In the case of Tara Keating v. Camfil (Ire) Ltd ADJ-00030501 the Adjudicator agreed that the dismissal date was in fact after the outcome of the disciplinary appeal, rather than as per the outcome of the disciplinary hearing.
This brought the claim within the time limit and enabled the Complainant to receive an award for sick pay, additional annual leave and public holidays. However, the dismissal was found to be fair and her claim for no contract of employment failed as her employment commenced before the commencement of the Terms of Employment (Information) Act 1994.
Facts: The Complainant was employed by the Respondent as a Purchasing Representative from 1st January 1990. The Complainant was subject to a disciplinary procedure based on two discoveries:
- The large volume of email exchanges in the Complainant’s work emails relating to two businesses which had no connection with the Respondent. The two companies were a dry-cleaning company in which the Complainant is an owner and a construction company in which her husband had an ownership interest. The email correspondence during the previous 12 months amounted to more than 230 items. This indicated that the Complainant was conducting business on behalf of these two companies during her working hours for the Respondent and using her Respondent’s electronic signature.
- Booking confirmation dated 22nd July 2019 of flights and hotel accommodation in Spain in the Complainant’s name from 14th to 21st September 2019. The Complainant was scheduled to make an important presentation to a conference of international representatives of the Respondent from 12 countries across the world, during the Irish hosted conference on 16th September 2019. The Complainant misled the Respondent that she intended to make this important presentation and did not submit a leave application in respect of the holiday that she had booked. In fact, she had confirmed to the Managing Director of the Respondent on 9th August 2020 that her only holiday plans were for 22nd, 23rd and 26th August 2020. The Complainant submitted medical certs from 5th September until 30th October 2019.
On her return to work on 30th October 2019, the Complainant was informed of the discoveries and that a disciplinary hearing was being scheduled and that she was suspended with pay. The Complainant went on sick leave and the disciplinary hearing took place on 16th January 2020. She was informed of her dismissal in writing on 30th January 2020 that her employment will terminate on 21st February 2020. Due to Covid-19 lock-down, certified sick leave of the Complainant and a potential conflict of interest with the initial person appointed to hear the appeal, the appeal was not heard until 3rd July 2020 and the outcome was not communicated to the Complainant until 24th July 2020. The appeal upheld her dismissal.
The Complainant remained unfit to work at the date of the hearing but sought two years’ remuneration as compensation. The Complainant relied on the EAT decision in Allen v. Independent Newspapers (Ireland) Ltd [2001] JIEC 0501, and submitted that illness was due to the Respondent’s conduct in the course of the disciplinary procedure and subsequent dismissal.
Preliminary Issue:
The Adjudicator held that the date of dismissal was 24th July 2020 and not 21st February 2020. The basis for reaching this decision was:
- The Company’s appeal procedure did not specifically address the status of the employee whilst appealing a dismissal decision i.e. whether or not the employee remained an employee until after the appeal or not.
- The appeals procedures specifically states that it is only at the completion of Stage 5 – the appeal, that the decision to dismiss becomes “final and will be implemented”.
- The Respondent continued to accept medical certificates submitted by the Complainant well after the 21st February 2020 without any comment.
The change in the date of dismissal meant that the claim was issued within the 6 month time limit and there was no requirement for an extension of time.
Decision:
The Adjudicator found that the number of personal emails could only be described as excessive and therefore in breach of the Company’s policy in relation to use of company email system. He held that the excessive email usage and taking a holiday at a time when the Complainant did not have leave approval severely damaged the relationship that has to exist between an employer and an employee.
The Adjudicator was satisfied that the Respondent had conducted an investigation and that the Complainant was granted the opportunity to be accompanied at all stages of the investigation. He concluded that the decision to dismiss the Complainant was a reasonable decision in the circumstances and that her claim was not well founded.
The Complainant had made claims under other legislation for not having been furnished with a written contract and for outstanding sick pay, annual leave and public holidays. Her claim in relation to the terms of employment failed as her employment commenced before the Terms of Employment (Information) Act 1994 commenced. However, she did receive awards in relation to the sick pay, annual leave and public holidays that occurred between 21st February 2020 and 24th July 2020.
Takeaway for the Employers:
This decision shows the importance of setting out in both the disciplinary policy and the dismissal letter that the dismissal takes effect from the date specified and that if the employee appeals the dismissal and is successful in his/her appeal, that their employment will be reinstated from the date of dismissal. It also highlights the importance of having a robust Email Usage policy and that any approvals of usage should be documented and clearly defined.
Authors – Anne O’Connell
30th September 2022