Complainant

Respondent

Parties

Jolene  Leonard

Askamore Childcare Company Limited

Representatives

Emmet Whitmore B.L. instructed by Edward King of King and Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047182-001

12/11/2021

The Complainant complained that she had been unfairly dismissed by the Respondent on the 18th May 2021. She had been employed by the Respondent since June 2017 and held the position of Room Assistant from the 27th August 2018. She therefore had the requisite 12 months’ service to bring a complaint of unfair dismissal under Section 8 of the Unfair Dismissals Acts. It was common-case that she was earning an average of €441 gross per week at the date of dismissal.

The Respondent asserted that the Complainant was dismissed having disclosed to the Manager and the Assistance Manager that she wilfully participated in the distribution of illicit substances and was therefore in breach of the Respondent’s policy on Alcohol and Substance Misuse which caused the relationship of trust between the Complainant and the Respondent to be irreversibly damaged. The Complainant contended that the process giving rise to her dismissal was both substantively and procedurally unfair. The Complainant had not secured alternative employment as at the hearing date and sought compensation by way of remedy. As the burden of proof rests with the Respondent to demonstrate that the dismissal was fair, it gave evidence first as set out hereunder.

Evidence of the Manager

The Manager presented as an honest and credible witness. The Complainant received and signed for a Staff Handbook which included a policy on Alcohol and Substance Misuse. She was employed by the Respondent as a Room Assistant.

The Complainant had been constantly late for work or calling in sick for work and the Manager had to speak with her on several occasions. The Respondent’s management had offered support to the Complainant as they were worried about her. On the 21st April 2021 the Complainant telephoned the Respondent to say she was sick and would not be attending work. The previous night the Complainant’s mobile home had been raided by An Garda Síochána. The Complainant had been released without charge, but a file was being prepared for the Director of Public Prosecutions.

After the Complainant rang in sick she did not make any further contact with the Respondent. The Manager made a number of attempts to contact the Complainant and eventually made contact with her through the Complainant’s mother.

The Manager asked the Complainant what was going on and the Complainant stated that she could not come back to work and face the crèche again. The Manager gave evidence that the Complainant stated to her “Oh I have been silly I will go out sick”. The Manager informed the Complainant that she had a letter to give her and a meeting was arranged for the 30th April 2021.

After the telephone conversation with the Complainant the Manager updated the Respondent’s Board of Management and contacted the Respondent’s HR advisers.

On Friday, the 30th April 2021 the Manager and the Assistant Manager met with the Complainant outside of the public library in Gorey. The Complainant outlined her position and why she had gotten involved in the distribution of illicit substances. The Manager said she listened to what the Complainant had to say and that she felt sorry for the Complainant. The Complainant was tearful and said “I can’t go back up to the crèche I can’t do it to you.”

The Manager stated that as a result of what the Complainant had disclosed to her and the Assistant Manager at the meeting on the 30th April 2021 the Respondent feared for the safety of the children in the crèche and that the safety of the children was of paramount importance. A number of parents emailed the crèche to say they did not want to leave their children in the crèche and a number of children were taken out of the crèche.

The Manager stated that the Respondent’s business was not a retail store, it involved looking after children who were vulnerable members of the community and they needed to be cared for. The Manager stated that the Complainant’s behaviour had been up and down and the Complainant knew that the care of the children was of paramount importance. The Manager stated that being under the influence of or involved in narcotics was not giving the children one hundred percent which every child deserved.

A meeting of the Respondent’s Board of Management took place on the 15th May 2021 during the course of which the decision was made to dismiss the Complainant. The Manager communicated the Board of Managements decision to the Complainant by letter dated the 18th May 2021.

In cross-examination the Manager accepted that in so far as the Gardai had raided the mobile home of the Complainant it was her understanding that at the date of dismissal the Complainant had been released without charge but that a file was being prepared for the Director of Public of Prosecutions.

While the Manager accepted that she did not offer the Complainant the right to be represented at the meeting on the 30th April 2021, she stated that she informed the Complainant that she had a letter to give her, that the Assistant Manager would be accompanying the Manager to the meeting and that they were anxious to see how the Complainant was doing. The Complainant was aware in advance of the meeting that the Assistant Manager was accompanying the Manager because the Complainant had been in communication with the Assistant Manager regarding the location of the meeting. The Manager denied that the Assistant Manager was a witness. The Assistant Manager was simply accompanying the Manager as she was also concerned about the welfare of the Complainant. While the Complainant was not accompanied by anyone to the meeting on the 30th April 2021 the Manager stated that she was aware that the Complainant’s boyfriend had accompanied her to Gorey and was waiting for her in the car.

The Manager stated that at the meeting on 30th April 2021 she furnished the letter dated the 29th April 2021 to the Complainant which suspended the Complainant on full pay pending an investigation and that at this meeting the Complained resigned. It was put to the Manager that she was mistaken about the resignation however she denied that she mistaken and stated that the Complainant said to her “I can’t do it anymore I am going to resign I can’t do it anymore.”

The Manager confirmed that she made the Respondent’s Board of Management aware that the Complainant’s mobile home had been raided by An Garda Síochána within two days of being informed by the Complainant and that while the Complainant’s contract of employment allowed for summary dismissal the Manager stated that she did not believe it was her place to dismiss the Complainant summarily at the meeting on the 30th April 2021. 

The Manager accepted that she texted the Complainant on the 4th May 2021 and told her to take as much time as she needed but she did so  because she felt concerned for the Complainant as she had known her for a long time and she did not want the Complainant being under any pressure and not because she believed the Complainant was unsure or unclear about her resignation.

The Manager accepted that as of the 9th May 2021 the Respondent was giving the Complainant the option of an investigation or a voluntary exit package and that on the 11th May 2021 the Complainant confirmed that she did not wish to resign and that she wanted to continue suspended with pay pending an investigation.

The Manager confirmed that the Respondent’s Board of Management met on the 15th May 2021 and that they informed the Manager of their decision to terminate the Complainant’s employment because of her admitted involvement in the distribution of illicit substances and this decision was in turn communicated to Complainant by letter dated the 18th May 2021.

While the Manager stated that the Respondent’s Board of Management were concerned about the allegation that the Complainant was  involved in the distribution of illicit substances, she confirmed that as far as she was aware no member of the Board of Management spoke to the Complainant prior to dismissing her.

The Manager denied that the Complainant’s employment was terminated because she had rescinded her resignation or because of a breach of trust for rescinding her resignation. She stated categorically that the Complainant was dismissed because of her involvement in the distribution of illicit substances which amounted to a breach of trust.

Evidence of the Assistant Manager

The Assistant Manager presented as an honest and credible witness who expressed genuine concern for the Complainant. The Assistant Manager stated that she met the Complainant in the Respondent’s crèche and that they worked together in the same room. She regarded the Complainant as a friend and was surprised and shocked when she heard that the Complainant’s mobile home had been raided by An Garda Síochána, however, in the Assistant Manager’s opinion, it explained the Complainant’s behaviour at work in the period preceding her arrest. 

She gave evidence that she accompanied the Manager to the public library in Gorey on the 30th April 2021 and was present at the meeting with the Complainant. According to the Assistant Manager, during the meeting the Complainant was weepy and was watching everything around her. She said that she was worried and feared for her safety because she owed a significant amount of money to drug dealers.

According to the Assistant Manager, at the meeting on the 30th April 2021, the Complainant resigned stating that that she was ashamed of what she had done.  

In cross-examination it was put to the Assistant Manager that the Complainant was disputing the fact that she resigned at the meeting on the 30th April 2021. The Assistant Manager stated categorically that the Complainant resigned at the meeting at the library on the 30th April 2021.

Evidence of the Complainant

The Complainant gave evidence that she started working for the Respondent in June 2017 and was engaged under a full-time contract from the 27th August 2018.

The Complainant stated that her mobile home was raided by An Garda Síochána on the 21st April 2021 and that she was arrested but released without charge. The Manager made attempts to contact her and eventually contact was made through the Complainant’s mother. The Complainant returned the Manager’s telephone calls and a meeting was arranged for the 30th April 2021. The Complainant was advised by the Manager that she had a letter to give her and that the meeting had to be somewhere in public with a witness present.

The meeting on the 30th April 2021 took place outside the public library in Gorey and present at the meeting was the Complainant, the Manager and the Assistant Manager. At the meeting the Complainant was handed a letter dated the 29th April 2021. The Complainant stated that she was already aware of the contents of the letter of suspension dated the 29th April 2021 because the Manager is her sister-in-law and the Manager had read the letter over the phone to her in advance of the meeting. The Complainant was aware that the Assistant Manager would be accompanying the Manager to the meeting but she was not advised that she could have a witness present.

The Complainant denied that she resigned at meeting on the 30th April 2021. She stated that the Manager informed her to take her time and not feel under any pressure.

The Complainant received a letter dated the 9th May 2021 which gave her two options, either an investigation into the allegation that she may have used or been involved in the selling of banned substances or a voluntary exit package. The Complainant stated that she wrote back to the Manager and informed her that she wished to proceed with an investigation under the Respondent’s disciplinary procedure but that it never took place and that she was never contacted by any member of the Respondent’s Board of Management. On the 18th May 2021 the Complainant received a letter of dismissal.

The Complainant stated that she had never received a warning, whether verbal or written, regarding her time-keeping.

The Complainant gave no evidence of mitigation of loss. When asked by the Adjudication Officer what efforts she had made to secure employment after her dismissal the Complainant stated that she could not remember where she applied for work. Following her dismissal the Complainant was in receipt of job seekers benefit until the 9th November 2021 and from the 9th November 2021 she has been in receipt of illness benefit.

In making these findings, I have considered the oral evidence adduced at the hearing summarised above, oral submissions made by and on behalf of the parties at the hearing as well as the documentation submitted in advance of the hearing.

RELEVANT LAW

Section 6 of the Unfair Dismissals Acts 1977-2021 (hereinafter referred to as “the UD Act”) provides the legal framework.

Section 6(1) of the UD Act provides that a dismissal is unfair “… unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The burden of proof rests on the Respondent to provide evidence of the “substantial ground justifying the dismissal” of the Complainant.

Section 6(6) of the UD Act provides that :

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

Section 6(4) of the UD Act states:

“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….   

Subsections 6(4)(a), (c) and (d) of this section are not relevant to this complaint.

Section 6(7) of the UD Act, which was inserted by the Unfair Dismissals (Amendment) Act 1993, expands on the issue of reasonableness.  It provides that when considering a complaint of unfair dismissal, I, as the Adjudicator Officer, may have regard -

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

“(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The combined effect of the above sections of the UD Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair.

PRELIMINARY ISSUE

Before I turn to consider whether the decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair, as a preliminary issue I have to determine the grounds of the dismissal.

According to the Respondent the Complainant was dismissed having disclosed to the Manager and the Assistance Manager that she wilfully participated in the distribution of illicit substances and was therefore in breach of the Respondent’s policy on Alcohol and Substance Misuse which caused the relationship of trust between the Complainant and the Respondent to be irreversibly damaged.

It was submitted on behalf of the Complainant that the Respondent claimed that the Complainant rescinded a resignation previously made and the Complainant denied the resignation. The Manager and Assistant Manager both gave evidence that the Complainant resigned from her employment with the Respondent at the meeting on the 30th April 2021. The Manager gave evidence that on the 3rd May 2021 she contacted the Complainant out of concern and that the Complainant advised the Manager that she had changed her mind and that she did not want to resign. The Manager accepted that she sent a further messaged to the Complainant on the 4th May 2021 wherein she told her to take as much time as she needed. The Manager stated in evidence that she did so on the basis that she was concerned for the Complainant as she had known her for a long time and she did not want the Complainant being under any pressure.

The Manager wrote to the Complainant on the 9th May 2021 to confirm that the Complainant had rescinded her resignation and to advise her that she therefore had two options, either an investigation into the allegation that she may have used or been involved in the selling of banned substances or a voluntary exit package. On the 11th May 2021 the Complainant wrote back to the Manager and informed her that she wished to proceed with an investigation under the Respondent’s disciplinary procedure as she was “still unsure what my options are for the future and I need to consider these but I do not wish to resign from my position”. The content of the Complainant’s email dated the 11th May 2021 is in conflict with her evidence at the hearing. During the course of her evidence the Complainant asserted that at no time did she resign whether at the meeting on the 30th April 2021 or on any other date. 

On the balance of probabilities I accept the evidence of the Manager and the Assistant Manager and find that the Complainant did tender her resignation on the 30th April 2021 and that thereafter the Respondent accepted the Complainant’s rescission of her resignation.

Without prejudice, the Complainant submitted that it was the alleged rescission of the resignation that was the basis of her dismissal and not the activities disclosed by her. It was further submitted that the letter of dismissal made no reference to the Complainant being involved in “nefarious activity” nor did it make reference to the Complainant’s dismissal arising from a breach of trust regarding the children in the Respondent’s care.

While the Complainant’s representative is correct that the phrase “nefarious activity” does not appear in the letter of dismissal dated the 18th May 2021, I do not accept the submission made on behalf of the Complainant that the letter of dismissal failed to make any reference to children or a breach of trust towards children or to the Complainant’s disclosure that she participated in the distribution of illicit substances nor do I accept the submission that the recission of the resignation was the basis of the dismissal. In the third paragraph of the letter of dismissal dated the 18th May 2021 the Respondent stated as follows:

“It is of great concern that a direct disclosure was made by you to Susan O’Rafferty in the company of Christina Quinn on 30th April that you have participated at will in the distribution of an illegal class A substance… Given the nature of your line of work with small children, and the trust naturally instilled in you within this role, both by your employer and by the families who avail of our services, it is our perception that this relationship of trust has, unfortunately, been irreversibly damages. For this reason we are not in a position to proceed with an intended outsourced investigation at the expense of the service.” [emphasis added].

Only thereafter did the Respondent make reference in the letter to the Complainant’s denial that she had verbally resigned on the 30th April 2021.

It is apparent from the foregoing, and in particular the use of the words “[f]or this reason”, that the Respondent did not proceed with the “intended outsourced investigation” because of the direct disclosures made by the Complainant to the Manager and Assistance Manager. 

From a consideration of the evidence presented to me by the parties and the submissions made on their behalf and on the balance of probabilities I find that the Complainant was dismissed by the Respondent for having disclosed to the Manager and the Assistant Manager that she wilfully participated in the distribution of illicit substances which was in breach of the Respondent’s policy on Alcohol and Substance Misuse and which consequently irreversibly  damaged the relationship of trust between the Complainant and the Respondent. 

SUBSTANTIVE FAIRNESS

In terms of the substantive aspect, it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented.

In the Circuit Court decision in Allied Irish Banks PLC v. Brian Purcell [2012] 23 E.L.R. 189, Linnane J. stated as follows: "the correct test is: Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered in all of these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view."

In Looney & Co. Ltd v. Looney, UD 843/1984 the Employment Appeals Tribunal stated:

“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.”

The High Court in JVC Europe Ltd v. Jerome Ponisi [2012] 23 E.L.R. 70, aptly summarised this legal framework as follows: “The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal.”

In The Governor and the Company of Bank of Ireland v. James Reilly [2015] IEHC 241, Mr Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against.

A matter for consideration is that the conduct of the Complainant occurred outside of the Respondent’s workplace. In Crowe v. An Post UD1153/2014 the Employment Appeals Tribunal considered this matter and stated:

“A dismissal for misconduct outside the workplace can only be justified where there is sufficient connection between the crime committed and the employee’s work, in such a way that would render the employee unsuitable or capable of damaging the employer’s reputation. The guiding principle in cases involving misconduct outside the workplace is that the employer must be able to show a connection between the misconduct and the company’s operational requirements.

…

The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to business, employee relations or affects the reputation of the company.  The test is: has the out of work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer’s business? If it has then the employer has a right to institute disciplinary procedures.

If a dismissal for out of work conduct is to be fair there must be a genuine connection between the employee’s offence and the employment. The connection must be such that:

·       it leads to a breach of trust and/or causes reputational and/or other damage to the company;

·       the employee’s offence makes the employee unsuitable to continue in the job -for example if an employee is convicted of theft and his job involved dealing with cash then this could well be sufficient grounds for dismissal;

·       the employee’s offence causes the employer to genuinely lose trust and confidence in the employee;

·       the employee’s behaviour risks bringing the employer’s name into ill repute;

·       dismissal is more likely to be fair if the conviction is reported in the press…”

The Complainant received and signed for the Staff Handbook which contained a policy on “Alcohol and Substance Misuse” which provided at pages 19/20 as follows:

“Policy & Procedure

 “The use of alcohol and drugs may impact on the health and safety of the children, employees, parents and on the operations of the business in terms of safety and efficient running of the service. In such situations while acknowledging our duty of care as an employer to employees the interest of the child will always be a priority.”

 “Possession, sale or use of illicit drugs or any involvement in illicit substances will result in summary dismissal.

…

Where the interest of the child and the interest of the adult conflict, Askamore Childcare Centre will always prioritise the interest of the child in line with Children First guidelines and Askamore Childcare Centre Child protection policy.”

It was common case that on the 21st April 2021 the Complainant telephoned the Respondent to say she was sick and would not be attending work. The Manager stated in evidence that she became aware that day that the previous night the Complainant’s mobile home had been raided by An Garda Síochána and that a quantity of illicit drugs were found and that the Complainant had been arrested but released without charge but that a file was being prepared for the Director of Public Prosecutions. On the 23rd April 2021 the Complainant confirmed to the Manager that she had been arrested stating that “she had been silly” and she could not come back to work and face the crèche.

In light of the matters disclosed to the Manager by the Complainant during the telephone conversation on the 23rd April 2021 the Manager contacted the Respondent’s Board of Management and its HR advisers and the decision was made to suspend the Complainant on full pay pending an investigation and a meeting was arranged with the Complainant on the 30th April 2021.

The Complainant’s arrest became a matter of local knowledge and the Manager gave evidence that a number of parents rang the Respondent to express their concern with leaving their children in the crèche and a number of parents took their children out of the Respondent’s crèche. The Manager presented as a credible witness and I accept her evidence that the Complainant’s conduct impacted adversely on the Respondent’s business. 

It is common case that on the 30th April 2021 the Manager and the Assistant Manager met with the Complainant outside the public library in Gorey. At this meeting the Complainant was handed a letter dated the 29th April 2021. The Complainant gave evidence that she was already aware of the contents of the letter because it had been read to her over the telephone by the Manager in advance of the meeting. The letter advised the Complainant that she was suspended with full pay pending an investigation into an allegation that she “may have used or been involved in the selling of banned substances” and that the decision to suspend her on full pay was underpinned by the need to “protect individuals at risk from such conduct” and “to protect the employer’s business and reputation”.

The Manager and the Assistant Manager gave evidence that the Complainant gave a detailed account of and explanation for her involvement in the distribution of illicit substances. The Complainant was emotional and visibly upset. During the course of their evidence the Manager and Assistant Manager expressed genuine concern for the Complainant stating on a number of occasions that they felt sorry for the Complainant at the time. The Assistant Manager gave evidence that the Complainant was watching everything around her and that she informed the Manager and the Assistant Manager that she was worried and feared for her safety because she owed a significant amount of money to drug dealers.

The Manager wrote to the Complainant on the 9th May 2021 to confirm that the Complainant had rescinded her resignation and to advise her that she therefore had two options, either an investigation into the allegation that she may have used or been involved in the selling of banned substances or a voluntary exit package. On the 11th May 2021 the Complainant wrote back to the Manager and informed her that she wished to proceed with an investigation under the Respondent’s disciplinary procedure.

There were detailed statements, one prepared by the he Manager and one prepared by the Assistant Manager contained in the booklet of papers furnished to the WRC in advance of the hearing. They are a contemporaneous note of the meeting with the Complainant on the 30th April 2021. In circumstances where there was no one in attendance from the Respondent’s Board of Management at the hearing it is not apparent whether the statements were taken into consideration by the Board when they met on the 15thMay 2021. The statements were contained in the Complainant’s booklet of documentation and it is noteworthy that the Complainant did not dispute their contents at the hearing.

I note that at no time did the Complainant assert or was it asserted on her behalf that she was not aware of the contents of the Respondent’s Alcohol and Substance Misuse policy. In fact, the Complainant’s booklet of documentation included an “Employee Acceptance” form signed by the Complainant on the 17thJuly 2019 acknowledging receipt of the Respondent’s Staff Handbook which included a policy on “Alcohol and Substance Misuse” and I am therefore satisfied that a copy of the Respondent’s Staff Handbook was issued to the Complainant and that she had seen the contents of same.

I am satisfied that the Complainant’s conduct lead to a breach of trust and that the Respondent had lost trust and confidence in her. The Manager gave evidence of reputational damage to the Respondent arising from the Complainant’s conduct. The Manager made reference to the Respondent’s policy on Alcohol and Substance Misuse and that as a result of the details disclosed to her and the Assistant Manager by the Complainant at the meeting on the 30th April 2021 regarding her involvement in the distribution of illicit substances, the Respondent feared for the safety of the children in the crèche and that the safety of the children was of paramount importance. The Complainant’s arrest became a matter of local knowledge and a number of parents emailed the creche to say they did not want to leave their children in the crèche and a number of children were taken out of the crèche. The Manager gave evidence that the Respondent was concerned about its reputation and the safety of the children in its care and was of the view that it could not have anyone in its employment that was involved in the distribution of illicit substances.

In light if the foregoing, I find that the bond of trust with the Complainant had been irreversibly broken and that the decision to dismiss the Complainant fell within the “band of reasonable responses”. The out of work conduct of the Complainant impacted adversely, or was capable of impacting adversely, on the Respondent’s business and I find that there was a sufficient connection between the conduct and the Complainant’s workplace in such a way that would render the Complainant unsuitable or capable of damaging the Respondent’s reputation.

I therefore find the that the dismissal was both reasonable and substantively fair and must now examine if it was procedurally fair prior to making a decision on whether the Complainant was unfairly dismissed.

PROCEDURAL FAIRNESS

It is well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. (See In Re Haughey [1971] IR 217). In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures. It is an essential feature of fair procedures that an employer follows the procedure set down and understood in the employment when dealing with disciplinary matters.

In examining the procedural fairness surrounding the dismissal, I note that whilst the Complainant gave evidence that she was aware of the content of the letter handed to her at the meeting on the 30th April 2021 in advance of the meeting, there was no evidence before me that the Complainant was advised in advance of the meeting whether the meeting was investigatory or disciplinary in nature or that the subject of the meeting could ultimately lead to a decision to dismiss her. Furthermore, the Complainant was not afforded the opportunity to be accompanied to the meeting on the 30th April 2021.

It was submitted on behalf of the Complainant that she was not afforded a full investigation of the allegations made against her despite the Respondent stating in its letter of the 9th May 2021 that a decision had been made to outsource the investigation to its independent HR support company in order to afford the Complainant a fully impartial investigation. I find that there was no evidence before me that the Complainant was given an opportunity to respond to the statements of the Manager and Assistant Manager dated the 13th May 2021. There was no disciplinary hearing. The Respondent’s Board of Management met on the 15th May 2021 and the decision was made to dismiss the Complainant which was communicated to the Complainant by letter dated the 18th May 2021. There was no mention of the right of appeal. The Manager accepted under cross examination that whilst the Respondent indicated that it would carry out an investigation in accordance with its disciplinary procedure, the Respondent effected the Complainant’s dismissal without recourse to the disciplinary procedure and without interviewing the Complainant.

In view of the above I have to conclude that the procedures which were utilised by the Respondent in deciding to dismiss the Complainant were flawed and were not in accordance with the principles of natural justice or , S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).  I therefore find that the dismissal was procedurally unfair.

REDRESS

I canvassed the views of the Complainant and the Respondent at the hearing and note that the Complainant’s stated preference was for compensation.

Section 7(2) of the UD Act requires that I consider the measures adopted by the Complainant to mitigate her loss and the extent to which the conduct of the Complainant contributed to the dismissal.

In Sheehan v. Continental Administration Co Ltd UD 858/19997 the Employment Appeals Tribunal considered the efforts to mitigate in pursuant to Section 7(2)(c) of the UD Act. In the judgement it was held:

“A Complainant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.

… The time that a Complainant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

Section 7(1)(c)(ii) of the UD Act provides as follows:

 “If the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances”

Section 7(2)(f) of the UD Act provides that in determining the amount of compensation payable under Section 7(1) regard shall be had to “the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

I find that the conduct of the Complainant contributed significantly to the circumstances that led to her dismissal. The Complainant gave evidence that she had not worked since her dismissal. She did not produce any evidence of her attempts to mitigate her losses and from the 9th November 2021 she receipt of illness benefit. Having considered the Complainant’s evidence I find that the Complainant has not made reasonable efforts to mitigate her loss.

For the reasons set out above I decide that whilst there were substantial grounds justifying the Complainant’s dismissal the procedures utilised by the Respondent were flawed and consequently, I decide that the Complainant was unfairly dismissed and the complaint is well-founded.

I find that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that the Complainant was being paid a gross weekly wage of €441.00 by the Respondent at the material time of her dismissal. From the 9th November 2021 the Complainant was in receipt of Illness Benefit and I note that the Complainant remains unfit for work to date. I find that in circumstances where the Complainant is unfit for work due to ill health, no loss accrues under the UD Act from the 9th November 2021.

In assessing the level of compensation to be awarded I find that the Complainant contributed significantly to her dismissal and that her evidence as to the efforts she made to seek employment following her dismissal confirms that it was inadequate and represents a failure to mitigate loss as required by the statute and the above authority. In accordance with Section 7(1)(c)(ii) of the UD Act where no loss accrues, the maximum compensation payable to the complainant is four weeks’ gross pay as is just and equitable having regard to all the circumstances.

Taking all these factors into account and for the reasons set out above, I consider it just and equitable in all the circumstances to award the Complainant compensation in the sum of €220.50.

Unfair Dismissal Acts 1977-2021 - misconduct – conduct outside of the workplace - substantive and procedural fairness – mitigation of loss - failure to mitigate loss