Complainant

Respondent

Parties

Joanna  Gurtman

Sport Ireland

Complainant

Respondent

Anonymised Parties

{A Manager}

{A Public Body}

Representatives

Niamh Ní Cheallaigh IBEC

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-00058870-001

18/09/2023

The Complainant worked as a Manager with the organization from 2017.

The Complainant suffers from anxiety and neurasthenia.

She encountered difficulties working for her line Manager who was responsible for HR. She says he used unacceptable language and comments. When she requested assistance for her workload, this was denied. She was unsupported in her role.

She was unable to cope and went on sick-leave due to stress for two weeks in January 2021. When she returned, she discovered a role had been advertised which contained some of her responsibilities. She was discriminated against on her return due to her sick-leave on and marginalised. This impacted her application for promotion. There were ongoing performance difficulties with a member of her staff. She asked her Line Manager to deal with this and he refused. She became stressed as she could not carry out all the work required for her role and the colleagues who was constantly making mistakes. In July 2021 she was so stressed she became hostile to her team. She was crying in work on 22nd July 2021. She asked her manager for a supervisor to assist in managing her team, she prepared a job specification for her Manager’s approval. This was ignored.

She was not sleeping and thinking about work all the time. On 8th October 2021 she was informed there was a complaint against her and she was forced to take leave. She was certified fit for return to work in February 2022. HR and her Line Manager requested an online meeting with her on 10th February 2022. She outlined all the difficulties with her work environment and said she could not have the return to work call with her Line Manager. She was told that as she was fit to work, she had to go on the call, but she refused.

The Complainant says she was then isolated from all staff, and her responsibilities were transferred to a the member of staff. Staff must have been told not to contact her as she received no emails. She was being discriminated against due to her complaint against her Manager, and penalised. There was no contact from the organisation until 2nd June 2022 when they asked her to meet a Mediator under the Grievance procedure. She met the mediator on 22nd June 2022, which was not successful. The mediator understood that she could not be in the same room as her manager due to her health.  The mediator made recommendations but she did not receive a copy. The report shows the Complainant wanted to return to work.

The Complainant was examined by the company doctor in August 2022. He told her the organisation said she was doing no work. She said this was not true she was not given a single task to do since her return in April 2022, there was no return to work meeting and her tasks were not reviewed. The doctor recommended she stay on leave for a four week period from 18th August 2022. In September 2022 she was found fit to return to work, with restrictions and ready to engage with HR. She was put on sick-pay for two weeks although she did not submit a sick-cert, and her pay was reduced unlawfully.

Following her mother’s bereavement and sick-leave, she returned to work on 27th October 2022. She was told HR wanted to meet her about her complaint and if she didn’t, they expected her to withdraw her complaint and return to work. She objected and said this is not what a return to work process should be. She asked for leave, this was refused. HR wanted to meet her but would not say what the agenda was. The Complainant was worried and felt she was being tricked into dropping her complaint or resigning. She returned home to see her GP who arranged for her to see a psychiatrist immediately. She was diagnosed with anxiety disorder and neurasthenia.

The Complainant was told that HR were commencing their investigation and that she did not need to participate in the formal meeting. She did not understand why her complaint of 10th February 2022 was not being investigated. She was expected to put in a formal complaint.

When the Complainant returned to work on 13th December 2022 she received an email from a UK company saying this is not a disciplinary process and a list of concerns were presented. The website of the company was suspended which was concerning. The Complainant was unable to engage with the process due to her health as she was suffering from depression. She never received any notification of concern from the organisation or warning about the issues which contradicts the organisations policies. Her salary for January 2023 was suspended due to her not submitting time-sheets. She did not get paid for February or March 2023.

The Complainant sent a complaint to the CEO on 20th February 2023 about the actions of HR which are unethical, ruining her mental health, discrimination against her and victimisation due to her complaint in February 2022. The CEO did not address the issues and only responded regarding her salary. She was suffering from depression and needed her salary. The Complainant says she was victimised for making a protected disclosure with Transparency Ireland on 31st January 2022.

She was requested to attend occupational health for review in April and May 2023 which she refused. She says the company was aware of her depression. She received an email saying as you have refused to attend the occupational health assessments, we assume you are fit to engage with the disciplinary process.

On 30th May the Complainant received a 313 page report which is fundamentally flawed and not objective. She was invited to attend a disciplinary hearing. The Investigation report conflicts with the voice recordings and emails of the Complainant, she says this was manipulated by members of the organisation. She says the purpose of the report is to protect the managers from their wrongdoing. The report had a negative impact on her mental health. It is biased and prejudiced. She objects to the Investigator saying she finds it suspicious that the Complainant did not submit a death certificate. The Complainant has an email of 29th September 2022 when she emailed the organisation with her mother’s death certificate and a picture of her parent’s grave. The report referred to her and said she “was not engaging in any way to return to work or seeking information on how to return to her duties. These behavioural patterns are usually met into personalities with severe narcissistic disorders, which are alarming for the individual and the environment”. The Complainant says this was psychological abuse.

The disciplinary officer invited the Complainant to a second disciplinary meeting on 30th May 2023 and she opted to respond by email which she is entitled to do. She was then dismissed on 26th June 2023 as she failed to attend the meetings or provide any mitigating statements. The Complainant replied asking if there was a valid reason why her emails of 6th and 20th June 2023 were ignored. Her email account was then deactivated. The Complainant appealed the decision to dismiss but was concerned that the CEO was on the dismissal panel as she is complicit in the wrongdoing.

The Complainant seeks 2 weeks salary unpaid when she was placed on sick-leave. She was not paid 10 days bereavement leave owed. She claims 47 days annual leave are also unpaid.

The Complainant made a complaint about her line Manager who is the head of HR in February 2022 which was ignored. She made a second written complaint to the CEO on 20th February 2023, but the CEO did not respond.

The Complainant suffered depression and Covid-19 exacerbated the impact on of work-stress. The loss of her job has impacted her and her family as she was not able to pay her mortgage or pay for her medical treatment. She cannot drive due to medication. The Complainant seeks reengagement into a suitable position.

The Respondent refutes the claim in its entirety. The Complainant’s employment was terminated on 26th June 2023 on grounds of serious misconduct following a fair and impartial investigation, disciplinary and appeal process.

The Complainant commenced employment on 8th August 2017. She was employed as a Manager until 26th June 2023.

The Complainant’s line Manager informed the HR team that he had not heard from the Complainant for a significant period and was unsure if she was working or absent. The HR Manager called the Complainant. The Complainant saw her line Manager’s missed calls and texts but did not want to speak to him.

The Complainant was absent from 26th January 2022 until 3rd April 2022. A zoom meeting was arranged for the HR Manager and Complainant on 10th February 2022. The Complainant cited stress and depression for her absence and that she was taking medication. A return to work meeting was arranged for 5th April 2022 but the Complainant declined to attend as she did not want to speak to her line Manager.

On 2nd June 2022, the HR Project Manager telephoned the Complainant who said she was open to mediation. The Complainant agreed she had not carried out work related tasks saying she was not assigned any tasks.  A mediation with an external mediator took place on 22nd June 2022. The Complainant refused to attend a joint meeting of the parties with the mediator. Following receipt of the mediators report, the HR Manager contacted the Complainant regarding her statement that she was not well enough for work despite her fitness certificate of April 2022. The Complainant responded she was not fully back, she was checking emails but not responding. The Complainant also claimed there was an unsafe work environment. She said she would be happy for this to be investigated.

The Complainant was referred to the occupational health doctor in August 2022 and was unfit for four weeks. The Complainant did not accept this sick-leave. The HR Manager requested the Complainant put her grievance in writing, but the grievance procedure could not commence until she was fit for work. On 28th September 2022, the HR Manager emailed the Complainant regarding her return to work on a phased basis. The Complainant’s mother passed away and she needed time off. She took bereavement leave until 4th October and annual leave until 26th October 2022. The return to work meeting took place on 27th October 2022. The Complainant became confrontational when she was informed no formal proceedings had proceeded due to her sick-leave. Multiple attempts were made to arrange an on-site meeting to discuss the Complainants grievance. All of these the Complainant did not attend for various reasons including being out of the country. She claimed to be still working.

In November 2022, the Respondent appointed an external investigator to investigate the Complainant’s attendance and adherence to policies and procedure. Following multiple attempts to arrange an investigation meeting with the Complainant in December and January 2023, the results of the investigation advised disciplinary action in relation to breach of policies, working location and insubordination.

On 20th February 2023 the Complainant sent an email claiming mental abuse due to hostile and unethical conversations from HR saying this was the main cause of her depression. On 11th April 2023 the HR Manager emailed the Complainant regarding next steps if she was fit to engage. The Complainant failed to attend medical appointments on 18th, 20th April and 3rd May 2023. It was assumed the Complainant was fit to engage. A disciplinary meeting was arranged for 13th June 2023, rearranged for 20th June 2023 and held in the Complainants absence. The decision to dismiss was communicated to the Complainant. The Complainant wished to appeal and the hearing was arranged on 28th July 2023, it was rescheduled to 4th August. The Complainant then advised she would not attend the meeting and it could take place in her absence. On 8th August, 2023 the Complainant then emailed saying she was not fit to participate in a meeting. The appeal was unsuccessful.

The Respondent trusts colleagues to report absences and they will carry out their duties to the best of their ability. The Complainant failed to do so and was absent from her role for extended periods, with no explanation and no evidence as to why. The Complainant admitted not conducting work for her role. The Respondent relies on S6 (4) of the Unfair Dismissals Act 2021 the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct exhibited by the employee. The Complainants actions amounted to gross misconduct.

The Respondent relies on the legal test set out in Looney & Co Ltd v Looney UD 843/1984 that “a reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the case. The Complainant destroyed the trust and confidence of the Respondent and the continuation of the relationship was impossible. The Respondent relies on Knox Hotel and Resort Ltd, UD27/2004. The Complainant was given the benefit of fair procedures and natural justice throughout the process. She was informed in advance as to the nature of the allegations against her, she was afforded the right to representation, she was provided with a number of hearings to respond before any decision was made.

The Complainant contributed entirely to her dismissal and relies on Murray v Meath County Council UD 43/1978. There has been a fundamental breakdown in trust between the parties and reengagement is not an appropriate remedy. The Complainant failed to provide evidence of mitigation of loss in line with S7 (2) of the Unfair Dismissals Act 1977-2021 stating ”The Court finds that the Complainant, through a combination of inaction over protracted periods and a series of ill-advised job applications, found himself unemployed for a much longer period than could otherwise have been the case had he been more diligent in seeking alternative employment. The Respondent cannot be held liable in compensation for the Complainant’s lack of effort and or poor judgement in this regard”.

 The Respondent seeks dismissal of the claim.

I have heard and considered the oral and written submissions of the parties, and evidence given.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

The Complainant signed a contract of employment with the Respondent on 25th July 2017 which provides:

“If you have any grievance in respect of any aspect of your employment, you should bring the same to the attention of your immediate superior. A decision on the grievance will be communicated to you by your superior and if you are dissatisfied with the decision, you may take up the matter with the Human Resources Department.”

The Complainant was employed as a Finance Manager (Higher Executive Officer) from 8th April 2017. She went on sick-leave for due to stress in January 2021. She says she became increasingly stressed due to her workload, and requested support from her Line Manager which was not forthcoming. There was a complaint from a team member against her in October 2022. The Complainant took sick-leave again from 26th January 2022 until 3rd April 2022 due to stress and depression.

The Complainant participated in a zoom call with HR on 10th February 2022. She submitted a transcript of the call when she outlined some difficulties with her Line Manager, concerns dealing with staff, workload and a role advertised which she says included some of her responsibilities. The Complainant did not wish to speak to her Line Manager when returning to work. She was offered counselling by HR. The Complainant returned from sick-leave on 4th April 2022 with a note from her GP confirming fitness to work.

The Respondent arranged external mediation with the Complainant and her Line Manager on 22nd June 2022. Mediation was unsuccessful. HR noted that work tasks were not being carried out by the Complainant although she was fit for work. The Complainant raised concern about a safe place of work during mediation, and being scared and petrified about carrying out her duties. The Complainant said work duties were not being assigned. She was requested to provide a formal complaint in writing on 24th June 2022. In August, the Complainant was found unfit for work by the company’s occupational health doctor. By September 2022, she was fit for work. The HR Manager arranged a meeting to discuss the Complainant’s grievance on 30th September 2022, but the Complainant did not attend the meeting nor submit written details of her complaint.

Following bereavement and annual leave, the Complainant was due to return to work on 27th October 2022. The Respondent then made numerous attempts to arrange a meeting to discuss the Complainants grievance which she did not attend. She disclosed she was out of the country. She was offered an alternative finance role which she did not accept.

The Respondent appointed an external investigator to investigate the Complainant working outside of lreland remotely without authorisation, failure to comply with attendance procedures, failure to attend meetings when the organisation has made all accommodations requested, failure to carry out her duties, failure to use authorised company equipment to perform duties, failure to submit timesheets, and failure to comply with company procedures.

The Investigator tried to arrange an investigation meeting with the Complainant in December and January 2023 which she did not attend. The Investigator advised disciplinary action in relation to breach of policies, working location and insubordination. The Complainant failed to attend medical appointments in advance of the disciplinary meeting, which was held in her absence. The Complainant was dismissed. The Complainant objected to the CEO being on the appeal panel, but did not substantiate the allegations. Her appeal was unsuccessful.

The Complainant made complaints against her Line Manager in February 2022 and refused to deal with him on her return to work in April 2022. However, she failed to provide any written complaint and evidence to support her allegations when requested by HR on a number of occasions. She was offered an alternative role which she did not accept. She repeatedly failed to attend meetings arranged to discuss her grievance cancelling at the last minute, disclosing she was abroad. The Complainant was not carrying out any duties for the organisation during this period and did not engage with the company procedures and processes. I am satisfied the Investigation, and disciplinary process were conducted in accordance with fair procedures and the Complainant had a full opportunity to respond to the complaints against her.

The appropriate test to be applied is set out by the Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91 by Lord Denning MR at pg. 93 applied by Judge Linnane in Allied Irish Banks v Purcell [201] ELR 189:

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably take a different view.”

In all the circumstances, I find the dismissal resulted wholly or mainly from the conduct of the Complainant over a lengthy period. The dismissal was fair and the Complainant contributed substantially to her dismissal.

The dismissal was fair. The Complainant contributed substantially to her dismissal.