Complainant

Respondent

Parties

Laura  O'Regan

Killarney Advertiser Limited t/a Killarney Advertiser

Complainant

Respondent

Anonymised Parties

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Representatives

Aoife Lynch Bl instructed by   Maurice Coffey & Co

Gavin Cumiskey, Peninsula

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-00035377-001

23/03/2020

The complainant commenced employment with the respondent on 01 November 2018.  She worked a 40-hour week as the Front Desk Receptionist and Sales agent.  She was paid €480 gross per week. 

The complainant was dismissed from her employment on 27 September 2019.  She submitted a complaint of unfair dismissal to the Workplace Relations Commission on 23 March 2020.  She claims she was dismissed by reason of having made a protected disclosure within the meaning of section 5 of the Protected Disclosures Act, 2014.

The respondent operates as a locally run advertising company in Kerry.  The respondent denies the allegation that the complainant was unfairly dismissed.  It is the respondent’s position that the complainant’s failure to carry out her job to the required standard was the sole reason for her dismissal.

The complainant commenced employment on 01 November 2018.  Her duties included operating the respondent’s front reception desk at its office in Killarney.  She received and made telephone calls, responded to e-mails, and dealt with members of the public who had unrestricted access to the premises.  The complainant was the first point of contact with anybody walking into the office off the street.

In addition to her receptionist duties the complainant was involved in the sale of advertising.  She was under the management of the Sales Manager, Ms Hutchinson, who was also the Assistant General Manager and Office Manager.  The complainant was informed that if certain sales targets were achieved, she would be entitled to a bonus payment of €500 per quarter.  If 98% of the sales target was met the bonus payment would be 75% of €500.  The first quarter commenced on 01 January 2019 and the target was reached that quarter.  On the date of her dismissal 98% of the quarter three target had been reached.

May to September 2019

The complainant worked at the front office reception desk and in or around May 2019 a man, Mr J, who was living rough in the locality began calling into the office.  On the second visit Mr J sat down in the office and stared at the complainant.  On repeat visits to the office this man continued to stare at the complainant and ask questions and generally intimidated the complainant.  The complainant informed the Sales Manager that she was uncomfortable with Mr J being in the office.  The Sales Manager personally dealt with Mr J on several occasions.  The Sales Manager and the Editor of the publication both informed Mr J that he was not to come into the office.

From mid-July to mid-September Mr J came into the office approximately twice per week in an intoxicated state.  When asked to leave he became argumentative and at times aggressive.  He used vile and abusive language to the complainant.  He had to be removed from the office by male colleagues.

Ms Casey, a Director of the respondent, was in the office during one of Mr J’s visits.  The complainant informed her that Mr J’s presence in the office made her uncomfortable.

On or about 03 September 2019 the Editor of the publication, informed the General Manager about the issues arising from Mr J coming into the office.  The General Manager represented that a gate would be installed to prevent access by unauthorised parties.  The gate was not installed.  The incidents escalated through September 2019.

On 18 September 2019 there was another incident, and the complainant was caused to call the Gardai.  The complainant was in fear for her safety in the workplace and she made an official complaint to the Gardai.  Mr J left the office before the Gardai arrived.   Following that incident, the complainant sent an e-mail to the respondent’s Health and Safety Officer.  The complainant asserts that her e-mail to the Health and Safety Officer constitutes a protected disclosure.

On the evening of the same day the General Manager sent an e-mail to the complainant requesting to be copied in on any reports filed and seeking further information about previous visits by Mr J to the office.  The complainant replied to the following morning.

19 September 2019

The complainant was called into a meeting with the Managing Director, Mr Casey and the General Manager, Mr Quirke.  The meeting was unscheduled.  Mr Casey reprimanded the complainant for e-mailing the Health and Safety Officer.  The complainant responded that she had previously informed managers about the Mr J’s attendance at the office and she had been told that a gate would be installed in the office, but this had not happened.  Mr Case informed the complainant that he would put a baseball bat under the counter which she could use to defend herself.

20 September 2019

The complainant was verbally reprimanded by Ms Casey a Director of the respondent.  The reprimand was because the complainant had contacted the Health and Safety Officer.  Later that day the Managing Director also criticised the complainant for the way she had reported the matter.  He informed the complainant he was not happy that the issue had been ‘outsourced’ thereby costing him money and that staff would be disciplined as a result.

27 September 2019

Late on Friday afternoon complainant was in the office when the General Manager came in and locked the door behind him.  He handed the complainant an envelope, telling her that she was no longer employed by the respondent.

The complainant was unaware that her employment was in jeopardy and was taken by surprise at being told she was no longer employed.  She asked why and was told that the company was not doing well.  The General Manager suggested that the complainant had failed to reach 2 out of 4 sales targets.  This was incorrect as she had reached the targets for 2 out of 3 quarters.  The General Manager asked for her key and told her to take her personal belongings.

The complainant’s performance had never been raised with her prior to the day she was dismissed.  The complainant had never had a review of her performance, or received any warnings, verbal or written. 

It is the complainant’s case that she was dismissed for having made a protected disclosure in respect of a situation which had been allowed to develop over several months because of which she raised serious health and safety concerns in a formal manner within her workplace.

Legal Submission

It is the complainant’s case that she was dismissed by reason of having made a protected disclosure within the meaning of section 5 of the Protected Disclosures Act, 2014.  She asserts that the disclosure of relevant information was made in the belief that the health and safety of an individual had been, was being or was likely to be endangered and that a person had failed, was failing or was likely to fail to comply with legal obligations. 

The decision of the Labour Court in CPM Ireland v Callaghan PDD195 was cited as setting out what is required in such a claim; (a) whether the disclosure made meets the requirements of section 5 of the Act and if so, (b) was the complainant penalised for having made such a disclosure.

It is the complainant’s case that the e-mail sent by her on 18 September 2019 to the Health and Safety officer, and subsequent e-mails subsequently exchanged with the respondent constituted a protected disclosure within the meaning of section 5 of the Act. The complainant further submits that, by reason of that disclosure she was penalised when she was summarily dismissed by the respondent. 

Section 6 (2) (ba) of the Unfair Dismissals Act provides that the dismissal of an employee shall be deemed to be an unfair dismissal if it results wholly or mainly from the employee having made a protected disclosure.

The decisions in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21, Royal Mail Group Ltd v Jhuti [2019] UKSC 55 and Clarke v CGI Food Services Limited and CGI Holding Limited [2020] IEHC 368 were cited in support of the complainant’s case.

The complainant submits that the claim that her dismissal was due to performance related issues is not credible having regard to the absence of any performance related issues or complaints or normal procedure, the communications between the parties leading up to the dismissal and the timing of her dismissal.

The complainant submits that because she was dismissed for having made a protected disclosure an award of compensation should be made in her favour.

Unfair Dismissals Act – Amendments

The respondent submitted that the complainant did not have the requisite one years’ service to avail herself of the protection of the Unfair Dismissals Act 1977.  The complainant provided a supplemental submission to address this point and clarify the extent of the applicability of the Unfair Dismissals Acts 1977 – 2015, and/or the Protected Disclosures Act, 2014 to the complainant’s claim.

It is the complainant’s case that she was dismissed by reason of having made a protected disclosure within the meaning of the Protected Disclosures act, 2014. 

Section 11 of the Act provides protection from dismissal for having made a protected disclosure and amends the Unfair Dismissals Act 1977.  Section 6 (2) of the Unfair Dismissals Act was amended to include protected disclosures; 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 2(1) (a) of the Unfair Dismissals Act excludes from the protection of the Act an employee who at the date of dismissal had less than one year’s continuous service with the employer.  Section 11 of the Protected Disclosures Act amended section 6 of the Unfair Dismissals Act by inserting section 6 (2D) which provides that 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).

A further amendment provides for the maximum compensation to be increased from 104 weeks to 260 weeks.

In summary, the relevant amendments to the Unfair Dismissals Act provide as follows:

o   The dismissal of an employee shall be deemed, for the purpose of the Unfair Dismissal Act 1977, to be an unfair dismissal if it results wholly or mainly from the employee having made a protected disclosure. [Section 6 (2) (ba)]

o   The requirement for an employee to have at least one year’s continuous service with the employer who dismissed them does not apply to employees who have been dismissed by reason of having made a protected disclosure. [Section 6(2D)]

o   The compensation which may be awarded to an employee who succeeds in such a claim is increased to 260 weeks

It is submitted that the complainant’s claim has properly been brought under the Unfair Dismissals Act. 1977.

If, however, which is not admitted, the complainant is incorrect in the foregoing interpretation of the relevant legislation, it is submitted that the details contained in the complaint form are sufficiently specific to permit the WRC to consider a claim pursuant to the Protected Disclosures Act, because of which she was unfairly dismissed.  The decision in Shop Assistant v Supermarket ADJ-00024100 is cited as confirming that the complaint form is not a statutory form and that all that is required is that a complaint be made in writing.

The complainant disputes the respondent’s contention that the disclosure made was a grievance and thus outside the parameters of the Protected Disclosures Act.  The complainant cited the decision of the Supreme Court in Baranya v Rosderra Irish Meats Group Limited [2021] IESC 77 in support of her position.

The complainant asserts that the e-mails sent to the respondent’s Health and Safety Officer and/or the e-mails subsequently exchanged with the respondent, its servants or agents constituted a protected disclosure within the meaning of the 2014 Act.

Further, in the context of an offence having been committed or likely to be committed, the complainant relies on the subsequent prosecution the Mr J for inter alia an incident involving one of the respondent’s employees at its premises, after the complainant was dismissed.

The complainant submits that an award of compensation should be made in her favour by reason of the respondent having dismissed her for having made a protected disclosure.

The respondent company operates as a locally run advertising company in Killarney, County Kerry.

The complainant was employed as an Advertising Salesperson / Receptionist at the office in Killarney.  She claims that she was unfairly dismissed by the respondent.  The respondent denies this claim.

The complainant commenced employment on 01 November 2018.  Her work included being a front facing employee carrying out sales and dealing with sales enquiries.  The complainant had targets to meet as part of her role.

In July 2019 it was noticed that sales were down, particularly in the Killarney Advertiser Sales Team.  The Managing Director, Mr Casey, the General Manager, Mr Quirke and the Office Manager, Ms Hutchinson met to discuss the drop in sales.  It was decided that an activity plan would be put together to contact customers and hold face to face meetings.

By August 2019 it was noticed that face to face meetings with customers were not taking place.  This was raised verbally with the Office Manager.  The Managing Director, the General Manager and the Office Manager met together again on 27 August 2019 to discuss sales.  The week before this meeting the Office Manager had informed the respondent that she was pregnant.  The Managing Director asked the Office Manager at the meeting if the complainant could cover her role when she went on maternity leave.  The Office Manager replied with a definitive no, at the end of the meeting.

After that meeting the Managing Director and the General Manager discussed their concerns about the business and how to manage the front desk and sales role.  They were concerned that clients were not being met.  It was decided to reorganise the front desk and sales function and to terminate the complainant’s employment.  The Office Manager went on annual leave before the decision was made and then went on sick leave, therefore she was not involved in the process.  The Office Manager did not return to work until 30 September 2019.

On 18 September 2019 the complainant raised the issue of Mr J’s visits to the front office.  Allegedly there had been several visits over the previous 3 to 4 months.  This was the first formal notification of this issue by the complainant.  This issue was investigated, and all the relevant action was taken to ensure the safety of the complainant and other members of staff.  The issue raised as a Health and Safety concern was resolved.

A meeting was held with the complainant on 27 September 2019 where she was informed that her employment would be ending with immediate effect.  The complainant was paid her weeks’ notice, in lieu.  She had already availed herself of 5 days holidays which the respondent waived.  She was provided with a positive written reference on 30 September 2019.  The complainant was dismissed based on the overall needs of the business, the direct feedback of her line manager who said that she would not be able to cover her role during maternity leave, declining sales, and sales activity.  The decision to dismiss the complainant was taken well in advance of any Health and Safety issue being raised.

Legal Submission

Section 27(3) of the Safety, Health and Welfare at Work Act provides that an employer shall not penalise an employee for (c) making a complaint to his or her safety representative.  The complainant has failed to specify what protected act she performed to result in the alleged penalisation.

It is submitted that to avail of the protections in section 27(3) it is essential that a detriment complained of be causally connected to one or more of the matters referred to in subsection 3.  The decision of the Labour Court in O’Neill v Toni & Guy [2010] E.L.R. 21 was cited to support the submission that the complainant must show that ‘but for’ having made a protected act under the subsection the detriment would not have happened.

It is submitted that there is a difference between a protected disclosure and a grievance.  A complaint such as in this case could have been submitted as a grievance or concern given that the complainant was taking issue with working procedures and conditions.  The respondent refers to the definition of a protected disclosure in section 5(1) of the Act and section 30 of the Code of Practice on Protected Disclosures Act 2014 (S.I. 464/2015) and cited a decision of the UK EAT in Everett Financial Management Ltd v Murrell EAT/552-3/02.

It is submitted that the relevant test is whether the withdrawal of the complainant’s employment was motivated “wholly or mainly” because of making an alleged protected disclosure.  The respondent asserts that the withdrawal of employment was not motivated in any way by the complainant’s complaint about health and safety.  The respondent cited the decisions of the Labour Court in Fingal County Council v O’Brien PDD 184 and Crowley O’Toole v Katherine Gordon & Company Limited [2016] 27 E.L.R. 16 to support the contention that the detriment complained of must have been imposed for having made a protected disclosure.

The respondent submits that the complainant does not have the requisite one years’ service to avail of the protection of the Unfair Dismissals Act 1977. 

The respondent refers to the requirement on a complainant to mitigate their losses, section 7(2)(c) of the Act and notes that at the time the complaint was lodged the complainant had not secured alternative employment.  The decisions in Sheehan v Continental Administration Co. Ltd. UD858/1999 and Mlynarski v Pianos Plus UD1294/2008 were cited.

It is the respondent’s position that the complainant’s failure to carry out her job to the required standard was the sole reason for her dismissal and she contributed significantly to the termination of her employment.

It is the complainant’s case that she was dismissed from employment with the respondent because she made a protected disclosure within the meaning of the Protected Disclosures Act, 2014.

It is the respondent’s position that the complainant’s dismissal was a result of her performance and failure to carry out her job to the required standard.

The complaint is made pursuant to section 8 of the Unfair Dismissals Act.  The respondent asserts that the complainant does not have the requisite length of service to avail herself of the protection of the Act.

Legislation

Unfair Dismissals Act, 1977.

Within section 1 of the Unfair Dismissals Act 1977 dismissal is defined as follows:

“dismissal”, in relation to an employee, means— (a) the termination by his 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 2 deals with exclusions from the protection of the Act. Section 2 (1) provides:

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 dealing with unfair dismissal 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: (a) … ()

Therefore, in general a dismissal of an employee is regarded as unfair unless the employer has substantial grounds to justify the dismissal and employee does not have the protection of the Act if they have less than one year’s continuous service.  However, the Unfair Dismissals Act 1977 has been amended by the Protected Disclosures Act 2014, section 11, by inserted the following:

11. (1) The Unfair Dismissals Act 1977 is amended—

(a) in section 1 by inserting the following definitions:

 ‘protected disclosure’ has the meaning given by the Protected Disclosures Act 2014;

‘relevant wrongdoing’ has the meaning given by the Protected Disclosures Act 2014;

(b) in section 6 by inserting the following paragraph after paragraph (b) of subsection (2):

“(ba) the employee having made a protected disclosure,”;

(c) in section 6 by inserting the following subsection after subsection (2C):

“(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).”;

(d) in section 7 by inserting the following subsection after subsection (1):

“(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.”; and

(e) in section 7 by inserting the following subsection after subsection (2A):

“(2B) Where— (a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and (b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.”.

(2) Schedule 1 contains provisions for interim relief in cases where a claim is brought for redress for a dismissal which is an unfair dismissal by virtue of section 6(2) (ba) (inserted by subsection (1)) of the Unfair Dismissals Act 1977.

The effect of the section 11 amendments, as above, 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 service to obtain the protection of the Unfair Dismissals Act.  In addition, an award of compensation may be up a maximum of 260 weeks.

However, if the dismissal did not arise wholly or mainly because the complainant made a protected disclosure, she would not have the protection of the Unfair Dismissals Act as she has less than one year’s continuous service.  The complainant commenced employment on 01 November 2018, and she was dismissed on 27 September 2019.

Protected Disclosures Act, 2014.

Section 5 of the Act provides:

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.]

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure. 

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

It is the complainant’s case that she was dismissed from her employment because she made a protected disclosure within the meaning of section 5.  First, I must decide if the complainant made a disclosure that meets the requirements of section 5 of the Act, as set out above. 

The complainant in her evidence described several incidents that occurred prior to her making a complaint in writing to the respondent’s Health and Safety Officer.  She described how in or around May / June 2019 a man began coming into the front office where she was working.  This man, Mr J, started asking for free calendars and papers and this was not a problem.   However, in July 2019, Mr J started to ask the complainant questions and stared at her, which made her feel uncomfortable in his presence.  The complainant then spoke with her manager, Ms Hutchinson, and told her she was uncomfortable when Mr J was in the office.  Ms Hutchinson said she would deal with him, and she did at that time.

Later in August/September 2019 Mr J’s behaviour became worse and he became verbally abusive to the complainant.  On occasions he used vile and offensive language and he indicated he wanted girlfriend.  Mr J’s behaviour was escalating, and the complainant felt unsafe in the office.  She also felt unsafe outside the office at times and on one occasion she called her boyfriend to come and escort her from the office to her car.  On another occasion Mr J was removed from the office by several male colleagues.  The complainant made the Editor, Ms Crean, aware of how serious the situation was and that she was afraid of Mr J coming into the office.  The complainant said that the Editor called the General Manager about the situation.  Following that the complainant understood that a gate would be installed in the office to provide protection for her and other staff from Mr J. 

The complainant stated that she had spoken with Ms Noelle Casey, a Director of the respondent, in June/July 2019 and made her aware of the situation with Mr J coming into the office.  She said that Ms Casey later denied that conversation took place.

During September 2019 the situation continued to escalate but the safety gate was not installed.  On 18 September 2019 Mr J again came into the office and was abusive.  The complainant said she was afraid, and the Gardai were called.  Mr J had left the office before they arrived.  The complainant sent an e-mail to the Health and Safety Officer, copied to a Patrick Rowe, at 10.41.  The subject of the e-mail was Health & Safety and the complainant set out her concerns about Mr J’s verbally abusive behaviour, the managers who had been made aware of the situation and the fact that a gate was to be installed so that nobody could get access behind the desk. She also recorded the fact that the Gardai had attended the office, made a record of the complaint, and they would advise Mr J to stay away from the office.

To avail herself of the protections contained in the 2014 Act the complainant must have reasonably believed that the information she disclosed to the respondent in her e-mail tended to show one or more relevant wrongdoings and such wrongdoings must have come to her attention in connection with her employment.

Having carefully considered the submissions of the parties and the complainant’s evidence I am satisfied the complainant was clearly concerned about her own safety and that of her colleagues when she made the Office Manager and the Editor aware of the situation during July and August 2019.  I am satisfied that the complainant’s email of 18 September 2019 to the Health and Safety Officer was not only a report of behaviour by Mr J that was likely to endanger her own health and safety and that of other employees of the respondent but, recorded her concern that the respondent by not taking action, such as installing a safety gate to protect employees, was failing or likely to fail to meet its legal obligations to employees.  This was not a just a personal grievance as contended by the respondent.  Therefore, I find that the complainant did make a protected disclosure within the meaning of section 5 of the 2014 Act.

Having decided that the complainant did make a protected disclosure within the meaning of section 5 of the Act I must now consider if the dismissal on 27 September 2019 resulted “wholly or mainly from” the complainant having made the protected disclosure.  It is the complainant’s case that she was dismissed because she made a protected disclosure.

It is the respondent’s position that the complainant was dismissed because of performance issues, failure to meet targets, the overall needs of the business and because she would not be able to cover her manager’s role when she went on maternity leave.  Further, it is contended the decision to dismiss the complainant was taken before she raised any health and safety issues.

I have given careful consideration to the evidence of the witnesses, which I now summarise:

General Manager

The General Manager in his evidence stated that the complainant’s performance was the reason for her dismissal.  While she had been paid a bonus for quarter one of 2019 that was due to ‘forward invoicing’ and the target had not been met in quarter two.  He stated that he had discussed the complainant’s performance with her line manager, Ms Hutchinson, in July 2019.  The face-to-face meetings with customers were not happening.  He stated that the decision to let the complainant go and find a replacement was made at the end of August 2019.  The respondent was also looking at a new software solution for sales.

The General Manager stated on 03 September 2019 he received a call from the Editor about Mr J coming into the office.  He had then contacted the external HR advisory service used by the respondent to discuss the issue.  Installing a safety gate was discussed.

On 18 September 2019 the General Manager was forwarded the e-mail from the complainant to the Health and Safety Officer about Mr J’s visits to the office and the fact the Gardai had been called to the office that morning.    Mr Rowe had forwarded the e-mail to the General Manager, commenting that “we can’t do much more than call the Gardai & block access to the desk, it’s worth getting that done for peace of mind”.  Later the same day Mr Rowe e-mailed the General Manager, the Managing Director and copied the Health and Safety Officer with advice about installing a gate/barrier in the office and having a second person in the office until then.

The General Manager stated that he was not aware of the issues with Mr J until 03 September 2019. Following the e-mail of 18 September 2019, he put an action plan in place to deal with any future incidents.  On 19 September he e-mailed the complainant and copied Mr Rowe instructing them to contact the Gardai if Mr J approached or entered the office and to create a log of incidents for any case that may occur.  The office door was to be locked on Friday when the complainant was due to be alone in the office.

The General Manager met with the complainant on Friday 27 September 2019 and had given her a letter stating her employment would be ending with immediate effect.  The reasons for her dismissal were due to performance issues and the needs of the company.  The complainant was paid for her notice period and five days of annual leave taken were not deducted from her final pay.  He also told the complainant that he would give her a reference.  The complainant had asked him if this was connected to her reporting the Mr J issues.  He stated that he told her it was because of her performance against targets.

Under cross examination the General Manager confirmed that the complainant’s role with the respondent was predominately working at the front desk.  She was not involved in face-to-face meetings with customers outside the office.  In respect of a performance review, he stated that he thought Ms Hutchinson did such a review in May 2019, but he accepted that there was no document recording a review meeting.  He confirmed that neither he nor the Managing Director, Mr Casey conducted a performance review with the complainant. 

In respect of the strategy about sales the General Manager confirmed that the complainant was not involved in any of the meetings, Ms Hutchinson had attended the meetings.  Sales strategy was not part of the complainant’s role.  He further stated that he did not discuss any restructuring of roles with the complainant.

Concerning the sales target for quarter three the General Manager acknowledged that Ms Hutchinson was absent for the month of September but, he said the target was met due to a bounce from the county being in the GAA football final that year.  He also stated that Ms Hutchinson was not aware of the decision to dismiss the complainant as she was out of work during September 2019.

Concerning the issue with Mr J coming into the office the General Manager stated that the first time he heard about it was on 03 September 2019 and nobody else had raised a concern.  He said it seemed to be a bit of a joke in the office, but had he known it was an issue he would have taken action.  He said he was frustrated that he did not know of the issue between May and September 2019.  He had suggested the use of a gate, but it proved not to be possible.  He did not accept that no action was taken between 03 and 18 September 2019.  He said he took advice and spoke with the staff in the office.  He gave verbal instructions to the staff about handling future incidents, the door was to be closed and the Gardai were to be called.   He e-mailed the complainant requesting details of the incidents.  He said that had the complainant reported the incidents to him at an earlier stage there was an opportunity to fix the situation.  He was frustrated that he had not been notified.

The complainant was called to a meeting with the General Manager and the Managing Director on 19 September 2019.  The General Manager disputed the allegation that he and the Managing Director were angry with the complainant.  He said there was frustration that they did not know about the situation with Mr J before 03 September 2019.

The Managing Director sent an e-mail to the General Manager, the Health and Safety Officer and Mr Rowe in the evening of 19 September 2019.  The General Manager under cross examination stated that the tone of that e-mail did not reflect anger on the part of the Managing Director but rather his frustration with the situation.

In a response to a question about the short period between the complainant’s e-mail of 18 September 2019 and her dismissal on 27 September 2019 the General Manager disputed that she had been reprimanded and stated that she was dismissed based on performance.  The complainant’s performance had been discussed with her manager and changes in the organisation were being discussed.  The General Manager accepted that the complainant did not have advance notice that she was to be dismissed on 27 September 2019.  When he met with her on that day, he said he took her through the reasons for her dismissal and he offered her a reference.  He stated that he had written a minute of that meeting on 30 September 2019, but that minute had not been provided to the complainant.

Director – Ms Noelle Casey

Ms Casey in her evidence described how she is a director of the respondent company and had no responsibility for day-to- day operations.  She said she attended the office about once a month when doing the ‘home and living’ for the Killarney Advertiser.  She would also call in socially for a chat if she was passing the office. 

Concerning Mr J, she recalled being in the front office doing home and living when she was told about him calling into the office. She said Ms Hutchinson had said the complainant had a new boyfriend.  The was a bit of a shock as the complainant had become engaged shortly before.  She thought she had called the Gardai on one occasion but there was no formal issue and she had not been asked to refer an issue to anyone.

Under cross examination Ms Casey stated that at the time of the Mr J issue she did not have any role to do with health and safety.  It was put to Ms Casey that Ms Hutchinson would say that she did not tell her the complainant had a new boyfriend.  In reply she said the conversation did happen in the front office.  Ms Casey could not say when she had the conversation with Ms Hutchinson.  The issue was introduced to her as a joke in the office she said.  She acknowledged that the complainant had become engaged in February 2019.  That was still fresh in her mind when she heard about a boyfriend and was shocked about it. 

Ms Casey said she could not remember a conversation with the complainant about who Mr J was or how she felt uncomfortable when he was in the office.  Ms Casey repeated that she was not in the office in an official capacity.  In reply to a question about her attendance at the office on Friday 20 September 2019, Ms Casey confirmed that she had been in the office that afternoon at the request of Mr Quirke but, not in an official capacity.  She said she had spoken with the complainant, but she denied she was upset with her for not talking to her before putting the issue in writing.  Ms Casey said she was not cross with the complainant as she got on well with her, but she was cross that this was an issue.

When asked if she recalled the complainant reminding her about their prior conversation concerning Mr J, Ms Casey said she could not recall that.  Ms Casey stated that while she had responsibility for health and safety in the past that was no longer the case.  The Office Manager, Ms Hutchinson, had responsibility for the office and she would not go over her head.  She acknowledged that a person feeling unsafe in work was an issue to be concerned about and she had on one occasion spoken to the Gardai, but she could not recall when.  Ms Casey stated that she no knowledge about the later prosecution of Mr J, but she accepted that he had been prosecuted.

Managing Director – Mr Cormac Casey

Mr Casey stated that he was the Managing Director of the Killarney Advertiser which is a free weekly advertiser paper funded by sales of advertising for local businesses.  The paper is part of a family business and he had been involved with it for thirty-five years.  The sale of advertising is the only source of revenue and if sales targets are not met there is no other source of revenue, there is no safety net.  The paper is not his core business but is a small legacy part of a family business. 

Concerning the performance of the business in 2019, Mr Casey stated that in quarter one the target was not met but he was asked to “forward invoice” sales to pay the bonus for that quarter.  There was confidence that quarter two would perform well and would make up for the below target result of quarter one.  However, by the end of June 2019 the overall result for both quarters was down and he was taken aback that the business was falling behind.  Referring to the report for week 28 he noted that the sales figure was €8504 but the breakeven target was €10000.  Mr Casey said that Ms Hutchinson seemed to be in the office all the time and was not getting out for face-to-face meetings with clients.

Mr Casey expressed concern about the target not being reached.  In August 2019 Ms Hutchinson informed Mr Quirke that she was pregnant and would be going on maternity leave in 2020.  At a meeting about sales performance Mr Casey asked Ms Hutchinson if the complainant could fill her role when she went on maternity leave.  Mr Casey said that Ms Hutchinson answered him with an emphatic no.  Mr Casey said that he formed the view that Ms Hutchinson was not being supported by the complainant and that as a sales group they were failing.  He had intended to discuss this situation with Ms Hutchinson, but she was out of the office for two weeks annual leave followed by two weeks sick leave.  He therefore discussed the matter with Mr Quirke.

Mr Casey said that the issue with Mr J only came to his attention when he was asked to approve the installation of a door in the from office.  This was intended to stop Mr J coming in behind the counter.  The request came to him from Mr Quirke, he had not been contacted by Ms Hutchinson about this issue.  Mr Casey said he suggested stopping Mr J coming into the office by ringing the Gardai and he gave verbal instruction to the staff.  Mr Casey said that as soon as he was alerted to the problem with Mr J he spoke to the Gardai.

Mr Casey said that he did not reprimand the complainant for sending the e-mail to the Health and Safety Officer.  However, he had concerns about the way the issue had been handled.  Referring to a comment about putting a baseball bat at the reception desk, Mr Casey said that was a metaphor for say the respondent would go to any lengths to protect staff.  Mr Casey said he would have preferred to receive a phone call about the issue with Mr J than to receive the e-mail, but he took action to protect the staff once he knew of the issue.  Mr Casey said again he did not reprimand the complainant, but he was annoyed about the way management had dealt with the issue.

Mr Casey said he had not been told of the complainant’s issue with Mr J by Ms Hutchinson or by anyone else.   In his view it was better to get the Gardai than to build a gate in the office.

Mr Casey stated that the reason that the complainant’s employment was terminated was due to poor performance and falling sales of advertising.  He had a timeline to improve sales and he had to follow through on that.  Consequently, the complainant’s employment was terminated on 27 September 2019.  The termination had no connection with the issue with Mr J, that issue had been dealt with by action taken by himself.

Under cross examination Mr Casey disputed the contention that no action had been taken.  The proposed installation of a gate in the front office was raised in September but he claimed that two weeks would not have been enough time for such an installation.  Mr Casey said that instead of that his solution was to call the Gardai and close the office of Mr J came in again.  That solution worked the next time Mr J attempted to enter the office.  Mr Casey was of the view that the complainant was well protected in the office, without an extra gate, as there is a high desk and two other people in the office.  Mr Casey stated that the prosecution of Mr J related to an incident on 01 October 2019, after the complainant had been terminated.  Mr J had entered the premises and the Gardai were called and he was subsequently prosecuted.

Responding to questions about the complainant’s work performance Mr Casey stated that sales were handled by the Sales Manager, Ms Hutchinson working closely with the complainant.  The sales targets were set between Ms Hutchinson, Mr Quirke and Mr Casey and were reviewed quarterly.  Mr Casey said it was unusual for targets not to be met over three quarters.  In quarter two he said alarm bells rang with him when the results were behind target.  Mr Casey stated that he did not have a performance review with the complainant, but he was aware a review was to take place.  Mr Casey said he was not sure why the review was not done.  He stated that he did not bring the complainant’s performance to her attention as that was the responsibility of her managers. 

Mr Casey stated that the department had to change and quickly.  New software was being considered and was subsequently introduced.  In changing the way the department worked the complainant would have had to work more on sales, but Ms Hutchinson had said the complainant could not do that role.  In reply to questions about the procedure in the Staff Handbook dealing with probation and reviews Mr Casey stated that he accepted there was no formal conversation with the complainant about performance.  He also accepted that the complainant had not received any warnings about her performance. 

It was put to Mr Casey that Ms Hutchinson would say that she was prepared to train the complainant over the coming months so that she would be able to cover for Ms Hutchinson when she was on maternity leave.  Mr Casey said no, not so, that was not said at the meeting where he had asked Ms Hutchinson if the complainant could cover for her maternity leave.  He said that only after the complainant was terminated did Ms Hutchinson mention such training. 

Concerning the reference given to the complainant, Mr Casey said he did not see the reference as it was given by Mr Quirke.  Counsel read out the reference and Mr Casey agreed it was a glowing reference and he said he had no ill will towards the complainant.

Mr Casey stated that the quarter three results were not being met at the time he made the decision to terminate the complainant’s employment.  He stated that there was an improvement as they got a ‘bump’ from the All-Ireland Final success and so the target was achieved after the complainant left.  Mr Casey said the decision was not discussed with Ms Hutchinson as she was not there when that decision was made. 

Responding to questions about the incidents with Mr J, Mr Casey stated that he took Health and Safety issues seriously, there had been a threating issue, he rang the Gardai, and the problem was sorted.  Mr Casey acknowledged that people in the office were aware of the problem, but he was not aware at the same time.  When he became aware of the issue with Mr J, he had told staff to close the office and call the Gardai.  Mr Casey said Mr J was not welcome in the office and if he had known of the problem, he would have been all over it.  He did not know why Ms Hutchinson had not taken the matter up the at an earlier time.  Mr Casey said he only became aware of the problem when Mr Quirk asked him to sign off on the installation of the gate.

When asked about a lack of action in response to the incidents Mr Casey stated that action was taken as he had given verbal instructions to ensure the complainant would not be alone in the office and to phone the Gardai if there was any further incident.  His verbal instruction was given before the e-mail of 18 September 2019, but the complainant was not there at that time.  Mr Casey stated that after the complainant’s e-mail of 18 September 2019 he went to the Garda Station the following day.  He then went to the office where he met with the complainant.  Mr Casey denied that he had said to the complainant “don’t do that again” but had told her not to wait to do that again, she should contact him directly about any further incidents.  Mr Casey said he was not angry at the complainant, but he was angry at the fact that this issue had gone on for so long. 

Mr Casey had sent an e-mail on the evening of 19 September 2019 to Mr Quirke, Mr Rowe and the Health and Safety Officer.  In reply to questions about the ‘tone’ of that e-mail, Mr Casey said he was not angry but was annoyed at the people around him flapping about with this issue, but he was not annoyed with the complainant.

Mr Casey met with the complainant on 20 September 2019.  In reply to a question about that meeting Mr Casey disputed that he had told the complainant that six members of staff would be reprimanded, his comments had been taken out of context.  Mr Casey said this issue was not the complainant’s fault, she was a victim, and he was a victim.   About the use of the word ‘exposure’ in his e-mail Mr Casey stated that he meant that if Mr J caused harm to anyone then he would be responsible. 

It was put to Mr Casey that there was no evidence of any performance issue with the complainant.  Mr Casey said there was an issue as the quarter one target was not met, a bonus was paid based on forward invoicing, at the request of Ms Hutchinson.  Then the quarter two target was not met.  Something needed to change.  His decision to terminate the complainant’s employment was for performance reasons.

On re-examination Mr Casey confirmed that the decision to dismiss the complainant had been taken after his meeting with Mr Quirke on 27 August 2019.  Mr Casey said he intended to discuss the decision with Ms Hutchinson on her return from annual leave, but she then went on sick leave.

Concerning the sales targets Mr Casey said that at the end of August 2019 the quarter three targets were not being met.  They had a ‘bump’ in September due to the GAA matches that brought sales up to target.  The quarter one and two targets had not been met and revenue was down significantly as a result.  Mr Casey said the decision to terminate the complainant’s employment had been taken at the end of August 2019 and it had to be followed through on once the decision was made.

The Complainant

The complainant in her evidence described her role with the respondent.  She had applied for the front of house reception position and was offered a job with a fixed salary and a bonus structure.  She said her employment was not contingent on making targets.  Her role involved front desk duties, administration, including invoicing, taking phone calls, monitoring e-mails to the editor and sales.  Different tasks were assigned different days.  She usually met with Ms Hutchinson on Monday.  She said her role was 75% administration and 25% sales. 

The complainant stated that any requirement to increase face-to-face sales could not have been hers as she was always based in the office and was not required to work outside the office.  The complainant stated that sales targets were set by Mr Quirke and communicated to her through Ms Hutchinson on a week-to-week basis.  During quarter one of 2019 the complainant was away in Australia for four weeks, but she was paid a bonus for that quarter.  That bonus payment was made based on forward invoicing, which was common as new customers were charged up-front.  That was standard practice in the industry.

The complainant stated that she was aware of targets from earlier years as the software package allowed them to look back on previous years.  She was aware that tourist traffic was down in quarter two of 2019 and as a result a lot of hotels pulled their advertising and competitors were giving lower advertising rates.  Following a meeting in July/August 2019 with Mr Quirke and Ms Hutchinson a new strategy was introduced whereby local businesses would sponsor certain pages of the paper.  The complainant stated that no issue had been raised with her about her performance.  She was to have a probation review meeting in July 2019, but Mr Quirke cancelled that meeting.  The complainant stated that nobody raised a performance issue with her until the day of her dismissal.

The complainant stated that Mr J first started coming into the office in May or early June 2019.  He Had asked for free calendars and there was no problem with that.  In July 2019 Mr J came into the office and started to ask her questions, his presence made her feel uncomfortable.  The complainant said she spoke to Ms Hutchinson about Mr J making her uncomfortable when he was in the office.  Ms Hutchinson told the complainant that she would deal with Mr J, and she did. 

However, later Mr J became verbally abusive, using vulgar and offensive language.  He told the complainant that he wanted a girlfriend, using vile language.  Following an incident on 03 September 2019, the Editor contacted Mr Quirke.  The complainant stated that she was afraid of this man, she never regarded these incidents as a joke.  She was so in fear that on one occasion she had called her boyfriend to come and escort her from the office to her car.  On another occasion when Mr J came into the office three other employees has removed him from the office.  The complainant stated that the Editor was aware of how seriously she took these incidents as she had told her she was afraid.

The complainant stated that Ms Noelle Casey was also aware of the incidents with Mr J as she spoke with her in June or July 2019 about the incidents.  That was not a formal complaint, but she had informed Ms Casey of the issue.  The complainant stated that Ms Case was angry with her for sending the e-mail of 18 September 2019.  Ms Casey had denied the earlier conversation where she had informed her about Mr J’s actions and was angry that the complainant had not come to her in September her rather than sending that e-mail.

The complainant stated that after the Editor had contacted Mr Quirke there was a discussion about the installation of a gate at the front desk, to improve security.  The complainant understood the gate was to be installed.  Measurements were taken for fitting the gate.  The gate was not installed, and Mr J’s actions continued to get worse.  There was another incident on 18 September 2019 and the Gardai were called.  The complainant stated that she was advised by the Editor and another employee to put her complaint in writing.  Accordingly, she sent an e-mail to the Health and Safety Officer the same day.  The complainant stated that she did not receive a reply from the Health and Safety Officer.  Late that evening Mr Quirke did send her an e-mail asking that he be copied on any report she was filing and seeking more information.

The complainant stated that the following day, 19 September 2019, she had replied to Mr Quirke’s e-mail.  Later in the day she was called into the back office to meet with Mr Quirke and Mr Casey.  The complainant said they were angry with her, and Mr Casey wanted to know why he had not been informed about Mr J at an earlier stage.  She had replied that she had dealt with Ms Hutchinson and the Editor and Mr Quirke.  She had made three members of senior management aware of the problem caused by Mr J.  The complainant stated that Mr Casey told her there had been no need for her to put this in writing and he would get her a baseball bat to put behind the counter. 

The complainant stated that she had a second meeting with Mr Casey the following day.  Mr Casey had reiterated the points he made the previous day and to call the Gardai if Mr J came to the office again.  The complainant also stated that Mr Casey told her that six people were to be reprimanded about this issue.

The complainant stated that the following Friday, 27 September 2019, she was alone in the office.  The complainant said the Mr Quirke came into the office at 4.30pm and handed her a white envelope, saying that she no longer worked there.  The complainant said she was shocked and asked why?  Mr Quirke told her it was due to performance issues, but he said he would give her a good reference.  The complainant said she asked him if it was because of the Health and Safety report but he just looked at the floor.  The complainant stated that she thought he was not upset with her but was more concerned about being reprimanded by Mr Casey.

The complainant referred to a newspaper article that reported an incident between Mr J and another employee at the office the following week, October 2019. 

The complainant gave evidence of her qualifications and her efforts to mitigate her loss by applications to other employers. 

Under cross examination the complainant stated that she had initially worked for her husband’s business in the busy Christmas season in 2019.  She had applied for jobs using recruitment websites and through advertisements in newspapers.  She was placed on a panel with a health care provider from October 2020.  The complainant was on maternity leave from November 2021 to May 2022.  She returned to work on a permanent part-time basis for the health care provider.

In reply to questions about her role with the respondent the complainant stated that about 25% of her work was in sales.  She accepted that sales targets are part of the job.  She said she understood working to targets as she had previously worked in a call centre. 

Responding to a question about Mr J the complainant stated that she had discussed the issue with her manager, Ms Hutchinson, but she had not put anything in writing at that time.  Ms Hutchinson had dealt with Mr J, but the complainant was concerned for her safety when Ms Hutchinson was not in the office.  The complainant stated that Mr J’s behaviour was getting worse each month, his verbal abuse increased again in September 2019.  The complainant confirmed that the first report she made in writing was on 18 September 2019.  The complainant said that with hindsight she should have put her complainant in writing at an earlier date.  However, she said she had verbally reported the incidents to management.  The complainant was aware that the Editor had reported the increased verbal abuse to Mr Quirke on 03 September 2019. 

The complainant accepted that from early September 2019 there was an instruction to call the Gardai if Mr J came into the office.  However, she said she was told a gate would be put up to prevent anyone coming in behind the desk, this is what she expected to happen in September, but it was not erected.  The complainant agreed that Mr J never went behind the desk, but she said his behaviour was getting worse.  The complainant was frustrated at the lack of progress in resolving this problem as it was causing her stress.

It was put to the complainant that Mr Casey was not in the office daily and that he was annoyed that this situation had not been brought to his attention.  The complainant agreed that Mr Casey and Mr Quirke were not in the office each day, but she said that Mr Casey was angry with the situation and with her for putting her complaint in writing.  The complainant said that Mr Casey was angry and aggressive when they met on 20 September 2019.  She said he told her this issue was costing him money and that six people would be reprimanded.  She said he then went on in an aggressive way to say he would go to a (named) sports shop to get her a bat which she could use to protect herself.

Replying to a question about the termination of her employment the complainant stated that there was no mention to her of any performance issue before the day she was dismissed.  She said she had reached each weekly target.  Regarding the quarterly targets the complainant stated that the quarter one target was reached due to forward invoicing, there were issues in quarter two and in quarter three 98% of the target was achieved by Wednesday 25 September, two days before she was fired.  The complainant disagreed she was dismissed because she didn’t hit the sales targets.

In reply to questions the complainant confirmed that she had received a copy of the staff handbook, that she did not appeal her dismissal. 

In re-examination the complainant confirmed that there were no minutes taken at the meetings after 18 September 2019.  She also confirmed that she was alone in the office on the day she was dismissed.

Ms Hutchinson – Assistant General Manager, Office Manager and Head of Sales.

Ms Hutchinson described her role with the respondent.  She was the Assistant General Manager with responsibility for advertising sales and the overall management of the office.  She was involved in the hiring process, and she had interviewed the complainant.  She was very familiar with the complainant’s role as she herself had held that post when she first started working with the respondent.

Ms Hutchinson confirmed that the complainant’s role was 75% administration and 25% sales work.  She said that she worked with the complainant every day and they worked well together.  In her role she was in contact each day by phone with Mr Quirke but, she had less regular contact with Mr Casey.  Ms Hutchinson stated that she had a good understanding of the complainant’s ability.  The complainant was able to pick things up quickly.

Concerning the sales targets, Ms Hutchinson said the Mr Quirke set the yearly and quarterly sales targets and she set the weekly targets.  In 2019 there was a downward trend in business.  In quarter one the magazine was doing well but the free paper advertising less so.  The target was met that quarter by forward invoicing.  This was a common practice as the magazine is a one-time publication so payment for advertising is made up front.  Ms Hutchinson said that in quarter two the general mood in the town was that business was down that summer.  Ms Hutchinson disagreed with Mr Casey’s evidence that business was good, she said he was not in the town but, she was and she knew what was happening with the hotels.  She agreed that quarter two targets were not met.

Ms Hutchinson stated that the complainant was not asked to do face-to-face sales, that was not her role.  Further, she said that any reduction in achieving targets was not due to the complainant’s work performance. 

Ms Hutchinson recalled the meetings she had with Mr Casey and Mr Quirke and said that nothing was raised with her about the complainant’s performance.  She herself had no issue with the complainant’s work performance.

Concerning the complainant’s dismissal Ms Hutchinson said she was not aware that the complainant’s job was in jeopardy.  Ms Hutchinson said she had informed Mr Quirke of her pregnancy at three months.  She would have had time to give further training to the complainant over the following six months before going on maternity leave.  Ms Hutchinson said that when asked if the complainant could cover for her, she had replied that the complainant was not ready at that time but, that she would be ready with training over the months before she went on leave.  Ms Hutchinson stated that she was not contacted about the complainant’s dismissal even though she was in contact with Mr Quirke during her period of sick leave.  She was shocked at the complainant’s dismissal and shocked she had not been contacted.  She said the complainant was dismissed on Friday 27 September and she had returned to work on Monday 30 September 2019.  Ms Hutchinson commented that the complainant was an excellent employee.

Ms Hutchinson recalled when Mr J first came into to office, he was just looking for calendars.  As his behaviour changed the complainant had told her that she felt uneasy when he was in the office so, she told her that she would deal with Mr J.  Ms Hutchinson said she had dealt directly with Mr J; she gave him calendars and she had asked him to leave on occasions.  Ms Hutchinson said everyone in the office knew about Mr J and his behaviour, including Mr Quirke.  Ms Hutchinson said she took the issue seriously as she could see that the complainant was scared when he came into the office, she never regarded the issue as a joke.  Ms Hutchinson denied that she had made a comment to Ms Casey about the complainant having a new boyfriend, that did not happen.  Ms Hutchinson said that Ms Casey had held responsibility for Health and Safety when she was first employed.  Ms Casey had delivered fire safety training and did ergonomic reviews.  The Health and Safety role had later been given to another employee, whom the complainant had e-mailed on 18 September 2019.

Regarding the probation review for the complainant Ms Hutchinson said that Mr Quirke had set a time and date for the review at his office.  She attended with the complainant at the set time, and they waited for an hour but, Mr Quirke postponed the meeting.  She had e-mailed Mr Quirke and contacted him by phone on two occasions to re-schedule the review meeting, but he didn’t have time to meet with her and the complainant.

Ms Hutchinson confirmed that the complainant had discussed the issue of Mr J attending the office and had advised her how uncomfortable she was when he was in the office.  Ms Hutchinson had dealt with Mr J on several occasions, but she was not present when he became aggressive in the office as she was on leave.  Ms Hutchinson said there was another incident with Mr J, after the complainant had left, that she saw, and which involved another employee.

Under cross-examination Ms Hutchinson confirmed that she was aware of incidents with Mr J between June and August 2019, up to the time she went on leave.  She said she was not aware that the complainant had called her boyfriend to escort her from the office to her car.  Ms Hutchinson stated that she was aware of the complainant’s concerns for her safety and wellbeing, but she was not present for the later incidents when Mr J’s behaviour was getting more aggressive.  In reply to a question about actions to address the problem in August 2019, Ms Hutchinson said that Mr Quirke was handling the matter at that time, she had dealt directly with Mr J in the beginning.  Mr J’s behaviour did not escalate until after she went on leave.  Ms Hutchinson confirmed that there was no report in writing before 18 September 2019.

In reply to questions Ms Hutchinson stated that she had not been contacted about the termination of the complainant’s employment but, as her manager she would have expected to be asked for a recommendation or view.  She said she was out on annual leave and sick leave in August and September 2019 but, she had been in the office on Monday 16 September 2019.  She had contacted Mr Quirke on that day to let him know that she would be out on sick leave but, he had not mentioned the decision to dismiss the complainant.   Ms Hutchinson repeated that she was very clear about what she had said about the complainant’s ability when asked, she had said that the complainant was not able for the role at that time but, she would be able for the role with training over the six months until she went on maternity leave. 

Under re-examination Ms Hutchinson confirmed that she had been in the office all day on 16 September 2019 and that neither Mr Casey nor Mr Quirke informed her that the complainant was to be dismissed.

Findings

 Having considered the submissions and oral evidence presented I must decide whether a causal link between the protected disclosure made by e-mail on 18 September 2019 and the dismissal on 27 September 2019 has been established.  The Labour Court in Toni & Guy Blackrock Limited v O’Neill HSD095, a claim of penalisation, by way of dismissal pursuant to section 27 of the Safety, Health and Welfare at Work Act 2005, stated that “the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act … where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment.”

Based on the complainant’s evidence, which was corroborated by the evidence of Ms Hutchinson, I am satisfied that the complainant was fearful for her own safety and that of colleagues.  The evidence of the complainant and Mr Casey and Mr Quirke confirms that there was discussion and action concerning the installation of a protective gate in the office.  The complainant had a legitimate expectation that such a protective measure would be installed.  When that did not happen, she made a formal report in writing about the health and safety issues, which I am satisfied constituted a protected disclosure.   The next day the complainant was called to a meeting with Mr Casey and Mr Quirke.  It is the complainant’s evidence that Mr Casey was angry because she had put her complaint in writing.  Mr Casey denied that he was angry with the complainant but rather was angry at the handling of the issue.  The complainant had another meeting with Mr Casey the following day, again her evidence was that he was angry with her.  The complainant was dismissed one week after the second meeting.  Those circumstances raise the inference that the complainant’s formal complaint of 18 September 2019 was an operative consideration leading to her dismissal.

The respondent’s position is that the complainant was dismissed because of performance issues.  Mr Casey’s evidence was that he was concerned that the sales targets were not achieved, face-to-face meetings with clients were not taking place and the team was failing as a group.  Therefore, the department had to change quickly.  However, Mr Casey acknowledged that he did not do any performance review with the complainant or raise any issue with her about targets.  Mr Quirke also acknowledged that he did not review the complainant’s performance.  Indeed, the complainant did not have a probation review as Mr Quirke had cancelled the scheduled probation meeting and did not arrange another date despite the efforts of Ms Hutchinson to agree another date.  I am satisfied that no performance issue was ever raised with the complainant until the day she was dismissed.

Mr Casey in his evidence stated that he was not angry with the complainant but rather was angry at the way the issue of Mr J had been handled.  In an e-mail dated 19 September 2019, the day after the complainant’s formal complainant, Mr Casey wrote that he “saw no requirement for a gate as per a H&S solution, yet this was presented as a H&S solution, why? … This process has turned into an absolute waste of time exposing a costly dysfunctional process.  I am paying the man hours and distraction on this matter … This process has completely undermined my authority and unnecessarily exposed me.”  This e-mail was sent because the complainant has sent her complaint by e-mail the previous day to the Health and Safety Officer.  The tone of Mr Casey’s e-mail shows he was angry and concerned about his authority and being exposed on a health and safety issue.  Mr Casey was angry with how the issue had been handled but, it is not credible that he was not angry with the complainant as well.  Mr Casey met with the complainant on 19 and 20 September 2019, meetings where the complainant’s evidence was that she was reprimanded by him.  The evidence of both parties confirms that there was mention of a baseball bat being made available to be kept at the front desk.  On this point I prefer the complainant’s evidence as it is more credible that than Mr Casey’s evidence that reference to the bat was a metaphor for saying he would go to any lengths to protect staff.  Mr Casey was clearly annoyed at the potential exposure on a health and safety issue, annoyed at the proposed solution and the cost and handling of the issue by managers.  One week later the complainant was dismissed.

The respondent’s position is that the decision to dismiss the complainant had been taken in late August 2019.  The complainant’s line manager Ms Hutchinson was on leave at that time.  It was Ms Hutchinson’s evidence that she was not consulted about or advised of the decision.  She returned to the office on 16 September 2019 for one day.  During that day she was in telephone contact with Mr Quirke, but he did not inform her of a decision to dismiss the complainant.  It is not believable that a manager would not be informed that a decision had been made to dismiss an employee, who reported directly to that manager, for performance issues.   The decision was stated to have been made at the end of August 2019 but there was no explanation offered as to why Ms Hutchinson was not informed of that decision when she was in the office on 16 September 2019. 

The complainant was dismissed on Friday 27 September 2019 without any prior notice of that decision.  Ms Hutchinson returned to the office the following Monday, 30 September 2019 and was shocked to discover the complainant had been dismissed.  The only reason given for such haste in implementing the dismissal was that a decision had been made by Mr Casey and he wanted his plan to proceed.  Ms Hutchinson was returning to work on the Monday after the complainant was dismissed but, Mr Casey had proceeded with the dismissal because he wanted to proceed.  I am satisfied that the dismissal proceeded so quickly after the complainant made her protected disclosure because she had made that disclosure and not because of a need to urgently reorganise the department while the manager was on sick leave and was due to return two days later.

Having carefully considered all the submissions and evidence presented I am satisfied, on the balance of probabilities, that the decision to dismiss the complainant was directly connected with her e-mail of 18 September 2019.  Taking account of the communications and meetings of 19 and 20 September 2019, the dismissal one week later 27 September 2019 and the complete absence of any performance reviews or issues I am satisfied that the complainant was dismissed because she made a protected disclosure on 18 September 2019.  Therefore, I find the complainant was unfairly dismissed from her employment.

In summary, I am satisfied that the complainant made a protected disclosure within the meaning of the 2014 Act and that she was dismissed on 27 September 2019 because she made that protected disclosure.  The complainant therefore has the protections of the Unfair Dismissals Act.  I find the complainant was unfairly dismissed.

Redress

Section 7 of the Act provides the following about redress:

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 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, 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,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.]

(2B) Where—

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.

(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; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

The complainant selected compensation as the form of redress she seeks.  Taking account of all the circumstances I am satisfied that the most suitable form of redress is an award of compensation.  Section 7(1A) of the Act, provides for a maximum award of 260 weeks.  The complainant’s salary was €480 gross per week.

The complainant gave evidence of her efforts to obtain alternative employment and provided documentary evidence of applications she had made, beginning in October 2019.  The complainant worked for her husband in his business during the Christmas period of 2019.  She not successful in obtaining any other employment at that time.  The following year was a difficult period to obtain employment due to the Covid-19 pandemic restrictions.  The complainant gave evidence of applying for posts and provided documentary evidence of applications in October 2019, January 2020 and again from August to October 2020.  However, there was no documentary evidence presented of applications for employment between February and July 2020.  Section 7 (2)(c) of the Act requires a complainant to mitigate their losses.  The complainant actively pursued employment between in January and from August 2020 onwards.  She was placed on a panel for public service appointments in October 2020 and was offered a post in 2021 just before taking maternity leave.  The complainant was on maternity leave from November 2021 to May 2022.  She took up her current permanent part-time appointment in 2022.  Having regard to all the circumstances I consider it just and equitable to award the complainant compensation in the amount of €45,000.

CA-00035377-001

Complaint pursuant to section 8 of the Unfair Dismissals Act, 1977.

I am satisfied that the complainant made a protected disclosure within the meaning of the 2014 Act and that she was dismissed on 27 September 2019 because she made that protected disclosure.  The complainant therefore has the protection of the Unfair Dismissals Act.  I decide that the complainant was unfairly dismissed.  I direct the respondent to pay to the complainant compensation in the amount of €45,000.

Protected Disclosure

Requisite Length of Service

Unfair Dismissal