UDD2424

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00036006 (CA-00047222-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 4 August 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 8 May 2024.

The following is the Decision of the Court:

DECISION:

This is an appeal by Aisling Murphy (the Appellant) against a decision of an Adjudication Officer given under the Unfair Dismissals Act 1977 to 2015 (the Act) in her complaint against her former employer Madigan’s Pharmacy Kilkenny Limited (the Respondent).

The Adjudication Officer decided that she had “no jurisdiction to hear the substantive matter of the case and award redress under Section 8 of” the Act.

Background

The Appellant was employed by the Respondent from 1st September 2020 to 1st June 2021 when she was dismissed. She contends that her dismissal was wholly or mainly due to a series of protected disclosures she had made to the Respondent. The Respondent submits that the Appellant’s dismissal was wholly due to concerns about her performance. The Respondent submitted that the Appellant lacked the service necessary to avail of the protection of the Act.

It is common case that the Appellant secured other employment immediately following her dismissal from the Respondent, and that, consequently, she suffered no financial loss attributable to her dismissal.

Relevant law

The appeal before the Court concerns an employee with less than twelve month’s service with the Respondent.

The Act at Section 2 in relevant part provides as follows:

2. (1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,

Section 6 of the Act in relevant part provides as follows:

6. (1) 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.

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

 (ba) the employee having made a protected disclosure,

Section 6(2)(D) of the Act as inserted by the Protected Disclosures Act, 2014 makes provision as follows:

(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).

The effect of these statutory provisions is that a dismissal which results wholly or mainly from the employee having made a protected disclosure is unfair, and the employee is not required to have one year’s continuous to obtain the protection of the Act.

The Act at section 7 in relevant part makes provision as follows:

7.(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 F50[the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

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

The effect of these statutory provisions is that, in circumstances where an employee incurred no financial loss attributable to his or her dismissal, the redress to which he or she may be entitled under the Act, were an award of compensation to be decided upon by this Court, is limited to four weeks remuneration in respect of the employment from which he or she was dismissed.

Summary of the Respondent’s submission

The Respondent submitted that the dismissal of the Appellant was not in response to or connected with any protected disclosure she contends that she had made. The Respondent submitted that the process of recruiting a replacement for the Appellant had begun shortly after her recruitment because her performance of the role had not been suitable for the Respondent’s business.

Theres was no causal link between her dismissal and any protected disclosure, and this is clearly demonstrated by the fact that a replacement staff member was recruited by the Respondent prior to the alleged protected disclosures being made.

The Respondent submitted that in a line of authorities of this Court, it has been established that in order for a complaint of the nature made by the Appellant to succeed, the detriment which she is alleged to have suffered must be shown to have been imposed “for” having committed a protected Act. It must be demonstrated that ‘but for’ her having made a protected disclosure, the detriment would not have been imposed upon her. This established test is often referred to as the ‘but for’ test.

 The Respondent submitted that in Aidan and Henrietta McGrath Partnership v Anna Monaghan (PDD162), this Court endorsed the ‘but for test’ as applied in O’Neill and Toni and Guy Blackrock Ltd (2010) ELR 21.

The Respondent further submitted that the Act itself makes clear that, because the Appellant was employed for a period of less than a year, a dismissal can only be deemed an unfair dismissal within the meaning of the Act if it results wholly or mainly from her having made a protected disclosure.

The Respondent submitted that the dismissal of the Appellant was wholly or mainly connected with her performance. In those circumstances, the protections of the Act cannot, by operation of Section 2(1)(a), be extended to the Appellant.

Without prejudice to these submissions, the Respondent submitted that the Appellant took up new employment on 17th June 2022, having been dismissed on 1st June 2021, and consequently no or very minimal financial loss can, within the meaning of the Act, be attributed to her dismissal.

Summary of evidence tendered on behalf of the Respondent.

Bernie Madigan, owner, gave evidence on behalf of the Respondent.

She stated that the Appellant was hired by her on 1st September 2020 and that she commenced looking for a replacement pharmacist in October 2020. She said that she contacted every colleague she knew and was told that she would not get anybody in Kilkenny.

The witness stated that the Appellant approached her looking for promotion in November 2020 and because she could not operate the pharmacy without the Appellant at that time, she gave her the promotion. If the Appellant had left the employment it would have closed.

In January and February 2022, she continued to look for a replacement and at one point even placed the pharmacy up for sale.

She gave evidence of several performance related issues which she said she raised on occasion directly with the Appellant and regularly through the ‘diary’ which was a communication tool in the pharmacy.  She gave evidence of the loss of a significant contract because of what she stated were concerns on the part of the customer.

She continued to look for a direct replacement for the Appellant including through an agency. That search resulted in an interview with a prospective replacement in April 2022. That person worked for a number of hours with the witness on 10th May 2022 in a form of trial, and the witness offered that person the job that evening. The person accepted the offer and took up employment on 2nd June 2022.

She said that the employment of the Appellant was terminated because she could not do the job. For the reason that the witness recognised that shortly after the Appellant had been recruited, she commenced searching for a replacement almost immediately. In that context she agreed to a promotion for the Appellant with an increase in pay and a reduction in hours with a view to retaining her in employment until a replacement had been identified.

Under cross examination she stated that the Appellant was not a fit for the business. She was afraid that the Appellant would leave the business before being replaced and the business could not have operated in those circumstances.

She stated that any contention that her recruitment of another pharmacist for employment alongside the Appellant was inaccurate, as the business could not support such a structure. She utilised locums from time to time when required including during the Summer before she recruited the Appellant.

Summary submission of the Appellant

The Appellant submitted that she commenced employment with the Respondent on 1st September 2020 and that her ‘de facto employer’ was Bernie Madigan who acted at that time in the role of supervising pharmacist. She worked five days per week, completing circa 44 to 45 hours per week.

On 4th December 2020 she was promoted to the role of Supervising Pharmacist, and her salary was increased to €75,000 per annum. Her working hours were reduced to 36 hours per week.

No performance issues were ever raised with her at the meeting where she sought and secured promoted.

The Appellant submitted that she made a protected disclosure within the meaning of the Act on 11th May 2022. She made a further protected disclosure on 18th May 2022.

Following the making of her protected disclosure on 11th May 2022, Mr Madigan’s attitude completely changed towards her. On 1st June 2022 Mr Madigan arrived at the pharmacy where the Appellant was working, and he told that ‘…it wasn’t working out’. He told the Appellant that the Respondent was ‘… looking for someone more experienced..’.

On that occasion the Appellant asked Mr Madigan whether this was all about the fact that she would not carry out the duties which led to her protected disclosures, and Mr Madigan looked directly at her and failed to deny this.

He then instructed her to leave the premises and to hand over the keys. On the following day she received a letter of dismissal signed by the Madigans. The stated reason for her summary dismissal was ‘we need a more experienced pharmacist for the purpose of developing this start up business’.

She submitted that she suffered no financial loss attributable to the summary dismissal and neither did she seek re-instatement nor re-engagement as redress for her unfair dismissal.

Summary testimony of the Appellant

The Appellant stated that she commenced employment with the Respondent on 1st September 2020 and that she was promoted on 4th December 2020 to a position as a supervising pharmacist. On promotion her pay was increased, and her hours were reduced.

She sought the promotion in November but did not threaten to leave the business if she was not promoted.

She had never been spoken to about issues related to her performance, and while certain operational matters were highlighted by the Respondent in the pharmacy diary, that mechanism was not a tool for discussion as regards staff performance. It was a diary recording matters which might have arisen in the pharmacy and was a means of notifying other staff of that occurrence.

The Appellant stated that she made a protected disclosure to the Respondent on 11th May 2021 and made a further disclosure on 18th May 2021. On 1st June 2021 Mr Madigan came into the pharmacy and told her that it was not working out. He said that the pharmacy was looking for a person with more experience. A letter terminating her employment was received by her on 2nd June 2021, and that letter stated that the reason for the termination was related to a need for more experience. No mention was made of any concern as regards performance in that letter.

In cross examination she agreed that the pharmacy could not operate without a qualified pharmacist on site and agreed that when she sought a promotion in 2020 she did advise the Respondent that if she did not receive that promotion she would consider her position.

She agreed that the loss of a particular customer account was a significant blow to the pharmacy and also agreed that certain housekeeping issues were recorded in the pharmacy diary. The diary was however a more of a handover type record than any kind of communication about a person’s performance.

The Appellant stated that she had no knowledge that the pharmacy was at any material time engaged in a search to recruit a permanent pharmacist because nobody told her that was the case.

Discussion and conclusions

The Appellant submits that she was unfairly dismissed within 10 months of her recruitment. She submits that the requirement under Section 2 of the Act for a complainant to have one year’s service does not, by operation of the law, exclude her from the protection of the Act. She contends that this is so because the reason for her dismissal was wholly or mainly arising from her making of two protected disclosures on 11th and 18th May 2022. She contends that the requirement to have one year’s service at the date of her dismissal is not applicable by operation of Section 6 of the Act.

The Respondent contends that a search for a replacement for the Appellant was under way for many months prior to her dismissal and has tendered sworn evidence to the effect that a replacement worker was offered the job of the Appellant on 10th May 2022. It is undisputed that the person alleged to have been offered the job on that date took up employment in June 2022.

The Appellant, in her evidence, stated that she was unaware of the efforts of the Respondent to secure a replacement pharmacist to take up the role she occupied in the pharmacy.

The Appellant will enjoy the protection of the Act if she can succeed in establishing that her dismissal was wholly or mainly a result of her having made a protected disclosure. She will not however enjoy the protection of the Act if her dismissal did not result wholly or mainly from her having made a protected disclosure.

There is no significant disputation between the parties as regards the challenge of recruiting a pharmacist to take up employment in the Respondent pharmacy. That difficulty relates, at least in part, to the location and nature of the business.

It is common case that the business had encountered significant difficulty in their efforts to recruit a pharmacist in 2021 when the Appellant was ultimately recruited.  It is also common case that the Appellant secured alternative employment as a pharmacist almost immediately following the termination of the employment with the respondent.

Against this background it falls to the Court to consider whether or not the Complainant was penalised for having made a protected disclosure. As this Court pointed out in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21 it is necessary for a Complainant to show that the penalisation of which he or she complains was imposed “for” having committed a protected Act. The act or omission complained of must have been incurred because of, or in retaliation for, the worker having made a protected disclosure. The making of the protected disclosure must be an operative cause, in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment.

In the within complaint, the Respondent’s evidence and submission as regards the extensive efforts undertaken to recruit a pharmacist over the months from October 2021 to May 2022 was persuasive and supported by the detail contained in the written submission made to the Court. The Appellant acknowledged in her evidence that she had no knowledge of any such efforts being undertaken by the Respondent.

The Court concludes that, on the balance of probabilities, based on the uncontested sworn evidence of the Respondent, she was, over a period of several months, engaged in efforts to replace the Appellant which concluded on 10th May 2021. On the basis of that conclusion, the Court must conclude that the dismissal of the Appellant resulted from the recruitment of a replacement and was not as a result of her making two protected disclosures after 10th May 2022.

Having reached this conclusion, the Court must also conclude that section 6 of the Act has no application to the within complaint, and consequently the Appellant cannot maintain the within complaint.

Decision

For the reasons set out above, the Court decides that the within appeal must fail. The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
24 June 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.