Complainant

Respondent

Parties

Fiona  Smyth

Violet Anne Wynne

Representatives

SIPTU

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-00057668-001

12/07/2023

The complainant submitted that she was unfairly dismissed, and the respondent submits that the complainant was dismissed, and that the dismissal was fair.

Ms Wynne at the beginning of the hearing requested an adjournment as she no longer had legal representative.  She submitted that she had discharged her legal representation as they wanted money up front and she could not afford this.  Following a short adjournment Ms Wynne advised she was able to proceed without representation.

Ms Wynne gave evidence that there were no issues at the beginning of the complainant’s employment as she was getting up to speed with everything.  Ms Wynne said that issues then arose with the complainant’s ability to complete tasks and that she spoke to the complainant on a few occasions often through WhatsApp messages and said there were inconsistencies with her work.  Ms Wynne outlined that she was made homeless, had been on maternity leave and also left the political party that she was a member of and was now an Independent TD and needed the complainant to be on top of things to support her at what was a very busy time.  She said that queries raised from constituents were not inputted on the database and that the complainant apologised for this and this was around July 2022 when a lengthy email was sent to the complainant.  Ms Wynne said the complainant responded to Ms Wynne’s email and accepted responsibility and felt that with no parliamentary assistant it was not helping matters and that she had to keep reminding the complainant of her minute taking.  Ms Wynne said she verbally raised with the complainant about her work performance issues on many occasions. 

Ms Wynne confirmed that the complainant raised about inconsistent meetings and from then on Ms Wynne found there were more issues about minutes and responsibilities not adhered to and press releases not done and many tasks not completed.  She said that she had planned on dealing with this and the complainant passed probation and there was no formal warning given. 

Ms Wynne said she supported the complainant’s fertility treatment and it was referred to by the complainant extensively and that Ms Wynne allowed her time for consultations.  Ms Wynne said the complainant acknowledged her employer’s support of her and often these were last minute appointments and sometimes without notice and Ms Wynne did not monitor the time to see if these hours were worked up and that sometimes the complainant was not asked to work this time back.  It was her evidence that the HR department in the Oireachtas said there should be something in writing regarding Ms Smyth’s appointments and submitted that the complainant claimed overtime for a week that she was out with covid.  She denied that the loss of employment resulted in the complainant’s mortgage application being abandoned and said that the mortgage application was abandoned by the complainant because of an accident that the complainant’s her husband had been in. She submitted that there were many days that the complainant claimed that she was not well enough to attend work and these were sent by WhatsApp despite the respondent requesting such requests go through her Oireachtas email for paperwork purposes.

Ms Wynne said that on 13/03/2023 the complainant advised that she had a family emergency and needed time off and Ms Wynne received advice from HR to do a work performance review.  The respondent was surprised the complainant wanted union representation for this meeting and because Ms Wynne was homeless, she worked in Clare mostly on Mondays and the complainant said she did not know when the meeting with the rep would now take place.  She said she was shocked at the strongly worded response from the union and Ms Wynne advised the union that the complainant’s employment was, therefore, terminated. 

Ms Wynne confirmed that there was no letter of dismissal and no appeals process.  She said she had done her best to ensure there was a strong relationship as she recognised that everyone had a family with situations outside of work and was as flexible as she could.  She said she recognised the complainant’s circumstances and went above and beyond.  Ms Wynne said there were times that the fertility matters were affecting the complainant’s mental health and that she allowed her to go home when this occurred but that often the complainant was not in the office.  She said she felt it was a very fair dismissal as tasks and job description was not being achieved and there were significant concerns.  Ms Wynne said she did not feel it was enough to just discipline the complainant as she was divulging personal information and then looked to bring in her union rep.  Ms Wynne said that when the complainant refused to take part in a normal review meeting this confirmed there were significant concerns.

Under cross examination Ms Wynne said that the decision to dismiss was fair and that the decision to have a performance review was owing to whether the complainant was fulfilling her roles and responsibilities.  She said that although the complainant was gone past her probation, she was inconsistent in completing her required tasks and this was continuously raised.  She confirmed that WhatsApp should not have been used for annual leave requests and that after probation there was no formal warning and no formal review plan and there had been plans for a review in December and it did not happen.  Ms Wynne said she did not know if there was a dignity at work policy in place and felt she was being obstructed by the complainant and her representative when they asked for this and it was never her intention to proceed with the performance review without the complainant.  She said the obstruction by the union representative was the request for copies of the policies and the adjournment and such an obstruction was not reasonable and the witness was homeless and was trying to engage with constituents while also trying to resolve her own housing issue.  She said by the union getting involved the witness could no longer communicate with the complainant directly.  Ms Wynne said there was a level of trust required in the job and the trust was gone.  She said that she accepted not providing an appeal might have been an error.  She confirmed that there were no allegations put to the complainant, no appeal, and no engagement thereafter and no seeking of an alternative to dismissal. 

She said she did not wish to engage in mediation as there was a breach of trust as the complainant’s husband had joined the political party that she had previously been with and that Ms Smyth’s husband would be going for election in the next election.  She said it was her view that public representatives had to protect themselves and should have protection as employers and that is what she did by proceeding straight to dismissal.  She accepted that the complainant had been entitled to a reason for the dismissal and that the employer has the right to decide when an employee takes their annual leave.

It was submitted that the Complainant was an employee of Violet Ann Wynne, the Respondent, from 25/08/2021 until employment ended on 20/03/2023.  On commencement of employment the Complainant was employed as a Secretarial Assistant, located at the Constituency office at Ennis and the title changed to Administrative Assistant. For the initial period of the employment there were no issues and the Complainant and Respondent developed a close working relationship.  In November 2022 the Respondent conducted a Performance review with the complainant as the office was to change and no issues arose. During the period of the employment the Complainant and her husband commenced IVF treatment and while this was initially not an issue for the Respondent, it appears attending appointments became an issue and time was always worked back.

The Complainant went on sick leave for 2 weeks certified and on the day the complainant notified that she initially planned on taking 3 days which the respondent appeared to have difficulties with.  Several messages were exchanged and the complainant felt she had no option but to request her consultant to write a letter outlining the treatment plan. The complainant indicated that the respondent was not in her opinion entitled to such sensitive detail and requested that she should check with HR regarding such a request. The complainant again confirmed that the absence would be certified and when the complainant returned to work after being off sick there was no toilet facilities in the office and she had to request that the respondent follow up with the landlord and the issue was resolved.

On 13/03/2023 the complainant called the respondent to advise that her brother, who has longstanding medical needs, which the respondent was aware of, was extremely ill and that the complainant needed to leave work to drive him to a Hospital in Dublin. The Respondent advised that she was extremely unhappy with this. The complainant explained that the last thing she wanted to do was to have to leave work but that it was absolutely vital to be with her brother.  The respondent questioned why none of the other family members could assist and the complainant explained that this was a matter for the family. The respondent indicated that she needed to discuss it with HR and later reverted saying she would facilitate the remainder of the day off but it was to be taken as annual leave. During this conversation the Respondent indicated that she wanted to have a performance review meeting on 16/03/2023. To avoid any further tension the complainant agreed.

The Complainant sought the support of the Union as she was concerned around the sequence of events.  On 15/03/2023 the complainant sought an adjournment and the respondent indicated that she did not believe that the meeting required representation and advised that the meeting would proceed on the 20/03/2023.  On 16/03/2023 the union official Mr X advised the respondent, that he was representing the Complainant and seeking the policy for the performance management system, the disciplinary procedures, and a copy of the dignity at work policy and asking the respondent to confirm their compliance.  The respondent reverted later in the evening on 16/03/2023 at 17:52 advising that an allegation of proceeding with work performance meeting in the absence of the complainant was unfounded and that it appeared she could not communicate directly with the employee. She advised Mr X that

“Your correspondence on the matter is aggressive and not appreciated.…I wish to now terminate Mrs Fiona Smyths (sic) contract with one week paid in lieu.  If you could kindly request that Mrs Fiona Smyth drops the key to the office back into the office letterbox.  That would be much appreciated.”

Within 15 minutes of this correspondence to the trade union official for the complainant, the respondent corresponded with the HR department of the Oireachtas at 18:12, advising them of the position and stating it was effective from the 16/03/2023 and further corresponded with the IT department at 18:08 to have the complainant removed from the system.

On 20/03/2023 at 15:14 the respondent then corresponded with the Complainant and advised

“It has come to my attention that you wish to be contacted directly in relation to the termination of your contract…. I now wish to inform you that after strong consideration it is necessary to terminate your employment with one week payment in lieu of your entitlement.  This is effect from today the 20th of March.” 

No basis for the termination was provided, nor any appeal mechanism for the decision.  There was further correspondence from the Union Official to the Respondent on the 20/03/223 copied to HR in the Houses of the Oireachtas.  The Principal Clerk responded on 21/03/2023 advising that the contract of employment was with the Respondent and that the Oireachtas had no role in the matter, however mediation was available and at the disposal of the parties.  The complainant was willing but the respondent refused and requested the return of keys. The complainant and her husband were doing a mortgage application when the Complainants position was terminated, because of which the application had to be put on hold.

It was submitted that the sequence of events was done in circumstances where the Respondent had no regard for the reasonableness or otherwise of her conduct and proceeded without due process and therefore the dismissal was unfair. It was submitted that this was unacceptable behaviour from an Employer and that the Respondent has resources far more than many employers with regard to policies on which it can rely upon.  There was no investigation, no disciplinary process, no procedures followed, the process was tainted with objective bias and the sanction was disproportionate simply because the complainant sought representation at the proposed performance meeting.

Case law cited included British Leyland UK Ltd v Swift [1981] IRLR 91, Pottle Pig Farm & Panasov UDD1735 Patrick J. Kelly v The Minister for Agriculture IESC 28, Kelleher v An Post [2016] IECA 195, O’Mahony v Cork Association for Autism ADJ00029377, An Employer v A Worker UD 21/83

It was submitted that the complainant secured employment in June 2023 and this employment was on a fixed term contract and was unemployed again for a period of 4 weeks. However, she was reemployed and she remains in employment but receives approximately €245 less weekly than her employment with the Respondent and it is not permanent which has impacted the complainant who was forced to abandon her mortgage application when she was dismissed.

The evidence of the complainant was that the role was mostly answering the phone, dealing with the emails and she also had access to the Deputy’s email and that the role was quite diverse.  She said there was an Oireachtas database but it was slow and not used often and there had been no one to show her how to use it and an excel spreadsheet was developed by her.  Sometimes updates were dealt with by the Deputy and follow up passed on to staff and that a review in November 2022 concluded and she had a positive relationship with Ms Wynne.  The complainant had talked about her IVF struggles and found Ms Wynne supportive and she said her husband was a member of the political party that Ms Wynne had left.  She said overtime had been signed off and there were never issues raised about it.  She said that when she left early it was agreed in advance and that often with IVF there is not enough much notice if you need to go. She said she was unaware that there were any concerns about her performance and that on 13/03/2023 the complainant’s brother was unwell and when the complainant told Ms Wynne she needed to bring him to the hospital in Dublin, Ms Wynne asked why someone else could not do it and that she needed to speak to HR.  She said Ms Wynne then sought a performance review meeting which caught her off guard and the complainant reached out to SIPTU who requested an adjournment and no policies were ever given. 

On 16/03/2023 the complainant and the Deputy were in the office and the complainant had not received the email terminating her employment and on Monday 20/03/2023 she turned up for work as normal and saw that she had no access to social media and thought that was an error and then saw that Ms Wynne had emailed SIPTU, IT and HR.  She said she eventually got an email on 20/03/2023 after 3pm from the Deputy which was sent from the Deputy’s personnel email and not her Oireachtas email and that she was shocked and went home and cried.  She said she tried not to get caught up in the stress as she was going through an embryo transfer and hoped that maybe mediation would help her get her job back and that she thought it was all a misunderstanding.  The complainant said she sent in for a subject access request to Leinster House and got information from them but no response from the constituent office for the information that she sought. 

She said that to mitigate her loss she tried to get a job and was also looking to get a mortgage.  She said she had earned €764.03 gross with the respondent and now earns €520 gross, upgraded her cv and applied for other jobs.

Under cross examination she said she was aware that she was responsible for emails and that she would triage the queries. She said she was not solely responsible for the inbox and that Ms Wynne was happy with the inbox.  She said she did think she showed initiative and had a constituent who phoned the witness to thank the complainant for the assistance she had received from the complainant.  She said she could only account for her own filing and did not assist with a lot of press releases and that there were not many press releases when Ms Wynne was on maternity leave.  She said that she worked for a short time as self-employed but did not earn much financially and it was for the social part of the job.  She said she had paid a fee for the franchise.  She said that much of the communication between herself and Ms Wynne was verbal.  She said that maybe issues were not addressed as comprehensively enough to Ms Wynne’s liking and that issues that arose were due to human error.  She said that whenever time off was discussed it was for Ms Wynne to decide whether she could have the time off.  She said annual leave was requested through the inbox and accepted that the employer could have refused her requests for leave and there were never discussions about time management or absence. 

The respondent submits that she dismissed the complainant and that the dismissal was reasonable in all the circumstances owing to a breach of trust.  The complainant submits that the dismissal was unfair, that the complainant had an unblemished record, that the dismissal was unreasonable, contrary to due process and fair procedures and with flagrant disregard for the principles of natural justice in the entire matter.

Section 1 of the Act defines

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

The dismissal of an employee, pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, shall be deemed to be an unfair dismissal

…unless having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

and the burden of proof is firmly on the Respondent.  The test for unfair dismissal under s.6 of the Unfair Dismissals Act, 1977 (as amended) includes whether the decision is within the range of responses open to a reasonable employer. 

It would appear from the exchange of messages between the complainant and the respondent and their direct evidence that for a while they had a good cordial relationship and it is difficult to understand when this changed or if there was one specific reason for the dismissal.  It appears that the respondent may have been unhappy with leave requested by the complainant for family matters as well as time off for fertility treatment.  However, Ms Wynne’s evidence was also that she knew she could refuse requests and that she was supportive of the complainant’s fertility treatment.  It also appears from Ms Wynne’s evidence that she was unhappy with the complainant’s performance and scheduled a performance review and I also note that there were no warnings given, that the complainant had passed probation.  It would also appear that the respondent was unhappy with the request for union representation, with SIPTU’S request for an adjournment and for copies of policies.  I have reviewed the correspondence between the respondent and Mr X and while I note that it may have been reasonable for the respondent to proceed with a performance review meeting without the complainant’s trade union representative in attendance; it does not appear that there was anything unusual by the representative’s request for an adjournment and his request for copies of policies. 

In her direct evidence Ms Wynne outlined all the aforementioned as breaches of trust and also said she was unhappy that the complainant’s husband may have been approached to run for election with the respondent’s previous political party.  Whatever the reason or reasons, the response by Ms Wynne appears to have been quite astonishing to terminate the complainant’s employment, through a message to the complainant’s union official, in the manner in which she did without following any procedures and with no clear reason given. 

Cassidy v Shannon Castle Banquets and Heritage Ltd [2000] ELR 248 and Mooney v An Post 4 IR 288 outlined the importance of fair procedures and in Bunyan v. United Dominions Trust (1982) IRLM 404, the Employment Appeals Tribunal re-stated the well-established principle that

 “..fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.”’

British Leyland UK Ltd v Swift [1981] IRLR 91 also sets out that

“If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair”.

In The Governor and Company of the Bank of Ireland v. Reilly [2015] IEHC 241, [2015] 26 E.L.R. 229 it sets out:

“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…”.

The respondent failed to engage in any procedures prior to dismissal, failed to provide the complainant with a reason for the dismissal, failed to provide an appeals process and would not engage in mediation.  Whatever was the reason(s) for the dismissal and which from Ms Wynne’s evidence appears to have been varied, it is difficult to see how the decision to dismiss is within the range of reasonable responses of a reasonable employer in the circumstances of this instant case.  I find that the dismissal was, therefore, unfair and the complaint is well founded.

 The complainant submitted that she has secured alternative employment and taking into consideration all the circumstances including the nature of the employment and that the complainant has secured employment, I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress.  The complainant gave evidence of her efforts to mitigate her loss and Sheehan v Continental Administration Co Ltd. 858/1999 outlined that

“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work”

The complainant made some efforts to mitigate her loss and secured employment 13 weeks after her employment ended for a temporary period of time and then secured further employment albeit earning approximately €244 less gross weekly.  Having heard the complainant’s evidence I do not find her efforts, however, to mitigate her losses sufficiently satisfies Sheehan v Continental Administration Co Ltd standards and therefore, I award the complainant €11,500 which is an award of approximately 15 weeks.

I find that the dismissal was unfair and the complaint is well founded.  I find that the complainant’s efforts to mitigate her loss are not at the expected standards and therefore, I award the complainant €11,500 which is an award of approximately 15 weeks.

Unfair dismissal, reasonable employer, fair procedures