined to her in an appropriate manner and in accordance with the company protocol.

 5.2 Furthermore it was outrageous that the investigation proceeded in her absence on 15th June 2021 when she had clearly outlined what additional information was required and had engaged with the Respondent to establish same on 14 occasions.

 6. No representation:

 6.1 At any of the said meetings, she was not afforded any appropriate representation. The personnel available to her were subordinate to the Claimant and therefore they were not appropriate representatives. The right to be accompanied is enshrined as a basic right throughout employment law and the absence of same was grossly unfair.

 7. Due Process and Fair Procedures:

 7.1 In addition, there was a failure to afford the Claimant due process and fair procedures contrary to law and her constitutional rights, where she was not afforded the opportunity to avail of representation and nor was given advance notice of the allegations against her.Therefore she was not given ample opportunity to defend herself against the charge/ allegations of wrongdoing , nor was she given the opportunity to examine any witnesses etc and there was no parity between the Respondent and herself in the process

. 7.2 The Supreme Court in Glover v BLN Limited (1973) IR 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. Moreover herein the Respondent did not follow its own procedure enshrined in its handbook nor did it follow the representations set out in correspondence. The most basic fair procedures were not adhered at any stage during the Respondent’s own investigative and disciplinary process.

 7.3 In addition there was an allegation that there had been a failure to follow policies, which said policies were not expressly communicated to her. All this compromised her ability to meet the allegations against her. The Respondent failed to follow its own procedures – the timelines presented in its letters and correspondence were not followed as expressly communicated to the parties.

 7.4 In June 2021, she was furnished with minutes of a meeting they had with  colleague Mr.X and this did not make any major allegation against her.

8. Additional Allegations:

 8.1 It was also unfair that the Respondent’s employer added additional grounds for dismissal as the investigation progressed. This did not give her opportunity to prepare and effectively ambushed the Claimant further when she was dealing with an existing investigative procedure and an initial complaint.

 9 Disciplinary Meeting:

9.1 There was a significant delay as the matter progressed from an investigation to a disciplinary meeting. The Disciplinary meeting was not held until the 17th. August 2021 via conference call and the Claimant read out a prepared statement.

 9.2 The meeting was adjourned so that the Claimant’s statement could be reviewed. At this juncture, the Claimant was assured that details for a reconvened disciplinary proceeding would be emailed at a later stage. This did not happen despite assurances at all.

 9.3 On the 13th. September 2021, the Claimant received an email from the Employee Relations team stating that an outcome would be provided within 14 days. This did not occur.

 10 Dismissal:

10.1 She was notified on the 1st February 2022 by way of letter dated 1st February 2022 that she was dismissed for gross misconduct.

 10.2 There was a failure to attach any or any adequate weight to the Claimant’s own statement given at the disciplinary meeting.

11 Gross Delay and Suspension:

 11.1 There was undue delay in deciding on the outcome of the disciplinary meeting and the Claimant was placed on extensive time on suspension with pay. Being placed on suspension with pay has had a punitive effect on the Claimant’s career as she was not in a position to carry out her employment duties.

 11.2 It is submitted that the suspension should have been introduced and explained that it was not an adverse finding and that it should only have been in place only as long as it was reasonably necessary until the employer had reached a decision. The Claimant shall rely on the decision of Duffy -v- Hugh McAvoy T/A ‘Talk To Me’ (UD 1048/2009) and it is submitted that the lengthy nature of the suspension was grossly unfair, procedurally and substantively on the Claimant.

 11.3 The long suspension period meant that the personnel who had dealt with the original issue had left the company and also substantively, the Claimant was in a position where she remained in employment but could not practice her career. The Court is further referred to the matter of The Governor and the Company of Bank O Ireland v James O’Reilly, where the serious nature of even suspension without pay was fully addressed.

 12. Delay

12.1 Without prejudice to the damaging effects of suspension, the Claimant asks the Tribunal to consider the excessive delay in the decision to dismiss. The said process and the delay left the Claimant in a stressed, ambivalent and vulnerable situation and it is submitted under no circumstances can the grossly unfair delay and time period be justified. It is submitted that a delay of almost six months in the Respondent communicating its outcome can only be considered extremely excessive and in all of the circumstances, that this Honourable Tribunal has no alternative but to deem the dismissal unfair. The manner of its conduct deprived the Claimant of her right to practice in her employment and stripped her of her dignity and pride in the workplace.

13. Disproportionate Penalty leading to the Decision to Dismiss:

13.1 The decision to dismiss was too severe and did not take into account all the circumstances. No other sanctions were considered.

 14. Dismissal too severe and Disproportionate – Substantively unfair

 14.1 The decision to dismiss was too severe and unfair as failure to attend investigations was taken into consideration. The Respondent failed to consider that the Claimant’s inability to attend the proceedings and engage in the process due to a lack of information. At all times, the Claimant requested the information be made available to her to enable her to attend and to prepare for the investigations and the Respondent wrongly did not facilitate this. It was unreasonable and unfair of the Respondent to consider the failure to attend the investigation where at all times the Claimant had requested the details of the allegation against her.

 14.2 Therefore the decision to dismiss was disproportionate and not within the range of reasonable decisions of a reasonable employer. The decision to dismiss was not appropriate in light of the company’s own policies and procedures.

15. No lesser alternatives considered:

15.1 There was no contemplation of lesser alternatives. The Court is referred to the decisions of Caplis v Transdev Ireland Limited (determination no UDD 1932). The case illustrates the importance of considering the proportionality of any disciplinary sanction and documenting such consideration prior to imposing the penalty. Regardless of the strength of the evidence, the decision must be proportionate. In the within proceedings, it is submitted there was very little evidence and furthermore, the Claimant was not in a position to respond to allegations made against her. As this Tribunal will be well apprised, the test is whether the proposed sanction is within the range of responses that a reasonable employer in the same circumstances could impose. In light of the Claimant having a good disciplinary record, and long service, it is submitted that it is unreasonable of the Respondent to dismiss her. The claimant herein had an excellent employment record and held a position of responsibility without blemish for six years which is a significant period of time. It is submitted that this case aforesaid and these principles be considered in the within case.

 15.2 The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal.

 16 Procedure:

 16.1 The procedural aspect should be examined along with whether the decision was procedurally and substantively fair. The delay, the lack of representation, the lack of clear advance notification of the allegations, the failure to meet deadlines and engage with the Claimant and the failure by the Respondent company to follow its own process rendered any and all procedures and any outcome as a result of applying same, totally unfair to the Claimant.

17 Appeal:

17.1 The Appeals process was not fair, impartial and the behaviour of the appeals personnel was inappropriate. The Appeals process was a sham, purely designed to copper fasten a decision previously made by the original decisionmaker and failed to consider that the investigation or disciplinary procedure was flawed and should be reconvened in accordance with the procedures of natural justice

 18 Conclusion

 18.1 The Claimant submits that the process was flawed unfair and lacking and moreover, the substantive decision to dismiss was wholly disproportionate. This dual aspect to the determination of the Adjudicator’s role was highlighted in WRC and is referred to by the Claimant herein in the determination of A Sale Executive v Software Company ADJ 00017573 where Breffni O’Neill, the Adjudicating Officer commented that the 18.2 “The combined effect of the above sections of the Act require me (the Adjudicating Officer) to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was substantively and procedurally fair”.

18.3 It is submitted that the decision was not proportionate nor substantively or procedurally fair. Just as in that case, it is submitted that the treatment of the Claimant was callous, left her marginalised, at times ignored and was not in accordance with the company’s own procedures. The manner in the communication of dismissal was without respect by email and contrary to the values of the company.

18.4 In light of the entire process followed, the lack of fair procedures and the disproportionate decision of the Respondent, it is submitted that the Tribunal herein ought to make a finding of Unfair Dismissal and grant the Claimant the determinations and orders sought.

 18.5 The Claimant reserves the right to furnish further and better particulars of unfair dismissal in due course.

Summary of Pertinent Evidence of Complainant

The complainant set out her career history with the respondent .She had progressed well and was operating as Store Manager for the past  4-5 years and had assisted in the opening of 2 new stores.

The complainant advised that the car of her assistant manager Mr.X had been damaged while at work – on the 15th.April 2021 – he contacted her to say the car was damaged and she offered to drive him home. He declined – she kept in contact with him as he had been shaken up. The complainant set out a chronological account of the ensuing exchanges after she reported the incident .

A first investigation meeting took place on the 1stMay 2021 with Mr. C and  another Store  Manager – she was given no notice of the meeting or specific details. The complainant said she did not know what it was about. She was asked about the day of the incident and what care and supports she gave. Mr. C read from notes and summarised Mr.X’s grievance. At no point was she given a copy – she said she felt under pressure .She was concerned that she was being portrayed as not giving support. The witness said she was informed prior to signing the notes that she was being suspended. The complainant said she was very upset. She tried to get a full copy of the grievance and sent a number of emails so that she could engage fully. The complainant was asked if she was given the Behaviour & Conduct policy and replied “No”. The complainant said she continued to request full details of the allegations against her and sent over 17 emails. She received no response and felt very uneasy. She indicated a willingness to engage and attend meetings if she was given all of the information she sought.

A meeting took place on the 15th.June without her – the witness said she felt this was very unfair – she was very taken aback – she said she was not given the Behaviour and Conduct policy. The complainant said the first time allegations were put to her was in Mr.MB’s email to her of the 2nd.July 2021 .The witness said she still was not given the  complainant’s allegations and this was unfair to her. The complainant was asked if the meeting scheduled for the 11th.August 2021 and  notified to her on the 30th.July happened – she replied “Yes , I believe so”.The complainant referenced her detailed response to the allegations set out in Mr.MB’s email of the 2nd.July2021.She detailed how she had responded to Mr.X’s call on the day , the level of support she had given him , her enquiries about cctv footage .The witness said that while 2 colleagues had been interviewed – their statements had never been shown to her. She referenced the return to work arrangements she made with Mr.X and addressed the allegations of non compliance with company policy. She said that subsequent to this nothing happened for a number of months .The complainant said she felt unsupported and isolated. There was no engagement  and she was prevented from  working. The complainant again  denied that she was given the Conduct and Behaviour policy. She said the allegation of gross negligence had never been previously raised with her. She denied that the matter of cctv and security was ever previously put to her. The complainant asserted that she had made it clear that she would co-operate once she received the information sought by her. The complainant said she was very upset with the decision to dismiss ; she had worked for a number of years and had not been afforded fairness .She suggested that alternative courses of action should have been explored such as mediation. She referenced having already supported Mr.X through a disciplinary process.

The complainant referenced her letter of appeal to the respondent dated the 15th.March 2022 which referred  to the failure to provide her with appropriate representation ; the continuing failure to furnish her with details of the allegation of wrong doing ; the failure to afford her due process ; the failure to explain the alleged breaches of “respect each other policy” or the “support , engage and inspire the team “ policy; the failure to explain the breach of the security policy ; the Company’s failure to comply with their own policies ; the undue delays in issuing the outcome of the disciplinary meeting ;the punitive effect of suspension ; the adding of additional grounds for dismissal that did not form part of the investigation ; the harshness of the sanction of dismissal and the failure to give weight to the complainant’s statement of defence at the disciplinary meeting.

The complainant asserted that the appeal meeting on the 25th.March 2022 did not go well. She felt it was a box ticking exercise .The complainant said she outlined her grounds of appeal but took issue with the accuracy of the respondent’s notes of the meeting – the complainant said she took her own notes. She asserted she did not have time to prepare  and had not been furnished with Mr.X’s allegations. The complainant acknowledged that she had been furnished with witness statements but not with Mr.X’s grievance. The complainant asserted the company property was never at risk. The withholding of documents she contended prevented her from engaging and answering the allegations. The impact of the disciplinary process provoked anxiety – she was off work for an extended period ; she found the process threatening. To deal with her stress she attended her doctor who recommended a counsellor. The complainant  said she could not cope and was prescribed anti anxiety medication.

The complainant asserted that she was continuously looking for alternative employment and submitted a record of the companies she had applied to for work. She was currently working on customer service and was paid €11.20 per hour .

The complainant took issue with the failure of Mr.G- notetaker- to take on board her  amendments to the notes of the appeal meeting. She asserted her own notes recorded an accurate account of the meeting .The HR representative for the company stated that she could not speak for Mr.G but that it would not be her own practise to refrain from taking on board such amendments.

It was advanced that the invocation by the respondent of UDD19974 was inappropriate as the case was distinguishable and different from the instant case.

Under cross examination , the complainant clarified that she was working as Manager at the store since Feb.2016.It was put to her that in her capacity as manager she should have been aware of and trained up in company policies. The complainant responded that while the information would be in the company handbook she said she was unaware that she could  access  the information on the website while on suspension. It was put to the complainant that on occasions she would support colleagues  who were under investigation and she responded Yes. The respondent’s representative referred to the investigation meeting with Mr. C  and the dispute between the parties in relation to reading out Mr.X’s complaint. The respondent’s representative referenced the  company email of the 8th.June 2021 stating that all evidence had been sent to the complainant .The complainant was asked what she was unsure about – she replied details of the allegations against me .She said what she received was 4 written statements but the grievance was not provided to her. The complainant was asked to clarify her efforts to secure alternative employment .The complainant replied that she was constantly on line seeking other employment .It was put to her that no actual job applications were submitted to provide evidence of mitigation of loss. It was asserted that no evidence of a loss of €30,358.20 was presented .It was put to the complainant that she could have accessed the company policies even while on suspension through a portal. The complainant stated she did seek to correct the notes of the appeal hearing  and had submitted her record of the hearing to the respondent but her amendments were not taken on board.

The complainant asserted that the company at no time was at risk arising from her actions – she stated that there was a sign in book for representatives in the back area of the store.

In a post hearing submission  received on the 28.06.2023 the complainant’s representative  clarified  as follows  in relation to the matters of anonymisation and mitigation of loss:

“ Further to your email below regarding the issue of anonymisation it was understood at the hearing that neither party had any issue with the decision being anonymised.  Our client has suffered significantly as a result of the treatment she received and she believes that if her name were to be noted in a future decision it could prove very difficult for her to get employment in her field (retain)  in this  area in the future.  Our client has suffered with her health as a result of this claim and this was opened to the WRC at the hearing.  Documentation was provided from her treating counsellor and therefore we feel it is in the best interests of our client that her name would be anonymised.  We have no difficulty with the Respondent’s name also being anonymised.

 In relation to the quantification of loss.  I attach herewith the schedule showing the loss suffered by our client.  You will see that the losses are broken down in the table furnished.  The figure of €3,294.60 is what our client should have received for notice (which she did not get).  The figures of €19,767.60 is the monthly wage for 6 months (the period from February 2022 to August 2022 date of dismissal until she got alternative work).  The figure of €30,358.20 is the loss from when she took up alternative employment in August 2022 until February 2024 (2 years from the date of dismissal) less what she was paid by her new employer.  The complainant  was earning €3,294.60 per month with the respondent company - she earned €1,696.80 with her new employer, therefore the figure of €30,358.20 is what her loss would be until February 2024.

The following further submission was received on the 30.06.2023 in response to the IBEC submission on clarification of loss: You might please advise whether you require a full response to Mr. Thomas’s email .

“I do not wish to prolong this matter any further, however, it is quite clear that while the Schedule of Loss document prepared for the hearing of this matter notes that Social Welfare payments were received, these are not deductible from any Unfair Dismissal’s award as you are aware.

Further, the document provides for a differential in the salaries from the respondent company  and our client’s new employer.  When our client took up full time employment in August 2022 (at a reduced salary) she was working full time and not in a position to spend considerable time seeking further alternative employment.  Our client spent significant time trying to mitigate her loss and this was clearly set out in the papers and during evidence. 

The above is no doubt recorded in the transcripts taken at the hearing, however, if you require a formal reply to Mr. Thomas’s email you might please advise”.

I have reviewed the evidence presented at the hearing and noted the submissions of the parties and the authorities relied upon. I have taken account of   the polarised positions of the parties with respect to the matter of whether the alleged failure of the respondent to furnish the complainant with Mr.X’s allegations in full ,   justified her stance with respect to her participation in the  respondent’s  investigative/ disciplinary processes.

I found Mr.C’s evidence in relation to his assertion that he sent the documented complaint to the complainant to be unconvincing – no corroborative documentary evidence was presented and his evidence lacked clarity with respect to when and from where the document was forwarded to the complainant. The complainant for her part set out a chronological account of her interactions both with HR and Mr. C  on the matter and her assertion that she was not  furnished with the complainant against her despite 14 separate requests for same was corroborated by the emails introduced into evidence – I found her testimony to be compelling and convincing and accordingly I accept her evidence that the first time she had sight of the complaint from Mr.X  was when her solicitor was furnished with the respondent’s submissions to the WRC.I find as a consequence that the investigative /  disciplinary process was flawed from the outset and  the respondent was in breach of its own disciplinary policy which provides  that “ a colleague will be entitled to be given a full explanation of the case against them and be informed and provided with the content of any statements provided by witnesses and any relevant notes”.

I found Mr.C’s evidence that he could not give a copy of the complaint to the complainant at her initial investigation meeting because he only had one copy of the document  to lack credibility and reflect poorly on the companies commitment to fair procedures. Additionally I found the assertions of the Appeals Officer – who did not give direct  evidence at the hearing to support  distinguishing  between an entitlement  to hear as opposed to see allegations to be unconvincing as was his assertion that she may have been furnished with the documented allegation if she had submitted a data access request. The HR Administrator Ms.B who asserted that “we have already supplied you with all the evidence pertaining to the investigation “  and who according to witness Ms.CG confirmed same to her did not attend to give evidence and no documentary corroboration of having furnished Mr.X’s statement to the complainant was presented. The complainant was denied an opportunity to prepare her defence in circumstances where she was not furnished with the complaint against her and this was fundamentally unfair. Her unwillingness to participate at various stages in the process  without sight of the complaints against her was not unreasonable in the circumstances.

The company procedure provides as follows with respect to suspension:

“There may be instances where suspension with pay is necessary while investigations are carried out. The Company has the right to suspend with pay where there are reasonable grounds for concern that evidence may be tampered with , destroyed or witnesses pressurised before a disciplinary hearing , if there is a potential risk to the business , other colleagues or third parties in allowing the colleague to remain at work “.At the complainant’s meeting with Mr. C on the 1st.May 2021, the complainant was suspended without having been given a copy of Mr.X’s statement and without been given an explanation for the necessity of a suspension .I found  the claimant’s evidence that she perceived the suspension as punitive and the subject of common knowledge amongst her peers to be compelling and persuasive.

In his evidence to the Tribunal Mr. C stated that he decided to suspend the complainant as  he had decided a breach of security had taken place.This was at the end of his first meeting with the complainant at the commencement of the investigation.This suggests  potential prejudice on the part of Mr. C  who should have afforded the complainant an opportunity to present a defence to the allegation of  a security breach before any suspension took place. This was unfair to the complainant.

Mr. C wrote to the complainant on the 20th.May 2021 seeking her attendance at a reconvened investigation hearing on the 26th.May 2021 to discuss “ your alleged gross misconduct in relation to “Gross breach of the Behaviour and Conduct  policy”.The complainant replied on the 21st.May indicating a willingness to attend but “ cannot until I am furnished with full details of the allegations against me”.A series of emails ensued between the parties – it is extraordinary that at this point the complainant was not in receipt of  Mr.X’s statement.

On the 12th.July 2021 , the claimant requested that the allegations against her be particularised – other than referring to previous emails from Mr.M , the details of the allegations against the complainant were never detailed  – this was unfair to the complainant.

Despite specific provisions in the company grievance procedure in relation to informal resolution of grievances , the company has offered no plausible explanation for failing to explore the informal process – this was unfair to the complainant.

The company’s disciplinary hearing provides “ the colleague will be entitled to be given a full explanation of the case against them and be informed and provided with the contents of any statements provided by the witnesses and any relevant notes”. On the basis of the submissions made and the evidence of the complainant and Mr. C I have concluded that the respondent failed to present the complainant  with a full account  of the case against her.

The respondent failed to proffer a reasoned explanation for escalating the original “grievance/concerns raised against” the complainant by a colleague following an incident “ in relation to his car being vandalised and noted a lack of support “ (Mr.C’s record of the meeting of the 1st.May 2021 refers) -to complaints of

‘Gross breach of the Bullying and Harassment policy and failure to comply with company core values specifically in regards to “Respect Each Other”……..

Gross negligence in your role as store manager to “ support, engage and inspire the team in store “

Failure to follow a reasonable management request by failing to attend 3 investigation meetings’.

This was unfair to the claimant and negatively impacted upon her capacity to defend vague assertions of conduct that were not detailed and in respect of which there was a failure to demonstrate how this behaviour met the definitions set out in the companies HR policies.

At the disciplinary meeting of the 16.08.2021 , the complainant sought clarity on the outcomes that determined that disciplinary proceedings were required but no explanation was forthcoming – this was unfair to the complainant. At this meeting the matter of the statement from Mr.X was raised by the complainant and it emerged that the Deciding Officer Mr.B did not have the document with him.

The ensuing almost 6 months  delay between the adjourned meeting of the 16th.August 2021 and the issuing of the dismissal outcome letter of the 1st.February 2022by Mr TH  – breached the respondent’s own procedures with respect to time limits , the conduct of the disciplinary process  and was unfair to the complainant. After a protracted delay the complainant was denied to opportunity to provide her version of events to the newly appointed Disciplinary Officer. This was unfair to the complainant. In the disciplinary outcome document the respondent sought to rely upon a new allegation of compromising the store’s security – in respect of which the complainant had  not been given notice of – to justify the dismissal of the complainant.This inappropriate conduct of a disciplinary hearing supported the claimant’s contention of a predetermined outcome. On the basis of the dismissal and appeal outcome correspondence issued to the complainant  , I found the complainant’s assertions that her defence was not given the consideration it warranted to be persuasive.The documents submitted into evidence   further gives substance to the claimant’s allegation that no alternative sanctions  to the sanction of dismissal were considered and there was no direct evidence advanced by the respondent  or the respondent’s witnesses to challenge said assertion by the complainant.

With respect to the appeal hearing which took place on the 25th.March 2022 , the complainant was assured she would be given a copy of the respondent’s notes of the meeting .While the claimant has acknowledged that the notes of the hearing were furnished , she submitted her record of the meeting to the respondent but none of her corrections/amendments  were taken on board. This further substantiates the claimant’s assertions that the outcome was predetermined and that her submissions and defence of the allegations were not considered .Again , at this point in the process the company failed  to furnish the original allegations made by Mr.X . I found the company’s assertions that  notwithstanding their disciplinary / grievance procedures  that the complainant was entitled  to hear as opposed to see the document to be unconvincing. This was unfair to the complainant.  When the complainant advised the Appeals Officer that she was not given the Behaviour & Conduct policy  and the difficulties this presented in terms of accessing the document because she was suspended , the company responded that  the onus was on the complainant to request the document – which contradicts the assertions of comprehensive disclosure contained in the disciplinary grievance policies.

Mr. DF was not in attendance to give evidence in relation to his conduct / processing of the appeal- Mr. DF acknowledges that the complainant should have been advised of the grounds for her suspension. Mr. DF asserts that the complainant was told in full what the allegations were during the investigation meeting of the 1st.May 2021.He was not present to give evidence or be cross examined in relation to this matter .The companies own notes of the meeting do not in fact record the detail of the grievance of Mr.X  and reference Mr.M reading out “ detail from grievance notes …and  highlighted parts of notes with Mr.X”. Notwithstanding this the Appeals Officer rejects the complainant’s assertions of failure to provide her with details of the allegation of wrongdoing. This was unfair to the complainant.

I have noted the submissions of both parties in relation to the matter of representation. While I acknowledge the respondent’s contention that the company was unaware that Ms.A would subsequently be interviewed as a witness , I find that the company should have anticipated this. Additionally I consider the complainant’s later contention that she should have had access to a peer colleague rather than a subordinate is persuasive.

I note the company documentation  references “Always offer colleague right to representation” and find on the basis of the company’s own submissions that  a casual approach appears to have been adopted to this right for example in Mr.C’s first encounter with the complainant he states “You can have someone in with you? “ and” Do you need someone in with you”.

I do not accept the company’s contention that the failure of the  complainant to  belatedly challenge the inclusion of additional grounds for dismissal at the disciplinary stage disentitled her from challenging this at the appeal stage.

I note in Mr.F’s appeal outcome that he finds as follows :

Point 1- Not Upheld

Point 2&3 Not upheld but point on suspension upheld

Point 4&5Not upheld

Point6&7 Not upheld

Point 8 Upheld

Point 9 Partially upheld

Point 10 Not Upheld

Point 11 Upheld

While Mr.F sets out some reasoning for his conclusions , his rational for dismissing the appeal is unclear and appears to be grounded on the matter of security which by the respondent’s own admission was belatedly introduced as an allegation against the complainant.This was unfair to the complainant.

Again as previously referenced there was no direct evidence advanced by the company with respect to either the conduct of the hearings and  the rationale/reasoning for the outcomes .No evidence was advanced to support the contention that alternative sanctions to dismissal  were considered.No evidence was advanced to explain the prolonged suspension of the claimant and I accept the relevance of the complainant’s representatives reliance on Morgan v Trinity College [2003}3 IR 157 in this regard. The complainant was given no opportunity to cross examine  the company decision makers who determined the outcome of the disciplinary process and the appeal process .

In light of the foregoing findings and conclusions I find that the dismissal of the complainant was procedurally and substantively unfair.

In light of my findings on the complaint of unfair dismissal , I am upholding the complaint of a contravention  of the Payment of Wages Act , 1991 for failure to pay the complainant her statutory notice.

As  the matters referred under the Industrial Relations Acts have been comprehended in the decision under the Unfair Dismissals Acts , I am making no recommendation under the Industrial Relations Acts.

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