Worker

Employer

Anonymised Parties

Manager

Media provider

Representatives

Mr. Fergal T. Fitzgerald Doyle instructed by  Brady Kilroy Solicitors.

 Mr. Colm Kitson BL., instructed by the respondent’s solicitors.

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003508

04/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003507

04/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003509

04/12/2024

The worker has presented a dispute concerning the unfairness of the termination of her contracts on 13/9/2024 and 17/9/2024

She commenced employment with the employer on 9/10/2023 in the Audio-Visual department.

She earned €19.43 an hour.

She referred her dispute to the WRC on 4/12/2024.

IR - SC - 00003508 The worker submits that she was unfairly dismissed by her employer on 17/9/2024 without any proper investigation, prior notice or warning. and was given a letter subsequently on the same date which did not specify the grounds for dismissal in writing.

The worker commenced employment on 09/10/2023 in the Audio-Visual department on a fixed term contract which was to run until 6/10/2024.This contract was terminated on the 13/9/2024.  She was offered and signed a second fixed term contract on 3/9/2024 to run until 2/2/2025 as a stage manager. This second contract was terminated on 17/9/2024.

Worker’s submission

She had a brief friendship with Colleague A. Colleague A texted her in January 2025 to state that they should confine their encounters to work. The worker was shocked and wanted to understand this change.  She ceased contact with Colleague A. She left a condolence card with Colleague A when her father died in April 2024. She only worked 2 shifts with the Colleague between January and September 2024.

 Termination of contract in the AV department

On 4/9/2024, her manager asked her to come to a meeting on 5/9/2024 but declined, when asked, to divulge the subject matter of the meeting, describing it as a catch-up meeting. At the meeting the manager stated that Colleague A had submitted a complaint against her, that she was scared to come to work because the worker was following her in the corridors, was frightening her by leaving messages on her windscreen which she did not feel she should have to remove. At the meeting they told the worker that colleague A had filed a complaint with the Gardai about the worker. Colleague A told the HR Manager that she had heard knocking on her door. The manager was reading from a notebook which contained Colleague A’s complaints but did not share these notes with the worker. Colleague A told the employer that the worker was displaying a photo of the two of them together.

The HR Manager told her that it was not a disciplinary meeting. The worker expressed fears about the security of her second contract, signed two days previously, for the position of Stage Manager. The HR manager told her that she was overseeing the second contract and that no decision had been made.

HR contacted her on the 12/9/24, for a meeting on 13/9/2024. She was not given the subject matter other than that it was to be a follow on to the meeting of the 5/9/2024. She was not offered representation. It was an awful meeting. They told her that they had decided to park Colleague A’s situation. They told her that they were terminating her contract in the AV department based on clause 11 of her contract. The HR Manager told her that it was not a disciplinary meeting.

They stated that her Stage Manager’s contract would be unaffected.

This first contract was terminated on the 13/9/2024.

She understood that it was being terminated because of Colleague A’s complaints. Outside of that issue the employer had never raised any concerns. She had been praised by her managers for her work on international sporting events. Furthermore, she had shifts scheduled up until the end of November 2024.

Termination of second contract that of Stage Manager’s position

On 3/9/24 the worker was offered and signed a stage manager’s contract.

ON 17/9/2024 she was called off set to attend a meeting with HR and a Media Services Manager. She was told she was to be dismissed with immediate effect in accordance with clause 11 of her contract notwithstanding that she had shifts scheduled for the end of November 2024. She asked to be allowed to speak. She got no reply to the question as to whether she would still be an employee were it not for Colleague A’s complaints.

She received no documentation prior to this meeting. No investigation into the allegations took place. She was not provided with any information about the process or appeal option.

The letter of dismissal, dated 17/9/2024, did not specify the grounds for dismissal in writing and relied on a contractual termination clause. There was no verbal warning prior to her dismissal. The management did not follow fair procedures in place and summarily dismissed her.

Complaint of bullying.

The complainant states that she was subject to bullying and threats as they would not allow her to speak at the meeting with the HR personnel on 5/9/2024. They kept repeating that she was making unwanted contact with Colleague A.

Her earning potential with the employer was €50,000 per annum

Post Dismissal.

Her potential for employment in media organisations been damaged by this.

She took up employment with a non- media company on a full-time basis on 26/11/2024, earning approximately €25,000.

In questioning by the employer, the complainant confirmed that her contracts placed her on a panel from which she could be drawn as needs arose and that she was not guaranteed any fixed hours.

She disagreed with the employer’s stance that she had not been accused of any misconduct because she had been presented with a list of accusations. The employer told her that Colleague A prefers not to work with her.

The employee confirmed that by the time of her termination, she had not been engaged to work as a Stage Manager.

Mr Fitzgerald Doyle relies on Geradon v Dunnes Stores, UD367-88 and Frizelle v New Ross Credit Union, (1997), IEHC 137 which underscore an employee’s right to natural justice and fair procedures, and which were denied to this worker.

IR - SC - 00003508

The employer denies that the termination was unfair or that they had acted unreasonably.

The worker’s contract allowed for her termination in the manner executed.

 It was a no-fault dismissal.

Employer submission at hearing.

On 30 August 2024, Colleague A contacted her manager making it clear that she was unwilling and unable to work with the complainant due to her conduct arising from the breakdown of their friendship. The employer has not come to any determination or finding in respect of the issues raised. Colleague A raised her unwillingness to work with the worker on a second occasion.

It is common practice for the employer to listen to complaints from employee A and put these concerns to employee B without invoking any procedure which is what happened at the meeting of the 5/9/2024. It was an informal meeting, conducted in a good atmosphere in which the employer notified the worker that Colleague A had concerns with the worker. It was not intimidatory. The HR manager declined to disclose the concerns to the worker’s barrister as they were a matter between the employer and Colleague A. She did not offer the option of representation as a meeting between a manager, and a staff member is a normal occurrence.  Contrary to what the worker stated, the worker had ample opportunity at that meeting to raise complaints.  The meetings did not amount to a disciplinary process. She was not bullied at either of the meetings.

The HR Manager stated that she uses her judgement, using multiple factors as to what constitutes a right fit for the organisation.  The sudden need to terminate the contract was influenced by the near expiration of the fixed term contract for all employees. The worker had no guarantees of work.

The employer had no issue with the worker’s performance.

 The employer maintains that the worker did not suffer financial loss. The employee was paid more in payment in lieu of notice than she would have earned had she remained working in her Audio-Visual role until the expiration of her contract on 6/10/2024. She was paid 4 weeks’ notice based on her average earnings over the previous 13 weeks which had amounted to €5204. This figure includes PILON This shows that they were a reasonable employer.

Clause 11 permitted the employer to terminate the contract prior to the termination date.

The employer has thirty panel workers on its books, none of whom have any guarantee of work. They are called as the need arises, for sick leave absences etc. It would not have been fair to keep the worker on a panel and not provide her with work.

The employer confirmed that the worker was the only employee of the 6-7 on her particular panel whose contract was due to expire on 6/10/2024 and who was dismissed prior to that date. The HR manager accepted that Colleague A’s issue was factored into overall decision to dismiss.

The employer stated at the hearing that the worker was not a right fit for the organisation, it wasn’t working out

The employer asserts that the law is behind them in that like in the case of   Philip Nolan v Science Foundation Ireland [2024] IEHC 368, this is a no-fault dismissal.

IR - SC - 00003508

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The employer terminated the worker’s two sequential contracts prior to their expiration date in contrast to all the other casual fixed- term employees on a panel whose contracts ran until the date of expiration. The first contract in the Audio-Visual function was terminated 23 days short of that date, 6/10/2024. The second contract, as a Stage Manager, said to be live and intact on the occasion of her first dismissal on the 13/9/2024 was terminated, 4 days later, with immediate effect on 17/9 /2024, before the worker had even functioned in this new role.

The backdrop to these curious terminations was the existence of a complaint of inappropriate, stalking-type behaviour by Colleague A against the worker. My function is not to establish the veracity of the complaints levelled by Colleague A. But the influence of her complaint on the decision to dismiss and the opportunity given to the employee to address Colleague A’s concerns about her with the employer is within my remit, particularly when the employer minimises that influence.

The employer stated that their decision to dismiss fits in with clause 11 of the worker’s contract which permits the employer to terminate the contract prior to its date of expiration, and that there is nothing amiss in their exercise of that clause. It is, they say, a no-fault dismissal. But there is nothing in the contract which disentitles the employee to the right to fair procedures.

It is accepted that there were no issues with the worker’s performance.

 The employer asks me to accept that the absence of a disciplinary process means that the issue of misconduct is not material to their decision to dismiss. But the only issue driving the termination prior to its end date was the complaint by Colleague A who was able to make her complaint verbally and categorise it as an informal complaint. The employer thus concluded that due its informal nature it did not merit the scrutiny that would have been applied to it, and the full disclosure of it to the worker, had they chosen to subject it to the rigours of a disciplinary or complaints process. Allegations of stalking cannot but come within the ambit of inappropriate conduct towards a colleague and therefore misconduct. Because the employer didn’t attach the tag of harassment or misconduct to it does not mean that it is not an allegation of misconduct. Responsibility for the breakdown in the working relationship was attributed to the worker. The employer in legitimising the unwillingness oof Colleague A to work with the worker, and as a consequence, concluding that the relationship was untenable, found fault with the worker and dismissed her. It is noted that the worker did not contest the allegations

The employer cannot have it both ways. They cannot state that the meeting of the 5/9/2024 is not a disciplinary meeting, put Colleague A’s concerns to her, verbally, while withholding the written statement from Colleague A, yet dismiss her eight days later. They called her 4 days later to another meeting and terminated her second contract on17/9/2024 with immediate effect.

These complaints or concerns were not processed through any procedure which would have provided the worker with advance notification of the concerns, the right to be represented, an opportunity to examine them in full, and explain her perspective. Nor was any appeal offered to her. I find this wanting in fairness.  

That it was an inconvenience to the employer does not relieve them of the obligation to provide fair procedures, as per the provisions of S.1 146/2000. The employer asks me to accept that the decision in Philip Nolan v Science Foundation Ireland [2024] IEHC 368, a no-fault dismissal, matches the circumstances of the instant complaint. But in that case the employer had conducted a preliminary investigation and had commenced a disciplinary process, interrupted by injunction proceedings. Mr Nolan was in charge of a team of people who had made complaints; in this case it is one employee versus another. The Court did not find it be a misconduct case.

I cannot find it to be applicable.

Most importantly this is a dispute referred under the industrial Relations Act, 1969.

I find that the execution of the dismissal was lacking in fairness.

The evidence submitted in support of a complaint of bullying was insufficient and non- persuasive.

The two other complaints are incorporated into my Conclusions (IR - SC – 00003507 and IR - SC – 00003509).

I note the complainant’s actual earnings for the period October 2023 – September 2024 as opposed to potential earnings.

I recommend that the employer pay the employee €2500 in settlement of this dispute.