Complainant

Respondent

Parties

Karen  Doherty

Southwest Doctors On Call CLG (amended on consent)

Representatives

  Self- Represented

Downing Courtney Larkin LLP

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-00056416-001

30/04/2023

The Complainant swore an affirmation at the outset of the hearing.

Ms. Úna Houlihan, HR Manager swore an affirmation. 

Submissions were exchanged in advance of the hearing.

The correct name of the Respondent was amended at the outset of the hearing.

It was the Complainant’s evidence that she commenced employment on 13 October 2020, earning €12,487.11 per year for part-time work as a Receptionist in the call centre.

The Complainant outlined the series of call review meetings she had with the Respondent. She stated that she was given a checklist of the information she needed to collect but was not provided with minutes or summaries of the meetings. She also gave evidence regarding the timings of the review meetings, during which she felt exhausted.

At the disciplinary meeting, the question of what the allegations against her were was raised. She was unclear about the reason her employment was terminated. It was her evidence that Ms. O’Sullivan was particularly harsh on her, and when she spoke up for herself, a break was called. She testified that Ms. Houlihan told her she was not good at her job.

She sought advice from the union following the meeting on 10 October 2022, but they did not know how to respond to the list of allegations. The grievance she raised was never investigated. It was the Complainant’s evidence that she should have been given an opportunity to “have her say.”

Regarding the appeal, she felt there was no point in pursuing it because the Respondent had already made up its mind.

It was put to the Complainant that she was met with on numerous occasions to discuss her performance. In response, the Complainant noted that her calls were typically 3–4 minutes long, but the Respondent required her to complete them in 2 minutes.

She acknowledged that there was an issue in September, explaining that she felt under pressure.

The Complainant denied receiving a contract of employment, stating that the first time she saw it was in the submission.

When asked why she did not respond to the letter of 10 October 2022, the Complainant stated that she had said everything at the meeting. She felt she did not know what to say at the meeting as she was quite upset and believed it did not matter at that stage because the Respondent had already made its decision.

In terms of mitigation of loss, the Complainant said she was a single mother who had worked since she was 14 years of age. She enjoyed her role with the Respondent. Following the dismissal, she felt quite down but did attend a few interviews. She provided a list of companies she applied to in 2023, with evidence from recruitment websites submitted. She sought a reference in September 2023 for a role but was unsuccessful.

The evidence submitted on behalf of the Respondent, a GP on-call service, was that the Complainant was dismissed on the grounds of persistent poor work performance.

Ms. Houlihan described taking various approaches to address the Complainant’s performance, including both informal and formal methods. The informal training included peer support, where the Complainant was placed next to an experienced employee, while the formal approach involved structured meetings in which recorded calls were reviewed with the Complainant. Her performance was evaluated based on these calls, and feedback was provided. It was Ms. Houlihan’s evidence that there were approximately seven separate meetings with the Complainant.

By letter dated 3 October 2022, the Respondent invited the Complainant to a disciplinary hearing with the Patient Experience Manager, Ms. Catherine O’Sullivan, and Ms. Houlihan.

On 10 October 2022, a disciplinary meeting took place, with the Complainant’s trade union representative accompanying her. It was Ms. Houlihan’s evidence that, instead of responding to the matters highlighted in the letter of 3 October 2022, the Complainant raised a number of allegations against Ms. O’Sullivan. A follow-up letter was sent on the same day, allowing the Complainant time “to discuss the seriousness of this matter.”

There was no reply by the deadline of 17 October 2022. It was Ms. Houlihan’s evidence that she wrote to the Complainant on 24 October 2022, advising that the Respondent would make a decision based on the information against her and issue an outcome on 1 November 2022.

It was accepted that a reply was received from the Complainant in an email dated 25 October 2022, advising that it was her understanding that her union representative was “speaking on her behalf,” but no further correspondence was received by the Respondent.

Ms. Houlihan wrote to the Complainant on 1 November 2022, dismissing her from her employment, stating that her employment had become “untenable.” No appeal was received from the Complainant.

A statement of employment was sent following a request on 29 September 2023, as per the Respondent’s policy.

Ms. Houlihan was cross-examined by the Complainant.

Regarding the disciplinary meeting, it was put to Ms. Houlihan that after a break, the union did put forward points in her defence, which were read out at the meeting. These points included a GDPR issue, in which the Complainant did not disclose any data in the calls but confirmed the patient’s address back to them.

It was suggested to her that it was easy to find an error in 150 calls. It was Ms. Houlihan’s evidence that a random selection of calls was reviewed. The Complainant believed the Respondent was “nit-picking” her calls and that the situation did not warrant disciplinary action. Ms. Houlihan stated that the script needed to be followed and that there were meetings with other employees on the same issue. It was then put to her that no other employee was met with as frequently as the Complainant.

The Complainant, noting the times of the review meetings, put it to Ms. Houlihan that these were held after she had finished a night shift and was asked to come in the next day without having had any sleep. Ms. Houlihan said she was unaware of the timing of the meetings but did move the October meeting at the Complainant’s request.

It was put to her that if the Complainant was working at 6 pm, she would be told to attend a review meeting at 5 pm. The Complainant described feeling upset and stressed at the start of her shift. In response, Ms. Houlihan said she would have rescheduled the meetings.

On 16 September 2022, the Complainant put it to Ms. Houlihan that she was asked to come into work at 4 pm after working a night shift and being awake for 24 hours. The Complainant stated that she was not aware it was a disciplinary meeting, that she had no sleep or representation, and that the situation was very unfair. Again, Ms. Houlihan said she would have worked with the Complainant to reschedule the meeting. She denied that the meeting of 16 September 2022 was a disciplinary meeting.

The Complainant also raised concerns with Ms. Houlihan regarding the volume of paperwork and the limited time allocated for completing it.

The Complainant suggested to Ms. Houlihan that she had already made her decision at the disciplinary meeting on 10 October 2022.

Upon inquiry, Ms. Houlihan confirmed that the notes of the 16 September 2022 meeting were not given to the Complainant, although she did have a call evaluation form and listened to the call.

When asked if the Respondent communicated the extension of the Complainant’s probation in April 2021, it was Ms. Houlihan’s evidence that it was not communicated but that probation could be extended up to 11 months.

Ms. Houlihan accepted that it was not the norm for the HR Manager to attend call review meetings with employees, but she attended all but one of the Complainant’s meetings, in the absence of the Service Development Manager.

Explaining why the review meetings were held outside of normal working hours, Ms. Houlihan said the employees were paid or given time in lieu.

When asked about the “non-exhaustive” list of allegations against the Complainant set out in her disciplinary investigation invitation letter of 3 October 2022, it was Ms. Houlihan’s evidence that these were some of the items raised on an ongoing basis.

It was accepted by Ms. Houlihan that there were no minutes of the 10 October 2022 meeting, no investigation report, and that she was involved in both the investigation and decision-making stages of the disciplinary process. Further, she explained that she delivered the termination letter via email without an outcome meeting. She also accepted that there was no offer or response to the grievances raised by the Complainant on 10 October 2022, as the “purpose of the meeting was disciplinary.” She did confirm that she was not involved in the appeal and therefore was not in a position to give evidence on it.

The Unfair Dismissal Act 1977 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

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

Section 6 (4) provides:-

(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,”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia, that:

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

McMahon J. in Khan v Health Service Executive 2009 E.L.R. 178, summarised the meaning and value of fair procedures as being:

“… at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good … What does [sic] fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant.”

The principles of natural justice require the disciplinary investigation process together with the decision to impose a sanction, dismissal in this case, and an appeal to be carried out independently of each other and objectively. An employee has the right to a fair and impartial determination of the issues being investigated as provided for in the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) as well as case law.

While it is not the role of the WRC to re-investigate the matter, it is to decide whether the investigation was fair and sanction proportionate as held by Barron J. in Loftus and Healy v An Bord Telecom, Unreported, High Court, Barron J., February 13, 1987. Where the Respondent is relying on the defence that the employee was fairly dismissed due to her performance, it is essential that the allegations for which she was dismissed be clear.

The EAT in McGrath and Restrick v Fisher Field Construction and Farm Machines Limited UD 927 and 928/1982 highlighted, “Incompetence is a very serious charge”.

The EAT in Richardson v H Williams & Co. Ltd UD/17/1979 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.

(b) If an employee improves in the complained-of area to the reasonable satisfaction of the employer, and such defect is not repeated, then such a warning cannot be solely relied on in relation to a dismissal for other reasons.”

Having carefully considered the evidence in this case, it is clear that the Respondent did not follow fair procedures at any stage of the disciplinary process. In arriving at this conclusion, the following has been considered:

No disciplinary procedure was furnished in evidence; however, there is a reference to a policy in the unsigned contract of employment provided. The allegations against the Complainant related to, in the Respondent’s own words, a “non-exhaustive list” of 10 points. It is entirely unclear what the allegations against the Complainant were, leading to confusion over what constitutes the full list of allegations. Consequently, it is understandable that the Complainant herself was bewildered as to what exactly she was being accused of.

No supporting evidence was included in the invitation letter on which the Respondent based these allegations. It was accepted that the Complainant was not given the summary notes presented at the hearing, either at the time of the individual meetings or at the disciplinary stage. No evidence of the call evaluation sheets, agreed actions, or minutes of meetings shared with the Complainant during the call reviews were presented in evidence.

While it is surprising that no notes from the disciplinary meeting of 10 October 2022 exist, there is a concerning letter from Ms. Houlihan which makes very serious findings against the Complainant—issues that seem to have been more appropriately dealt with under the grievance procedure. The threatening tone of the letter and the description of the meeting presented evidence that both the Complainant and Ms. Houlihan can only be described as chaotic.

It is accepted that the Complainant had a representative from her trade union. It is concerning that there was a lack of response from the trade union on her behalf, particularly where there were glaring procedural issues, along with a failure to assist her in following up on Ms. Houlihan’s letter of 10 October 2022. There is no doubt the Complainant should have followed up on the meeting of 10 October 2022, even in the absence of advice from the union.

The lack of an investigation report is highly questionable, particularly in light of the decision to “dismiss” the Complainant from her employment where it had become “untenable”. Notably, there is no finding of gross misconduct as referred to in the contract clause on disciplinary action. The law requires that any decision be made fairly and objectively, yet the only reasoning put forward by Ms. Houlihan in making the decision to dismiss the Complainant was based on drawing “our own inferences” from a letter written by Ms. Houlihan herself on 3 October 2022, with no further explanation. There is a very real concern that Ms. Houlihan, in unfairly drawing her own inferences, may also have been influenced by the exchanges during the meeting of 10 October 2022 in arriving at the decision to dismiss.

When questioned, Ms. Houlihan, the HR Manager, did not see any difficulty with her involvement in both the investigation stage and as the decision maker further evidence of the Respondent's failure to carry out a fair and objective disciplinary process.

It is noted that the Complainant chose not to appeal the decision. It is not accepted that this was influenced by whether she understood Ms. Maire Hussey to be the General Manager or CEO. The sanction of dismissal as the first step in the disciplinary procedure was entirely disproportionate.

In conclusion, I find that the Complainant was unfairly dismissed, as fair procedures were neither understood nor applied by the Respondent. Furthermore, the sanction applied was entirely disproportionate, given that the Complainant had no previous disciplinary sanctions on her record.

Section 7 of the Unfair Dismissal Act

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;”

Where the Complainant has been found to have been unfairly dismissed from her employment I am awarding the sum of €15,608.89 based on financial loss of 65 weeks. This award is made having regard to the repeated and serious failure of the Respondent to apply fair procedures together with the disproportionate sanction of dismissal when the Complainant otherwise had a clear employment record.

Unfair Dismissal – Financial Loss