Complainant

Respondent

Parties

Jade  Looby

Clonmel Kids Club Ltd.

Representatives

Self-represented

 Peninsula

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-00055308-001

28/02/2023

The Complainant commenced employment as a childcare worker on 20 April 2021. At the time of her dismissal she worked 20 hours per week. Her weekly wage was €228. The Complainant alleges she was unfairly dismissed on 28 November 2022 and seeks compensation for the dismissal. The Respondent submits the Complainant was fairly dismissed, following numerous verbal and written warnings, for persistent inappropriate behaviour.

Oral Testimony of the Complainant (on oath)

The Complainant outlined that a member of staff took pictures of some of the children (including the Complainant’s child) and sent them to a person in another country. The Complainant alerted Ms Quigley to this on 10 June 2022. Ms Quigley assured the Complainant that she consulted the company solicitor and had informed the Gardaí and the relevant parents. Ms Quigley told her that an investigation would take several weeks. The staff member involved was suspended but was back at work one week later. The Complainant contends that Ms Quigley did not in fact take any action in relation to the incident. In November 2022 Ms Quigley announced she was stepping away from the business. This prompted the Complainant to ask Ms Quigley if there was an outcome in relation to the investigation into the unauthorised taking of photos of children given her child was in the pictures. Ms Quigley said the incident was “all forgotten about now”. The Complainant was not satisfied with the response from Ms Quigley. On 18 November 2022 she asked her mother to alert the parents of the other children photographed as she could not do so given she was bound by a confidentiality clause in her contract. She did not ask her mother to go to her place of work on 21 November 2022 to speak with Ms Quigley. It is not true that the Complainant attended the workplace with her mother on 21 November 2022. No confrontation took place between her and Ms Quigley and at no time did she curse at Ms Quigley or use the ‘c’ word on that date.

On 22 November 2022, the Complainant attended for work as normal. Ms Byrne asked her to go to the homework room as Ms Quigley wished to speak with her. Ms Quigley told the Complainant that a parent had emailed her the previous day in relation to a comment the Complainant was alleged to have made to this person’s child. The Complainant told Ms Quigley that the comment was not said in the manner being alleged. The Complainant was also told that she had been in contact with parents and schools in breach of the Respondent’s confidentiality policy. The Complainant outlined that at no time did she contact parents or any schools. Ms Quigley advised the Complainant that she was being suspended and that she would receive an email regarding an investigation into the matter. The Complainant understood she would be invited to a meeting to give her version of events, but she did not receive this email or an invitation to an investigatory or disciplinary hearing. She did not receive a letter of suspension. The first time she saw the parent’s email complaining of the incident on 21 November 2022 was prior to the WRC hearing as part of the Respondent’s written submission.

On 29 November 2022, the Complainant was requested to attend work for a meeting concerning new contracts and policies. However, she was handed a letter and told she was being dismissed because of seven bullying allegations against her. The Complainant was aware of three complaints and asked to see the other four bullying allegations and the alleged complaint from the parent dated 21 November 2022 but Ms Quigley said “no”. She was advised that she had until 9 December 2022 to appeal her dismissal.

On 7 December 2022, the Complainant emailed Ms Quigley appealing the decision to dismiss her. On 8 December 2022, Ms Quigley responded by email stating she rejected the appeal.

The Complainant outlined that there was no conversations held between her and other colleagues outside of work which were subsequently brought into the workplace. No meeting took place between her and Ms Quigley in relation to this. There were no verbal or written warnings issued to her by Ms Quigley at any time prior to her dismissal or over the course of her employment. She had a great relationship with “Mr B” who was her co-ordinator while she was at college. The Complainant outlined that she never received any of the verbal or written warnings opened by the Respondent during the hearing or any minutes of meetings alleged to have taken place. The first time she saw these documents was in the Respondent’s submission to the WRC prior to the hearing. Further, none of the incidents such as slamming a door in a colleagues face; cursing at children; abusing a colleague at a bowling alley trip or any of the other alleged incidents referred to in these letters and minutes, ever occurred. Further, the meetings referred to in the minutes did not take place. A trip to Tayto Park on 4 August 2022 went brilliantly and the children and carers really enjoyed the day. Ms Quigley thanked her for her work that day. At no time did she verbally abuse or curse at the security staff during that trip. As far as she was aware, until she was notified of three complaints of bullying against her, there were absolutely no concerns regarding her work performance and Ms Quigley never had a reason to address her in relation to her work or her behaviour. The only time Ms Quigley spoke to her prior to this time was in July 2022 when she asked her to assist with a summer camp.

In May 2022 Ms Quigley gave the Complainant her laptop and told her to hold onto it to complete online safety courses as the Complainant did not have her own laptop. Ms Quigley left the laptop into a store to be cleaned down first and told the Complainant to collect it. The Complainant did as she was instructed. In November 2022 Ms Quigley asked her to return the laptop to her. At no time did she try to access Ms Quigleys email account.

Graphite investigated the allegations of bullying against the Complainant. None of the allegations were upheld against her. The Complainant outlined that she was not provided with a copy of the Investigation Report and had to request same by email on 14 February 2023. She was told in this email by Ms Quigley that the Respondent was appealing the Investigator’s findings and that Ms Quigley would not be answering any further questions.

The Complainant outlined that she loved her job. She did everything she was asked to do. On 26 August 2022 Ms Quigley gave her €400 bonus and thanked her for her work. There were no issues between her and Ms Quigley or any concerns regarding her performance. Everything changed when she raised the issue of the unauthorised taking of photographs of the children.

The Complainant said she was in no state of mind to start a job immediately but she did secure a temporary job on 3 December 2022 working 16 to 18 hours earning €13 per hour. She was then issued with a permanent contract on 19 January 2023 for between 25 and 30 hours per week earning an average of €346.26 per week.

During cross-examination, the Complainant acknowledged that the contract of employment opened to the hearing was the one issued to her and that she had signed it. She acknowledged that it contained a confidentiality clause and a prohibition on comments to the press/media clause. The Complainant stated that the Code of Conduct was not given to her as it was only drafted around the time of her suspension. The Respondent Representative opened each of the documents which were presented within the Respondent written submission. These documents were minutes of meetings alleged to have taken place between the Complainant and Ms Quigley and letters of verbal and written warnings. In response to each one of the documents, the Complainant confirmed that she had never seen them prior to the WRC hearing; that she did not attend any meetings where these warnings were allegedly given; and that the alleged incidents cited therein never happened. In relation to the incident of allegedly kicking a ball in a child’s face, the Complainant responded “that never happened. I am sure if it did the child’s parent would have been in”. In relation to the document dated 8 August 2022, the Complainant again denied ever seeing the document and added that she was not in work that day. It was her 30th birthday and she was on leave. It was put to her that she was rostered to work that day. The Complainant responded that she was not at work that day and that she did not return to work until 10 August 2022. The Complainant denied responding to a comment that a child had hurt her chin by saying “which chin?”. The Complainant denied coming into the workplace accompanied by her mother on the morning of 21 November 2022 and referring to Ms Quigley using the ‘c’ word. The Respondent opened a document dated 21 November 2022 which advised the Complainant that she was suspended. The Complainant stated this document was not issued to her. She was told verbally that she was being suspended. The only letter she ever received was a letter of dismissal. The Complainant confirmed a post on Facebook was written by her on 8 December 2022 after she was dismissed. The external investigator’s report into the bullying allegations were opened by the Respondent Representative. It was put to the Complainant that the reason the Investigator did not find against her was because there was insufficient evidence of inappropriate behaviour. The Complainant confirmed that to be the finding of the investigation. It was put to the Complainant that the reason for her dismissal was not the bullying allegations against her but rather the fact that she engaged in an act of gross misconduct when she cursed at Ms Quigley on 21 November 2022. The Complainant stated that the alleged interaction with her and Ms Quigley did not happen. The Complainant added that she understood she was being suspended for a comment in relation to a child’s chin. There were no prior issues and it was not possible that she could get ten warnings as alleged by the Respondent in the time alleged. The Complainant was asked what happened on the trip to Tayto Park. The complainant outlined that no incidents happened that day as was alleged and responded that the Respondent’s witnesses were not telling the truth.

Oral Testimony of Ms Brinza (on oath)

On the day of the trip to Tayto Park, Ms Sommerville said she had travel sickness and wished to travel in a car. On arrival at Tayto Park the Complainant went to reception and got the tickets. She was told to line the children up so wristbands could be placed on their arms. Ms Brinza outlined that the Complainant did not speak to security staff and did not abuse security staff. She witnessed no inappropriate behaviour by the Complainant.

In cross-examination Ms Brinza was asked why she resigned her employment. She responded that she resigned after allegations were made against her. It was put to her that her evidence was motivated by her issue with Ms Quigley. Ms Brinza responded: “No. I am here to give evidence on what happened at Tayto Park”.

Oral Testimony of Ms Cupeti (on oath)

Ms Cupeti confirmed to the Adjudication Officer that she was on the bus and was not a witness to what happened when the Complainant got off the bus at Tayto Park.

Oral Testimony of Ms Quigley (on oath)

The Respondent operates a breakfast and afterschool club for children. It employs fifty staff. The club takes care of children from all backgrounds. The care and safety of the children is of paramount concern. The ‘confidentiality’ clause and the ‘media/press’ clause in the contract of employment is critical as the children may be a ward of court or under the care of Tulsa and so on. The Code of Conduct and Respect in the Workplace was opened to the hearing. Ms Quigley outlined that the behaviour of staff around children is of primary concern. The work of the Respondent is highly regulated.

There was a “stand-up row” between the Complainant and another staff member while at work in relation to what was allegedly said at a confirmation. Ms Quigley had a meeting on 9 March 2022 with the Complainant in relation to this. Ms Byrne attended the meeting and took notes. A document was opened to the hearing which bullet pointed what was discussed at the meeting. A verbal warning was issued to the Complainant. The Complainant was provided with a copy of the minutes and was aware she had been issued with a verbal warning. Ms Quigley confirmed this was the first verbal warning given to the Complainant.

A document dated 27 June 2022 was opened to the hearing. Ms Quigley stated this document constituted minutes of a meeting she had with the Complainant. Ms Quigley outlined that the purpose of the meeting was to address an incident on 27 June 2022 where the Complainant was alleged to have shouted at the summer camp co-ordinator “Mr B” for no reason, and “purposely kicked a football straight at a child”. Ms Quigley advised the Complainant “the importance of respect to other colleagues and I went through the code of conduct and safeguarding when dealing with children”. Ms Quigley outlined that she was “horrified when this happened” and gave the Complainant a verbal warning. Another document dated 27 June 2022 was opened to the hearing. Ms Quigley stated this document also constituted minutes of the same meeting she had with the Complainant. In this document Ms Quigley outlined that she gave the Complainant a verbal warning. Ms Quigley confirmed this was the second verbal warning given to the Complainant. A copy of this document was also given to the Complainant but “she [the Complainant] would often scrunch them up and throw them in the bin”.

A undated typed document was opened to the hearing. Ms Quigley confirmed that the words “spoken to Jade Looby 4/7/22 Verbal Warning Child Welfare Safe Guards etc” was handwritten by her. Ms Quigley outlined that this document bullet pointed the matters discussed with the Complainant on 4 July 2022. The document again addressed the alleged incident on 27 June 2022 concerning the Complainant shouting at Mr B and kicking a ball at a child. It also addressed how the Complainant makes other staff members feel uncomfortable; bringing outside drama into work; slamming a door on Friday 27 June 2022 and shouting at her manager; that a qualified teacher left because of the Complainant’s treatment of her; how unprofessional she treats the children; screaming in front of children and staff; how “Jade has signed multiple documents on how to treat other staff and children and confidentiality agreements”; that another staff member had left because “Jade was bullying her”; and a complaint from a student who said she was thinking of leaving because of “nasty comments” made by the Complainant. Ms Quigley outlined that the Complainant was given another verbal warning. Ms Quigley confirmed this was the third verbal warning given to the Complainant.

The Respondent opened a letter from Tulsa dated 7 July 2022. The letter outlined that the Early Inspector Years/Tusla received 19 concerns concerning the Respondent on 24 June 2022. Two of these concerns related to alleged conduct by the Complainant including that the Complainant was “heard cursing in the presence of children” and that she had “verbally abused other staff members in front of the children. It is alleged that this was reported to management however nothing was done. It is alleged that Jade throw [sic] a glass of milk over a child and that management did nothing about this incident”. A letter dated 2 December 2021 from Tulsa to the Respondent was also opened to the hearing. This letter raised the issue of the Complainant throwing milk over a child. Ms Quigley outlined that she never received a complaint from Tulsa until the Complainant started working with the Respondent.

A document dated 25 July 2022 was opened to the hearing. Ms Quigley confirmed that this was a document recording a meeting she had with the Complainant and that a copy of the document had been given to the Complainant. The purpose of this meeting was to address the Complainant’s behaviour, specifically her lack of respect for Ms Quigley’s personal secretary. The Complainant was warned that this behaviour was unacceptable and would no longer be tolerated. The Complainant was given a verbal warning. Ms Quigley confirmed this was the fourth verbal warning given to the Complainant.

A document dated 29 July 2022 was opened to the hearing. This document was a record of a meeting she had with the Complainant. Ms Quigley outlined that a teacher had started working with the Respondent but resigned after a week as she felt bullied and intimidated by the Complainant. The Complainant was told this was serious and that there would be serious consequences if she continued to act this way. The Complainant was given a verbal warning and provided with a copy of the document confirming the warning. Ms Quigley confirmed this was the fifth verbal warning given to the Complainant.

A document dated 31 July 2022 was opened to the hearing. Ms Quigley outlined that she brought the Complainant into a meeting. Staff had come to Ms Quigley complaining about the Complainant’s behaviour, including throwing away a child’s runners; screaming at children; a parent had made a written complaint that day regarding how the Complainant was speaking to her son; a staff member had resigned because of her behaviour, and another staff member was considering leaving because of the Complainant’s conduct. She asked the Complainant did she realise how serious this was and did she understand what a verbal warning was. The Complainant cursed back at her. Ms Quigley outlined that she gave the Complainant another verbal warning. Ms Quigley confirmed this was the six verbal warning given to the Complainant.

An undated document was opened to the hearing. This document was headed: “Memo re; 2nd written warning given to Ms. Jade Looby”. Ms Quigley signed it. Ms Quigley outlined this was a record of an incident which occurred during a day trip with the children to Tayto Park. Ms Quigley outlined that she was at a family wedding and that she was inundated with calls from staff. The Complainant and other staff had taken the children on a day trip to Tayto Park. The day began with the Complainant instructing another member of staff, Ms Somerville, to get off the bus and directed she travel by car. On arrival at the Park the security staff refused the group access to the Park because the Complainant had cursed at, abused, and become aggressive with the security staff. Another staff member had to get them to agree to allow the group in. Ms Quigley confirmed this was a second written warning given to the Complainant. Ms Quigley outlined that she does not know how she misplaced the first written warning but it probably was because so many warnings had been given to the Complainant.

A letter from a parent dated 17 August 2022 was opened to the hearing. Ms Quigley outlined that she cannot recollect what she did on foot on that complaint as there was a lot going on.

A document dated 2 November 2022 was opened to the hearing. This document was titled: “Incident involving staff member Ms. Jade Looby”. It was the mid-term break and the staff took the children bowling. The Complainant passed remarks about another staff member “J”. He confronted the Complainant. J rang Ms Quigley and said he wanted to hand in his notice. Ms Quigley outlined: “at this stage I couldn’t take anymore. This is when I invited Graphite to come in and deal with issues in my business”. Ms Quigley told the Complainant that she was getting a third written warning. Ms Quigley confirmed that the Complainant got a copy of this document and that any meeting she had with the Complainant was always in the presence of another staff member. Graphite were engaged to investigate complaints of bulling made against the Complainant. The Complainant was presented with three complaints of bullying against her.

An email from a parent dated 23 November 2022 was opened to the hearing. Ms Quigley outlined that on 21 November 2022, as this child was playing, another child hit her on the chin. The child said: “ow my chin” and the Complainant replied: “which one”? The parent made a complaint regarding the manner in which the Complainant had spoken to her child and requested Ms Quigley to address it with the Complainant as the comment had upset her child. Ms Quigley told the hearing that the family concerned, who had been with the Respondent since 2016, did not return after that date. Ms Quigley outlined that she called the Complainant into a meeting that day and suspended her. She told her that an investigation would be conducted and that she could tell her side of the story and that she could be accompanied. A letter confirming the suspension was given to the Complainant and she was suspended with immediate effect. A copy of the letter of suspension dated 21 November 2022 was made available on day 2 of the hearing at the request of the Adjudication Officer.

Ms Quigley outlined that on 21 October 2022 the Complainant and her mother then appeared at the Respondent premises requesting to meet her. They were roaring and shouting about Ms Quigley not doing anything about photographs that had been taken of children, including the Complainant’s child, which allegedly had been sent to a foreign country by another staff member. Ms Quigley outlined that the Complainant called her a “c***” several times and that her language was completely unacceptable. Ms Quigley added: “that was it at that stage, we were going to dismiss. . . there was no going back given the language used, the threats and the damage she was doing to my business”.  This conduct constituted gross misconduct.

Ms Quigley outlined that the Complainant contacted several schools, parents and a Childcare Committee and told them that a member of staff had sent pictures to a paedophilia group in a (named) foreign country. The Complainant led these people to believe that this had been facilitated by the Respondent. The Gardaí got involved.

A document dated 29 November 2022 titled “Letter of Summary Dismissal” was opened to the hearing. This letter confirmed the decision taken by Ms Quigley to dismiss the Complainant. Ms Quigley confirmed that there was no further investigation or disciplinary hearing as the Complainant had received several warnings and knew her conduct was inappropriate.

Ms Quigley outlined that the Complainant tried to hack into her email account from a laptop given to her by Ms Quigley. She should have handed the laptop back. The Complainant did not appeal the decision to dismiss her. On 8 December 2022, the Complainant posted a comment on Facebook which implied that photos were taken of more children which had never been brought to Ms Quigley’s attention.

In cross-examination Ms Quigley was asked by the Complainant if the Complainant appealed the decision to dismiss her. Ms Quigley responded “yes, I did receive your appeal but because of your conduct there was no way I was giving you an appeal. I wouldn’t give you an appeal because of your foul language and aggression”.

Ms Quigley was recalled on day 2 to explain why a date on a document (31 July 2022) was an incorrect date as the 31 July 2022 was a Sunday. Ms Quigley explained that she often did not write these letters until the weekend during the busy summer months, and instead of reflecting the day of the conversation she wrote the date the letter was composed.

Oral Testimony of Ms Anna Byrne (on oath)

Ms Byrne outlined that she was present at many of the meetings when Ms Quigley gave the various letters of verbal warning to the Complainant. She outlined that she was present when the Complainant’s mother came to the Respondent premises on 21 November 2022. The Complainant’s mother was in an agitated state. The Complainant used the “c” word and directed it at Ms Quigley. Ms Byrne also outlined that she witnessed the Complainant being short-fused and patronising with staff.

Oral Testimony of Ms Mariutoc (on oath)

Ms Mariutoc is a childcare assistant and works for the Respondent. A letter dated 3 May 2022 was opened to the hearing. Ms Mariutoc said she wrote this letter to Ms Quigley as she was not comfortable working with the Complainant and she felt bullied by her.

Oral Testimony of Ms Sommerville (on oath)

Ms Sommerville is a childcare assistant and works for the Respondent. Ms Sommerville outlined that she was on the bus going to Tayto Park and she was asked to get off the bus by the Complainant. She described hearing the Complainant say to the security staff when they were initially denied entry “this is f***ing ridiculous”.  Her behaviour towards them was aggressive. The security guard agreed to speak with Ms Sommerville only. The group were then allowed access to the Park. In cross-examination, the Complainant asked Ms Sommerville if the Complainant herself got into Tayto Park, to which Ms Sommerville responded: “yes you did”.

Oral Testimony of Ms Deborah Byrne (on oath)

Ms Sommerville spoke to Ms Byrne when the bus returned from Tayto Park and told her what had happened and the conduct of the Complainant towards the security personnel.

Relevant Law

The Unfair Dismissal Acts 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the 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.

Section 6(1) of the Acts 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 Acts 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: (b) the conduct of the employee . . . .”

Section 6(6) of the Acts provides:

“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) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so— (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to 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 section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

Section 7 of the Acts provides:

“(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, (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 . . .

(3) In this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”.

Section 7(2) of the Acts provides:

“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.”

S.I. No. 146 of 2000, Code of Practice on Grievance and Disciplinary Procedures, outlines best practice for the handling of disciplinary proceedings by employers. The purpose of the Code is to ensure that any disciplinary procedures are fair and rational; that the basis for any disciplinary action is made clear to the employee concerned; and that any possible sanction and the opportunity to appeal same is clearly outlined. Constitutional justice and fair procedures require that details of any allegations of wrongdoing are put to the employee concerned; the employee is given the opportunity to respond to these concerns; the employee is given an opportunity to avail of the right to be represented; and the employee is afforded a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, and circumstances. The operation of a good disciplinary procedure requires the maintenance of adequate records. The Code is admissible in any proceedings before the WRC and any provision of the code which appears to the Adjudication Officer concerned to be relevant to any question arising in the proceedings shall be considered in determining that question.

Findings

The fact of dismissal is not in dispute and accordingly the burden of proof rests on the Respondent in this case to show that there were substantial grounds justifying the Complainant’s dismissal. It is not for me to determine the guilt or innocence of the Complainant or substitute my own judgment for that of the Respondent. Rather, I must apply the standard of ‘reasonable employer’. This requires a determination of the range of responses which a reasonable and prudent employer could have taken having regard to the nature of the case and then a consideration as to whether the Respondent’s actions and decision lay within that range (Governor and Company of Bank of Ireland v James Reilly [2015] IEHC 241; Pacelli v Irish Distillers Ltd UD571/2001; Bunyan v United Dominions Trust (Ireland) Ltd UD 66/1980; McGee v Peamount Hospital UD 136/1984; Looney & Co Ltd v Looney UD 843/1984).

Having reviewed the testimony of the parties and the contents of documents opened during the hearing, for the reasons set out below, I am satisfied that the reaction of the Respondent and the sanction of dismissal imposed in this case did not lie within the range of reasonable responses of a reasonable employer and accordingly the decision to dismiss the Complainant was substantively unfair. Further, I am satisfied the dismissal of the Complainant was also procedurally unfair.

There was a complete conflict between the evidence of the Complainant and that of the Respondent. The Complainant contends that there was no issues whatsoever with her work performance prior to her being notified of three complaints of bullying against her and her suspension from work on 22 November 2022. She contends that various meetings, alleged to have been held with her concerning her alleged inappropriate behaviour, never happened and she was never provided with a single document of any kind confirming disciplinary warnings in relation to her behaviour. The Complainant outlined she was suspended on 22 November 2022 following a complaint from a parent in relation to a comment made by her to a child. It was common case the Complainant said something to the child on 21 November 2021 when the child hurt her chin, but the Complainant contends it was not said in the way the Respondent claims. According to the Respondent, the Complainant had received at least six verbal warning and three written warnings prior to 21 November 2022. The Respondent contends that on 21 November 2022 the Complainant was suspended pending an investigation into a complaint from a parent and also following a venomous verbal altercation with the Complainant that same day. It was common case that the Complainant was not invited to a disciplinary hearing and that her appeal of the decision to dismiss her was ‘rejected’.  

On balance, I prefer the evidence of the Complainant that she did not receive formal disciplinary warnings prior to her dismissal or minutes of meetings alleged to have been held with her in relation to her work performance and her behaviour. I found the evidence of the Complainant to be cogent, consistent, and credible on both dates of the hearing. On the contrary, I do not find the evidence of the Respondent to be reliable for the reasons set out below.

A document dated 27 June 2022 (page 13, Respondent Booklet) was opened to the hearing. Ms Quigley stated this document constituted minutes of a meeting held that day. It was supposedly a record of a second verbal warning given and copied to the Complainant. The document was constructed like a letter, on headed paper, it was signed by Ms Quigley but it was not addressed to the Complainant. In the document the Complainant is addressed in the third person. In examination-in-chief Ms Quigley described being “horrified” at the Complainant’s conduct yet, in this document, there is no reference to any disciplinary warning being given to the Complainant. A different  document, also dated 27 June 2022 (page 14, Respondent Booklet), was opened to the hearing. Ms Quigley stated this document also constituted minutes of the same meeting she had with the Complainant (which I will refer to as “version 2” of the minutes for ease of reference). This document is similarly structured like a letter but addressed to no one and signed by Ms Quigley. In version 2 of the minutes, Ms Quigley describes the “intentional” kicking of a football “at a young child” as being taken “very seriously” by her and she adds: “I felt I had no option only to issue her [the Complainant] with a verbal warning”. It is difficult to understand why two different versions of minutes of the same alleged meeting were drafted. Further, it is difficult to comprehend how this alleged incident i.e., “purposelykick[ing] a ball at a young child” attracted a mere verbal warning considering Ms Quigley’s view of the incident and her oral testimony of the nature of the business (i.e., the paramount importance of the protection and safety of children in its care - which Ms Quigley was at pains to impress upon the hearing). Further, the Complainant was supposedly already on at least one verbal warning. Notably, the version 2 minutes outline “Ms Looby had also got a warning in the past week when she slammed a door in the face of a staff member here . . . I am watching this employee Ms. Looby closely and I will continue to document any breaches in her contract and reprimand her if needs be” (emphasis added). A undated typed document was also opened to the hearing (page 15, Respondent Booklet). Ms Quigley confirmed the words on this document beside the typed bullet points: “spoken to Jade Looby 4/7/22 Verbal Warning Child Welfare Safe Guards etc”, was handwritten by her. Ms Quigley outlined that this document bullet pointed matters discussed with the Complainant at an alleged meeting on 4 July 2022. The document refers again to the 27 June 2022 incident and also to the Complainant “slamming a door on Friday 27th June” (emphasis added). As noted above, in version 2 of the minutes of 27 June 2022, Ms Quigley records: “Ms Looby had also got a warning in the past week when she slammed a door in the face of a staff member here . . .” (emphasis added).This timeline does not tally.

A document dated 25 July 2022 was opened to the hearing (page 18, Respondent Booklet). This document is not addressed to anyone but is signed by Ms Quigley. There is no record of a verbal warning which is alleged to having been given to the Complainant. With respect to a document dated 8 August 2022, the Complainant again denied ever seeing the document and added that she was not in work that day as it was her 30th birthday and she was on leave. The Respondent opened a roster showing the Complainant’s name on the roster for that day. The Respondent confirmed to me that there was a sign-in sheet for 8 August 2022, but notably did not produce this document on day one or two of the hearing, which may have resolved this particular disputed issue.

In the document dated 31 July 2022 Ms Quigley describes being “alarmed” at hearing of inappropriate conduct by the Complainant. At this stage the Complainant was allegedly on her six verbal warning. I struggle to understand how Ms Quigley could possibly be “alarmed” if all of the other incidents occurred as documented by her. Yet another ‘verbal’ warning was given despite Ms Quigley’s oral testimony regarding the nature of the Respondent business (i.e., the care of children) and the seriousness with which she said, in both her oral testimony and documents submitted to the hearing, she viewed the Complainant’s alleged misconduct on this date.

An alleged first written warning was also given prior to the second alleged written warning, but Ms Quigley “misplaced” that and no details were given in evidence by the Respondent as to what the first written warning was for. Once again, the second written warning was noted in a document addressed to no one but signed by Ms Quigley.

On balance, I find it incredulous that six verbal warnings and three written warnings were given for alleged repeated inappropriate behaviour concerning the care of children which Ms Quigley testified as being “very serious”. No disciplinary hearings were ever held. Further, the Respondent gave no explanation as to why the company disciplinary procedure (with respect to the holding of a disciplinary hearing, the right to representation, the right to be heard etc.) was not followed on any occasion.

It was common case that Ms Quigley called the Complainant into a meeting in relation to a complaint, received by Ms Quigley via email from a parent, concerning a comment made on 21 November 2021 by the Complainant to this person’s child. The date of this meeting is in dispute: the Complainant states the meeting took place on 22 November 2022 and Ms Quigley states the meeting took place on 21 November 2022. Either way, both dates precede the 23 November 2022. In that email of complaint from the parent, the parent begins the email by saying: “[t]here is something that I wanted to bring to your attention . . . ” which indicates to me that she was bringing the incident of 21 November 2022 to the Respondent’s attention for the first time. This email was not sent to Ms Quigley until 8.10am on 23 November 2022 - two days after the Complainant was suspended allegedly on foot of this email. Further, I requested a copy of the letter of suspension which the Complainant contends she never received. I am satisfied that this letter of suspension could not have been given to the Complainant at the time she was suspended as contended by Ms Quigley. It would appear this document (which notably was not included in the Respondent Booklet prior to the hearing) was created after the Complainant’s suspension. Further, I note that the letter of suspension advises the Complainant that she is being suspended due to the alleged comment on 21 November 2022 but also an alleged serious verbal altercation on the morning of 21 November 2022: an alleged altercation which Ms Quigley stated in evidence was prompted by and occurred after the Complainant’s suspension.

It was common case that the Complainant was issued with a letter of summary dismissal on 29 November 2022. It was also common case that no disciplinary hearing took place. The Complainant was advised within that letter that her dismissal was on grounds of gross misconduct. Notably, she is advised that she is being dismissed inter alia for her behaviour including “seven complaints of bullying against her . . . currently being investigated by a private HRM firm” and for contacting parents and schools and breach of the Confidentiality Policy “in order to paint COS Club . . . in a poor image and with the intention of causing damage to our client base . . . you withheld information regarding a [sic] internal incident [the taking of photos concerning other children] and only used that information with malice, after 5 months to attack one of your colleagues and damage the reputation of COS Club right after you have been suspended for the use of inappropriate language towards children.”  First, I note that the Complainant was given no notice that her dismissal was being considered for these matters. Further, notably, there is no mention in the letter of the alleged verbal altercation on 21 November 2022 despite this being listed as a reason for the Complainant’s suspension in the first place. Second, the bullying investigation was ongoing (which I note the outcome of which was not to uphold any of the complaints of bullying against the Complainant). Third, the Complainant was not afforded a properly convened disciplinary hearing or any opportunity to defend herself. This is a breach of the Complainant’s right to due process.

By email 7 December 2022 the Complainant emailed Ms Quigley stating that she was appealing the decision to dismiss her. In this email the Complainant denied all allegations of wrongdoing. On 8 December 2022, no less than 24 hours later, Ms Quigley responded by email stating: “Thank you for your appeal email. In light of current events we will be rejecting your dismissal appeal”. The Complainant was further denied the right to appeal her dismissal, and this decision was made by Ms Quigley, who had also made the decision to dismiss. This too is a breach of the Complainant’s right to due process.

For the reasons outlined above, I am satisfied the dismissal of the Complainant was both substantively and procedurally unfair. The Complainant secured employment by 3 December 2022. A pay slip was opened to the hearing confirming her earnings in this new role. Her hourly rate of pay is higher in this role. I am satisfied that the Complainant’s actual loss is confined to two weeks’ pay (€456). However, as is clear from s 7(1)(c)(i) of the Acts, compensation is for “any financial loss attributable to the dismissal”.  Financial loss is defined as including “the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973”. At the time of dismissal the Complainant had less than 104 weeks service, however, the benefit of over one year qualification period for redundancy pay was lost due to her unfair dismissal. I have factored this into the award. Having regard to all the circumstances, I decide that it just and equitable to direct the Respondent to pay to the Complainant compensation in the amount of €1,037.

I decide this complaint under the Unfair Dismissals Act 1977 is well-founded and the Respondent shall pay to the Complainant compensation of €1,037.

Unfair dismissal.