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 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060730-001

23/12/2023

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

CA-00060730-002

23/12/2023

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 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 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 seeks minimum notice owed on termination of her employment with the Respondent from 2017.

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”.

Section 8 of the Minimum Notice and Terms of Employment Act 1973-2005 states “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.” The Complainant’s actions were found to be gross misconduct following a full and impartial investigation and disciplinary process, and as a result she was summarily dismissed, the Respondent is not legally required to furnish the Complaint with any minimum notice due to the serious nature of misconduct she exhibited.

An employer’s right to summarily dismiss an employee without minimum notice due to the gross nature of an employee’s misconduct has been demonstrated and upheld in numerous decisions, and rely on A Process Operator vs a Manufacturing Company, ADJ-00033237/2023 (Appendix 10) as follows: “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.” “Having found that the Complainant was fairly dismissed for gross misconduct, I find that the complaint was not well founded.”

The Respondent seeks dismissal of the claim.

CA-00060730-001

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

I found the dismissal of the Complainant for gross misconduct was fair in ADJ-00047801, and the Complainant contributed substantially to her dismissal. In the circumstances, I find the Respondent was entitled to rely on S8 of the Minimum Notice and Terms of Employment Act 1973-2005 and terminate the contract of employment without notice. The complaint is not well founded.

CA-00060730-002

The Complainant has submitted documentation from the company to show that she is owed holidays dating back to 2020. The complaint was received by the Workplace Relations Commission on 23rd December 2023.

19 of the Organisation of Working Time Act 1997

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): provides that an employee working full-time during the period 30th March to 1 April annually shall be entitled to 20 days statutory leave.

S41 (6) of the Workplace Relations Commission Act 2015:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The jurisdiction of the Workplace Relations Commission relates to 20 days statutory annual leave which accrues pro-rata for time worked by the employee. This complaint relates to time periods outside the jurisdiction of the Workplace Relations Commission.

The Complainant accrued 14.5 days statutory leave for 2023 and carried over leave of 9 days from 2022. She was paid for 19 days annual leave in 2023. I find her complaint is well founded and direct payment of 4.5 days annual leave by the Respondent.

The Respondent was entitled to rely on S8 of the Minimum Notice and Terms of Employment Act 1973-2005. The complaint is not well founded.

The complaint is well founded and direct payment of 4.5 days annual leave by the Respondent.