ADJ-00044000 - Workplace Relations Commission Linda O'Shea Farren v Contemporary Music Centre CLG

• Jurisdiction: Ireland
• Judgment Date: 24 January 2024
• Docket Number: ADJ-00044000
• Court: Workplace Relations Commission
• Respondent: Contemporary Music Centre CLG

Procedure:

A claim of unfair dismissal was referred to the Workplace Relations Commission on 12 January 2023.

In accordance with section 8 of the Unfair Dismissals Acts 1977 – 2015,following the referral of the claim to me by the Director General, I inquired into the claim and gave the parties an opportunity to be heard by me and to present any evidence relevant to the claim.

I received written submissions from both parties prior to the first hearing date.

At the outset of the hearing on 20 June 2023, the unfair dismissal claim was conceded by or on behalf of the respondent and it was confirmed by the respondent’s representative that the issue for adjudication concerned the appropriate redress. The hearing proceeded with submissions from both parties and oral evidence from two witnesses tendered by the respondent. The hearing was then adjourned to ensure the complainant had a full opportunity to prepare and present her position, having regard to the respondent’s concession at the hearing and the significant shift in the focus of the case.

The rescheduled hearing was arranged for 26 September 2023. I received further written submissions and supporting documentation from the complainant in advance of the rescheduled hearing date in accordance with WRC procedures. A written submission on behalf of the respondent and a written submission from the complainant in reply were received at the hearing itself.

The hearings were held in public, and there were no special circumstances to warrant anonymisation of this decision.

In coming to my decision on redress to which the complainant is entitled, I have reviewed and taken account of the relevant law, the detailed and comprehensive submissions and the oral and documentary evidence before me. Both parties were afforded the right to test the oral evidence by way of cross-examination.

Background:

The complainant joined the respondent organisation in February 2017. She was summarily dismissed from the role of Projects, Programmes & Events Manager on 28 September 2022. A formal investigation of allegations against the complainant, carried out by a third party on behalf of the respondent, concluded in September 2022 that the complainant did not have a case to answer. The complainant was dismissed by the respondent on the same day she was informed of the outcome of the formal investigation. The respondent conceded the complainant’s dismissal was unfair at the outset of the first hearing date before the Commission on 20 June 2023. The material issue for adjudication was redress for the complainant’s unfair dismissal.

Summary of Complainant’s Case:

The complainant gave sworn evidence. She was summarily dismissed on 28 September 2022 shortly after receiving a report on foot of a formal investigation into complaints against her, which was carried out by a third party on behalf of the respondent. The report completely exonerated the complainant. The respondent did nothing to mitigate the damage of a dismissal in this manner or to spare the complainant’s reputation; there was no agreed statement and no notice given to the complainant of the dismissal. The respondent refused to engage with the complainant regarding her dismissal. The respondent did not display any duty of care towards the complainant in its dismissal of her in an inhumane and unmanaged manner. It is unfair to say that there can be no future relationship between the complainant and respondent when the respondent has made no effort to manage the relationship; it ignored all grievance and management procedures. The respondent acted to remove the complainant from the equation. The dismissal and consequential damage to the complainant in a tightknit arts community was devastating, incontrovertible and cannot be understated. The only way to restore the complainant’s reputation within the community is reinstatement with the respondent. The summary nature of the dismissal severely damaged the complainant’s professional reputation and future earning capacity. No efforts were made by the respondent to mitigate that damage. The factors advanced by the respondent at the hearing as reasons it could not work with the complainant were embarrassing and/or astonishing and were certainly not grounds for terminating the complainant’s employment or to counter reinstatement. Very few of the issues raised by the respondent had previously been put to the complainant. The complainant is disappointed with the respondent’s conduct, but there was no question of her competence or performance. The complainant did not in any way contribute to her dismissal. The complainant can compartmentalise her disappointment and the dismissal, and there is no reason why she cannot carry out her role with the respondent in the future. The complainant made every effort to mitigate her loss after her dismissal. She continues to be involved with three organisations in a voluntary capacity. Under cross-examination, the complainant did not accept that she had insisted on a review of the communications aspect of her role in 2021. The respondent’s director said she would provide a written review of the complainant’s progress in that part of her role in the autumn of 2021. The complainant followed up on this when it was not provided. The complainant addressed the timeline from being provided with a draft contract in respect of the new role, the complainant’s acceptance of the contract and her taking up of the new role in December 2021. In relation to her request to take up part-time, fixed-term additional employment with another organisation in January 2022, the complainant queried the Board’s refusal of her request. The complainant had questions about the Board’s refusal but did not appeal the Board’s decision. Four months after the Board’s decision, it referred the complainant’s queries to a third party to deal with. When the third party’s report issued to the complainant in October 2022, it did not find in her favour, and she appealed the decision therein. The report contained no analysis and no reasons for its conclusion. If reinstated, the matter is under appeal and the complainant would like the Board’s response. The complainant would like her questions in relation to requests to take up additional employment and conflicts of interest addressed by the respondent. She does not want such issues left unresolved. Where such issues have a bearing on a person’s role, they need to be pursued. The complainant did not accept that she was persistent and unreasonable in seeking to have passages included in the September 2022 third party report that issued on foot of a formal investigation. The complainant requested the third party include passages in its report to mitigate against damage to her good name as the evidence of witnesses had been damaging. The complainant had already been dismissed at that stage and was seeking to mitigate damage to her reputation. When asked about the complaint made against another manager after her dismissal, the complainant said there needed to be a resolution to that complaint and she would have thought the respondent would have pursued the complaint. The complainant would like answers to her appeal of the Board member’s decision of July 2022 on her complaint against the respondent’s director in relation to an incident in May 2022. The decision raised fundamental issues the complainant would like resolved. The complainant was not insisting that the director should get a warning in relation to the May 2022 incident but was simply pointing out that the respondent’s employee handbook provides for same in circumstances of misconduct. The complainant was asked about her assertions that the director was guilty of gross misconduct in relation to other matters and why she had made these assertions after the respondent had conceded the complainant’s unfair dismissal. The complainant did not have complaints lined up to initiate but she made the assertions in the context of the case before the WRC where she was defending herself against the respondent’s submission that she had contributed to her dismissal and against allegations that had never previously been put to her. The complainant hoped to be reinstated and that a few minor questions could be answered by the respondent. In response to questions regarding the complainant’s mitigation of loss, the complainant outlined how she had been approached to provide some ad hoc advice following her dismissal and what her voluntary work entailed. Matters with the respondent since July 2022 have been extraordinarily stressful for the complainant but she has been at all times since her dismissal fit and available for work. The complainant addressed the jobs she had applied for from November 2022 to July 2023. In the period after her dismissal, the complainant was preparing her CV, engaged in social media, meeting with people and following...