Complainant

Respondent

Anonymised Parties

A Health & Safety Officer

A Construction Company

Representatives

Owen O’Sullivan Solicitor

Conor Bunbury Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00064771-001

15/07/2024

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

CA-00064771-002

15/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064771-006

07/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00064771-007

07/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00064771-008

07/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00064771-009

07/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00064771-010

07/10/2024

Complaint seeking adjudication by an Adjudication Officer under s27 of the Work life Balance and Miscellaneous Provisions Act 2023

CA-00064771-011

07/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 26 of the Chemicals Act, 2008

CA-00064771-012

07/10/2024

The Complainant submitted a complaint form to the Director General of the Workplace Relations Commission on 15th July 2024. She added complaints by way of a further complaint form on 7th October 2024. The individual complaints are set out in the heading of this decision.

On 12th May 2025, the Complainant confirmed in written submissions that complaint numbers CA-00064771-003; CA-00064771-004; CA-00064771-005; CA-00064771-007; CA-00064771-008; CA-00064771-009; CA-00064771-010; CA-00064771-011 and CA-00064771-012 were being withdrawn.

This case is therefore concerned with the remaining complaints, namely CA-00064771-001; CA-00064771-002 and CA-00064771-006. These complaints relate to alleged breaches of the Terms of Employment (Information) Act, 1994; Unfair Dismissals Act, 1977 and the Employment Equality Act, 1998.

The Complainant provided evidence on her own behalf by way of civil affirmation and a director of the Respondent company offered evidence in response, also by way of civil affirmation.

The Complainant was employed as a Health & Safety Officer with the Respondent on a part-time basis from January 2022 to April 2024. One of her functions was to provide training to colleagues and issue them with certificates that they had completed the relevant training.

Throughout her employment, she says that she never received a written contract or clear terms and conditions, despite repeated requests. Her hours fluctuated significantly, and she often felt as though she was on a zero-hour contract. Eventually, she agreed a fixed rate of payment for 15 hours per week with her employer. She was paid €420 per week following this agreement.

The Complainant says that she was required to use her own laptop, phone, and email for work purposes, including during her maternity leave. She returned early from maternity leave which she says was under pressure from the Respondent.

The Complainant alleges that her dismissal on 24th April 2024 was unfair. She was dismissed without notice or fair procedures, and without any opportunity to appeal. The stated reason for dismissal was a lack of qualifications, despite her holding relevant certifications and later completing refresher training at her own expense. The dismissal occurred while she was caring for her sick child and while she was sick herself. The Complainant contends that the process lacked natural justice and was retaliatory, particularly as she had recently raised concerns about harassment and poor working conditions.

During her time with the Respondent, the Complainant said that she experienced significant harassment and discrimination. She reported verbal aggression from managers when raising health and safety concerns and described an incident of sexual harassment at the company Christmas party in December 2023, when a colleague touched her inappropriately and attempted to kiss her in front of other staff and management. Despite reporting this verbally, no action was taken.

The Complainant also says that she was treated less favourably than male colleagues by being denied ergonomic equipment, IT support, PPE, pension access, and training opportunities. Requests for IT infrastructure, PPE, and access to systems were ignored, and she was excluded from key safety initiatives and company activities. There were no formal grievance or anti-harassment policies in place, leaving her without a proper avenue to escalate her complaints.

The termination had a significant financial and emotional impact: she lost a higher-paying role and is now employed as a Health and Safety Administrator at a reduced salary of €35,000 per annum. She also experienced anxiety and stress, requiring medical attention and mental health support.

The Complainant says that her dismissal was unfair and that she was discriminated against. She is seeking relief for breaches of the Unfair Dismissals Act 1977, the Terms of Employment (Information) Act 1994 and the Employment Equality Act 1998.

Evidence of the Complainant

The Complainant outlined her background and qualifications. She said that there was a verbal agreement for her to begin work in 2022 and that she was on maternity leave for a time in 2023. She was only on maternity leave for 13 weeks and returned prematurely under pressure from the Respondent. She experienced difficulty with certain personnel on her return. She was raising health and safety issues and some were just ignored. The relationships were difficult, the hours were fluctuating and inductions were particularly difficult because things were not organised in advance as needed.

The Complainant described an incident at the company Christmas party on 15th December 2023 which she says was witnessed by a director of the company. This was a traumatic incident. A colleague approached her, she had a glass in one hand and a bottle in the other, and her colleague grabbed her and attempted to kiss her. She was extremely shocked and went to the bathroom for 10 or 15 minutes to try and gather herself. She said that it was a very difficult event. When she returned to work in January, the perpetrator bragged about this incident. The Complainant says that she spoke to the Office Manager about this. The Office Manager was the partner of the director and she expected that she would take action but nothing was ever done. No investigation had taken place by the time her employment was terminated.

When discussing her termination, the Complainant said that she was dismissed by e-mail following a swift exchange of e-mails. She thought the discussion was in relation to correcting a spelling error on a certificate and said that no issue had ever been raised previously in relation to the certificates that she issued. [The certificate in question was a working at heights certificate.] The Complainant kept copies of her own certificates to provide training on her laptop, but this had crashed and she could no longer access them. She had no hard copies because she had given them all to the Respondent. No issue in relation to this had ever been raised with her prior to 16th April 2024.

The Complainant was referred to an e-mail dated 16th April 2024 by her representative. It was an email that she had sent following a request from the Respondent to upload her own certificates. She stated in the e-mail:

“Honesty is the best policy here [  ], Some of my instructor training certification lapsed before and while I was on Maternity leave and I only realised this when I was doing my boxcore exercise last week and couldn't find my certs.”

She went on to say that she needed some time to find her certificates as they were in a variety of locations and she had booked herself on some instructors refreshers courses starting the following week. The Complainant was asked by her representative if this was an admission that she didn't have certification. She replied that she was requested to upload her certificates, which she didn't physically have in her possession. She thought that some may have lapsed but this was an assumption because she did not physically have them to hand and could not say for sure. She was happy to get re certified if that was the case.

The Complainant's representative asked her if there was any central registry of training certificates. The Complainant replied that, no, there is no central registry. The Complainant said that she was competent in any training that she gave from experience and from her diploma which covers instruction modalities.

The Respondent replied by email to the Complainant the next day, 17th April 2024, and asked her if the working at heights training certs that she had issued had also lapsed. The Complainant was asked if they were covered for the certs previously issued in 2022 and 2023. The Complainant replied “Don't panic certs are intact.” She said that she could put a tracking number on them and the old logo.

The Complainant was of the opinion that her certification was intact. She had previously not put a unique identifier on certificates, but was happy to do so when this was raised. She has only ever done training for what she can competently deliver. The Complainant's representative asked her what the mandatory requirements for a certificate are. The Complainant replied that sometimes people put a tracking number on them, but there is no prescribed way of issuing it.

The Complainant noted that the Respondent was looking at a comparative certificate and this seemed to question the validity of her own. She was asked if she had ever seen this comparative certificate and she replied that no, she had never seen it. She never received a query asking if it should be done like that.

On Friday 19th April, the complainant emailed the co-directors to ask if she could have a chat with them that afternoon. She said that she was quite stressed. In evidence, the Complainant said that it was really troubling her and she wanted to put it right. She was also quite unwell at the time, as was her daughter.

On Monday 22nd April, the Complainant emailed again to ask the directors if they were happy for her to attend site safety meetings. She also highlighted some technical issues that she was having and asked what the best way to communicate corrective actions that were required would be. She emailed a second time on 22nd April to request a copy of her contract.

The Complainant was asked by her representative why she sought a copy of her contract. She replied that she wanted to clarify her role and responsibilities and said she was seeking clarity because she wanted to find a way forward.

On 23rd April, the Complainant requested to take parents leave. She was looking for this in order to look after her sick child. She got a response seeking clarification on the type of leave that she was applying for but never received an answer on the application itself.

Later that evening on 23rd April, the complainant received an e-mail from the Respondent which stated that she was being invited to an investigation meeting. The option of a remote call was offered and the attendees were identified. She was asked if she could meet the following day, anytime after 11:30am. This was the first reference to an investigation. The Complainant replied to this e-mail saying that she was happy to attend, but wished to let them know that both she and her child were still unwell. However, she still wished to attend the meeting. She again stated that she had booked herself on refresher training and had obtained funding for this. She said she would have a medical certificate over to them when reasonably possible.

The Complainant emailed again on the 24th April to say that she was available from 3:30 to 4:45 that day and was happy to attend despite personal circumstances. She received a reply to this e-mail which stated “We understand that you are out sick and will e-mail you later today in follow up.” The Complainant replied that, in any case, she would appreciate if it could be discussed today. She said that she made herself available despite her circumstances and would appreciate having the meeting that day as it was quite stressful. She said “I want to attend this investigation as I want to hear what you want to say. I would like to remove this stressor.”

The investigation meeting did not take place and instead the Complainant received an e-mail on the evening of 24th April. It stated: “We write to inform you that we no longer require your services with immediate effect. Please note that you have been paid up to yesterday, at which stage you submitted a medical certificate. The grounds for your dismissal are related to your qualifications for the job, which we have discussed with you over the last week.” The Complainants representative stated that there was no reference to gross misconduct in this e-mail and asked the Complainant if any questions were ever put to her that she was being dishonest. The Complainant replied that there was never any question put to her about the quality of her qualifications. Fabrication was never brought to her attention and her integrity had now been questioned.

The Complainant was asked if she was invited to respond to this email. She replied no, she never got to speak or put her side forward. She showed that she was available but there was no process. The dismissal came out of the blue. She had been invited to an investigation, but no one outlined what she was being investigated for. She said that it was so was hasty and all of this happened between the 16th and 24th of April with a weekend in between. It was done with haste and it was not fair. She had been given no opportunity to speak. She was sick but she was showing willingness to meet.

Following the dismissal, she immediately applied for other jobs as she couldn't sit around. She applied to other companies and provided letters to substantiate this. She commenced a new role on 8th October 2024 but the salary is considerably reduced. She now receives €35,000 gross. She got illness benefit for 6 weeks after the dismissal and that was €210 per week, which could not sustain her. There was an impetus to go back to work and it took 16 weeks between 24th April and 8th October to find another post. She said that her confidence was shattered after the experience at Christmas and it took her a long time to recover. People kept asking her why she left and it was a source of great embarrassment.

The Complainant says that her overall loss is €1200 per week for those 16 weeks. She had a second part time employment, but she did not return there either after her period of sick leave.

The Complainant also says that she was not treated equally in comparison to her male colleagues. She had no ergonomical accommodations, her ICT was out of date and she could not access the servers. She was not treated fairly and not provided with appropriate PPE like her colleagues. She had ill-fitting equipment and clothes. She was also denied prescription glasses for site visits and was never offered a pension like her male colleagues were. She said that the men were given appropriate PPE and ICT equipment whereas she felt it was very limiting with regards to the provisions that she was given.

Cross examination of the Complainant

The Complainant was questioned about her assertion that she was never provided with equipment and couldn’t access servers. An email dated 29th January 2024 was put to her and she accepted that she initially got access but said that it was never stable enough. She said that there were always access issues and that she could not get access to the server.

Asked about her hours, it was put to the Complainant that it was her responsibility to send in what hours she worked and she accepted this. She said that sometimes her hours were greatly reduced because of an inability to access a particular site and this led to the arrangement that she would be paid for a set amount of hours.

The Complainant was asked about her efforts to mitigate her loss. It was put to her that she is now receiving more per week than she had been with the Respondent. She accepted this was the case but highlighted that she was working considerably less hours with the Respondent so overall it is a loss.

The Respondent put to the Complainant that it was unaware of the incident at the Christmas party and that no complaint had been made in writing. The Complainant accepted that she had not put the complaint in writing, but said that she was petrified and thought that the company would internally deal with it. It was witnessed by colleagues and she said it to the Office Manager. She also said that she was embarrassed and as she was the only woman in health and safety, she didn’t want to be seen as a problem or trouble maker. When it was put to her that the company cannot act on something that it doesn’t know and there is a procedure for dealing with such complaints, the Complainant replied that she never got the company handbook and she thought that the Office Manager would escalate it on her behalf.

The Complainant was asked when she became aware that her certification lapsed. The Complainant replied that some certifications are open ended and a lot of it was in date. She was asked if she knew that it had lapsed and she replied that she did not, it was an assumption because she couldn’t find it. The Respondent put to her that she knew it was in June 2023 because her email said “lapsed while on maternity leave”. The Complainant replied that she could not have known that particular working at heights certification had lapsed. She didn’t know if it had expired or was out of date.

The Respondent put to her that it was reasonable for the company to assume that it had lapsed and the Complainant replied that if she’d been captured on a training matrix, which the Respondent should have done, then they should have known when certification was due for renewal. The Complainant was asked if she accepted that it was her function to provide certification and she accepted that it was.

The Respondent provided a “Statement of Main Terms of Employment” and put this to the Complainant in respect of her complaint under the Terms of Employment (Information) Act, 1994. The Complainant denied ever having sight of this document. She also denied ever having sight of the Employee Handbook identified by the Respondent.

The Respondent’s evidence would be that the company faced a very serious health and safety problem as a result of the Complainant’s actions and that it found her offer to back date and amend certificates to be deeply troubling. The Complainant replied that she knew it was very serious. She said that when she did her instructor training things like name, qualification, trainers name and expiry were needed on a certificate, but that there was no industry standard and it’s not underpinned by any statute. She accepted that she offered to modify things like a tracking number or typo error but she says that she was competent to give certification. She believed her certs were valid and intact.

The Respondent said that the company relied on her expertise and was entitled to expect that she could sign off on working at heights certificates. The Complainant asserted that she still had her qualifications that she could rely on.

It was put to her that the essential element of trust was gone and the Complainant replied that she was going off verbal instruction and didn’t sign off on any certs when she returned from maternity leave.

The Respondent said that the Complainant had failed to exhaust internal procedures and the Complainant replied that no appeal was offered to her and she was never given the Employee Handbook or a contract of employment. It was put to her that she was aware of the Employee Handbook, having previously been involved in HR related matters and that she knew it was there. She accepted that she knew of it’s existence, but insisted that it was never given to her and she had previously only used relevant sections of it. She said that she never had a copy of it. She also said that no appeal was offered to her.

The Respondent denies all of the complaints in full.

The Respondent’s submissions

The Complainant commenced employment with the Respondent on 28th January 2022. The Respondent states that she was provided with a Statement of Main Terms of Employmentand an Employee Handbook. Her job title was listed as Contracts Manager, with duties subject to modification based on business needs.

Throughout 2022 and 2023, the Complainant performed health and safety duties, including toolbox talks and site safety checks. She availed of maternity leave during 2023 and returned to work in December of that year. The Respondent highlighted an email dated 4th October 2023, in which the Complainant expressed “delight and excitement” about returning early, contradicting her claim of being compelled to resume work prematurely.

In late 2023, the Complainant raised concerns about IT access and equipment. The Respondent provided email evidence showing management offered support and encouraged her to liaise with external IT providers. On 29th January 2024, she was instructed by a Director to use the official safety email and contact IT support if issues persisted. Further correspondence in February 2024 shows her acknowledging technical difficulties but also offering to purchase a laptop herself, indicating discussions rather than refusals of equipment.

On 16th April 2024, concerns arose regarding a Working at Heights certificate issued by the Complainant. The certificate lacked standard accreditation details, prompting management to request her current qualifications for upload to the company’s tracking system. Subsequent emails revealed that the Complainant admitted her instructor-level certifications had lapsed, including Working at Heights and Fire Warden training. She indicated plans to attend refresher courses on 23–24 April 2024, but this admission raised immediate safety and compliance concerns.

The Respondent emphasised that the issue was not the mere expiry of a certificate but the continued issuance of safety-critical certifications without valid instructor accreditation and without disclosure of this lapse when questioned. This conduct, it argued, constituted gross misconduct under the Employee Handbook due to the serious safety implications and breach of trust.

An investigation meeting was scheduled for 24th April 2024, but complications arose due to the Complainant’s illness and her request for parental leave. Despite her expressed willingness to attend via Teams, the Respondent concluded that the gravity of the misconduct warranted immediate action. On 24th April 2024, her employment was terminated by email, citing issues with her qualifications. The Respondent noted that dismissal for gross misconduct permits termination without notice, though payment for accrued leave was made.

The Respondent maintains that the dismissal was based solely on gross misconduct for issuing Working at Heights certificates without valid instructor accreditation and failing to disclose this lapse. It also said that the company had clear policies on employment terms, disciplinary procedures, harassment, and protected disclosures, which were all accessible to the Complainant. Any allegations of unfair dismissal, discrimination, harassment, and penalisation are unfounded and unsupported by evidence. The Respondent requests that all claims be dismissed.

Respondent evidence

A Director of the Respondent company gave evidence on its behalf. The nature of the work and, in particular, the dangers associated with it were highlighted.

The witness said that they work in a highly regulated environment and safety is absolutely critical. Documentation and appropriate certification is required for every employee. If a certificate is not correct, someone will be immediately removed from the working area and there would be an automatic assumption that if one cert is wrong, then they all are.

When asked about the Complainant’s contract, the witness said that he joined after the Complainant and so was not there at the time but that records showed it had been given to her and that the Office Manager is responsible for that. He also said that the Complainant was very aware of the Employee Handbook and that there are email threads where she refers to it.

The witness completely disagreed with any suggestion that the Complainant was treated differently to anyone else. She occupied a senior role in health and safety and was well respected. When asked about her difficulty accessing the server, he said that IT can be a difficult area in any business. The company had changed to a cloud based system and, from time to time, everyone experienced issues with it. There was not any attempt to make things difficult for the Complainant.

The witness was asked if everyone was aware of the Xmas party incident. He replied that no one was aware of what had happened as far as he knew. It would have been taken very seriously if the company had been made aware of it.

The witness said that the company relied on the Complainant’s safety expertise but would never have expected one person to have everything and would have been happy to outsource certain training. Once the issue with the Complainant’s certification was discovered, a third party was sourced to complete a two day course which got everyone re-certified immediately. This was at a cost of €2,500 for 15 people.

When asked about the trust between employer and employee, the witness said that it was absolutely central and there had been a major breach of trust in this case. The lack of certification could have resulted in the company suffering enormous loss, it was described as “existential”.

The witness said that he became aware of the issue with the Complainant when he was copied on the email relating to a typo on one of the certs. As a new director, he was being copied in. On seeing the certificate in question, he thought that it just didn’t look right. While technically someone can be certified on the back of a napkin, typically certificates for safety have references to legislation and tracking numbers etc on them. He asked for further examples and immediately when he looked at another, he thought that it looked wrong. As the boxcore exercise was being done anyway, he thought let’s ask the Complainant for her certs as well and then things escalated pretty quickly. He says that he was open minded at that moment but then within hours there was multiple emails from the Complainant which ended with an admission that she didn’t have copies of some documents. Up until the email from the Complainant that “honesty is the best policy”, he thought that she would dig out the cert and the risk for the business and the employees would be dramatically less.

The Complainant had been into the company twice between the 16th and 24th April. She asked “is this a HR matter” and the witness had replied that he didn’t know but maybe. The Complainant had told him that she knew they’d been lapsed for a couple of years and he thought that she was contradicting herself. As far as he was concerned, she had admitted that she’d misled them. He considered it gross misconduct at that point and moved to try and understand the damage and the risk. The key issue was that if the Complainant had simply said that the certification had lapsed, they would just have renewed it. But that she had been knowingly issuing certificates when she knew it had lapsed was huge. It was a disaster for the company.

Once they had been lied to, the witness considered it gross misconduct. They were still hoping that the Complainant would produce something because there was concern about the validity of the existing certifications, but because she didn’t she was dismissed for gross misconduct. The witness said that any deceit around safety is gross misconduct as it is literally dealing with people’s lives. He also noted that the Complainant did not appeal the outcome.

Complaints CA-00064771-003; CA-00064771-004; CA-00064771-005; CA-00064771-007; CA-00064771-008; CA-00064771-009; CA-00064771-010; CA-00064771-011 and CA-00064771-012

The Complainant confirmed in written submissions received by the Commission on 12th May 2025 that each of the above complaints are withdrawn.

They will therefore be dealt with no further in this decision and the remaining complaints, namely CA-00064771-001; CA-00064771-002 and CA-00064771-006, are set out below.

CA-00064771-001 Terms and Conditions of Employment Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Terms of Employment (Information) Act 1994imposes an obligation on employers to furnish employees with a written statement of terms and conditions of their employment. Within the first 5 days of commencing employment, an employer must give the employee part of the ‘written statement of terms of employment’ and this must include the core terms of employment, such as, among other things, remuneration, expected hours and place of work. Within one month of starting, the employer must provide the employee with the remaining terms of employment in writing. The Act applies to any employee who commenced employment after May 1994, or to any employee who requests written information about the terms and conditions to which they are entitled under the Act.

The Respondent’s witness gave evidence that he was not in the employ of the company when the Complainant started. He is therefore unable to give evidence that the necessary information was provided to the Complainant within the prescribed timeframes. Even if I were to accept that the Complainant received this information at some point in her employment, there was no evidence presented which satisfied me that it was provided within the prescribed statutory time frames. Neither the person who signed the Complainant’s contract or the Office Manager who was responsible for issuing it gave evidence at the hearing.

In contrast, the Complainant gave evidence that she did not receive this information. The Respondent provided a copy of the contract, but it is unsigned by the Complainant.

In the absence of any direct evidence regarding the supply of this information to the Complainant within the first 5 days or within one month of commencing her employment, I accept her evidence that she did not receive these details. Consequently, this complaint is well founded and I award the Complainant compensation in the amount of four weeks’ remuneration amounting to €1,680 in accordance with section 7(2)(d) of the Act.

CA-00064771-002 Unfair Dismissal Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

Factual background leading to dismissal

On 16th April 2024 the Complainant was asked by a director of the Respondent company to “…upload your relevant certificates and accreditations to BOXCORE so that all the certs you are issuing are easily accessed. Also, can you upload your current qualifications that enable you to sign off on the relevant certificates”. The Complainant supplied 11 certificates and accreditations in response. The Respondent noted that one was out of date and asked the Complainant if she had her cert for working at heights instructor training, as it had not been included. At 8.23pm that same evening, the Complainant stated that previous employers retained some certification and it was a needle in a haystack. She had mailed various people to obtain copies/letters of participation. She also thought some may be in her parents house and would be searching there in the coming days but that she had booked herself on refreshers for some courses the following week.

The witness for the Respondent replied to this mail with the words “To discuss” and copied in the other company director.

The Respondent again requested the working at heights instructor training that evening and said that some clients are requesting the training records, stating they require the traceability codes on all certs. The Respondent stated that if the certificate could not be found, they would need to look at re-training the site team on working at heights.

The Complainant replied to this mail at 9.50pm and stated:

“Honesty is the best policy here […], Some of my Instructor training certification lapsed before and while I was on Maternity leave and I only realised this when I was doing my boxcore exercise last week and couldn't find my certs.

Some physical certs are in my parents, previous phones, devices, usbs, some are in my marital home, some were withheld by my previous employers, some were […] and took forever to obtain certification post attending the course etc.

I need a bit of time to saturate locations, make enquiries etc.

On a positive note have booked myself on some instructors refreshers next week 23rd and 24th, and also got notified late this afternoon I was successful in obtaining part funding from […] today.

My fire warden training has also lapsed and I m afraid I cannot deliver this training in house.

I will be in a position to offer internal training again after the 25th of this month.

I am sorry I cannot help out on this occasion.

If site personnel need training in the meantime I just did a bit of scouting about and there is […] online approved course online which will only take an hour or 2 and cost a reasonable fee.”

The Respondent replied at 6.59am the following morning, 17th April 2024. The Complainant was asked if the training certs for working at height training that have lapsed cover the certs previously issued in 2022 and 2023. The Complainant responded “Don’t panic certs are intact.”

The Complainant emailed the Respondent at 10.37am and 3.02pm on 19th April asking the company directors if she could speak with them. She emailed again, three times, on 22nd April 2024. In the first email, she requested parents leave. In the second, she was making enquiries about how she should proceed with work and in the third she notified the Respondent that her child was ill and also asked for a copy of her contract “and roles and responsibilities clearly defined…”. The Respondent replied on 23rd April 2024 and sought clarity on whether the Complainant was seeking parent’s leave or parental leave. In a second, separate, email at 5.53pm the Complainant was invited to an investigation meeting the following day. The Complainant replied at 6.06pm that she was happy to attend. She said that her child was still unwell and she too was unwell and would be submitting a certificate shortly to cover a months leave. She stated “In any case I am happy to attend.” The Complainant mailed the Respondent again on Wednesday 24th Apil 2024 to say that she was available from 3.30 to 4.45 that day and was “Happy to attend despite personal circumstances.”

The Respondent replied at 3.09pm to say “We understand that you are out sick and will email you later today in follow up.” The Complainant responded at 3.19pm to say that she would appreciate if they could discuss that day. She said that she had made herself available despite the circumstances and would appreciate having the meeting that day as this was quite stressful. She stated “I want to attend this investigation as I want to hear what you want to say.”

The next, and final, correspondence between the parties is an email from the Respondent to the Complainant at 4.12pm on 24th April 2024. It says:

“We write to inform you that we no longer require your services with immediate effect.

Please note that you have been paid up to yesterday, at which stage you submitted a medical certificate.

The grounds for your dismissal are related to your qualifications for the job, which we have discussed with you over the last week.”

Applicable Law

Section 6(1) the 1977 Act states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(7) of the 1977 Act provides that in determining whether a dismissal is unfair, regard may be had:-

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

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice …”

The combined effect of the above-mentioned provisions is that the onus is on the employer to establish a fair dismissal. 

Section 14(1) of the 1977 Act goes on to say that:

An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.

The Respondent provided a copy of it’s Employee Handbook. The handbook sets out, in the section on Disciplinary Rules and Procedures that:

3) Every effort will be made to ensure that any action taken under this procedure is fair, with you being given the opportunity to state your case and appeal against any decision that you consider to be unjust.

And

4) The following rules and procedures should ensure that:

a. the correct procedure is used when inviting you to a disciplinary hearing;

b. you are fully aware of the correct procedure, the standards of performance, action and behaviour required of you;

c. disciplinary action, where necessary, is taken speedily and in a fair, uniform and consistent manner;

d. On occasion it may be necessary for the company to conduct an investigation meeting to clarify a particular incident or occurrence prior to any potential disciplinary hearing. The purpose of this investigatory meeting is to establish the facts about a particular incident or occurrence, and the details of which will remain completely confidential. The investigation will be carried out by a designated member of the Management team or, if necessary, in the case of any possible conflict of interest, an agreed external third party. The designated investigator will meet with you and any witnesses or other relevant persons individually. The person investigating the complaints will make every effort to carry out and complete the investigation as quickly as possible. This investigation meeting itself should not be interpreted as a disciplinary hearing as no disciplinary sanction would ever be issued on foot of an investigatory meeting. Instead, the facts established in an investigatory meeting may be used to identify whether or not a formal disciplinary hearing ought to be conducted;

e. on some occasions temporary suspension on contractual pay may be necessary in order that an uninterrupted investigation can take place. This must not be regarded as disciplinary action or a penalty of any kind;

[…]

h. you will only be disciplined after careful investigation of the facts and the opportunity to present your side of the case at a disciplinary hearing; and

i. if you are disciplined, you will receive an explanation of the penalty imposed and you will have the right to appeal against the finding and the penalty.

The Respondent’s own procedure is that an employee will be given the opportunity to state your case and appeal against any decision. That did not happen in this case. The Complainant was not given the opportunity to state her case. The Adjudication Officer asked the Respondent witness why he chose not to meet remotely with the Complainant on 24th April as planned. He responded that there was no point as “we had already decided”. This is, in my view, the very definition of a lack of fair procedures. To make a decision without affording someone the opportunity to respond to the allegations against them is grossly unfair.

No investigation or disciplinary meeting took place in this case, in direct contravention of the Respondent’s own policies. It would appear to me based on the evidence provided that the Complainant was, at no stage, offered the opportunity to respond.

I accept that this was an extremely serious matter for the Respondent, particularly given the nature of the work and the critical importance of safety standards to that work. However, it is a fundamental step that an accused person is offered the right to respond to accusations against them. The evidence showed a number of emails going from the Complainant to the Respondent and there was no apparent answer to these. The Complainant showed herself more than willing to attend the investigation meeting, she was finding the situation stressful and was in fact requesting that they could speak so that she could explain her side of things. This essential opportunity was denied to her and is a breach of fair procedures.

Further, the Respondent’s policy is clear that an employee can “appeal against any decision that you consider to be unjust.” An appeal was not offered in this case. I do not accept the Respondent’s position that it was up to the Complainant to ask for one. The dismissal email came from a director of the company and it is entirely unclear who a request for an appeal would even have gone to in the absence of the Respondent providing this information. This is also a breach of fair procedures.

As a result of the Respondent’s failure to adhere to fair procedures, I find that the dismissal was unfair.

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(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, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

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

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

(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 financial loss referred to in that subsection was attributable to an act, 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, 

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

Section 7(3) of the Act further states that:

“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”;

I do not consider re-instatement or re-engagement to be suitable remedies in this case, given the breakdown in the relationship between the parties. Compensation is therefore the appropriate option.

In considering what is appropriate compensation, I must have regard to the financial loss suffered by the Complainant and the steps taken to mitigate that loss.

The Complainant estimates her loss as being €1,200 per week for 16 weeks. I am unclear how this amount and time frame was calculated. The Complainant’s loss from her employment with the Respondent is €420 per week. The additional financial loss she refers to relates to a separate employment which I am unable to consider as a loss arising from her unfair dismissal by the Respondent. I am satisfied therefore that the Complainants loss would be €420 per week. The Complainant says that her loss lasted for 16 weeks. However, there are 24 weeks between the 24th April 2024 and 8th October 2024, when the Complainant started her new employment and her loss ceased to accrue. The Complainant stated in evidence that she received illness benefit at a rate of €210 for 6 weeks and so this period of time must be deducted from her financial loss. It is well settled that where an employee is unable to work by reason of illness or incapacity, then they are unable to claim for loss of earnings during a period that they could not have worked in any case. Therefore, the first six weeks of the Complainant’s financial loss must be discounted. 24 weeks minus 6 weeks = 18 weeks. The Complainant’s loss over this period is therefore €420 x 18 weeks which equals €7,560.

I am satisfied that the Complainant made efforts to mitigate her loss on the basis of the documentation provided showing the posts that she applied for in the intervening period and therefore award her compensation of the financial loss that she suffered as a result of her unfair dismissal in the amount of €7,560.

CA-00064771-006 Discrimination / Equality / Equal Status Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

It is important to note that any claim for redress in respect of discrimination must be referred to the Director General within 6 months from the date of occurrence of the discrimination. This is provided for by section 77(5) of the Employment Equality Act, 1998 (as amended) which states:

(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

The above time limits are relevant when looking at the cognisable period. This is the six month period which pre-dates the receipt by the Director General of a complaint form. In this case, complaint forms were received on the 15th July 2024 and the 7th October 2024. The cognisable periods are therefore, respectively, 16th January 2024 to 15th July 2024 and 8th April 2024 to 7th October 2024.

The Complainant did not make any application to extend these time frames for reasonable cause. The complaint form specifically raising the issue of discrimination under the Employment Equality Act, 1998 (as amended) was received on 7th October 2024. However in the narrative of the complaint form dated 15th July 2024 multiple issues relating to discrimination are also raised. This will be dealt with further below.

Sexual Harassment complaint

The Complainant discussed an incident of sexual harassment at the Christmas party on 15th December 2023. Details of this complaint, specifically, were first submitted on 7th October 2024.  

As noted above, no application was made by the Complainant for an extension of this time frame on the basis that there was reasonable cause for the delay in submitting it.

The act of sexual harassment took place on the 15th December 2023. The cognisable period to make a complaint in relation to this incident was therefore 6 months from that date i.e. before 15th June 2024. The Complainant did not raise this issue with the Commission until 7th October 2024, well outside the six month limit.

As I am unaware of any reason that would constitute reasonable cause to extend the time frame for this complaint, the Complainant is statute barred from proceeding with it and I do not have jurisdiction to consider it further.

The Complainant also alleges that she has been treated less favourably than her male colleagues and I will address this further below.

Discrimination complaint

Sections 6(1) and (2) of the Employment Equality Act, 1998 at relevant parts state:

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

[…]

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),…

The Complainant selected the option of disability on her complaint form, however she did not offer any evidence at the hearing of a disability and I will therefore address this complaint on the basis of gender only.

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

85A (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The effect of this is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

Melbury Developments Limited v Arturs Valpeters, [EDA0917] expanded on what is required to establish the initial proof that discrimination has occurred:

“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

My first task therefore is to consider if the Complainant has shown that, based on the primary facts, she was discriminated against by the Respondent within the cognisable period. The complaint under this Act was submitted on 7th October 2024. However, the Complainant did raise many of the issues that she describes as discriminatory in the narrative of the complaint form dated 15th July 2024. She further specifically references the Employment Equality Act in that narrative and so I am satisfied that the cognisable period for this complaint is therefore 16th January 2024 to 7th October 2024.

However, I am not satisfied that the Complainant has identified less favourable treatment than another person in a comparable situation, commonly known as a comparator, on the grounds of gender within that cognisable period. This is an essential element to meet the burden of proof that discrimination can be taken to have occurred.

The Complainant offered evidence that she was treated differently in comparison to her male colleagues, but she did not offer specifics in relation to who those colleagues are or the circumstances of their employment. For example, did they do a similar role or work compared to the Complainant?

She also did not offer specifics within the relevant time frame. For example, when she says that she did not get appropriate PPE, she did not specify the date that she was refused PPE or offer the name of a colleague who did get appropriate PPE at the time. This is also the case regarding the complaints relating to ICT equipment and access, prescription glasses and pension entitlements. The Complainant has not provided sufficient specifics that these incidents occurred within the cognisable period or offered a comparator who was treated more favourably on each occasion within that time.

As I am not clear, based on the Complainant’s evidence, that she has established a comparator who was treated more favourably than her between 16h January 2024 and 7th October 2024, I do not find that she has met the burden of proof that she bears to establish that a presumption of discrimination has occurred.

In all the circumstances, I therefore find that this complaint is not well founded.

I find that the Complainant has been unfairly dismissed. I direct the Respondent to pay compensation to her in the amount of €9,240, being €7, 560 for unfair dismissal and €1,680 for failure to provide terms and conditions of employment within the prescribed timeframe, within 43 days of the date of this decision.

I find that the complaint under the Employment Equality Acts, 1998 – 2015 is not well founded.

Fair procedures – unfair dismissal – burden of proof in presumption of discrimination - comparator