Complainant

Respondent

Parties

Kathleen  O'Reilly

An Post

Representatives

Barry Clifford

Paul Mc Keon BL, instructed by An Post, Legal Department.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 67(5) of the Property Services (Regulation) Act 2011

CA-00055599-001

20/03/2023

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

CA-00062238-001

14/03/2024

Ms O’Reilly, the complainant was employed by An Post as a Clerk, from July 2009. She was paid €707.88 per week. In February 2022, she went on sick leave claiming work related stress. She attended a meeting in March 2022 with the HR Manager and made verbal complaints on her treatment in the workplace. Several subsequent meetings took place although the issues remained unresolved. She was on sick leave over an extended period from February 2022 up until her dismissal on 30th June 2023. Her complaint is that she was unfairly dismissed.

The respondent denies that she was unfairly dismissed.

Summary of Ms O’Reilly’s Complaint (No direct evidence was given by the complainant and the following is a summary from the submissions made on her behalf by her representative)

The complainant has significant service with the respondent. Issues with other staff and line management emerged when she sought parental leave in June 2021. She was not granted leave initially and she felt this was unfair as other staff were being facilitated. As there was no consistent decision making by her line manager, she raised the parental leave issue with senior management. Her intention was to reduce her hours and then increase these again as her parenting responsibilities reduced over time.

She also sought some bereavement leave around this time. She felt that her line manager was insensitive to her needs with the goal posts always changing. She often got no response to emails when she raised issues. She did not submit any formal grievance complaint as she had no trust in management that her concerns would be addressed.

Things came to a head in February 2022 as she felt she was being isolated within the workplace. Ultimately, she became stressed and had to go on sick leave. Before going on sick leave, she sought a verbal explanation from her line manager as to why she was being excluded and isolated by other staff.

On 7th April, 2022, she had a meeting with management where she outlined her issues. She said she was advised to remain on sick leave. She was requested to document her specific issues and that these would be investigated. She documented everything to her representative who submitted her complaints to management.

It is submitted that an Occupation Support Specialist told her in a certain tone that other staff would not be sacked. She put trust in senior management to investigate her complaints but there was no reasoned outcome of the investigation. She felt other staff were not accountable for their actions.

She was disappointed that she was not offered alternative work despite being absent for a considerable period.

She made herself available for meetings with management although was then accused of not engaging constructively on a return to work.

Closing Submission

The complainant’s representative submitted that the initial grievance and absence was a workplace issue, yet the respondent referred to it as a personal issue. Her initial issue was that she was badly treated when she sought parental leave. The complainant was treated very badly and suffered emotionally as a result.

Her representative clarified that she had started a new job and earned slightly less than in her previous role.

Summary of Ms Farrell’s Evidence

Ms Farrell outlined that as HR Manager she was dealing with the file although was not directly involved at the commencement of the complainant’s grievances. From a review of the file she outlined the chronology of events before she took over responsibility.

·       The complainant was on sick leave from 16th February 2022.

·       At a meeting on 7th April 2022 with the previous HR Manager, the complainant made several complaints about her line manager and colleagues.

·       Correspondence was received from her representative on details of the complaints. The HR Manager drafted letters detailing each complaint so it could be forwarded to the relevant staff.

·       The HR Manager sought approval from the complainant that the details (as outlined by her representative) were accurate and could be forwarded to the relevant staff.

·       No approval was received from the complainant to forward the details of the complaints.

At this stage, she was in the position of HR Manager, and again sought approval from the complainant to send letters with details of her complaints to the various staff. This was as agreed at previous meetings with the former HR Manager. It was necessary for due process that the complaints were from her and not her representative. As no consent was forthcoming, she was anxious to meet with the complainant to move things forward.

In September 2022, she had a meeting with complainant. She sought approval to advance her complaints and offered supports. On 29th September 2022, she wrote to the complainant to outline what was previously agreed as follows-

‘The Company undertook, with your agreement on this process on 31/05/2022, that it would write to a number of individuals, to share with them what you had relayed, provided that you were satisfied with the content of the letters and where the Company was also satisfied, therefore, that you had fully shared your concerns and advised it on all and any relevant incidents, dates and witnesses to same cited in support of your concerns. You have not followed through on those agreed process steps to this point.’

The letter gave details of how the complaints were dealt with on a prima facie basis, particularly as the complainant had not approved individual letters to be sent to staff. The letter concluded by inviting further contact from the complainant.

As matters had not moved on, she wrote to the complainant on a few occasions in October 2022 and sought a meeting in November 2022. As there was still no engagement by the complainant, a further letter issued on 10th November 2022, stating that the continued payment of sick leave was predicated on engagement and efforts to return to work. The letter stated that sick pay was at the discretion of management and if removed that disciplinary issues could emerge as the complainant would then be on absence without leave (AWOL).

The complainant responded stating that she would be referring matters to the WRC and will not be attending any further meetings.

She said she sent further correspondence to the complainant on 12th December 2022 as there was still no real engagement. The letter warned that sick pay could be discontinued and advise the complainant of her rights to raise a grievance. The complainant wrote back on 13th December 2022 and she corresponded back again on 20th December 2022.

A meeting finally took place on 27th January 2023 although this meeting was not productive.

Further letters issued to the complainant on 3rd February and 13th February 2023 which alerted the complainant to the non-continuation of sick pay and that matters were being referred to the Employee Relations Specialist in Head Office.

In March 2023, the Employee Relations Specialist wrote to the complainant seeking engagement or written representations. As no representations were received, and the complainant was at this stage removed from the sick pay scheme, another letter issued to the complainant on 5th April 2023. The matters were then referred to Mr Pyke, who was a level 3 manager with responsibility for disciplinary issues under the company procedure.

Under cross-examination, it was put to Ms Farrell that she wanted to get rid of the complainant. She replied that this was not the case and that several meetings were organised with the aim of getting the complainant back to work.

Summary of Mr Pyke’s Evidence

Mr Pyke was now retired from the respondent company. His previous role was Business Manager and HR Manager. He said he received the file in April 2023 and he carried out a detailed review. He wrote to the complainant in May 2023 to allow the complainant make representations. As no respnose was received, he reviewed the file again. Given the extended period without meaningful engagement from the complainant, he viewed the matters as serious. The complainant had been on sick leave since February 2022. She was not receiving sick pay and was absent without leave. The absence, in itself, was a serious matter as per the procedures.

He said he had a lot of experience on dealing with disciplinary issues. He said he would normally consider sanctions that might serve to change behaviour. In this case, he did not see any merit in a lesser sanction other than dismissal. He saw no prospect of engagement and a return to work by the complainant. In short, he considered that she had repudiated her contract by not engaging with procedures. In June 2023, he decided on dismissal as he viewed this as the appropriate sanction, given the circumstances. An appeal was offered to the complainant which was not taken up.

Under cross-examination, Mr Pyke confirmed that he was aware of the complainant’s original complaints although he clarified that this was not the reason for dismissal. He said he was concerned about the lack of engagement and co-operation with procedures from the complainant over an extended period.     

Closing Submission

The respondent representative submitted that there was substantial evidence of non-engagement and non-cooperation from the complainant which was not challenged during the hearing. The testimony demonstrated that the respondent took extensive measures to support and assist the complainant back to work. There was no evidence of an agenda to get rid of her. The complainant’s earlier complaints were not a factor in the dismissal as per the testimony of Mr Pyke. The respondent has an essential service to run and could not continue to tolerate a staff member on absent without leave over an extended period. He concluded that the disciplinary process was followed in a fair and reasonable manner. The decision maker had no alternative but to dismiss the complainant. 

Preliminary Issue

A preliminary issue on jurisdiction arises as the complaint was dismissed on 30th June 2023 and the complaint was not received by the Workplace Relations Commission (WRC) until 14th March 2024. The complainant’s representative submitted that the complainant had reasonable cause as was stressed over this period and was not in a position to refer her case to the WRC until 14th March 2024.

The respondent had raised this jurisdiction issue in their earlier written submission. At the commencement of the hearing, the respondent representative withdrew their objection on the preliminary issue in writing.

The respondent representative did not contest the reasonable cause explanation.

As per section 8 (2) (b) of the Unfair Dismissals Act, I consider it appropriate to extend the period due to the reasonable cause outlined.

The Law

Section 6(1) of the Unfair Dismissals Act provides:

“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) of the Unfair Dismissals Act provides:

“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) ………………………………………………

(b) the conduct of the employee…”

Section 6(6) sets out the applicable burden of proof: ‘In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.’

Section 6(7) provides that regard may be had to the reasonableness or otherwise of the conduct of the employer and to compliance with the dismissal procedure required by section 14 of the Act or any relevant Code of Practice.

According to the Act, the onus is on the respondent to demonstrate that there were substantial  grounds to justify the dismissal. If the grounds relate to conduct then the onus is also on the respondent to demonstrate that they afforded due process and fair procedures to the employee.

In Governor and Company of the Bank of Ireland v Reilly, [2015] IEHC 241, Noonan J stated that,

“…the onus is on an employer to establish substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in Section 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 judgement as to whether the dismissal was reasonable for that of the employer.  The question is rather, whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.

Applying the Law to the Facts of the Case

The respondent relies on the non-engagement and non-co-operation of the complainant over an extended period. The testimony of the HR Manager, Ms Farrell and the Former Level 3 Manager, Mr Pyke was consistent and convincing. The extensive correspondence put into evidence demonstrated the attempts to get the complainant to engage constructively.

The testimony and correspondence demonstrated that the complainant was being facilitated to outline her complaints as she requested. She outlined them to her representative who in turn set them out in correspondence to her employer. The individual complaints were then to be forwarded to each staff member. It was agreed the complainant would confirm the details before they were forwarded on. This seemed logical until the complainant then did not consent or authorise that the complaints be forwarded on. This presented an obvious dilemma for the HR Manager as the complaints were being made through a lay representative who was not a union or legal representative. Given the circumstances, the HR Manager did take appropriate steps by investigating matters from a general perspective or prima facie basis as she described it in evidence. This was necessary, particularly as the complainant claimed it was an unsafe work environment. On the complaints, the HR Manager acted appropriately by keeping in contact and providing supports to encourage engagement. Despite the extensive correspondence and meetings offered, there was no meaningful engagement from the complainant. I am satisfied that the HR Manager acted professionally in that the procedures in place were followed. I am satisfied that the initial complaints were dealt with appropriately and that the complainant herself took no steps to confirm her complaints so they could be forwarded on.

On matters moving to a disciplinary process, this was inevitable given the complainant did not engage appropriately and there was no evidence that she was making efforts to return to work. Workplace procedures facilitate both sides so that matters are dealt with logically and fairly within the procedures. Given the non-engagement with the grievance and then disciplinary procedures, the complainant could not realistically have expected any other outcome other than her sick pay being stopped and matters becoming more serious. There were numerous warnings of the potential removal from the sick pay scheme which went unheeded. Later, even though she was off pay, the employer was still entitled to question the absence particularly as there were no medical reports or explanations forthcoming.

Mr Pyke confirmed he was aware of the initial complaints. I am satisfied though, as the decision maker that he based his decision on the lack of co-operation or engagement by the complainant. He outlined in testimony, that he was focussed on the extended absence, along with the absence of engagement. I am satisfied that he acted professionally and that there were substantial grounds to allow him to make the decision that he made. As per O’Reilly, the decision to dismiss was within the range of reasonable responses of a reasonable employer to the conduct concerned.

It is well established that employees are entitled to contractual and constitutional rights to fair procedures. I am satisfied that the complainant was afforded these rights when raising her initial complaints and throughout the disciplinary process.

For the reasons outlined, I find that the complainant was not unfairly dismissed.      

CA-00055599-001- Protected Disclosure Complaint

This complaint was withdrawn in writing by the complainant prior to the hearing on 22nd November 2024.

CA-00062238-001- Unfair Dismissal Complaint

I decide that the complainant was not unfairly dismissed.

Unfair Dismissals Act