Complainant

Respondent

Parties

Cathy  Moore

Charles Shiels Charity As Above

Complainant

Respondent

Parties

Cathy Moore

Charles Shiels Charity

Representatives

  David Smyth BL

Sharon McArdle Mark Mason Employment Law

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-00049026-001

05/03/2022

 Both parties agreed that in the first instance the issue of whether the Commission had jurisdiction to hear this complaint should first be considered.

The Complainant stated that she was employed as a Superintendent with the Charles Sheils charity in their Killough complex, Down, Northern Ireland.

The legal entity is based in Dublin.

The Charity operates five housing complexes, 1 in Dublin and 4 in Northern Ireland.

Each complex has a local board.

2 members from each local board/complex also are members of the Central Board that meet in Dublin.

The Complainant maintained that she had a written contract of employment which was sent to her by post from the Central Office at 24 Sheils House, Brewery Road, Stillorgan, Dublin.

The Respondent maintained that no written employment contract was ever drafted. The Respondent believed that the Complainant was confusing a caretaker agreement with an employment contract.

The Complainant has no copy of what she believed was in fact an employment contract sent from the main office in Dublin.

The Complainant argued since her contract of employment was drafted by the office in Dublin, and that the legal entity is based in Dublin, the Commission does have jurisdiction to hear the case as the contract is governed by Irish Law.

The Respondent stated that the Complainant could have pursued her claim in Northern Ireland as similar remedies are available. However, she is now statute barred.

The law that should apply is based on where the Complainant worked and that was Northern Ireland. There is no nexus whatsoever to ground her complaint to Irish Law and the Unfair Dismissal’s Act. In fact, the 1977 Act specifically excludes such a complaint:

(3) (a) This Act shall not apply in relation to the dismissal of an employee who, under the relevant contract of employment, ordinarily worked outside the State unless—

(i) he was ordinarily resident in the State during the term of the contract, or

(ii) he was domiciled in the State during the term of the contract, and the employer—

(I) in case the employer was an individual, was ordinarily resident in the State, during the term of the contract, or

(II) in case the employer was a body corporate or an unincorporated body of persons, had its principal place of business in the State during the term of the contract.

The Respondent stated that each local complex in fact recruit and employ their own personnel. No relationship exists between the Complainant and the Dublin complex.

The Complainant commenced her employment on or about June 2013 and her employment was terminated on the 28th of September 2021. The date of termination is in issue as the Respondent stated that the employment ended on the 5th of September 2021. An employer can summarily terminate for gross misconduct. Depending on the date of termination a 6-month time limit to lodge a complaint would run until the 4th March 2022, meaning under Irish Law the Complainant is out of time. However, if the dismissal is deemed to be unfair then the contractual date of termination must include statutory notice and then it would be in time.

The Respondent stated that the employee was never domiciled in the state during the term of the contract.

The Charles Shiels Charity is a private housing charity founded in 1868 and it is a body corporate with its legal domicile in Dublin Ireland and is a registered charity in Ireland. It has no legal entity presence in Northern Ireland.

The Complainant commenced her employment as Superintendent at the Killough complex in County Down in January 2013 and the contract was ended arising from a disciplinary hearing on the 5th of September 2021.

The appointment came with tied accommodation including utility bills. The market rent for the said accommodation was about €600 to €700 per month. Utility bills were also paid.

The post was paid an allowance of €4,658 per year.

The role of Superintendent is challenging and while many of the residents are helpful and appreciative at times some residents could be difficult. That challenge became more difficult during Covid Lockdown when most clients found the restrictions very difficult, and some resisted their implementation. It is this scenario that gave rise to some complaints being made against the Complainant. An independent investigation found no basis to these complaints and the Complainant was exonerated. However, this finding was not accepted by some residents who in turn commenced a campaign against the Complainant that led to a second investigation which bowed to group pressure and terminated the Complainant’s contract.

Fair procedures were absolutely ignored, and allegations previously dismissed by an external HR independent investigator were used as the factual matrix to dismiss, when they had already been independently found to be unreliable.

On the 10th of August 2021 the Complainant was informed that new complaints had been made about her. The list of complaints was from 7 residents. The complaints by AM; ML; RW; DV; PC were the same as previously or substantially the same.  AM while a new complaint was a rehash of other residents’ complaints already investigated and not upheld. DD was a new complaint.

On the 12th of August 2021 the Complainant requested more information about the purpose of the meeting and complained about the short notice given to her. The meeting was postponed until the 18th of August 2021. The Complainant also requested that she be allowed to bring a legal representative to that meeting. This request was denied by Mr Ian Kyle on behalf of the Charity. The Complainant is of the view that where she was faced with dismissal; the loss of her home and that the matters now being alleged against her were res judicata, she should have been allowed to have a legal representative attend at the hearing.

The Complainant attended the meeting without competent representation and her husband accompanied her for moral support. As the information requested by the Complainant prior to the meeting was not given to her; she stated that she was not in a position to adequately address the allegations now being made again. The Complainant stated that the new complaints were simply rehashed and not new.

The Complainant’s employment was terminated on the 5th of September 2021 following a meeting of the main board held on the 26th of August 2021.

This decision was appealed. The Complainant alleged that the appeal panel comprised of 3 members who already had been involved in the disciplinary process and should not have been appointed to hear the appeal.

The appeal was heard on the 23rd of September 2021. By email on the 28th of September 2021 the result of the Appeal Hearing was received. It upheld the original decision to terminate.

The Complainant was employed by the Respondent from 25th of January 2013 to the 5th of September 2021 as a Superintendent.

The Complainant worked at the Respondent’s property at Sheils’ Houses, Rossglass Road, County Down, Northern Ireland.

A resident made a complaint and the Charity received anonymous complaints about the Complainant. An investigation was conducted by an engaged external expert and the report submitted exonerated the Complainant concerning the allegations.

However, the report did identify several other concerns that some residents had about a breach of confidentiality by the Complainant and that she had shared personal information about other residents to other residents.

The Respondent alleged that 9 residents out of 16 stated they had concerns about a breach of confidentiality.

There were also grievances from residents about how the CCTV was being used to monitor their comings and goings.

Residents had also complained about the Complainant’s style of interaction.

These issues were not considered in the external report.

The conclusions in turn were communicated back to the residents and in turn that gave rise to a second set of complaints concerning the Complainant. A meeting was held on the 11th of August 2021 with the Complainant and the complaints from 6 named residents were shared with her.

Based on these complaints a formal review meeting was called for the 18h of August 2021 and the Complainant was informed on or about the 14th of August 2021 that an outcome of that meeting could be dismissal without notice and that she had the right to be accompanied to that meeting.

The meeting took place on the 18th of August 2021 in the Boardroom at Killough. The Complainant had been given all the new complaints.

The Complainant was asked if she had any observations to make. It is recorded that she declined and stated she had no comments to make until full disclosure of the matters before the board were provided to her. It is alleged that the Complainant was provided with an opportunity to be heard and to reply to questions put to her and refused to engage in the process.

On the 26th of August 2021 a meeting of the Central Board was convened. At that meeting a decision was taken that the Complainant’s employment be terminated. The Governors decided that the evidence before them primarily from the residents was compelling. The Board concluded that the Complainant’s continuing employment was not tenable as the local and central board has lost all confidence in her based on the complaints received.

The Governors viewed the situation very seriously. The complaints related to bullying, harassment, intimidation, victimisation, malicious and insulting behaviour, coercive control and disclosure of personal information. The alleged victims were residents in Sheil’s Houses who by virtue of age or other circumstances must be considered as vulnerable. The Governors were obligated to protect them and had an overriding duty of care to them.

On the 5th of September 2021 the Complainant’s employment was terminated without notice. The letter of termination confirmed that the Board had determined that she had:

a)      Acted in an insubordinate manner; and

b)     Brought the charity in to disrepute.

That decision was subsequently appealed.

Fair Process

The factual matrix of this case is akin to a mutiny. The residents or a very significant number decided that they wanted a change and resented the incumbent continuing in office. The context of this resentment is very much situated during Covid lockdown, and the very restrictive practices and monitoring required so that Covid would not spread to those in the high-risk category.

The first investigation exonerated the Complainant and when that outcome was communicated to the residents it led to a significant backlash.

The disciplinary procedure put in place following on from that second wave of complaints was reactionary. It moved at a fast pace. The Complainant should have been allowed to be accompanied by a competent representative allowing for the seriousness of the allegations being brought against her, which clearly had been flagged as very serious and if upheld could lead to summary dismissal. This is even more so as the second wave of complaints followed on from the Complainant being exonerated by an independent investigation.

The Respondent makes out that all the new allegations were provided so that a proper defence could be prepared and that 6 of the second batch of complaints were emailed to her in advance of the hearing on the 11th of August 2021. A formal invitation letter to attend a hearing followed on the 14th of August 2021 and that hearing was held on the 18th of August 2021. The Respondent alleged that the Complainant failed to engage with this process. She was then offered an alternative and to respond to the allegations in writing which she failed to do.

The Central Board met on the 26th of August 2021 and decided that the Complainant’s position had become untenable as they had lost all confidence in her to fulfil the duties of Superintendent.

The facts do show that the process was flawed; the Complainant should have been afforded the right to be represented by a competent person having regard to the seriousness of the allegations made against her. The Board failed to impartially engage with the Complainant’s concerns about being prepared, represented by someone who was competent allowing for the facts of this case and that certain matters were already determined and were being reheard. The Complainant was not given an opportunity to question her accusers. The Appeal process did not have actors who could be described as independent and sufficiently distant from the decision to dismiss and objectively viewed to be independent.

Extenuating Circumstances

However, allowing for these very serious and flawed procedural failings; it is also true that a very significant number of residents with a strength of feeling complained about the Complainant and how she interacted with them. The Respondent argued that even allowing for procedural deficiencies the Complainant’s position was untenable.

It would appear to this tribunal that extenuating factors played a very significant part in the events that unfolded that ultimately gave rise to a decision to dismiss. Covid restrictions created for the residents of this complex an intolerable burden on their normal day to day social interactions. Also because of Covid guidelines the Complainant essentially was isolated without support and left in an invidious position to implement those necessary guidelines including monitoring the comings and goings of residents. That highly likely fuelled other grievances and gave rise to a momentum where the incumbent Superintendent became an authority figure who was blamed for policies and practices not of her making.

The dilemma for the board was an unruly and unmanageable community of residents that ultimately must defer to the Superintendent’s authority and enough were clearly not going to acquiesce even after an independent investigation.

In these circumstances a mediated agreement would have been a more appropriate alternative as circumstance was more a factor in contributing to a lack of confidence by many residents in her stewardship. The residents’ complaints by default gave rise to the disciplinary procedure being invoked and with regret the board concluded that the relationship had been irrevocably broken between many residents and the Complainant.

Fair Outcome?

Redmond in Dismissal Law 3rd edition states at 13.14:

‘Perfect’ procedural justice has been defined as the ideal of a procedure guaranteed to lead to an outcome where justice is identified by some independent criterion. 24 The balance between substantive and procedural justice becomes most crucial in relation to the reasonableness of an employer’s decision to dismiss. Increasingly, procedural justice is being taken for granted by all concerned and the WRC’s function is to decide how exacting its tenets shall be. An employer will be regarded as having fairly dismissed an employee only if it both gave the employee the full benefits of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal. Section 6(7) of the Unfair Dismissals Act 1977 further emphasises the importance of reasonableness. In determining if a dismissal is unfair regard may be had:

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

The employer has stated that the process followed by them was substantially fair.

I note in several cases where the courts held that a procedural flaw alone cannot make a dismissal unfair. [ Circuit Court in Elstone v CIE 13th March Unreported].

“That the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of section 6(1), that regard must be had to all the circumstances, and not to one circumstance to the exclusion of all others”

In Healy v An Bord Telecoms, High Court (Barron J) 13th of February 1987 stated that:

“Regard must be had to all the circumstances” and that “the primary consideration is to determine the ground for the dismissal”.

In Short v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy J stated that a central consideration of a fair process is whether or not the alleged breach of fair procedures was ‘likely to imperil a fair hearing or a fair result’.

I note the Court of Appeal decision in RAS Medical Limited T/A Park West v The Royal College of Surgeons in Ireland [2017] IECA 228 where it was held that:

“Fair procedures do not dictate the outcome of a process…There are of course no absolutes in law or in life and there are occasions when the rule of fair procedures have to give way because of pressing exigencies to less considered or reflective processes”.

In Dunnes Stores v Kipli (UDD203) the Labour Court cited with approval Short v Royal Liver Assurances Ltd and stated:

It is clear that in the above passage, Laffoy J was restating the well-established principle that there is a wide degree of flexibility afforded to employers in relation to the manner in which the principles of natural justice are applied in the conduct of disciplinary procedures. The circumstances of each particular case will determine the particular application of those principles in practice

I also note Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 where the High Court determined that:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct:

1.      [the Respondent] …should state the complaint, factually clearly and fairly without any inuendo or hidden inferences or conclusion,

2.      The Employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment,

3.      The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

4.      The actual decision, as to whether a dismissal should follow should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of the dismissal

Put very simply, principles of natural justice must be unequivocally applied.

Allowing for the balance to be struck between a fair procedure and a fair outcome based on the facts; I determine that the procedures followed by the second disciplinary investigation were flawed to such an extent that it predetermined the outcome.

The Complainant it is alleged failed to engage with the 2nd investigation by failing to answer valid questions put to her and failed to engage when afforded the opportunity to answer questions at a later date in writing. These are facts that detract from the Complainant’s allegation of being unfairly dismissed. However, this tribunal in the round must look at how the Charity conducted this investigation and how the Complainant engaged with it.

 The Complainant should have been afforded the right to be represented by a competent person having regard to the seriousness of the allegations made against her. The Board failed to impartially engage with the Complainant’s concerns about being prepared, moved at a pace that significantly impaired the Complainant’s ability to be prepared adequately especially when not afforded the right to be represented by someone who was competent allowing for the complexity of this case; the seriousness of the allegations and that it is alleged that certain matters were already determined and were being reheard for a second time. On the face of the Respondent’s submission the independent report commissioned by the Charity is critiqued and argued to be deficient and reinterpreted to provide a basis for the 2nd investigation in addition to the new complaints. That line of argument is highly prejudicial to a fair hearing.  

The Complainant was not given an opportunity to question her accusers. The Appeal process did not have actors who could be described as independent and sufficiently distant from the decision to dismiss and objectively viewed to be independent.

Fair procedures ultimately protect the right to a fair hearing when allegations relating to conduct or misconduct are alleged.

A decision that offends the principle of natural justice in a fundamental way cannot be determined as reasonable.

Trust and Confidence

 A second material issue arises in this case and that relates to Trust and Confidence and whether the contract is frustrated.

Redmond in Dismissal Law 3rd edition states:

(iii) Frustration

[22.39]

A contract of employment may end as a result of the legal doctrine of frustration, that is, where performance of the employee’s duties in the future would become radically different from that undertaken by him. Frustration mainly arises in the context of illness or incapacity. This is discussed beginning at para [15.13]. A party who is at fault cannot rely on frustration as to their own act. The imposition of a custodial sentence on an employee is capable in law of frustrating a contract of employment: FC Shepherd & Co Ltd v Jerrom, 49 but the party asserting frustration must prove that the frustrating event was not caused by any fault or default on his part.

[22.40]

Irish judges have only rarely considered the basic principles of the doctrine of frustration. In Re the Trusts of the Will of Simon Sheil, 50 Kenny J in the Supreme Court outlined three possible bases upon which the doctrine of frustration might be said to rest:

‘(i) where there has been such a change in the circumstances that the performance of the contract has become unlawful; or

(ii) where events make it physically impossible for the contract to be performed; 51 or

(iii) where, although performance is physically possible, there has been such a change as to destroy the whole object of the contract to make performance no longer viable in commercial terms.’

It is, of course, frequently far from easy to determine whether there has been such a change in circumstances as to frustrate the contract.

There is an argument that in fact this contract did become frustrated not arising from the fault of any party but arising from the fallout of a very restrictive regime necessitated by Covid. It is arguable that in fact these restrictions that ultimately gave rise to an environment where the Complainant was viewed as the enforcer.  In turn she suffered the consequences of being the officer obliged to implement the necessary public health restrictions. However, for such an argument to prevail a no fault scenario must exist and the opposite existed in this case. The Complainant was dismissed for gross misconduct. I find that the Complainant was unfairly dismissed and that the board was wrong to find that the Complainant should be dismissed for gross misconduct. The process followed by the board in reaching such a conclusion was flawed and offended the principles of natural justice to an extent that the decision they reached was unfair.

Redress

The facts of this case do not support re-engagement or reinstatement based on the fractious relationships and an opportunity lost to seek a mediated outcome. In these circumstances compensation is the more appropriate redress.

At the date of the last hearing, it is clear that the Complainant has not demonstrated based on evidence an active approach to finding a new role to mitigate her loss.

Section 7(2) of the Act states:

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.

The obligation to mitigate is just one factor to be considered when determining compensation and not the sole factor.

`I note in Dismissal Law the following:

In Sheehan v Continental Administration Co Ltd 114 the EAT endorsed the position set out in the second edition of this work that ‘[a] claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss.’ 115 This passage was recently adopted and applied by the Workplace Relations Commission in deeming a claimant to have made insufficient effort to mitigate his loss. 116

Where the complainant has been unavailable for work and thereby has not availed of opportunities to mitigate his or her loss, compensation will normally be reduced accordingly.

I also note in Dismissal Law the following:

[24.67]

When determining compensation, the WRC must take into account all the circumstances of the case, according to the Supreme Court in Carney v Balkan Tours Ltd. 106 Section 7(1) coupled with s 7(2)(d) allow the adjudication body to look at all the circumstances including the conduct of the parties prior to dismissal.

And:

The Supreme Court 107 held on a case stated from the Circuit Court that:

(1) There was no doubt that the conduct of an employee was material in determining his or her rights to redress under the 1977 Act.

(2) Under s 6 of the 1977 Act, if the dismissal resulted wholly or mainly from the conduct of the employee there would be no right to redress whether by way of reinstatement or compensation. The Court remarked: ‘Indeed one of the surprising features of the present case is that the EAT having found that the claimant “contributed substantially towards her dismissal” ... had satisfied themselves that the employee had not contributed wholly or mainly to her dismissal.’

(3) The discretion conferred upon the tribunal (or other adjudicating body) by s 7 of the 1977 Act in relation to the computation of a payment by way of compensation was very wide.

The Complainant was on a very modest salary of the order of €13k per annum when accommodation and utility bills are included as compensation. Allowing for the circumstances of this case where the Complainant was entirely blameless, I award one year’s salary which is €13k and includes statutory notice. However, having regard to her duty to mitigate her loss I reduce this amount to €10k for not applying herself sufficiently to that task. I determine a final award of €10k to be just and equitable having regard to all the circumstances in this case.

I find that the Complainant was unfairly dismissed and that the board was wrong to find that the Complainant should be dismissed for gross misconduct. The process followed by the board in reaching such a conclusion was flawed and offended the principles of natural justice to an extent that the decision they reached was unfair. The complaint therefore is in time allowing for statutory notice which determines the date of dismissal.  Therefore the 5th of September 2021 was not the contractual termination date, and time ran until statutory notice expired.

 The facts of this case do not support re-engagement or reinstatement as the relationships between parties has become fractious. In these circumstances compensation is the more appropriate redress.

At the date of the last hearing, the Complainant has not demonstrated based on evidence an active approach to finding a new role in order to mitigate her loss.

The Complainant was on a very modest salary of the order of €13k when accommodation and utility bills are included as compensation. Allowing for the circumstances of this case where the Complainant was entirely blameless, I award one year’s salary which is €13k inclusive of statutory notice and having regard to her duty to mitigate her loss, reduce this amount to €10k for not applying herself sufficiently to that task. I determine a final award of €10k to be just and equitable having regard to all the circumstances of this case.

Jurisdiction; Brexit; Domicile; Trust and Confidence.