ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001270

Complaint for Resolution:

Date of Adjudication Hearing: 15^th April 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 1^st January 2016, the complainant referred a complaint pursuant to the Unfair Dismissals Acts to the Workplace Relations Commission. The complainant was employed as a Community Entreprise crèche worker; the respondent is a crèche run under the auspices of a religious order.

The complaint was scheduled for adjudication on the 15^th April 2016. The complainant attended in person. The manager of the crèche and four supervisors or colleagues attended for the respondent.

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

In the complaint form, the complainant outlines that she was summarily dismissed by the respondent when she could not work because of a pregnancy-related illness. This occurred during a conversation with her manager on the 14^th December 2015. She was later asked to submit a letter of resignation, but she did not do so as she had not resigned. She found it very difficult to avail of social welfare at such short notice.

At the adjudication, the complainant outlined that the conversation on Monday, 14^th December 2015 with the manager occurred after 1pm as there were no parents around and her own mother was at work. By the time this conversation took place, the complainant had already spoken with the two supervisors and had told them of her pregnancy-related illness. She provided a sick certificate for the forthcoming week and said that she hoped to be back on the following Wednesday as she knew they were short-staffed. She said that she was aware that she had exhausted her sick leave. They discussed the complainant availing of Supplementary Welfare Allowance and the complainant stated that the manager said to her that if the complainant was going to be sick she was of “no use” to her. The complainant said that she walked off crying. The complainant said that she left the workplace without telling the respondent that she was leaving. She said that she felt as if she had been dismissed and this was because of the way the manager spoke to her.

The complainant said that she then had to approach the Department of Social Protection for support. They required her P45, so she approached the respondent to obtain this document. She outlined that the Department of Social Protection official said that it would contact the respondent to find out the circumstances around the end of the complainant’s employment. The complainant outlined that she then approached the CE supervisor of the respondent who told that she needed the complainant’s letter of resignation in order to issue a P45. It was at this time that the complainant raised the comments made to her by the manager. The complainant described the CE supervisor as being shocked at the comments. She did not ask the CE supervisor to do anything as she was too upset and too stressed out.

The complainant outlined that she had worked 19.5 hours per week with the respondent. Her remuneration was €237.80. During the leave year, she had taken 9 days of annual leave and was owed a further 11. She had availed of 56 hours of sick leave. In August 2015, the complainant had had gallstones and was in hospital for five days. On the 14^th December 2015, the complainant was diagnosed with

1. She lost a week’s pay and later went onto Illness Benefit.

Respondent’s Submission and Presentation:

The respondent is a crèche set up within a Community Centre, which provides educational and recreational courses for the betterment of the community. In order to facilitate participants, the Centre operates a crèche and this is where the complainant held the position of crèche assistant. The respondent operates a Community Employment scheme with 42 participants, of which five are based in the crèche.

The complainant commenced as a Community Employment (CE) crèche worker on the 9^th June 2014. She was offered a second one-year contract commencing in June 2015. The complainant’s employment ended on the 14^th December 2015 when the complainant informed the respondent that she could no longer work due to illness. She submitted a sick certificate to the respondent. By this stage, the complainant had exhausted her sick leave. On this day, a representative of the respondent explained to the complainant that she would not be paid through the CE scheme as she had exhausted her sick pay. The respondent gave evidence that the complainant came into the manager’s office to say that she was leaving the respondent. The manager suggested that she should think this through, but the complainant replied that the doctor has told me I am going to be very sick during the pregnancy. The complainant further said that this was not going to work out for her. In a written statement provided at the adjudication, the manager outlined that she suggested availing of social welfare as this would provide a guaranteed weekly income.

On Wednesday, 16^th December, the complainant returned to the workplace to ask for her P45. In conversation with the CE supervisor, the complainant said that she had to leave the CE scheme because of illness. The CE supervisor asked whether the complainant was sure and she replied that it was no use. She requested the complainant to write a letter of resignation in order to allow her issue a P45. The complainant never followed up with the letter of resignation.

The respondent outlines that there is a set limit of the amount of sick leave a CE participant may avail of. A scheme has no authority to go beyond this. When this sick leave is exhausted, the participant can avail of a social welfare payment instead.

In reply to the complainant, the respondent outlined that the named manager did not have the authority to dismiss the complainant. Such a decision would have to go through the CE Supervisor and the Sponsor Group Committee. It was not aware of this issue until it received the complaint form from the complainant. The CE supervisor acknowledged that she may well have received a telephone call from the Department of Social Protection. The complainant had told her that she would bring in a letter of resignation, but this never occurred. The manager outlined that the meeting with the complainant had taken place at 1pm as there were still children coming in late. She outlined that she told the complainant that she could not get paid and advised her to approach the CIC for help. She said that the complainant offered to return from sick leave on Wednesday but that she could not be paid. In concluding comments, the respondent outlined that it remained open for the complainant to back and complete her second year.

Findings and reasoning:

The complainant’s employment with the respondent came to an end on the 14^th December 2015. How it ended is in dispute. The complainant asserts that she was summarily dismissed in comments made to her by the crèche manager in the context where the respondent said that it could no longer pay her under the terms of the CE scheme. The respondent denies the claim. It asserts that the complainant left her employment because she felt that she could no longer work because of illness. The manager denies the comments attributed to her.

At the adjudication, the respondent provided an excerpt of the Community Employment Procedures Manual. At 3.2.11, this provides that each participant is eligible to 56 hours of certified sick leave during their 52 weeks. Any sick leave beyond this will not be grant-aided by the Department of Social Protection. It further provides that where sick leave extends beyond six consecutive days, the participant can avail of Illness Benefit. At 3.2.12, the procedures provide for the temporary replacement of a participant where they are on sick leave or maternity leave. At 3.2.13, the procedures provide that the Maternity Protection Acts apply to CE participants. They state that a P45 should not issue to a person availing of their entitlements under the Maternity Protection Acts.

According to the time sheets supplied by the respondent to the adjudication, the complainant was on sick leave during part of week 11 and absent for all of week 12. They provide that she had 11 days of annual leave remaining as of December 2015 and classifies the leave on the 14^th December as unpaid leave. The records for week 27 show that the complainant went home early on the 7^th December and was out sick on the 9^th December. The time sheets tally with the complainant’s evidence of two periods of sick leave; one in August arising from gallstones and a second arising in December 2015 related to her pregnancy. I note that the first period of sick leave was not pregnancy related, while the leave taken in December was notified to the respondent as related to the complainant’s pregnancy. I further note that in December, the respondent did not make any enquiries regarding matters covered by the Maternity Protection Acts, say any possible health and safety leave due to the complainant, had the workplace posed a risk to her. It is also not clear why the complainant’s accrued annual leave was not paid to her.

The crux of this case is what the respondent did when the complainant raised her pregnancy-related illness. This case is an Unfair Dismissal claim, and not a Maternity Protection nor an Employment Equality claim. The pregnancy-related illness and the consequent sick leave commencing on the 14^th December 2015 was unexpected and added immediately by the respondent to the previous sick leave. This meant that her pay would cease immediately. This placed the complainant in an invidious position. There was a conflict of fact between the complainant and the manager over what was said and the tenor of their conversation on the 14^th December. The complainant said that she felt that she had been dismissed there and then and that she was upset and crying. The manager outlines that the complainant said that she could not work any more and they discussed alternative social welfare payments. I have to resolve this conflict in order to determine all the relevant issues in this dispute. Having considered all of the evidence, I resolve it in favour of the complainant. I do so on the basis of her evidence at the adjudication, but also because she had everything to lose by leaving the job immediately. I find as fact that the conversation took place as outlined by the complainant and that she was challenged assertively for taking further sick leave. I find that this amounts to an unfair dismissal within the definition of the Unfair Dismissals Acts. This arises irrespective of whether or not the manager had the legal authority to dismiss an employee.

In respect of redress, I take account of the following factors. The complainant does not seek to return to the respondent and despite the respondent’s offer made at the adjudication, I am not sure this is a feasible option given the manner in which the employment relationship came to an end. Section 7 of the Unfair Dismissals Acts allows redress in the form of financial loss attributable to the dismissal. Where an employee suffers no financial loss, the Act allows for redress of up to four week’s remuneration as is just and equitable in all the circumstances. In assessing financial loss, I have regard to the following factors. The complainant had been diagnosed with a pregnancy-related illness and could not work as of the 14^th December 2015. She referred to one week’s loss of payment, the value of which is €237.80. I have regard to the fact that she had exhausted the sick pay entitlement so cannot be compensated for the difference between the social welfare payment and this remuneration. I find that the 11 days of annual leave outstanding at the end of the employment relationship can, in these particular circumstances, be considered as financial loss attributable to the dismissal. This is because she would otherwise have been able to use the leave or to accrue the leave. The value of the outstanding leave is €523.16. The third element of financial loss attributable to the dismissal is the loss by the complainant of statutory protections she would have received had it not been for the dismissal. These protections include those emanating from the Maternity Protection Acts, for example health and safety leave and maternity leave. The importance of these protections is recognised in the respondent procedures (e.g. a P45 cannot be issued during the period of protection) and reflecting this importance, I make an award for this third element of €1,250. Taking the three awards together, the total owed by the respondent to the complainant is €2,010.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Pursuant to the findings outlined in this report, I find that the complaint of unfair dismissal is well-founded and the respondent shall pay to the complainant €2,010 as redress for the unfair dismissal.

Dated:   19 August 2016