Complainant

Respondent

Parties

Sinead  Dormer

Tara M Ryan The Happy Dog House

Representatives

Setanta Landers Setanta Solicitors

Des Kavanagh Des J Kavanagh, HR Consultancy Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051114-001

13/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051114-003

13/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051114-004

13/06/2022

The Complainant commenced employment with the Respondent on 21 January 2016, as a dog day care operative.  She worked 31 hours per week and was paid €651 fortnightly. The Respondent runs a dog kennel.

At the outset of the hearing on 7 November 2023, CA-00051114-003 was withdrawn by the Complainant.

The Respondent provided a detailed written submission.

By way of introduction, the Respondent submits that the business was very badly hit by the Covid 19 pandemic and closed for several periods and when it reopened it was on a reduced hours basis. Rejecting the Complainant’s assertion that she was treated less favourably in relation to working hours, the Respondent submits that all staff were on reduced hours and the Complainant had been unable to take on extra hours that were offered to her due to an injury. There was a temporary arrangement made for two staff members which lasted five weeks. The Respondent attempted to meet with the Complainant to discuss her issues in relation to working hours, but a mutually convenient date could not be found as the Complainant requested that her concerns be addressed in writing.

In early August 2021, two members of staff complained in writing about the Complainant’s behaviour at work.  The Respondent decided to initiate a formal disciplinary procedure and wrote to the Complainant outlining the allegations made against her and inviting her to a workplace Investigation meeting, scheduled to take place on 24 August 2021.  The Complainant replied to this letter by letter, addressing the allegations, accusing the Respondent of abusive behaviour, looking for an apology and stating that as she had addressed the allegations in writing there was no need for a meeting.

On foot of the Complainant’s response and in particular because of the allegations made, the Respondent engaged the services of an external HR Consultant (Hr Consultant 1) to manage the disciplinary process. The Respondent also vehemently denied any allegations of bullying.  Despite some reluctance on the Complainant’s behalf, a meeting between her and the external HR Consultant, took place. The external HR Consultant issued the findings of her investigation which included a recommendation that the Complainant be issued with a “Letter of Concern” but no formal sanction.  The Complainant was not happy with this outcome and wrote to the Respondent appealing the outcome.

The Respondent engaged a second HR Consultant (HR Consultant 2), who responded to the Complainant on the Respondent’s behalf explaining that as a “Letter of Concern” was not a formal sanction the right to an appeal did not apply.

A third external HR Consultant (HR Consultant 3) was engaged by the Respondent.  An attempt to reach some sort of resolution of the matters between the parties took place by way of mediation, but it was unsuccessful. The third external HR Consultant carried out the mediation.

On foot of the mediation failing, the third HR Consultant wrote to the Complainant stating inter alia, “…the only obvious solution is to proceed with the process that was halted last autumn, but as a new process from the start.”

On 16 March 2022, the Respondent sent the Complainant a “letter of Invitation to the Formal Disciplinary Process.”  The third HR Consultant, who had acted as mediator before, was to act as Investigator.

On 25 March 2022, the Respondent wrote to the Complainant informing her that HR Consultant three had carried out her investigation and the Respondent had decided that the alleged complaints of Gross Misconduct had been upheld in full. Her decision on sanction was, “I have no choice but to consider terminating your employment”. However, she advised the Complainant of her right to appeal the “Preliminary Decision”, and as such she delayed finalising a decision until the appeal process had been completed. On 28 March 2022, the Complainant replied to the Respondent stating that she was preparing a case for the WRC and would not be participating in the investigation. 

On 30 March 2022, the Complainant lodged an appeal against her proposed dismissal. A fourth HR Consultant (HR Consultant 4) was engaged by the Respondent to hear the appeal.  The appeal was unsuccessful, and the Respondent wrote to the Complainant on 4 April 2022, officially informing her of the decision that she was to be dismissed.

The Respondent submits that the Complainant was a difficult and challenging employee and had been uncooperative throughout the final months of her employment in relation to the investigations that were carried out regarding her performance and the complaints made against her by her colleagues.

The Respondent acknowledges that she dismissed the Complainant but is satisfied that the dismissal was warranted, that the employment relationship had completely broken down, that relationships between the Complainant and her colleagues were irreparably damaged.

The Respondent submits that, in the absence of any personal HR expertise or experience in managing such employment disputes she acted reasonably and at great cost to her business by seeking external expertise.   The Respondent puts forward that she tried various ways of resolving the issues which arose between herself and the Complainant; direct engagement; an initial investigation; an attempt at mediation; an investigation to establish the facts; a preliminary decision considering dismissal and finally an appeal.

The Respondent acknowledges that following the final investigation no formal Disciplinary Hearing took place.  However, it is also clear in this case, according to the Respondent, that the Complainant recorded in her letter of 28 March 2022, that she would not be co-operating with the Disciplinary process as she was preparing a case to go to the WRC which would, in her word, “take precedence over any other investigation.” In addition, an external person was brought in to consider the Complainant’s appeal of the decision to dismiss her.

The Respondent, Ms Tara Cole, gave evidence on Oath at the hearing.

 In her Evidence-in-Chief, the Respondent stated that the business was “decimated” in 2021 because of the impact of the pandemic and hours were reduced.  She told the Complainant that she did not have the hours to give her but as soon as they were available, she would give them to her.  An arrangement made with another employee about hours was temporary and lasted only five weeks.  The Respondent repeatedly asked the Complainant to talk to her about the matter on several occasions, but she refused.

Two employees made formal written complaints about difficulties they were having working with the Complainant. Every time the Respondent tried to set up meetings with the Complainant she was rebuffed, and the Complainant replied with threatening letters. The Respondent initiated an investigation and engaged an external HR Consultant to carry it out.  She did this because she had been accused of bullying by the Complainant and she wanted to allow the Complainant to speak freely with an outside expert. The outcome of the Investigation was that a “Letter of Concern” should be issued to the Complainant. Things were not resolved after this, and a mediation process carried out by another HR Consultant [HR Consultant 3] was attempted but was unsuccessful.

The Respondent was advised that a formal investigation should take place; the Complainant wrote that she would not participate in the investigation as she was planning on going to the WRC. The outcome of the investigation was that the Complainant should be dismissed.  The decision to dismiss was held over until an appeals process was concluded.  The outcome of the appeal was that the Complainant should be dismissed.

In Cross Examination, the Respondent stated that there had been no major issues between herself and the Complainant until 2020. The Respondent stated that the reason other employees were working more hours than the Complainant was because they were job sharing. The Respondent stated that the reason she had recused herself from the first investigation was so that the Complainant would get a fair hearing. When it was put to her that the investigation process was anything but informal, the Respondent disagreed. 

When the Respondent was asked how was it that HR Consultant 3 acted as both mediator and then investigator, she replied that she had been told by HR Consultant 3 that there was “no conflict”, and this was an expert’s advice.

Regarding the second investigation, the Respondent stated that the reason the first five issues to be investigated in the second investigation were the same as the five issues investigated previously was because they had never been closed off.

The Respondent accepted that there had been no disciplinary hearing but this was because the Complainant had refused to attend, she had been invited to attend in writing. When questioned further on this the Respondent was unable to reference any correspondence that could be perceived as an invitation to a disciplinary hearing.

The Respondent did not agree when it was put to her that the list of allegations made against the Complainant could not be categorised as actions equivalent to Gross Misconduct as she believed the severity of the Complainant’s insubordination made them such.

When asked if it was appropriate that she, a person against whom the Complainant had made allegations of bullying, should make the decision to dismiss the Complainant, the Respondent stated she didn’t know at the time and she was doing as she had been advised. The difficulty for the Respondent was that the Complainant failed to engage with her, that she was rebuked and rebutted at all times.

Ms Lucie Dehe, the facility manager, gave evidence on Affirmation at the hearing.

In her Evidence -in-Chief the witness stated that she had left the Happy Dog House at one time but had returned because she found the Respondent to be a fair employer. She stated that a lot of the allegations being made against the Respondent were wrong.

The witness stated that she had submitted a written complaint against the Complainant due to difficulties she and her were having at work. When asked why she did not speak with the Complainant about these difficulties the witness stated that the atmosphere was toxic and she was afraid of the backlash that she might receive.

In cross examination, the witness stated that although she may not have submitted a formal complaint letter, she had submitted a written note.  The witness stated that she had found it difficult to talk to the Complainant directly because, “every time I brought it up, she accused me of lying.” When asked if she had invented complaints on behalf of the Respondent the witness replied that she had not invented anything.

Mr Etienne Gill, a member of staff, gave evidence on Affirmation at the hearing.

In his Evidence-in-Chief the witness stated that he found the Respondent to be a fair employer.  He stated that he had made complaints to the Respondent about the Complainant, but chose not to put his complaints in writing. In cross examination the witness agreed that he had never made a formal complaint about the Complainant before the investigation.

Ms Mary Mills, a member of staff, gave evidence on Affirmation at the hearing.

In her Evidence-in-Chief the witness stated that she had made a complaint about the Complainant due to a “final straw” incident.  She said she was not put under any pressure to make a complaint. The witness stated that she had taken hours from Mr Gill to help him out because he was very busy.

In cross examination, when it was put to the witness that nothing happened on 9 of August as she had alleged, the witness replied that these things had happened.

In concluding, the Respondent’s representative suggested that the Complainant did everything in her power to prevent an amicable outcome by refusing to cooperate with the attempts of the Respondent to resolve the issues between them.  The Complainant’s accusations against the Respondent, made in such a virulent manner, served only to poison the relationship between the parties.

The Respondent did everything in her power, including engaging outside consultants, to act as a reasonable employer should and get matters sorted.  However, despite these attempts, the Respondent came to the conclusion that the only way out was to dismiss the Complainant. However, an offer of an appeal was made, but rejected.  The Respondent submits that the Complainant was a difficult employee, but if she had engaged things might have been different.  

The Complainant provided a detailed written submission.

The Complainant submits that she had no issues with either her employment or the Respondent until in or around 9 October 2020, when she raised a health and safety concern in relation to another staff member who was displaying symptoms of Covid 19. In or around 13 October 2020, the Complainant was reprimanded by the Respondent in relation to her timekeeping.

The business closed for a period due to pandemic restrictions and re-opened in June 2021; the Complainant’s contracted hours of work were reduced from 31 hours per week to 23 hours per week.

In or around early August 2021, the Complainant became aware that another employee who was on a 21 hours per week contract prior to the lockdown had their hours increased to 27 hours per week. The Complainant wrote to the Respondent in or around 9 August 2021, seeking an explanation as to why she was the only employee who had not been allocated their full contract hours when other employees were being assigned more than their contract hours.

The Respondent replied on 12 August 2021, and a meeting was agreed to take place on 18 August 2021.  This meeting was rescheduled to take place on 19 August 2021.

The Complainant received a letter from the Respondent dated 19 August 2021, inviting her to a workplace investigation. The investigation was in relation to five specific allegations to do with the Complainant’s performance.

The Complainant replied by letter dated 23 August 2021, denying the allegations. The Complainant raised issue with several matters relating to the allegations made against her and how the investigation meeting had been conducted.  In her reply the Complainant also raised a grievance in relation to bullying, citing six incidents which she believed constituted bullying behaviour.

The Complainant submits that at this point an external HR Consultant (HR Consultant 1), was appointed to carry out the workplace investigation.

An investigation was commenced by the HR Consultant in mid-September 2021. On 14 October 2021, the HR Consultant wrote to the Complainant informing her that there was “a genuine concern” in relation to her conduct, but as this was a “borderline case”, the Consultant had decided not to proceed with formal disciplinary action. The Consultant recommended a “Letter of Concern” be issued by the Respondent. The Complainant wrote to request an appeal of the decision to issue a “Letter of Concern” on 26 October 2021. A second HR Consultant (HR Consultant 2) replied to the Complainant on behalf of the Respondent.

The Complainant submits that the Respondent was forceful in suggesting that the parties try mediation to resolve their differences. A third external HR Consultant (HR Consultant 3) was appointed to facilitate the mediation. Although mediation did take place in mid-January 2022 it was unsuccessful.

The Complainant received a letter from the Respondent on 16 March 2022, inviting her to a formal disciplinary process. The letter alleged incidents of gross misconduct on the part of the Complainant.

The Complainant submits that the same person who had acted a mediator previously (HR Consultant 3) was appointed to carry out the formal investigation. The Complainant asserts that both this mediator and the Respondent were conflicted; the Investigator as she had acted as mediator previously and the Respondent, against whom the Complainant had raised a grievance, as she was to decide on the final outcome of the investigation.

The letter also stated that part of the allegations related to the allegations which the Respondent “attempted to investigate last Autumn.” This contradicting the statement of the Respondent in her letter of 10 January 2022, that the investigation was closed.

The Complainant submits that the alleged incidents of gross misconduct made against her and listed in the letter of 16 March 2022, (13 in all) included five which were the same as the allegations which were investigated in the first investigation carried out by HR Consultant 1. The Complainant submits that this is double jeopardy and is a breach of fair procedures.

On 23 March 2022, the Complainant received an email from HR Consultant 3 requesting that she attend the investigation meeting or alternatively submit replies in writing. A letter of 21 March 2022, from HR Consultant 3 was also attached to this email.  The Complainant had not received HR Consultant 1’s previous emails inviting her to submit observations.

The Complainant wrote to HR Consultant 3 on 25 March 2022 informing her that she did not receive any email from her on 21 March 2022. The Complainant stated that she had raised grievances in relation to bullying on the 23 August 2021, which had not yet been investigated, and no new investigation could commence before these were investigated.  The Complainant included denials of the allegations made against her.

On 25 March 2022, HR Consultant 3 wrote to the Complainant to acknowledge receipt of her letter and informed her that she would pass her letter on to the Respondent.

HR Consultant 3’s investigation report was sent to the Respondent on 24 March 2022.  The report included a sworn statement from the Respondent, which according to the Complainant, appears to be a significant conflict of interest when the Respondent herself is the decision maker in the matter.

The Respondent wrote to the Complainant on 25 March 2022, informing her that following the formal investigation, the Respondent had decided that the alleged breaches of gross misconduct had been upheld in full.  This letter informed the Complainant that she [the Respondent] was considering terminating her employment on the basis of four points detailed in the letter.

The Respondent acknowledged in the letter that she had been made aware of the Complainant’s response of 25 March 2022.  The Respondent stated that she would take time to consider the Complainant’s response, but she would not pause her preliminary decision. The letter informed the Complainant that she had a right to appeal and that the appeals officer would be another external HR Consultant (HR Consultant 4).

The Complainant swore her statement of events as her appeal to the decision of 23 March 2022 to uphold the allegations and consider the termination of her employment.

On 4 April 2022, HR Consultant 4 wrote to the Complainant to criticising several aspects of the Complainant’s behaviour in relation to her response to claims made against her and her counter allegations.

HR Consultant 4 did not uphold the Complainant’s appeal.

The Respondent wrote to the Complainant on 4 April 2022, informing her of the appeal result and the final decision to terminate her employment.

Ms Sinead Dormer, the Complainant, gave evidence on Affirmation at the hearing.

In her Evidence-in-Chief the Complainant said that she started working with the Respondent in 2016.  After the Covid-19 related close downs, her hours were reduced from 31 hours per week to 23 hours per week.  When she noticed that another employee was doing more hours than she was, she raised the matter with the Respondent. The Complainant said that the Respondent’s response referred to irrelevant issues but she did not do anything about the Complainant’s reduced hours.

The Complainant stated that following her raising the matter of her hours, she received a letter from the Respondent accusing her of a number of things. The Complainant believes this letter was issued because she had raised the matter of her reduced hours. The Complainant said she was very upset at the allegations made against her and she wrote to the Respondent as she wanted her to understand that the allegations were untrue.  The Complainant accused the Respondent of bullying because the allegations against her were untrue and came out of the blue.

The Complainant stated that after the initial stream of correspondence between herself and the Complainant an investigation was commenced.  The Complainant says she cooperated with the investigation however she felt the process was unfair.  She also felt it was certainly a formal process. The outcome of the investigation was that the Complainant should be issued with a “Letter of Concern”. The Complainant wanted to appeal this outcome, as it was going to go on her record.  She wrote to the Respondent appealing the outcome but was told that because it was an informal process there would be no appeal.

Following failed mediation, the Complainant stated that she was invited to a formal disciplinary process, which upset her but did not surprise her greatly.  When she read the allegations pertaining to this investigation, the Complainant says that she was confused as the first five allegations to be investigated had already been dealt with and the other allegations were related to what had transpired at the unsuccessful mediation process.  The Complainant responded to the allegations made against her in detail in writing. 

On 25 March 2022, the Complainant received a letter from the Respondent informing her that her final decision was that she was dismissing the Complainant. In response to this letter the Complainant wrote back to the Respondent, re-iterating that the allegations were untrue and that she would be appealing the matter. However, despite this the decision to dismiss was upheld. The Complainant’s last day of work was 4 April 2022.  The Complainant stated that she was very upset by this turn of events, that she had really enjoyed working in the Happy Dog House until 2020, when things started to go wrong.

The Complainant stated that she started applying for jobs in early May.  She took up fulltime employment on 13 February 2023 having done some casual dog minding in the period between being dismissed and taking up her new fulltime role.  The terms and conditions of this new job were significantly better than those she had enjoyed when working in the Happy Dog House.

In response to questions put to her in cross examination, the Complainant denied that she had made it difficult for the Respondent to deal with issues, it was not that she, the Complainant, gave an outright no, but that she wanted to get her points across in writing as she did not trust the Respondent.  She accepted that an employer is entitled to meet with an employee if there are difficulties and that it is reasonable for an employer to try and meet an employee, yet in this case she had made it difficult for the Respondent to meet her.

When it was put to the Complainant that the correspondence, she sent to the Respondent had poisoned the relationship between the parties, the Complainant replied that it was the Respondent who had started it [the deterioration of their relationship].

When asked why she did not engage with the internal appeals process the Complainant said that she would have agreed to meet with the person carrying out the investigation if it had been agreed that she could have someone with her and if the appeal was recorded.

The Complainant accepted that there were eight months during which she did not apply for any jobs.

Mr Alan Murray, staff member, gave evidence on Affirmation, at the hearing.

Mr Murray explained that he had worked for five years in the Happy Dog House.  He stated that he had always found the Complainant to be a good worker and that she was good at her job.

In response to a question, the witness stated that his experiences with the Respondent were “ok”.

In concluding, the Complainant’s representative drew attention to the failure of the Respondent to follow fair procedures as laid down in the Constitution, the law and the Respondent’s own Employee Handbook. What was identified as Gross Misconduct, was not Gross Misconduct and therefore the decision to dismiss the Complainant must be deemed to be disproportionate.

The Complainant’s representative asserted that the Respondent was biased against the Complainant.  At the outset the Respondent had recused herself from involvement with the first investigation, a clear indication of conflict, yet later she acted as the decision maker in the ultimate decision to dismiss the Complainant. This, according to the Complainant’s representative, was not fair. In the round the Respondent has failed to prove that this was a fair dismissal.

The Complainant submits that her total loss due to her dismissal amounts to €3,808.

The Complainant’s representative submitted several precedents to support the Complainant’s case, including; Governor and Company of the Bank of Ireland v Reilly [2015]26 ELR 229; Frizelle v New Ross Credit Union Limited 1997 IE HC137.

I have considered the evidence put before me very carefully. 

S6(4)(a) of the Act states 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 the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and the substantive issues leading to the dismissal.

Substantive Issues

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

So, the question to be answered in this instant case is whether the Complainant’s behaviour was such as to justify the Respondent’s decision to dismiss her; does the decision to dismiss fall within a range of what could be considered a reasonable response of a reasonable employer?  I find it does not.

In the letter of 25 March 2022, from the Respondent to the Complainant, the Respondent gave the reasons why she was making a ‘preliminary’ decision to dismiss the Complainant.  Considering the contents of that letter and the evidence adduced at the hearing I find that none of the allegations amount to what could reasonably be called Gross Misconduct. I find the decision to dismiss was disproportionate.  The failings of both parties in dealing with the difficulties that arose between them sensibly, did, without doubt, make it difficult for the Respondent to deal with them, however choosing to dismiss the Complainant was not fair even in those circumstances.

Procedures adopted

An employer is bound to show not only had he or she substantial grounds justifying dismissal but also that he or she followed fair and proper procedures before dismissal.  In this case I believe there are several procedural faults which are fatal to the fairness of the procedures.

Firstly, the external HR Consultant who acted as “mediator” for the parties subsequently went on to investigate the allegations made against the Complainant.  A cornerstone and a principle of mediation is confidentiality; what happens in mediation, stays in mediation. Having acted as a “mediator” the HR Consultant should have withdrawn from the process entirely, instead she went on to become an investigator in the matter, upon whom the Respondent relied to make her decision to dismiss the Complainant.  This is totally against the principles of mediation. This fact alone renders the procedures unfair and consequently the dismissal unfair.

There were three other significant procedural failings.  Firstly, five allegations, investigated in March 2022, had already been investigated resulting in the issuing of a “Letter of Concern”.  These five allegations were “done and dusted” and should have played no part in any other investigation.  Secondly, the Respondent was centrally involved in the investigation element of the process yet it was she who later made the decision to dismiss. There was a clear conflict of interest.  The Respondent should have recused herself from the decision-making process. Thirdly, there was no hearing of the matter before the decision was taken to dismiss.  The failure to hold a hearing before a decision to dismiss was taken amounts to a fundamental breach of fair procedures and natural justice.

I do take note that the Complainant’s consistent refusal to enter into a meaningful dialogue with the Respondent by confining her responses to the written form, was a less than ideal way for the issues to be dealt with.  It is a moot point, but perhaps if there had been dialogue at an early-stage matters may have been resolved amicably.

Having considered the evidence adduced I find that the decision to dismiss was unfair, substantively, and procedurally.

Mitigation

 I note that following her dismissal on 25 March 2022 the Complainant did not take up employment until 13 February 2023. The Complainant did provide some evidence of her attempts to seek employment to mitigate her loss.  However, as far as could be ascertained there were only eight separate days when she applied for jobs, the first being 10 May 2022, the last being 23 January 2023. The Complainant accepted that there were eight months during which she did not apply for any jobs.

 It is well established in cases of unfair dismissal that a worker has a duty to mitigate their loss by taking diligent steps to secure suitable alternative employment.  In the EAT decision, Sheehan v Continental Administration Co Ltd [UD858/1999] the EAT held as follows:

“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…  The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitable employed in seeking to mitigate his loss”.

Cognisant of the Complainant’s failures in mitigating her loss I believe a payment equivalent to eight week’s pay is just and equitable in the circumstances.

For the reasons set out above, I decide that the Complainant was unfairly dismissed, and the Respondent shall pay compensation of €2,604 to the Complainant.

In a written submission the Complainant submits that she did not receive her statutory breaks pursuant to Section 12 of the Organisation of Working Time Act, 1997, as amended, on the following dates:

2022 February 14, 17, 18.

2022 March 3,4,7,8, 9, 10, 11, 14, 15, 16, 29, 30.

In evidence at the hearing the Complainant stated that there were not enough staff to cover breaks- only two members of staff were present and three were needed to cover breaks.

In cross examination, it was put to the Complainant that some of the dates she had included in her WRC complaint form [as dates when she did not get breaks] do not exist, e.g. 29 and 30 February 2022. The Complainant stated that she had given the dates to her representative who had completed the form on her behalf [it should be pointed out that the Complainant is referring to a previous representative, not the one who represented her at the WRC hearing}.

It was put to the Complainant that the dates she cited included dates when she signed the “breaks book.”  The Complainant stated that she had to get permission to take her breaks.

Mr Murray gave evidence.  He stated that prior to the break necessitated by the pandemic, there would normally only be two people on duty at a time which did not allow for proper breaks; it was only after the return from the pandemic that were breaks recorded and staff were told they could take 15 minute and 30-minute breaks.  He said he had his lunch while walking dogs.

Mr Gill gave evidence in relation to breaks.   He stated that in his experience there were no problems taking breaks.

Ms Dehe gave evidence in relation to breaks. She stated that she had never been approached by any member of staff complaining that they were not getting their breaks. She stated that there were three staff on duty in the evenings.

In cross examination, when asked if she was happy that everyone got their breaks, she stated that she was. Breaks were recorded by hand and signed by each employee.

I have considered this matter very carefully.

Section 12 of the Act provides:

12 – (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) an employer shall not require an employee to work for a period of more than 6 hours without allowing him a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

Section 25 (1) of the Act requires an employer to retain records to show compliance with the Act. Although each case is determined on its own evidence, ultimately it is the employer who is responsible for ensuring compliance with the Act. In Tribune Printing & Publishing Group v GMPU, DWT046/047, the Labour Court set out the employer obligations to have proper procedures in place for employees to take appropriate breaks. 

An employer is required to ensure that their employees get the breaks they are entitled to and that there is an accurate system of recording breaks. I find the regime of break taking in this employment was very loose and the recording of breaks was not as it should have been

I find this complaint is well founded. I decide it is just and equitable to require the Respondent to pay the Complainant compensation of €651.

The complaint is well founded and I order the Respondent to pay the Complainant €651.

Procedures, fairness, dialogue between parties, records.