Complainant

Respondent

Parties

Anne  Millar

Irish Aviation Authority

Representatives

Paul Moyer, Ellen Brennan - Fórsa Trade Union

Ann Marie Ward, Employee Relations Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00047291-001

22/11/2021

The Complainant commenced her employment with the Respondent on 17th January 1994 as a Service Attendant. She was dismissed on 26th July 2021. At the time of her dismissal, she was paid €703.85 gross weekly.

The Complainant referred her complaint to the Director General of the WRC on 22nd November 2021 alleging that she was unfairly dismissed. The Respondent denies the claim.

The Complainant was represented by Mr. Paul Moyer and Ms. Ellen Brennan of Fórsa. She was accompanied by her husband.

The Respondent was represented by Ms. Ann Marie Ward, Employee Relations Manager, Mr. David Usher, Head of Customer Relations, Mr. Ray Whitsell, Head of Operations, and Mr. David Winship, Head of Operational Engineering.

The Respondent submits as follows.

The Complainant was employed as a Services Attendant to carry out cleaning duties at in North Atlantic Communications (NAC) premises of the Respondent. Cleaning services were provided at NAC through a combination of on-site services provided by the Complainant directly and through the use of outsourced cleaning services. The Complainant commenced employment on 17 January 1994 and was the only cleaner directly employed by the IAA since its establishment.

The Complainant reported to the Head of Engineering, David Winship. Mr Winship is not based in NAC, he is based at another IAA’s centre but he regularly attends that location. The cleaning services in NAC are overseen by the Head of Operations in NAC, Ray Whitsell on a day-to-day basis.

On 20th July 2018, the Complainant was advised that she was required to attend a disciplinary hearing relating to her work performance. A copy of the invitation letter was exhibited at the hearing. The Complainant had previously been informally advised of issues relating to her work performance and it had been explained to her on a number of occasions from July 2017 what was expected of her in carrying out her duties and the consequences if she continued to fail to meet required standards.

The Complainant was provided with details of the issues with work performance and timekeeping and of the occasions where these had been brought to her attention during the period July 2017 to July 2018 in advance of the disciplinary hearing. A copy of the spreadsheet detailing the issues was exhibited at the hearing. The Complainant was advised that her line manager Mr Winship, would be conducting the hearing and that Ray Whitsell, who supervised the cleaning services on a day-to-day basis would be in attendance. The Complainant was advised that she could bring a trade union representative or a work colleague to the disciplinary hearing which was scheduled to take place on 22nd August 2018.

At the hearing it was confirmed to the Complainant that Mr Winship, as her line manager, was the decision maker and Mr Whitsell was present to take notes of the hearing and to provide her with any clarifications or to answer any questions that she may have regarding the allegations which had been put to her as the manager who supervised cleaning services on a day-to-day basis.

Mr Winship reminded the Complainant of her right to be accompanied. The Complainant advised that her union official was not present as they believed it not important enough to warrant attendance. She did not seek a postponement of the hearing to request representation. The details of the issues with her performance and timekeeping, which had been given to her in advance, were discussed in detail at the hearing and the Complainant was given every opportunity to provide any explanations or mitigations in her defence. A copy of the note of the meeting was exhibited at the hearing.

On 31st August 2018 the Complainant was issued with a sanction of a Written Warning, the second stage of the disciplinary procedure. A copy of the outcome letter was exhibited at the hearing. It was confirmed that the decision to issue a sanction at the second stage related to the number of informal warnings she had received previously and her failure to address poor performance. In coming to the decision, the mitigations put forward by the Complainant were considered fully by Mr Winship. It was confirmed that the sanction would remain on the Complainant’s file for a period of 12 months in line with the disciplinary Policy & Procedure and she was advised of her right to appeal the decision. The Complainant did not lodge an appeal.

On 25th June 2019 the Complainant was requested to attend a further disciplinary hearing following a continuation of the same issues identified previously. A copy of the invitation letter was exhibited at the adjudication hearing. In advance of the hearing the Complainant was provided with details of the issues identified and the discussions held with her since she was issued with the Written Warning on 31st August 2018. It was confirmed to the Complainant that her line manager Mr Winship would be conducting the hearing, accompanied by Mr Whitsell and Ann Marie Ward, Employee Relations Manager.

The disciplinary hearing was held on 27th June 2019. In the first instance it was noted that the Complainant was not represented. The Complainant advised that her representative was not available to attend the hearing and Ms Ward advised that the hearing could be postponed, to facilitate the attendance of her representative. The Complainant declined, and Ms Ward reminded the Complainant of the serious nature of the hearing as she was already in receipt of a Written Warning and asked again did the Complainant wish to postpone the hearing to allow for representation. The Complainant again declined, and Ms Ward confirmed that this would be noted for the record.

The Complainant was advised that Mr Winship was the decision maker, Mr Whitsell was present as the person who supervised the Complainant’s day to day activity and Ms Ward’s role was that of a notetaker and to advise on the disciplinary policy and procedure.

At the hearing the Complainant was advised that since the written warning had issued in 2018 the behaviour which had given rise to the disciplinary sanction had regressed. The details of the issues with her performance and timekeeping which had been given to her in advance, were discussed in detail at the hearing and the Complainant was given the opportunity to provide any explanations or mitigations in her defence.

On 4th July 2019 the Complainant was issued with a sanction of a Final Written Warning. The Complainant was advised of her right to appeal the sanction. A copy of the outcome letter was exhibited at the hearing. In coming to his decision, her manager Mr Winship, took cognisance of the factors put forward in mitigation by the Complainant. No appeal was lodged. The sanction remained on the Complainant’s file for 24 months in line with the Disciplinary Policy and Procedure.

On 8th October 2020 the Complainant was advised that she was required to attend a disciplinary hearing on 15th October 2020 in relation to her continued underperformance and poor timekeeping. Details of the issues and discussions held with her since she was issued with a Final Written Warning on 4 July 2019 were provided to her in advance of the hearing. Copies were provided at the hearing. She was strongly advised to have representation at the hearing in light of the potential consequences to her employment should the allegations be upheld. The Complainant was advised that her line manager Mr Winship would be conducting the hearing accompanied by Mr Whitsell and Ms Ward. It was confirmed that the hearing would be held in line with Covid -19 restrictions.

On 13th October 2020 Ms Ellen Brennan, Assistant General Secretary Fórsa made contact to confirm she was representing the Complainant. Ms Ward provided Ms Brennan with details of all the relevant documents from 2018 to that date. Ms Brennan requested a deferment of the hearing to allow her to meet with the Complainant and prepare for the hearing, which was granted.

On 19th October 2020 Ms Brennan emailed Ms Ward to advise that she had passed the case to another Fórsa representative, Paul Caffrey, Assistant General Secretary, who would be representing the Complainant and it was agreed to re-schedule the hearing to take place on 2nd November 2020.

On 23rd October 2020 Mr Caffrey advised Ms Ward that he was not prepared to proceed with the hearing until Covid guidelines on disciplinary hearings were agreed with the staff panel.

On 4th January 2021 Ms Ward emailed Mr Caffrey and confirmed the agreement of the staff panel to proceed in line with proposed guidelines which were forwarded to Mr Caffrey and the postponed hearing was again re-scheduled to take place on 16th February 2021.

On 11th February 2021 Mr Caffrey requested a further deferral to facilitate the presence of Ms Brennan at the hearing and this request was agreed to and the hearing was again rescheduled to 24th February 2021.

On 23rd February 2021 Mr Caffrey contacted Ms Ward and informed that he has been advised by the Complainant’s husband that the Complainant would be on sick leave for the next week. A medical certificate was subsequently forwarded to HR and on 5th March 2021 Ms Ward emailed Mr Caffrey and advised that the hearing date would now take place on 11th March 2021 following the Complainant’s resumption to duty on 8th March 2021.

In response Mr Caffrey advised that he would not be available to attend the hearing as he would be on sick leave until 23rd March 2021. Ms Ward requested that the hearing would proceed with Ms Brennan representing the Complainant, however Ms Brennan confirmed that Mr Caffrey had prepared a substantial defence and it was therefore not possible to procced without him.

On 25th March 2021 Ms Ward emailed Mr Caffrey and Ms Brennan requesting their availability to reschedule the hearing which was rescheduled to take place on 20th April 2021.

On 27th March 2021 the Complainant lodged a complaint of alleged bullying by a contracted cleaner under the Respondent’s Respect and Dignity in the Workplace Policy which in line with the Respondent’s policy was forwarded to the HR Director on 15th April 2021. The HR Director responded to the Complainant on 19th April 2021 having found that a number of similarities could be traced back to disciplinary hearings in 2018 and 2019 as the issues raised in the Complainant’s complaint previously formed part of the disciplinary hearings referred to. It was noted that the record of the disciplinary hearings confirmed that the Complainant had been offered the opportunity to respond to all of the reports in the log of events which included complaints from all grades at NAC and external cleaning contractors who had to take on the majority of cleaning despite a shared work scheduled. The record showed that the Complainant had made no allegations of bullying during that process or subsequently. Further the HR Director noted that he was aware that the Complainant had been asked to attend a further disciplinary hearing on 20th April 2021 that had been postponed on a number of occasions and found that:

• there was no substance to the complaint as the matters referred had been addressed with the Complainant previously

• the matter did not correctly fall to be addressed under the IAAs Respect & Dignity in the Workplace policy

• and that on the balance of probabilities, it would appear that the complaint was being made in an attempt to frustrate the pending disciplinary hearing.

A copy of the HR Director’s letter was exhibited at the hearing.

A disciplinary hearing took place via Microsoft Teams on 20th April 2021. At the outset of the hearing Mr Caffrey stated that complaints from the contracted employee should not have been included and that as a result he did not consider the disciplinary process to be fair. He stated that he had legal advice which stated that as Fórsa did not consider that the IAA were following fair process that the case should be terminated and therefore Fórsa would not engage further in the hearing.

It was noted to Mr Caffrey that while there were specific complaints referencing the contracted cleaner, that these complaints were also witnessed by other NAC staff including the Head of NAC Operations who was present at the hearing. It was also noted that details of the complaints had been provided to the Complainant since 2018 and to Fórsa some 6 months prior to the hearing (on 8th October 2020) and that no concerns regarding the disciplinary process had ever been raised. Mr Caffrey requested a break to confer with Ms Brennan and the Complainant and the hearing was suspended for 20 minutes to facilitate the request.

When the hearing re-convened the Complainant was not present, and Mr Caffrey reconfirmed that they would not participate further. Ms Ward advised Mr Caffrey that his concerns had been noted however the hearing would continue and strongly advised the Union to engage to give the Complainant the opportunity to present to the decision maker any mitigations given the serious nature and status of the disciplinary process and that in the absence of such Mr Winship would be making his decision based on the facts before him. However, Mr Caffrey confirmed that he was withdrawing from the hearing. A copy of the note of the meeting was exhibited at the adjudication hearing.

On 27th April 2021 Mr Winship advised the Complainant of the decision to dismiss her. In coming to his decision Mr Winship confirmed he had considered the issue of procedural fairness raised by Mr Caffrey which related to the decision of the Company to consider complaints raised by a contractor who is not an employee of the Company. In this regard he noted that since the final written warning was issued on 4th July 2019, the log of events and discussions noted 13 separate issues relating to performance standards, non-completion of assigned tasks and poor timekeeping. He noted that there were three occasions where the contract cleaner, who shares the workload, reported issues to the Head of Operations and on all of these occasions reports were made or witnessed by a number of other IAA personnel on site including a Watch Manager and the General Manager. Importantly he noted that the reports made by the contract cleaner where not taken at face value and were subsequently validated by the Head of Operations who was present at the hearing.

It was also noted that the details of the reports were known to the Complainant and her representative for 6 months and no procedural issues had been raised, despite the number of postponements requested by the Complainant’s representatives.

The Complainant was advised of her right to appeal the decision and notified of the requirement to advise the grounds of the appeal within 14 days of being notified of the decision. In addition, and notwithstanding the right of appeal, the Complainant was advised of the right to make a precursor appeal to the HR Director within 7 days of being notified of the decision. The Complainant was suspended without pay from 28th April 2021 pending the outcome of the appeal process in line with the Disciplinary Policy & Procedure from 28 April 2021. A copy of the letter was exhibited at the hearing.

On 3rd May 2021 Mr Caffrey lodged a letter of appeal to the HR Director and on 4th May the HR Director wrote to Mr Caffrey to clarify whether a precursor appeal was being sought and if this was the case to provide his availability so that the appeal could be heard.

On 19th May 2021 the HR Director again wrote to Mr Caffrey and advised that as he had received no response, he was assuming that a precursor appeal was not being sought and he would therefore pass the details to the Chief Executive for final appeal. On 24th May Mr Caffrey confirmed a precursor appeal was being sought and the appeal hearing was scheduled for 9th June 2021.

On 11th June 2021 the HR Director confirmed the decision to dismiss was being upheld following the precursor appeal. A copy of the outcome letter was provided.

On 17th June 2021 Mr Caffrey lodged a final appeal with the Chief Executive who advised Mr Caffrey on 6th July 2021 that he had nominated Mr David Usher, Head of Customer Relations & Commercial Development, to hear the appeal.

The final dismissal appeal hearing took place on 14th July 2021 and on 26th July 2021 Mr Usher issued his decision not to vary the decision to dismiss the Complainant. In coming to that decision Mr Usher gave detailed and considered reasons for his decision which is outlined in the 9 page letter confirming the decision that was exhibited at the adjudication hearing.

RESPONDENT’S POSITION

As is clear from the aforementioned, the Respondent has at all times followed its Disciplinary Policy & Procedure. The Complainant was afforded every opportunity to improve her performance during the period from 2017 when issues with her work performance and timekeeping were first brought to her attention until she was dismissed on 28th April 2021. What became apparent was that the Complainant would show some improvement after the issuing of a disciplinary sanction which was followed by a regression to the same poor work performance and timekeeping issues. Fórsa put forward the following arguments in relation to the Complainant’s dismissal:

Breach of Governing Policy

Fórsa, on behalf of the Complainant, contends that the IAA has breached its own procedure and that the procedures are not fit for purpose.

The IAA’s Disciplinary Policy and Procedure is aligned with fair procedures and with the Code of Practice on Grievance and Disciplinary Procedures (SI NO 146 of 2000). The policy has been agreed with the trade unions’ representatives, including Fórsa.

Mr Moyer refers to UD367/88 Gearon v Dunnes Stores where the EAT held ‘the right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat of her employment is a right of the complainant and is not a gift of the respondence or this Tribunal… As a right is a fundamental one under Natural and Constitutional justice, it is not open to the Tribunal to forgive its breach.’ The Complainant has been afforded every opportunity to advance a defence at all stages in the disciplinary process since 2017 when her poor work performance was first brought to her attention until the decision to dismiss was taken in April 2021. She was provided with full details of the allegations against her in advance of all of the disciplinary hearings and her explanations and any mitigations put forward were considered fully in reaching a decision at all stages of the disciplinary process. The Complainant was afforded procedural fairness and the IAA complied fully with its Disciplinary Policy.

Governing Policy Unfit for Purpose

Fórsa on behalf of the Complainant put forward the argument that the IAA are not following Civil Service guidelines or policy.

The IAA is not part of the Civil Service, it is a semi-State commercial company and has in place its own policies and procedures, including its own Disciplinary Policy, all of which are agreed with its trade unions which include Fórsa. The Complainant is not a Civil Servant, nor does she work or has she ever worked for the Civil Service, her role with the IAA as a Services Attendant is not aligned in any way to the role of Services Attendants in the Civil Service. The Complainant’s role is to provide cleaning services at the IAA’s North Atlantic Communications Centre.

Administrative Leave

Fórsa have stated that it is unfair an employee is suspended without pay where a decision to dismiss has been made (pending appeal) whereas an employee is placed on paid administrative leave if there is an accusation of gross misconduct.

The IAA’s Disciplinary policy differentiates gross misconduct from other disciplinary matters. The policy provides that an allegation of gross misconduct carries a sanction of summary dismissal without notice or pay in lieu of notice. Where such an allegation is charged against an employee the employee is placed on paid administrative leave pending an investigation into the allegation. This is differentiated from other disciplinary matters where an employee has progressed through the various stages of the disciplinary process over a period of time as has occurred in the Complainant’s case. Concerns regarding the Complainant’s work performance were first brought to her attention in 2017. In such cases the employee has ample opportunity to improve their performance and is on notice of the consequences of failure to improve.

The Disciplinary Policy provides that in the event the decision is overturned at appeal that the employee will be re-instated and granted full pay for the period of the unpaid suspension. In the Complainant’s case the decision to dismiss was upheld on appeal.

Fórsa also cite the High Court finding in the case of The Governor and Company of the Bank of Scotland and James Reilly (2015 IEHC 241) where Mr Justice Noonan dealt with the potential impact of suspension (paid or unpaid) on a person’s reputation. Fórsa state that suspending the Complainant has caused irreparable damage to her reputation and standing. In the aforementioned case the employee was suspended while an investigation was being conducted, in the Complainant’s case the suspension which is provided for in the Disciplinary Policy, occurred after the decision to dismiss had been reached.

No Underperformance Policy

The Complainant’s performance in her role was the subject of concern from 2017 and this was brought to her attention on many occasions by her line manager Mr Winship and by Mr Whitsell who supervised her work on a day-to-day basis. The Complainant’s failure to improve her performance resulted in the matter being addressed through the formal disciplinary process from 2018 until the decision to dismiss was made in April 2021. The IAA has a Managing Performance and Development Process in place and during the period 2018 to 2020 the Complainant was consistently given a rating of ‘Opportunity for Improvement Exists’ due to her continuing underperformance. The Complainant advised her manager that she did not accept this rating and would not sign off on the ratings.

Final Disciplinary hearing

Fórsa, on behalf of the Complainant, contends that the IAA had already made the decision to dismiss prior to the hearing. That is simply not true. The Complainant was advised of the seriousness of the allegations having regard to earlier disciplinary sanctions issued to her since 2018 and as she was in receipt of a final written warning. Fórsa contents that there was a lack of proper investigation and refers to a WRC case of A Special Needs Assistant and a National School where a reference was made to a Labour Court Decision UDD1739. In this case the Court found that the investigation undertaken was not comprehensive enough to provide a basis for the conclusions drawn. The facts of this case differ from the Complainant’s case. In the case of the Special Needs Assistant an investigation was launched following the receipt of a complaint of bullying and harassment from the parents of a child with special needs which gave rise to child protection procedures being instigated which required an investigation. In the Complainant’s case her work performance was being monitored as it did not meet the standards expected and she was advised of this initially informally on a number of occasions in 2017 and subsequently formally when there was no improvement noted. Ms. Millar was provided with full details of all of the concerns regarding her work performance and timekeeping, and she was aware that she was being monitored under the disciplinary process. There was no investigation required.

Fórsa, on behalf of the Complainant, has stated that Mr Whitsell was prejudiced and biased in relation to the Complainant referring to an email dated 19 July 2018 from Mr Whitsell to the Complainant’s Manager, Mr Winship. Mr Whitsell oversees the cleaning at the centre on a day to day basis. He witnessed and reported the issues with the Complainant’s performance to her manager (Mr Winship) and to the Complainant over a prolonged period of time from July 2017. However, despite these issues being brought to the Complainant’s attention there was no improvement. Mr Whitsell was not the decision maker in the disciplinary process, he was present at the hearings to answer any questions and provide any clarifications the Complainant might seek to the allegations against her and the Complainant had been provided with full details of the allegations in advance of each hearing.

Precursor and CEO Dismissal Appeal

The main points raised by Fórsa on behalf of the Complainant at the Precursor and Final Appeal have been dealt with above.

Fórsa also contend that Mr Usher did not correctly deal with the points made by Fórsa at the hearing in relation to the items outlined in the 29 point document which outlined the issues relating to the Complainant’s poor work performance and timekeeping. This is not correct, in his letter to the Complainant following the Appeal Hearing Mr Usher goes into detail on his rationale and conclusions in respect of each of the points put forward by Mr Moyer at the Appeal Hearing.

Fórsa also contend that Mr Usher did not correctly consider the mitigations put forward at the Appeal hearing. On the contrary Mr Usher fully considered all of the mitigations put forward and this is also clear in Mr Usher’s deliberations on the factors put forward in his letter to the Complainant following the Appeal Hearing.

The Complainant’s Submission to the WRC

The Complainant in her submission to the WRC dated 7th and 8th December 2021 has stated that she was not present at the disciplinary hearings in 2018 and 2019 and she has advised that she is prepared to swear to this on oath. This statement is blatantly untrue and of particular concern to the Respondent. The hearings were attended by her manager Mr Winship and her day-to-day supervisor Mr Whitsell on both occasions and by Ms Ward at the second hearing in 2018. It is a fact that the Complainant attended both of these hearings as was witnessed by the aforementioned. Notwithstanding that any of the personnel can equally swear that the Complainant attended both hearings it is clear that responses provided by the Complainant at the hearing included personal data which would not have been known to those in attendance at the meeting and is recorded in the notes of both meetings. Indeed, the Complainant later relied on the details of the complaints against her to lodge an allegation of bullying in April 2021.

Fórsa, on the Complainant’s behalf, have sought that in the event the dismissal is deemed to have been unfair that the Complainant is reinstated by way of compensation. It is clear from the above mentioned that there is a serious breach of trust and confidence in the working relationship where the Complainant is blatantly lying in her contention that there was no disciplinary process prior to the hearing in April 2021.

CONCLUSION

The Respondent denies the Complainant’s claim that she was unfairly dismissed. The Complainant had been repeatedly advised that her work performance and timekeeping were not meeting the required standards since 2017 and she was advised what was required of her. In addition, the Complainant was reminded of the consequences if she continuously failed to meet the expected standards. On the basis of the foregoing the IAA seeks that the complaint be dismissed.

At the adjudication hearing, Ms. Ward made the following comments with respect to the Complainant’s submission.

The Respondent has a Performance and Attendance Policy, the process was run in parallel with the disciplinary process. The Complainant was informed that her performance was being monitored. All details were provided to her in advance of the hearing.

Ms. Ward said that Mr Whitsell had no role in decision making, he attended the meetings to take notes and answers any questions the Complainant might have had regarding the allegations.

Ms. Ward pointed out that there has been no reference previously to the Complainant not being present at the meetings. On 14th July 2021 the Complainant did not raise the issue, she could have said that she was not in attendance at the previous meeting. It was never raised before that she did not attend. Ms. Ward said that both witnesses for the Respondent confirmed that the Complainant attended the meetings, Ms. Ward herself attended meetings on 27th June 2019 and 20th April 2021.

Ms. Ward clarified that, as the Complainant didn’t have an email address, the letters were hand delivered to her.

Regarding an alternative sanction at appeal stage, Ms. Ward said that the Complainant had every opportunity to make improvement, but the same issues were arising all the time.

Direct evidence and cross examination of the witnesses for the Respondent

Mr Winship, Head of Operational Engineering confirmed that both he and Mr Whitsell attended the hearing in 2018. He said that minutes and the outcome letter were given to the Complainant. It was put to him that the Complainant maintains that she did not attend the meeting. Mr Winship confirmed that draft minutes were not sent to the Complainant for her observations, but he personally handed the minutes and the outcome letter to the Complainant.

It was put to Mr Winship that the contracted cleaner who made complaints against the Complainant had vested interest in doing so. Mr Winship said that the Complainant got the list, evidence of issues over many years and not the contractor’s complaint only. Mr Winship confirmed that the contract cleaning company did not make a complaint in writing. It was clarified that the Complainant was offered the opportunity to call witnesses.

Mr Winship said that at a performance meeting, the performance of a staff member is discussed, there is an opportunity to give feedback, staff can also put feedback in the form, and the form is signed off. Mr Winship conducted the PMDS. It was introduced in 2013. There were three grades: opportunity for improvement exists, meets expectations, and exceeds expectations.

Mr Winship asserted that the spreadsheet with the complaints, comments, etc. was given to the Complainant, and it was clarified to her that it was not Mr Hobb who made the complaint about her performance.

Mr Whitsell, Head of Operations said that he was not prejudiced because he wrote to Mr Winship. He said that he wrote to start a disciplinary process, he suggested a disciplinary procedure and provided reasons for it. He said that the word “action” is not a “sanction” as Fórsa claims but a “process”.

Mr Whitsell said that he supervised the area the Complainant cleaned, and he could observe the issues, and he would have got complaints from staff. He said that the Complainant had a defined job description, there was no ambiguity as to the division of work between the Complainant and the contracted cleaner. The Complainant was accountable for specific jobs, all had to be signed off. On the basis of the complaints from staff and the contracted cleaner he had meetings with the Complainant. He said that the Complainant was at both meetings. He was there only to answer any questions she might have had and to take notes. Mr Whitsell confirmed that he did not observe CCTV.

Mr Whitsell was asked by Fórsa how he manages underperformance in the absence of an underperformance policy. Mr Whitsell explained that there is a scheme to deal with it, there is a performance review carried out at the start, mid-year and at the end of each year.

Mr Whitsell clarified again that Mr Hobb was incorrectly named as one the complainants about the Complainant’s performance, in fact it was Mr Quinn, and this was corrected. 

Mr Whitsell said that his primary job is to look after people and that he offered the Complainant Employee Assistance Programme.

Fórsa, on behalf of the Complainant submits as follows.

The Complainant was employed as a Services Attendant in the Irish Aviation Authority. Despite a final appeal, the Complainant was dismissed from her position as a Services Attendant on the 26th July 2021, following a disciplinary process.

The reasons for the dismissal were contained in a letter of the 27th April 2021. The letter stated that the reasons for the dismissal were: “In line with the Disciplinary policy and procedure an employee who has previously received a final written warning which is still current will be dismissed if they fail to show sufficient improvement in that aspect of their past performance, conduct or attendance subsequent to the final written warning. It is clear to me from all of the foregoing that you have failed to show sufficient improvement in your performance and timekeeping and therefore I have come to a decision that you should be dismissed.”

It is contended that the Complainant’s dismissal is a breach of both the governing IAA Disciplinary Policy & Procedure and Statutory Instrument 146 of 2000. It is also contended that the IAA disciplinary policy is unfit for purpose. It is also noteworthy that, although this matter was treated as an underperformance issue, there is no underperformance policy in the IAA.

Breach of governing policy

Section 6 of the policy notes the following.

“Where the disciplinary procedure is invoked the employee shall have the following entitlements –

·        The right to receive all details of the matters in respect of which disciplinary action is being considered in advance of the disciplinary hearing.

·       The right to respond to the allegation(s) prior to any disciplinary decision being made. This may involve a disciplinary hearing being adjourned to consider representations made by or on behalf of an employee.

·       The right to representation by a trade union official / fellow employee at all stages of the procedure.

·       The right to be advised of the outcome of a disciplinary investigation.

·       The right of appeal against any disciplinary sanction issued by the Authority.”

Although it notes the Complainant has the right to be advised of the outcome of a disciplinary investigation, there is no provision in the policy for investigations as part of the disciplinary process.

It is a fact that the Complainant was being investigated without her knowledge, when Mr Whitsell actively accepted and encouraged alleged complaints from Watch Managers and a cleaner employed by the external cleaning contractor, who was keeping a log of alleged incidents that she gave to Mr Whitsell.

It is noted that the Complainant is the last remaining Services Attendant in the IAA. All other such positions are now filled by way of an outsourced arrangement. The Complainant has been the subject of a number of complaints by a manager and employee in the outsourced company since 2017. It was raised at disciplinary meetings that the contracted cleaner had a vested interest in providing alleged complaints as the Complainant’s Service Attendant position was the last remaining non-contracted position, which it was clear the contractor were seeking to obtain. There was an agreement in 2002 which saw that all Services Attendants would be replaced by a contracted position when they leave or retire. That cleaner was also the subject to a complaint by the Complainant for bullying, which it appears the IAA did not pursue. These complaints started in 2017 when the particular contracted cleaner started, and correlate with that person bringing complaints against the Complainant regarding her work.

It is a fact, the Complainant’s managers, Mr Ray Whitsell and Mr Dave Winship, were witnesses to the alleged underperformance, conducted the disciplinary meetings and Mr Winship became the decision maker throughout the process.

With regard to being witnesses, there is a clear bias on their part as they should not have been part of the disciplinary process. It should have been independent senior managers assigned in line with the IAA Disciplinary Policy & Procedure.

The WRC decision ADJ-00024262 A Special Needs Assistant v A National School is relevant to the Complainant’s case with regard to witnesses being part of the decision-making process being bias. The Adjudication Officer in that case found that “that the person leading the investigation was not impartial and acted as a witness against the claimant”, she noted the following: “The requirements of an employer in relation to the matter of giving adequate consideration to an employee’s defence are set out in UD367/88 Gearon v Dunnes Stores Ltd. The Tribunal found that “The right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat of her employment is a right of the claimant and is not in the gift of the respondent or this Tribunal…. the right is a fundamental one under natural and constitutional justice, it is not open to this Tribunal to forgive its breach”.

Mr Whitsell’s email of the 19th July 2018 to Mr Winship (exhibited at the adjudication hearing) further shows prejudice on his part. Before an invite to a disciplinary meeting was sent on the 20th July 2018, which resulted in a Written Warning to the Complainant he states: “It is imperative now that some form of disciplinary action is initiated…”

The outcome letter of that disciplinary meeting clearly notes dates that the Complainant is alleged to have been issued with 5 informal warnings. Mr Usher notes:

“In this context, Mr Winship refers to five occasions on which issues of underperformance were brought to your attention in an informal manner, along with warnings that an improvement was expected. These informal approaches were not recorded on your personal file, evidence that they were treated as informal by the IAA”.

If they were in fact informal, and not recorded on the Complainant’s file, how could Mr Winship use them as evidence to issue the Complainant with a Written Warning?

The Complainant received an invite letter from Mr Winship on the 25th June 2019 to attend a disciplinary meeting which was conducted on the 27th June 2019. The outcome of that disciplinary meeting resulted in the Complainant receiving a Final Written Warning.

At both disciplinary meetings the Complainant did not have union representation, and although Ms Ward offered to postpone the meetings, the Complainant declined. It is clear that the Complainant did not understand the severity of those meetings, and as such, Ms Ward should have postponed them with regard to duty of care for the Complainant, as management were fully aware of the implications. The Complainant was very vulnerable and management should have postponed those meetings to enable her to get union representation.

There were a ‘Log of Events’ spanning from the 19th July 2017 to the 19th July 2018 where Mr Whitsell refers to many things, including on many occasions, significant improvement in the Complainant’s work. But there are many references to 3rd parties coming to him re their observations of the Complainant. These include the Watch Managers Conor Quinn and Keith Hobby, the contract cleaning company manager, and the contracted cleaner. There is also a reference that duties are shared between the Complainant and contract cleaning company and at no stage did Mr Whitsell seek to establish if the work not carried was attributable to the Complainant or contract cleaning company. It was clear that there was a concerted effort by many people, including Mr Whitsell, to monitor, i.e. investigate, the Complainant without her knowledge. This is unacceptable.

In Mr Usher’s outcome letter upholding the original termination, he notes the following: “With regards to Mr. Moyer’s claims about CCTV, there is no reference in the documentation to indicate that CCTV was used, and I can confirm clarification was sought from Mr Whitsell based on the issues raised at the hearing and he has confirmed that CCTV was not used to monitor you.”

Fórsa is of the opinion that although Mr Whitsell states that CCTV was not used to monitor the Complainant, concerns and unanswered questions remain with regard to whether CCTV footage was shown to Mr Whitsell by any of the complainants. CCTV is used for security and not for the surveillance of employees. If this is the case then it should be viewed as a GDPR breach and an infringement on the Complainant’s rights.

It also must be noted that in his correspondence Mr Whitsell notes the following: “Keith Hobby was mentioned in error in the previous log”.

It is also worth noting that the event log for the 2nd July 2018 entry was also amended to state “…Watch Managers (Conor Quinn/Michael Kirwan….Gary Reid)….”, had made alleged complaints, where the original log stated “…Watch Managers (Conor Quinn/Keith Hobby)….”, had made the alleged complaints. This draws serious concerns regarding the accuracy of documented complaints compiled by Mr Whitsell, which were used against the Complainant throughout this process.

References are also made regarding the cleaning of keyboards, which was in dispute by this union, and the Complainant was instructed to carry out her normal duties in this regard until management officially put the matter in writing that she was not to do these duties.

There are also many references of Mr Whitsell observing the Complainant but at no stage did he talk to her. The Complainant submits that this is poor management on his behalf and clearly shows he was simply seeking to build a log against her for disciplinary action, which ultimately resulted in her dismissal. Effectively, Mr Whitsell was a witness in this case and had an investigation role.

With regard to the Complainant’s work as a Services Attendant, which there are many hundreds right across the Civil Service, it is acknowledged that their work is manual and not procedural. As such work is periodic and not continuous, it is the norm that between tasks, they would be provided with a room or designated area that they can use between tasks. Simply there are times when there is no work to do e.g. you cannot empty, empty bins. It also must be noted that over many years, the Complainant’s duties as a Services Attendant have been eroded by the IAA, where she now appears to be only carrying out cleaning duties. Because of this, the Complainant’s days are not filled with tasks, which resulted in her having down time. The Complainant has always been available for work and has carried out the tasks associated with her role.

Separation between investigator and decision maker

There was certainly bias on the part of Mr Winship who was allowed by the IAA to become judge and jury. In fact, the Labour Court Decision and Determination UDD2125 The Revenue Commissioners v Colm Keane, clearly found in the complainant’s favour against the Personnel Officer of the Office of the Revenue Commissioners for unfair dismissal, who did exactly the same, i.e. there should be a clear separation between the investigator and decision maker.

Surprisingly, this was raised at the appeal hearing but in Mr Usher’s response, he fails to acknowledge the need for a separation between investigation and the decision maker, which he notes the following:

“In this case I am satisfied that there was no such procedural unfairness, that the role of disciplinary decision maker is clearly separated from the appeals process and the IAA’s Disciplinary Procedures were followed in full.”

Mr Winship was part of the investigation as he used what he allegedly witnessed as proof against the Complainant when coming to his decisions to issue Written Warning; Final Written Warning; and dismissal.

Governing policy unfit for purpose

The Complainant is a Services Attendant, a common grade across the civil service. As such, there are clear guidelines set out in Step 2, page 9 to 12 of Circular 19/2016, with regard to fact finding/investigation (one stage or two stage) as well as investigators being identified depending on whether it is a one or two stage process. Fórsa reference this as the majority of Service Attendants are assigned to the Civil Service and their disciplinary process are governed by the referenced circular.

The IAA policy fails to have such procedures in it and therefore violates the very basic tenets of Statutory Instrument 146/2000, which its central theme is that the principles of fair procedure and natural justice should apply in disciplinary cases.

The Complainant was not afforded fair procedure and natural justice due to the governing policy being unfit for purpose.

Furthermore, the IAA governing policy only allows for internal appeals and not external appeals. Circular 19/2016 clearly sets out various streams of appeals i.e. Internal Appeal, External Appeals Officer and the Civil Service Disciplinary Appeals Board. It must be noted that for written and final written warnings, the appellant has two streams of appeal i.e. Internal Appeal, which was afforded to the Complainant, but also an External Appeals Officer, which was not afforded to the Complainant. The IAA policy fails to have such procedures in it and therefore violates the very basic tenets of Statutory Instrument 146/2000, which its central theme is that the principles of fair procedure and natural justice should apply in disciplinary cases.

The Complainant was not afforded fair procedure and natural justice due to the governing policy being unfit for purpose.

Furthermore, it is unclear if those involved in the process i.e. decision maker, precursor appeal decision maker and the appeal decision maker have received appropriate training for these roles. Fórsa would argue that based on the arguments made by way of the precursor letter and meeting, as well at the dismissal appeal, they have not.

It must be noted that the Complainant has been suspended without pay since the 28th April 2021, pending the outcome of an appeal.

Additionally, on foot of that letter dated the 27th April 2021, the Complainant was given 5 minutes to clear her locker and was escorted from the building like a common criminal. No one should be subjected to such demoralising and embarrassing feeling caused by the actions of their employer.

The decision maker used the section ‘Dismissal’ in the governing policy to issue this sanction but this is at odds with how the governing policy deals with dismissals for gross misconduct.

There are examples set out in the section ‘Gross Misconduct’, which are more serious than what the Complainant is alleged to have done, but those alleged to have committed gross misconduct are placed on paid administrative leave pending the conclusion of a disciplinary process.

The High Court finding 2015 IEHC 241 by Mr Justice Noonan in the case The Governor and Company of the Bank of Ireland and James Reilly, is relevant to The Complainant’s case.

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 I.R. 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.”

The decision by the IAA not only to suspend the Complainant, but to suspend her without pay has caused irreparable damage on her reputation and standing.

No Underperformance Policy

The Complainant is a Services Attendant, and within the Civil Service there are clear underperformance guidelines, to help and assist both the staff member and line manager to put in place procedures to deal with perceived underperformance. The IAA do not have such a policy. This means that from the outset in 2018, Mr Whitsell had operated an ad hoc, personal viewed procedure with regard to managing the Complainant’s alleged underperformance. Without clear operational guidelines, the Complainant could not logically correct any alleged underperformance.

Final disciplinary meeting

The Complainant received an invite letter from Mr Winship on the 8th October 2020 to attend a disciplinary meeting on the 15th October 2020, which was postponed on Fórsa’s request due to Ms Brennan, Fórsa seeking to meet with the Complainant and as there had been a change in Fórsa representative for the Complainant. What is noteworthy about this invite letter is that it states:

“If these allegations are upheld, you may be liable to receive a disciplinary sanction of dismissal.”

This is a clear change from the IAA with regard to outcomes noted in previous invite letters, where they state:

“If these allegations are upheld and you are found guilty of misconduct or gross misconduct you may be liable to receive a disciplinary sanction up to and including dismissal.”

 “If these allegations are upheld, you may be liable to receive a disciplinary sanction up to and including dismissal.”

It is clear that prior to a disciplinary meeting being held, and before the Complainant was afforded the opportunity to defend herself, or be afford fair procedure and natural justice, the very basic tenet of Statutory Instrument 146/2000, the IAA had already made its mind up with regard to dismissal even though their own policy states the following under the heading ‘Dismissal’:

“The IAA may in appropriate cases impose an alternative sanction other than dismissal and such sanctions can include (without limitation) unpaid period of suspension, demotion or removal of specific benefits or arrangements.”

Fórsa argue that alternative sanctions could’ve explored rather than dismissal in the Complainant’s case. The IAA failed to do this.

Accompanying that invite letter was a list of alleged events spanning from July 2019 to October 2020.

Mr Caffrey, the then Fórsa representative, received an invite letter from Ms Ward for the Complainant on the 10th February 2021 to attend a disciplinary meeting on the 16th February 2021. This was then rescheduled for the 24th February but was again postponed due to the Complainant and Mr Caffrey being on sick leave.

What is noteworthy about this invite letter it that it was sent to Mr Caffrey, a fulltime official with Fórsa Trade Union, and not the Complainant. The IAA were wrong not to write directly to the Complainant and therefore are in breach of their own policy. Fórsa did not have a copy of the January 2021 agreement regarding disciplinary meetings being remote due to Covid, but a copy of the eConfidentiality agreement was provided at the hearing.

Mr Caffrey received an invite letter from Ms Ward for the Complainant on the 14th April 2021 to attend a disciplinary meeting which was conducted on the 20th April 2021. Again, what is noteworthy about this invite letter it that it was sent to Mr Caffrey, a fulltime official with Fórsa, and not the Complainant. The IAA were wrong not to write directly to the Complainant and therefore are in breach of their own policy

Fórsa submits that Mr Caffrey, on foot of legal advice, communicated that the union did not consider the IAA were following fair process, and the case against the Complainant should be terminated. As management were not willing to terminate the case against the Complainant, following a break, Fórsa withdrew from the process. Mr Winship, in the absence of Fórsa and the Complainant, continued with the process, concluding that the Complainant should be dismissed, but would be suspended without pay pending the outcome of an appeal. Mr Winship notes the many people who were making alleged complainants against the Complainant, but most notably two of those witnesses were himself and Mr Whitsell. This is a clear bias on their part coupled with the fact that Mr Whitsell prejudiced the process with his comments in the email of 19th July 2019.

It is also clear that Mr Whitsell and Mr Winship never investigated the allegations made by others, and it appears they actively encouraged the covert compiling of alleged incidents. They never question the vested interest the contract cleaning company had or the complaint of bullying the Complainant made about the contracted cleaner. They never investigated it as their own IAA policy does not provide for it. This is a failing of the process and violates the very basic tenets of Statutory Instrument 146/2000.

The WRC case ADJ-00024262 A Special Needs Assistant v A National School is also relevant to the Complainant’s case with regard to the lack of proper investigations and bias.

With regard to the lack of proper investigations the Adjudication Officer make reference to the Labour Court Determination UDD1739, where she notes:

“These principles are consistent with the findings of the Labour Court in UDD1739 where it was determined as follows: “The Court therefore finds that the investigation undertaken by the respondent was not comprehensive to the degree that the outcome could be assured to provide a basis for conclusions to be drawn on the balance of probabilities following the conduct of the Respondent’s disciplinary process…………………………The Court has found that the investigation was not comprehensive …….Consequently the Court must conclude that it was not reasonable for the Respondent to reach a decision to dismiss the Appellant in the absence of a comprehensive investigation of relevant facts and events”.

With regard to bias, the Adjudication Officer found that comments made by the Principal in that case were bias. It is clear the comment made by Mr Whitsell in his email of 19th July 2018 not only was prejudiced but was also biased when, prior to any disciplinary meeting, and before the Complainant had the chance to defend herself with regard to the allegations, he said to Mr Winship “It is imperative now that some form of disciplinary action is initiated….”

Precursor and CEO Dismissal Appeals

Mr Caffrey wrote to Mr Brendan Mulligan, HR Director, on the 1st May 2021 setting out the reasons for a Precursor Appeal and the reasons why Fórsa felt there were violations of the very basic tenets of Statutory Instrument 146/2000, resulting in fair procedures and natural justice not being afforded to the Complainant.

All of the matters raised by Mr Caffrey have been covered in this submission so far bar the one that Mr Winship had conducted interviews with the contracted cleaner and Mr Paul O’Shea on the 9th September 2020. Mr Caffrey noted that the Complainant was not provided with the documentation or the statements collected at those interviews. The Complainant had the right to know the information collected and should have been given the opportunity to comment upon any reports or documents used in reaching a decision.

A Precursor Appeal meeting was held on the 9th June 2021. It is clear from the minutes that Mr Caffrey raised the matters set out in his letter of the 1st May 2021 to Mr Mulligan. Mr Mulligan’s findings were relayed to Mr Caffrey in a letter dated 11th June 2021, some two days later, which seems an extremely short timeframe to consider the matters raised.

Mr Caffrey wrote to Mr Peter Kearney, Chief Executive Officer, on the 15th June 2021 setting out the reasons he was appealing the dismissal of the Complainant. On foot of this letter to the CEO, Mr Mulligan wrote to Mr Caffrey on the 6th July 2021, informing him that a dismissal appeal would be conducted by Mr David Usher, Head of Customer Relations & Commercial Developments, on the 14th July 2021, who had been nominated by the CEO under the IAA Disciplinary Policy and Procedures.

As Mr Caffrey had now retired, Mr Moyer attended the dismissal appeal meeting on the 14th July 2021. Mr Moyer raised the concerns Mr Caffrey had already raised with regard to the breaches of the disciplinary process, and additional concerns regarding fair procedures and natural justice not afforded to the Complainant.

Mr Moyer made particular reference to many items contained within a 29 point document given to the Complainant in October 2020, as part of mitigating evidence. Unfortunately, Mr Usher felt that with all the mitigating evidence before him, including the improvements made by the Complainant, and the detailed violations of the very basic tenets of Statutory Instrument 146/2000, he found no basis to vary Mr Winship’s decision on the 27th April 2021, to dismiss the Complainant. In Mr Usher’s outcome letter, he makes reference to the following mitigating evidence presented at dismissal appeal meeting. House break in, medical issues – menopause and sleep apnoea , husbands’ medical issues, loss of a brother.

House break in – It is unfair on Mr Usher to say that although the Complainant’s house was broken into in February 2019, it wasn’t until the 11th April 2019 before a deterioration in her alleged performance had been noticed. As with many cases of break in the person may not be initially affected by it but over a short time, it can. Mr Usher was wrong not to accept this as a mitigating reason.

Medical issues – It is unfair for Mr Usher to note that Occupational Health had confirmed the Complainant had been receiving appropriate medical treatment. In fact, the only mention of a review by Occupational Health was in the outcome letter dated 4th July 2019 and minutes of the disciplinary meeting held on the 27th June 2019, where it noted that reviewed had been conducted in May 2019, a mere month before the disciplinary meeting. It must be noted that the Complainant was being presented at that disciplinary meeting with alleged incidents spanning from the 22nd August 2018 to the 27th June 2019, and it would be logical to conclude that the Complainant’s health and medication should have been accepted as mitigating reasons as she had only been deemed by the Occupational Health to be receiving appropriate medical treatment one month prior to the disciplinary meeting, which cannot be assumed for the prior dates, which was the Complainant’s contention. Furthermore, at all of the disciplinary meetings and the dismissal appeal meeting, management noted that if the Complainant was attending work that they can only assume she was fit for work. At no stage did they seek to explore these medical mitigating factors by referring her back to Occupational Health for a medical opinion as management are not medical specialists or practitioners. Mr Winship and Mr Usher were wrong not to accept this as a mitigating reason.

Husbands’ medical issues – it is unfair and wrong of Mr Usher to state that it was the Complainant’s responsibility to mention this as mitigating disciplinary meetings and as she did not then he was not considering it as a mitigating reason. That is the point of a dismissal appeal, where points are argued again and any additional mitigating reasons presented. In the minutes of that dismissal appeal meeting, Mr Moyer noted that the Complainant could not approach her managers with any issues she was having as Mr Winship only spoke to her when he had something to complain about and Mr Whitsell didn’t speak to her at all. Mr Usher was wrong not to accept this as a mitigating reason.

Loss of her brother – Mr Usher notes that the Complainant had not mentioned this tragic situation to anyone in the IAA or prior to her appeal hearing on the 14th July 2021. He goes further to say that the IAA was not aware that her brother had died and that she was receiving counselling. It is true to say that they were not aware of the counselling, but as it was explained at the dismissal hearing, she was in a situation where she could not speak to her managers with regard to seeking a private area in the building to speak with the counsellor, which resulted in her having to make calls from her car in the car park. This is unacceptable for any person to be reduced to doing this. Mr Usher was wrong not to accept this as a mitigating reason. It must be noted that the Complainant’s brother died of complications resulting from Muscular Dystrophy, and not Covid as stated at the dismissal appeal meeting. This was a mistake on Fórsa part, but the Complainant could not visit him because of Covid and was subjected to Covid restrictions for his funeral. All of this was very upsetting for her. It is not true for Mr Usher to say that no one in the IAA were aware that her brother had died. The following are the facts which is clear the IAA were aware of her brother’s death. The Complainant applied for, and was granted 4 days compassionate leave from 14th July 2020 to the 17th July 2020 and returned to work on 20th July 2020. On the 20th July 2020, Mr Whitsell offered his condolences to her and gave her a letter from HR. On the 21st July 2020, Mr Winship offered the Complainant his condolences. Other staff also offered their condolences at that time. Mr Usher was wrong not to accept her bereavement as a mitigating reason.

Summary

Fórsa submits that the Complainant was unfairly dismissed due to breaches of the governing IAA Disciplinary Policy & Procedure, violations of the very basic tenets of Statutory Instrument 146 of 2000, that the governing IAA Disciplinary Policy & Procedures was unfit for purpose and that the IAA did not have an Underperformance Policy. Specifically, the list of issues that resulted in this unfair dismissal were:

1.       The IAA had no Underperformance Policy.

2.       There was no provision for investigation in the IAA Disciplinary Policy & Procedure.

3.       There was no separation between the investigation and decision making.

4.       The investigation was not comprehensive.

5.       The Complainant was investigated by other IAA employees.

6.       The Complainant was investigated by non-IAA employees.

7.       The Complainant was not provided with the documentation or minutes of the interviews conducted with IAA employees.

8.       The Complainant was not provided with the documentation or minutes of the interviews conducted with non-IAA employees.

9.       Mr Whitsell was not impartial and acted as a witness against the Complainant.

10.   Mr Whitsell was prejudice in the process.

11.   Mr Winship, as the decision maker, was not impartial and acted as a witness against the Complainant.

Fórsa seeks that the Complainant be reinstated, which should also include all unpaid monies due to her since being placed on unpaid leave since the 28th April 2021.

In response to the Respondent’s submission, Fórsa submitted at the hearing that there was no investigation, that Mr Whitsell encouraged others to observe the Complainant.

With regard to the Complainant’s absence at the meetings, Mr Moyer said that it came to light after the appeal meeting, but he confirmed that it was before the Complainant’s claim was referred to the WRC. Ms Brennan was not aware of the Complainant non-attendance and, when commenting on the Complainant’s assertion that she informed Ms Brennan of the matter in mid-October 2020, Ms Brennan said that she had no idea of the matter.

Summary of direct evidence and cross examination of the Complainant

Ms Millar, in her sworn evidence said that she was not present at the meetings, and that she did not receive the letters and minutes. She said that the complaints made by the contract cleaning company were not given to her. She said that she was not allowed to question the other cleaner, and was told not to approach anyone. She said that she was not aware of the second disciplinary hearing in 2018 and did not attend the hearing on 27th June 2019.

With respect to being observed sitting in the canteen, the Complainant said that she was more likely waiting for the dishwasher cycle to finish.

With respect to being observed sitting in her car, the Complainant said that she needed to make a personal phone call.

In cross examination, Ms. Ward put it to the Complainant that she had no way of knowing about matters such as the burglary, and the Complainant’s menopause if the Complainant hadn’t told her about it at the meeting. The Complainant said that she would have told Mr Winship about these matters and would have provided information regarding her menopause in the “return to work” form.

The Complainant was asked when she let her representative know that she did not attend the meetings. She said that when she got information from Ms Brennan of Fórsa that she was supposed to be at these meetings, she realised that she wasn’t, so she informed Ms Brennan of her non-attendance. The Complainant said that it is not true that Fórsa did not know about her non-attendance before the appeal took place. She said that she told Ms Brennan in October 2020.

The Complainant declined any knowledge of her performance review and the indication that there was “Opportunity for improvement”.

She said that on 22nd July Mr Winship told her about a meeting, he did not tell her what it was about. She did not attend the meeting on 22nd August 2018, she did not get a copy of the letter of 31st August. She said that she was told of the meeting of 25th June 2019 by Mr Winship but she did not attend. When asked why she did not attend, she said that she “didn’t know the whole lot about them”. She said that she did not receive a copy of the spreadsheet. She also said that she did not get the final written warning dated 4th July 2019.

The Complainant further said that she did not get the invitation dated 8th October 2020 but Mr Winship told her about a meeting to be held on 15th October 2020. She said that she did not attend the meeting, it was postponed. She said that she contacted Ms Brennan of Fórsa on 13th October 2020. She confirmed that she told Ms Brennan of her non-attendance at previous meetings around that time, mid-October 2020.

The Complainant confirmed that she attended a Teams meeting on 20th April 2021 with Mr Caffrey of Fórsa.  She said that on 27th April 2021, Mr Winship handed her the dismissal letter.  She confirmed that she attended the meeting on 14th July 2021 via Teams.

Mitigation of loss

At the hearing, the Complainant confirmed that she was on Illness Benefit from January 2022 up to the date of the hearing. She had a surgery in August 2022 and has no clearance to go back to work as of the date of the hearing. She said that she had applied for a few jobs.

Post-hearing, the Complainant forwarded evidence of loss mitigation.

The Law

The Unfair Dismissals Act stipulates as follows:-

6. Unfair dismissal

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

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

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

(b) the conduct of the employee,

(c) the redundancy of the employee, and

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

(6) 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.

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

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

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

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 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (SI No. 146/2000) sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures.

The combined effect of the above requires me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent's position and circumstances, would have done so. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

The fact of dismissal in this case is not in dispute between the parties and therefore the Respondent carries the onus of showing that, having regard to all the circumstances there were substantial grounds justifying the dismissal.

The two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and (2) whether the dismissal adhered to the principles of fair procedures. 

The Respondent asserted that the Complainant was dismissed to her underperformance.

The WRC and the Labour Court have consistently held that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. It follows, therefore, that before a decision is made to dismiss an employee, an employer should first tell the employee of the respects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving their performance.

In the Employment Appeals Tribunal case Richardson v H Williams & Co. Ltd (UD/17/1979,) the Complainant was dismissed because the Respondent had been dissatisfied with his work performance. The EAT noted that the claimant was not given an opportunity to defend himself and the Tribunal applied the following principles:

“(a)Where an employee has been given a justified warning that, unless his or her work improved in a specific area, his or her job would be in jeopardy, then it follows that such employee must be given:

(i)a reasonable time within which to effect such improvement; and

(ii)a reasonable work situation within which to concentrate on such defects.”

On the basis of the evidence before me, I find that from 19th July 2017, the Respondent highlighted to the Complainant that there were shortcomings regarding her performance. The Complainant did not challenge the contents of the spreadsheets presented by the Respondent that outlined the chronology of events as noted by Mr Whitsell. The notes show that the Respondent engaged on numerous occasions with the Complainant and discussed the concerns it had with regard to her performance. On 19th July 2017 the Respondent discussed the performance concerns with the Complainant. On 28th July 2017, the Respondent furnished the Complainant, per her request, and discussed wit her, specification of works for cleaning staff. The Complainant’s work was, again, discussed with her on 22nd January 2018 when her attention was drawn to the Respondent’s disciplinary procedure. A meeting regarding the Complainant’s performance was held again on 25th January 2018, 12th April 2018, and 20th April 2018. The Complainant’s performance review was marked as “Opportunity for improvement exists” (the lowest rating available) on at least two occasions, in 2018 and 2020. I note that the Complainant refused to sign the 2020 review, albeit it appears that she did not instigate any complaint or grievance procedure in this regard. I note that the Complainant was offered the service of Employee Assistance Program and an appointment to be arranged locally was offered to the Complainant.

I am, therefore, satisfied that the Complainant would have been aware that her performance was inadequate.  It was noted by the Respondent in the spreadsheets presented that, on occasion, the Complainant’s performance improved for a short period, but it is clear the Complainant consistently reverted to underperforming. The extend of the underperformance was, in my view unacceptable. The Complainant showed an utter disregard towards her duties and management instructions.

In considering the fairness or otherwise of the dismissal, I am obliged to consider if the sanction of dismissal was proportionate to the alleged gross misconduct the circumstances. The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical Services Ltd [2012] 23 E.L.R.195 that: 

“The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? 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. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?”.

On balance, and notwithstanding the mitigating factors put forward by the Complainant, I am satisfied that the application of a sanction of dismissal was proportionate in the circumstances of the present case.

With respect to the disciplinary process that followed, firstly I note that the Respondent is a semi-state commercial company and the Complainant was not a civil servant.

I do not accept the Complainant’s assertion that she did not attend the two first disciplinary meetings on 22nd August 2018 and 27th June 2019 and that she did not receive any communication regarding the meetings and the outcome letters. The Complainant’s evidence was that she was told about the meeting on 22nd August 2018 by Mr Winship, but she did not attend. She maintained that she was told about the second meeting to be held on 27th June 2019 by Fórsa but again did not attend. When it was put to the Complainant that Fórsa was not involved until 2020, she retracted this statement. She then said that she informed Fórsa of her non-attendance at the first two disciplinary meetings in October 2020 despite the union representative, Ms Brennan saying that she was not aware of same, and Mr Moyer stating that this was not mentioned until after the appeal that was held on 14th July 2021. I find that at no stage was the matter of the alleged non-attendance, which would clearly have been of huge importance, mentioned by the Complainant or her representatives. There was no mention of this in the complaint form with detailed submission on part of the Complainant was sent to the WRC on 22nd November 2021. There was no mention of the non-attendance in the written submission furnished by Fórsa to the WRC on 24th November 2021. The Complainant then, and not her representative, emailed the WRC on 8th December 2021 stating that she did not attend the meetings on 22nd August 2018 and 27th June 2019. Given the inconsistency in the submissions and evidence on part of the Complainant, I accept the Respondent’s position that the Complainant did attend the two meeting and was handed the relevant letters, minutes of the meetings, and copies of relevant documentation.

I do not accept the Fórsa assertion that the Respondent had no Underperformance Policy. The Respondent had in place Disciplinary Policy and Procedure that was agreed with the unions, including Fórsa, and that addressed the matter of an employees’ performance. I also note that the Respondent had, at the relevant time, a performance review process.

Furthermore, I do not accept the assertion that the Complainant was investigated by other employees of the Respondent and non-employees, and that the investigation was not comprehensive. While other employees and the contracted cleaner made complaints to the management about the Complainant, there is nothing to suggest that they carried out an “investigation” into the Complainant’s performance. The Complainant’s performance was monitored by the management.

Regarding the suspension, I note that the Complainant was suspended after the decision to dismiss had been made and pending appeal and not during the disciplinary process. Had the decision been overturned on appeal, as per the Disciplinary Policy, the Complainant would have been reinstated with the backpay for the period of suspension.

In terms of the disciplinary process, I am satisfied that details of any allegations or complaints were put to the Complainant. The Complainant was given the opportunity to respond fully to any such allegations or complaints. The Complainant was at each stage informed of her right to representation and to call any witnesses. The Complainant was informed that the allegations against her are very serious and, if upheld, may lead to a disciplinary sanction up and including dismissal. The Complainant was informed of her right to appeal each decision.

However, I have carefully considered the manner in which the disciplinary procedures were applied in the present case, and I am of the view that there were a number of fundamental aspects of the process which did not meet the required standards of procedural fairness.  

S.I. 146/2000 provides that “the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses”. I note that the Complainant at no stage was provided with any record of the statements of employees and the contracted cleaner who were ultimately witnesses in her disciplinary process. Neither was she given an opportunity to question them.

Furthermore, the Complainant had the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, her and any other relevant or appropriate evidence, factors, and circumstances.

The key area of procedural unfairness that I have found in relation to the process relates to the multiplicity of roles and involvement undertaken by Mr Winship and Mr Whitsell throughout the entirety of the process. 

 It is clear that, following regular communication between Mr Whitsell and Mr Winship, Mr Whitsell sent a report to Mr Winship on 19th July 2018 requesting that a disciplinary action be instigated. As a result, the Complainant was invited to a disciplinary hearing to be held on 22nd August 2018. I note that Mr Winship chaired the meeting and Mr Whitsell attended as a notetaker and to provide any clarification the Complainant might require. There was no dispute that Mr Winship issued the written warning on 31st August 2018. It was then Mr Whitsell again that kept the record of the issues with the Complainant’s performance and relayed it to Mr Winship, who in turn invited the Complainant on 25th June 2019 to a disciplinary hearing to be held on 27th June 2019. It was, again Mr Winship who chaired the hearing, he was accompanied by Mr Whitsell and Ms Ward. It was Mr Winship who issued the final waring to the Complainant on 4th July 2019. It was, again, Mr Whitsell that kept record of the concerns regarding the Complainant’s performance thereafter and relayed it to Mr Winship, who invited the Complainant on 8th October 2020 to a disciplinary hearing that was held on 20th April 2021. The hearing was chaired by Mr Winship with Mr Whitsell and Ms Ward in attendance. Mr Winship issued the outcome letter dated 27th April 2021 communicating his decision to dismiss the Complainant.

In Eugene Young v Towerbrook Ltd., T/A Durrow Castle, UD 1598/2013, the EAT held that procedurally it was entirely inappropriate that the disciplinary process was conducted by the company director and financial controller. The Tribunal held that

” it was entirely inappropriate that the disciplinary process would be conducted by PS and NS the two complainants against the claimant and, in the case of PS, a principal participant in whatever engagement occurred on the 4th June 2013.” The dismissal was found to have been unfair.

In the within case, Mr Winship and Mr Whitsell had significant and integral roles in all stages of the disciplinary process from its instigation until the decision was taken to dismiss the Complainant. The whole process up to and including dismissal was carried out by Mr Winship, the Complainant’s line manager who was accompanied by Mr Whitsell, who supervised the Complainant on a day-to-day basis, and who essentially formally complained to her line manager and requested a disciplinary action to be instigated. Ms Ward attended two of the meetings, albeit not in a decision-making capacity.

In the circumstances, I am satisfied that that there was an insufficient degree of separation between the three stages of the process such as to raise legitimate concerns in relation to the overall fairness of the process. I am cognisant of the fact that in a small workforce it may not be possible to separate the roles. However, in the instant case, I am satisfied that it would have been possible, and prudent of the Respondent, to separate the roles throughout the process.

I also note that Mr Winship in issuing his decision to dismiss the Complainant appeared not to have considered sanctions short of dismissal. The Respondent’s Disciplinary Procedure provides for “alternative sanctions other than dismissal” such as unpaid suspension, demotion, and removal of specific benefits or arrangements. Mr Winship, however, in his dismissal letter states that “In line with the Disciplinary policy and procedure an employee who has previously received a final written warning which is still current will be dismissed in they fail to show sufficient improvement…” While Mr Winship could have reached the same conclusion to dismiss the Complainant, he ought to have considered other sanctions.

Having regard to the totality of the evidence adduced, I am satisfied that the procedural deficiencies outlined above which occurred throughout the disciplinary process, when taken together, had fatally imperilled the fairness of the Complainant’s dismissal. However, I also find that the Complainant, through her behaviour contributed significantly to her dismissal and this has been taken into account in considering redress.

In the circumstances, I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is well founded.

Redress and loss mitigation

The Complainant indicated that, in the event of her claim being determined to be successful her preferred remedy would be re-instatement. The Respondent strongly objected to reinstatement on the basis that there is a serious breach of trust and confidence in the working relationship.

Having considered the submissions of the parties and the evidence put before me, I determine in the circumstances of this case that the reinstatement or re-engagement of the Complainant is not a practical option. I instead take the view that compensation is the appropriate redress and is the remedy that will do justice between the parties.

The Complainant gave evidence that she made some efforts to secure new employment but was unsuccessful. The Complainant provided evidence of some five emails with job enquiries/ applications sent between 29th October 2021 and May 2022.

The Complainant was suspended as of 28th April 2021 and was dismissed on 26th July 2021. The Complainant was unavailable for work and in receipt of Illness Benefit from 21st June 2021 to 15th May 2022. She worked for 3 days on 7th, 8th and 9th June 2022 totalling 27 hours for a payment of €389.34. The Complainant was in receipt of the Illness Benefit from 14th June 2022 until the date of the hearing. The Complainant confirmed on 20th September 2022 that she had not been cleared to return to work. It is well established that, where a claimant is certified sick after dismissal, he or she is not entitled to recover for the period when unavailable for work due to illness on the basis that any loss during that period is attributable to the illness rather than the dismissal.

I declare this complaint to be well founded. I require the Respondent to pay the Complainant €2,815 in compensation, which is approximately four weeks wages.

Flawed procedures – unfair dismissal