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Manager who couldn’t make conference over bad back but had holiday booked loses dismissal case

Tara Keating, who had a trip to Lanzarote booked for the same dates, lost her €90k claim for unfair dismissal

Workplace Relations Commission

Stephen BourkeIndependent.ie

A manager who told her boss she couldn’t make it to a conference because her back had gone out, but had a trip to Lanzarote booked for the same dates, has lost a €90,000 claim for unfair dismissal.

The Workplace Relations Commission (WRC) heard one of her colleagues went into her work emails while she was out sick and then made a report to the company’s managing director when they found personal emails there with her flight details, kicking off a full disciplinary process.

Tara Keating’s complaint under the Unfair Dismissals Act against Camfil (Ireland) Ltd was rejected in a decision published today by the tribunal, though it ordered the company to pay her €3,900 for withheld sick pay, annual leave and public holiday entitlements.

She accepted texting to the Irish subsidiary’s managing director on September 5, 2019 saying: “My back went, and I am up the wall with the event coming up… I am sorry for dropping this on you.”

“I put my hands up, I made a mess of the dates. I panicked,” Mrs Keating said.

The company’s position was that Mrs Keating had misled the company in a “contrived, deliberate way” about her absence from work and that this – along with her “excessive” personal use of her work email - amounted to gross misconduct.

Paul Flanagan, the company’s managing director, told a hearing in March this year that it was with “shock and amazement” that he found out Mrs Keating had a holiday booking clashing with the company’s biannual conference in September 2019.

He said the Irish arm was hosting the event and that because its focus that year was on Mrs Keenan’s work area in purchasing, he had been working closely with her on her presentation.

He said when he opened up her account he found “quite a lot of excessive use of email” with correspondence involving a laundry she owned in Navan, Co Meath, and her husband’s scaffolding business.

HR consultant John Keenan, who appeared for Camfil, said this was the “major prompt” for the formal investigation which followed.

This ultimately led to Mrs Keating’s dismissal on foot of a finding of gross misconduct after a disciplinary process, he said.

Lars Asmussen BL, who appeared for Mrs Keating on the instructions of solicitor Neil Cosgrave, said the company’s disciplinary process had been so “devastatingly unfair” as to leave his client unfit for work due to stress and anxiety.

Mrs Keating said in evidence that she returned from sick leave on 30 October 2019 to be “ambushed” by her boss, the company’s financial controller Thomas Dullaghan, with formal notice of disciplinary action.

She described being called to Mr Dullaghan’s office to be told that the firm had carried out an investigation while she was on sick leave and discovered she had been using Camfil’s email address to run two family businesses and had taken a holiday “deliberately” coinciding with an important company conference.

“You’re suspended,” he told her.

“I was shocked,” she told the hearing. “He pushed an envelope to me and said: ‘It’s all in there.’ I just left the building. He was talking 100 words a minute – it was like being slapped in the face.

“I felt there was a vendetta and I was a target going back to July (2019] when I sent an email about Thomas Dullaghan about harassment and bullying,” Mrs Keenan said.

She said her efforts to obtain copies of emails and other documents for her appeal were frustrated by her former line manager, Mr Dullaghan, and that she eventually made a legal request for her records.

Mr Dullaghan accepted under cross-examination that the complainant was not provided with copies of the emails, in breach of the company handbook.

However, he denied that there had been a “clear pattern of oppression” in the way he had corresponded with the complainant about the disciplinary process”, as put to him by Mr Asmussen.

“There was no intention to make her uncomfortable at all,” Mr Dullaghan replied.

Mrs Keating said her suspension, and the progress of the formal disciplinary process and appeal had a major impact on her mental health.

“To be honest, I couldn’t think straight. I was numb. Traumatised is the word,” she said.

Mr Asmussen argued that the WRC should make an award at the maximum extent of its jurisdiction – double her annual salary of €45,000 – in addition to further sums for alleged breaches of employment law.

In his decision, adjudicating officer Jim Dolan noted that the company’s disciplinary process “did not specifically address” the status of an employee appealing their dismissal – but that it did state the dismissal would “become final” and be implemented upon the decision of the appeals officer.

He noted further that the company had continued to accept medical certs from Ms Keating.

He found the correct date for her dismissal was five months later than the company stated – and upheld complaints under the Payment of Wages Act and Organisation of Working Time on that basis, awarding her €3,970.90 in respect of sick pay, annual leave and public holiday entitlements due during that time.

But Mr Dolan wrote that the 230 personal emails found on her account “clearly indicated that Mrs Keating was conducting business… during her working hours as a Camfil Ireland employee”.

He added that she had “failed to declare her intention to be absent” for the company conference and “misleadingly behaved as though she was intending to make the important presentation”.

“I believe the complainant severely damaged the relationship that has to exist between employer and employee,” he wrote, adding that he was satisfied with the company’s investigation into her conduct.

He said the decision to sack her was reasonable and ruled that Mrs Keating’s Unfair Dismissals Act claim was “not well founded”.

He rejected a further claim under the Terms of Employment (Information) Act on the grounds that Mrs Keating’s employment began more than four years before it came into force.


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