UDD2432

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00034982 (CA-00045756-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 14 September 2022 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. Labour Court hearings took place on 23 June 2023 and 20 June 2024.          

The following is the Decision of the Court.

DECISION:

This is an appeal by Ringsend Community Services Forum CLG of a decision of an Adjudicator Officer (ADJ-00034982) dated 12 August 2022 made under the Unfair Dismissals Act 1977 in relation to a complaint by a former employee, Sueann Moore. The Respondent did not attend at first instance. The Adjudication Officer held that the Sueann Moore’s dismissal was not fair. 

This case is linked to three other appeals (TED2416, PWD2450 and MND249). The Notice of Appeal under the 1977 Act was received by the Labour Court on 14 September 2022.

In line with the practice of the Court the parties are named as they were at first instance, hence Ringsend Community Services Forum CLG is referred to as “the Respondent” and Sueann Moore as ”the Complainant”.

Background to the Hearing

No submission was received from the Respondent. The case was scheduled for hearing on the 23 June 2023. On the day of the hearing, an application for a postponement was made by the Respondent on the basis that its principal witness was out of the country. The Respondent further advised of its difficulties in lodging a submission to the Court in circumstances where the Complainant had returned her laptop computer to the organisation but failed to share her passwords to the files therein.

The Court granted the postponement and directed the Respondent to lodge an outline submission within three weeks of that date. It advised that the Respondent was free to make an application if required at the hearing in relation to any other matters arising in relation to their case.

The Respondent made two further requests for an extension of the timeframe for lodging submissions which were granted by the Court but did not provide any submissions until the eve of the hearing date on the 20 June 2024. 

An application was made by the Respondent at the outset of the hearing to accept the late submission. Having heard from the other party, the Court decide to decline the application on the basis that the Respondent had been given ample opportunities to lodge a submission before the hearing and had failed to do so, and neither the other party nor the Court had an opportunity to review the Respondent’s submission emailed to the Court outside business hours on the night before the hearing.  No application was made to postpone the hearing. The Court proceeded to open the hearing and heard oral submission and legal arguments from the parties. Both sides were given an opportunity to comment on the submission made by the other sides. No witness testimony was proffered by either party.

Summary Position of the Respondent

The Complainant terminated her own employment on the 31 May 2021 by not returning to work. There was no dismissal in this case.

The Complainant refused to attend work for a prolonged period.  The Respondent attempted to resolve issues raised by the Complainint. She agreed to participate in a binding mediation process. She did not accept the parameters within which an investigation would take place. She refused to accept the outcome of the process by an independent person, and refused to return to work.

The Respondent repeatedly informed the Complainint that her pay would be stopped until she returned to work. The Complainant persisted in her refusal to return to work. The Complainant’s refusal to return to work was a fundamental breach of her contract of employment. The Respondent was entitled in those set of circumstances to treat this breach as a termination by her of her contract of employment. The Respondent confirmed the termination by the Complainant of her own employment in writing to her by way of a letter dated the 31 May 2021.  

The Complainant substantially contributed to the set of circumstance that arose. She asserted that she wished to work from home because of COVID yet she organised a festival during a level 5 lockdown. She was the sole employee employed by the respondent. There was one computer. The Complainant locked the Respondent out of the computer. She continues to withhold access to emails of the company. The Respondent would have been justified in dismissing her, however since she terminated her own contract by refusing to return to work, it was under no obligation to follow any procedures in relation to the termination of her employment.

Summary position of the Complainant

The Complainant was unfairly dismissed from her employment without any recourse to due process for alleged gross misconduct on 31 May 2021.

The Complainant commenced employment with the Respondent in February 2014 and had little or no issues at work until March 2020 when LD was appointed as her line manager. The work environment became extremely stressful, and the Complainant was required to carry out work for which she had no training or support. When the Complainant requested a replacement laptop, her request was ignored. Her requests for Time off in Lieu (TOIL) for hours worked were refused.

The Complainant was certified unfit for work due to stress in July 2020 but continued to work as she felt under too much pressure to take sick leave. She was again certified sick due to stress from 2 November until 11 December 2020.

During this period, the Complainant raised health and safety concerns in relation to being in the office. The Complainants concerns were two-fold. Firstly, she and her family had underlying health conditions and were particularly vulnerable to Covid-19 infection, of which her employer was aware. Secondly, the Complainant raised a grievance in relation to her treatment by her line manager in November 2020 and had concerns about working in a building in which the only other occupant was the individual she had raised the grievance against.

After lodging the grievance, the Complainant was contacted by TW who offered to act as a mediator; however, it transpired that TW was not able to fulfil this role.

The Complainant was advised that a board member, JD, would be appointed to deal with her grievance. She objected to that appointment and requested an external investigator.

In and around this time other matters arose. On 27 November 2020 the Complainants salary was stopped but was later reinstated when she raised that as an issue.  On 2 December 2020 the Complainant’s line manager asked for access to her emails. The Complainant refused her access due to GDPR concerns but agreed to forward any relevant emails.

The Complainant was not given a Christmas bonus that was normally provided to her. During January 2021 the Complainant’s line manager emailed her demanding that certain work be completed but would not provide the relevant documents to enable her complete that work.

In January 2021 the Complainant again requested that an external party be appointed to investigate her grievance. It transpired that TW could deal with the matter after all and they met on 30 January 2021 for around three hours, where they discussed the Complainants contract and other matters. The Complainant was largely happy with that meeting.

On 9 February 2021 the Complainant was sent a new contract, handbook and job description which contained significant changes to what had been agreed. The Complainant notified TW by text of her disappointment and disgust that the terms they had agreed were altered. She informed the Respondent that she objected to the amendments made.

When the Complainant once again requested that her grievance be investigated by an external individual, she was advised that this would not happen until she signed the new contract.

The Complainant had commenced working from home on 15 December 2020.On 23 March 2021 the Respondent wrote to the Complainant demanding (i) that she sign the new contract by 26 March 2021 and (ii) that she attends the office to carry out a particular task, which could have been done remotely. The Complainant refused.

The Complainant informed the Board that her laptop was broken, which was hampering her ability to work. No remedial action was taken.

On 31 March 2021, the Complainant was advised that her grievance would not be investigated until she signed the new contract. The Complainant sought further clarity regarding matters.

On 29 April 2021 the Complainant was asked by her line manager to attend the workplace. She refused.

On 5 May 2021 the Complainant was instructed to attend work in person and report to Lisa Doyle on 10 May 2021, or alternatively, her wages would be stopped. She refused to attend in person and informed the Respondent of her intention to continue to work from home.

On 7 May 2021 the Complainant was informed that she was required to attend work in person and if she did not, she would be removed from the payroll. Her wages were stopped, although she continued to work from home.

On 21 May 2021, the Complainant was informed that the board was satisfied that it had ‘fully discharged is obligations’ regarding her grievance, even though it explicitly refused to investigate that matter until she signed a new contract which contained detrimental provisions.

The Complainant provided the Respondent with a letter from her doctor, dated 27 May 2021, setting out her difficulties from a medical perspective about returning to the office.

On 31 May 2021, the Respondent summarily dismissed the Complaint by letter without notice.

At the time of her dismissal the grievance had not been heard. The Respondent refused to address the grievance until the Complainant signed a new contract. The Complainant was repeatedly told she must return to the office during 2021 despite providing medical evidence regarding her susceptibility to Covid 19 infection due to medical conditions of both her and members of her family.

The conduct of the Respondent is indefensible. That conduct continued after her dismissal, when the Respondent harassed the Complainant and issued threatening letters to her about returning the laptop. The Chairman of the Board called to her home seeking the return of the laptop. His presence was extremely intimidating and was designed to be intimidating. The Complainant has long since returned all company property.

The Complainant’s dismissal was an obvious and egregious breach of the Act. The dismissal was both substantively and procedurally unfair.  The Respondent simply issued a letter of dismissal with complete disregard for its own procedures, natural justice, and fair procedures.

The Complainant was without notice or knowledge that her position was at risk. She was not made aware of any allegations. She was not made aware of any investigation process, as there was none. She was not afforded any opportunity to respond to allegations. There was no notification of a disciplinary hearing, nor did any disciplinary hearing take place. It follows therefore that the Complainant did not enjoy the benefit of representation. The potential sanctions arising out of matters were not made known to the Complainant at any time. The dismissal letter fails to specify the exact conduct which gave rise to the Complainant’s dismissal. The Complainant was simply summarily dismissed because of purported gross misconduct. She was not provided with details of any appeal. The conduct of the Respondent in dismissing the Complainant, was entirely unreasonable and manifestly unfair.

The Complainant referred to the established tests set out in Hennessy v. Read & Write Shop LTD UD 192/1978, Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, and Kilsaran Concrete v Vet UDD 11/2016 and SI 146/2000 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, in support of its position.

Relevant Law

Section 1 of the Unfair Dismissals Act 1977 defines dismissal as follows:

“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,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Deliberations

The core issue for the Court to decide is whether there was a dismissal within the meaning of section 1 above.

Counsel for the Respondent submits that the Complainant was not dismissed for gross misconduct and that no dismissal under the Act occurred. It contends that the Complainant terminated her own employment when she fundamentally breached her employment contract by not attending work, and that the Respondent was entitled to consider the employment relationship to be terminated. It confirmed the situation in writing to her (by way of a letter dated 31 May 2021), as it could not ignore her continuing disregard for and breach of her contract of employment. In such circumstances, where the Complainant terminated her own contract there was no necessity to subject the Complainant to a disciplinary process and the disciplinary procedure do not apply.

Counsel for the Complainant refutes the assertion that the Complainant terminated her own employment and submits that it is nonsense to suggest about the letter of the 31 May 2021 is anything other than a dismissal letter.

A large amount of email correspondence exchanged between the parties in 2020 and 2021 was opened to the Court, including the letter, dated 31 May 2021, which states as follows:

“Dear Sueann,

Following on from correspondence sent on 07/05/2021 and 21/05/ 2021, I have been instructed by the board to inform you of the following:

The board is aware that you have not reported to your line manager Lisa Doyle as requested by the board on 07/05/2021. The board are also aware that you have not surrendered your workplace laptop and phone nor provided e-mail access to your manager as also requested by the board on 21/05/2021.

Not reporting to your line manager and failing to take direction from the board is, in the opinion of the RCSF board, a case of gross misconduct as outlined in the RCSF staff handbook.

The board has allowed sufficient time and made several attempts to reach a satisfactory resolution with you on these matters but unfortunately these attempts have failed.

By failing to meet the obligations of your employment, the board of RCSF are now sadly left with no other course of action but to follow the instructions as set out in the staff handbook. We therefore give you formal notice of the termination of your contract as per the date on this letter.

The board requests that you return the Project Laptop, Phone and all access codes to M/s Lisa Doyle forthwith.

On behalf of the board

Barry O'Brien.”

The Court notes that the letter sent to the Complainant on 31 May 2021 expressly states at paragraph 2 that the Board considers the Complainant’s actions, in not reporting to her line manager and failing to take direction from the Board, to be a case of gross misconduct as outlined in the CSF staff handbook. 

The letter goes on to state at paragraph 5 that “By failing to meet the obligations of your employment, the board of RCSF are now sadly left with no other course of action but to follow the instructions as set out in the staff handbook. We therefore give you formal notice of the termination of your contract as per the date on this letter.”

Counsel for the Respondent submits that the reference in paragraph 5 about the Complainant’s failure to meet the obligations of her employment refers to her failure to fulfil her contractual obligation to attend work. When asked why the letter refers to gross misconduct if the employment relationship was terminated by the Complainant, as contended by the Respondent, Counsel accepted that the inclusion of that paragraph may have given rise to confusion.

The Court had some difficulties with the Respondent’s assertions that the letter sent to the Complainant on 31 May 2021 was issued in direct response to the Complainant terminating the employment relationship.

The Court was provided with no reason for the Respondent to refer to gross misconduct on the part of the Complainant in such a letter if the purpose of the letter was to acknowledge the Complainant’s termination of the employment relationship.

Furthermore, the Court sees no reason for the Respondent to give the Complainant formal notice of the termination of the contract as per the date of the letter, if the Complainant was the party terminating the relationship, as asserted by the Respondent.

The Court notes that at paragraph 5 the letter states that the Board had to “follow instructions as set out in the staff handbook” and give notice of the termination of the contract. A copy of the handbook was opened to the Court. Counsel for the Respondent and Mr O’Brien, who signed the letter on behalf of the Board, were unable to clarify what, if any, any instructions were followed from the handbook.

In the view of the Court, the letter issued by the Respondent on 31 May 2021 contains all the ingredients of a dismissal letter.

On a plain reading of that letter, the Court finds that the Complainant was dismissed for gross misconduct for not reporting to her line manager and failing to take direction from the board.

There is no dispute that the disciplinary procedure or indeed any procedure was utilised by the Respondent in advance of the dismissal of the Complainant.

Counsel for the Complainant referred the Court to the requirements set out in Frizelle v New Ross Credit Union (1997) IEHC137 that an employer is required to adhere to fair procedures prior to a decision to dismiss as a failure to apply fair procedures put a dismissal outside of the band of responses of a reasonable employer.

Having regard to the above, the Court finds that the Complainant was unfairly dismissed from her employment on 31 May 2021 within the meaning of the Unfair Dismissals Act 1977.

Redress

The Court enquired of the parties what their preferred remedy was under the Act if it determined the appeal were to succeed. The Respondent stated that the company is a limited liability company with no significant assets and for that reason re-engagement was the preferred option. The funds which it receives from donors can only be used for the purposes for which the funds were granted.

The Complainant expressed a preference for an award of compensation. 

Having regard to the circumstances of this case it is clear to the Court that the working relationship between the parties had broken down, and the remediesof reinstatement or reengagement are not appropriate forms of redress. The Court determines that an award of compensation is the most appropriate remedy.

Section 7 of the Unfair Dismissal Act 1977 as amended provides in relevant part as follows:

(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 adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (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) as is just and equitable having regard to all the circumstances, or

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

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.]

(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,

[(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.]

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the [Social Welfare Consolidation Act 2005] in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.]

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and 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 [2022], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

In the instant case, the Complainant confirmed that she has been in receipt of Disability Allowance since the termination of her employment. Accordingly, the Complainant was deemed by the Department of Social Protection to be unable to work in this period. No evidence was produced by the Complainant to show that she was entitled to payment from her employer during a period of illness and in those circumstances her actual and prospective loss of wages is nil. In relation to the Complainant’s claim for compensation for loss of rights under the Redundancy Payments Acts, in circumstances where no evidence was produced to show that a redundancy situation arose either before, at or after her dismissal her loss is calculated at nil.

Relying on the case of Liz Allen v Independent Newspapers UD641/2000, Counsel for the Complainant submitted that the actions of the Respondent in this case rendered the Complainant unable to engage in effective job search and although she did some causal work when it was offered to her.  Counsel further submits that the Complainant should be compensated any loss of potential statutory redundancy payment in the calculation on an award to her.

In the Allen case, the Complainant established that she was subjected to inappropriate treatment and that her complaints were not addressed. The Employment Appeals Tribunal accepted that a prolonged period of illness after the dismissal, during which the Complainant was unable to work, was attributable to the employer’s actions and that, therefore, the loss of income to the Complainant in that period should be compensated by the employer.

The Court was not provided with any expert evidence or testimony to support the contention in this case that the Complainant’s medical status was attributable to the actions of the Respondent in this case.

Where a former employee is unable to work, their former employer cannot be held, in accordance with the Act, to be liable for any financial losses that result.  In such a situation, where the Court determines that the dismissal was not fair, s.7 (1)(c)(ii) of the Act applies, and the Court is confined to determining a maximum compensation award of four weeks’ pay as is just and equitable having regard to all the circumstances.

It is accepted that the Complainant had a contractual entitlement to a weekly rate of pay of €575 gross during the relevant period. On the facts as presented, and having regard to all the circumstances, the Court determines that the total amount of compensation for actual and ongoing loss that is just and equitable is four weeks pays, which amounts to €2,300.

Determination

The Court finds, for the reasons stated above, that the Complainant was unfairly dismissed.

The appeal is well-founded.

The Court requires that the Respondent pay to the Complainant four weeks salary being an amount of €2,300 which the Court considers just and equitable in all the circumstances.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
7 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.