ADJ-00001324

ADJUDICATION OFFICER DECISION

An Administrative Assistant V A Pest Control Company

Adjudication Decision Reference: ADJ-00001324

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 10/08/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and Section 8 of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This case refers to the alleged failure of the employer (the Respondent) to provide the Complainant with the required minimum notice of termination of her employment, and the alleged unfair dismissal of the Complainant when she was told her job was being terminated as there were too many administrative staff.

Complainant’s Submission and Presentation:

The Claimant was employed as an Administrative Assistant from 22^nd March 2012 and her termination of employment was on 10^th July 2015. At the time of her termination she was in receipt of a gross monthly salary of €919.60.

Complaint CA-00001884-001- Notice

The Complainant contended that on 8^th July 2015 she was advised by her manager that her job was being terminated on 10^th July 2015. She maintained that having worked for over three years this notice was contrary to the minimum notice required under the Minimum Notice & Terms of Employment Act, 1973.

Respondent’s Submission and Presentation:

Complaint CA-00001884-001- Notice

The Respondent argued that the Complainant was on a temporary contract. The Respondent maintained that clause 16A1 of the Complainant’s contracted stated The Company may terminate this contract of temporary employment with three day’s prior written notice. The Company reserves the right to give you three day’s pay in lieu of notice and require you to leave the Company immediately if it so desires. On that basis the Company contended that it provided notice to the Complainant in accordance with her contract of employment. The Respondent contended as the Complainant was in a temporary, part time role it applied this term of her contract correctly. In its evidence the Respondent advised that it could not recall the basis of the contract being temporary.

CA-00001884-002- Unfair Dismissal

The Respondent advised that it introduced a new computerised sales process which created efficiencies in its business and this meant the Complaint’s role was no longer required.

The Respondent advised that the Complainant remained working in another company associated with its main business, and in the same location, from 10^th July until 12^th December 2015 at which time the Complainant handed in her notice. The Respondent maintained that the Complainant worked from 09:00 am to 1:00 pm in this role.

Complainant’s Response:

Complaint CA-00001884-001- Notice

The Complainant maintained that as she had been working for three years and four months with the Respondent her contract was no longer temporary and it became a contract of indefinite duration. She argued that she was entitled to the Minimum notice which amounted to two weeks due to the time she had served.

CA-00001884-002- Unfair Dismissal

The Complainant argued that none of the issues relating to the new computer system was brought to her attention, that no option was given to her regarding the new IT System, that the changes were not put to her at the time, and that a full time position had come up and was filled prior to her dismissal, and which she was not considered for. The Complainant asserted that without rhyme or reason she was turfed out the door. She contended that if the role was no longer available it should have been a redundancy but there was no fair selection or no redundancy procedure. She maintained that she was unfairly dismissed.

Whilst she remained in the job in an associate company of the Complainant advised that she changed her working hours to morning work in order to find alternative employment to replace her lost earnings. However, she could not find afternoon work. The Complainant provided evidence of applying for a number of roles but it was not possible for her to find afternoon work. She therefore left the work in the associate company in December 2015 in order to find full time employment as it was not feasible to find part time employment.

The Complainant also advised that a new role had been advertised before she received her notice, and that this role was full time. She explained that had she known that her role was to be terminated she would have applied for the new role; however, it was when this role was filled that she received her notice. The Complainant argued that if the Respondent knew about the changes that were to take place it should have informed her before appointing a new person and before deciding to dismiss her. She advised that at the time of her dismissal she was told there was too many administration staff however she argued that the decision to terminate her contract was nothing to do with the IT system, inferring the it is only that IT system is being proposed as the reason. She argued that as the new role was advertised six weeks before her dismissal the Respondent’s assertion that there were too many administration staff is implausible. The Complainant further contended that the Managing Director hated my guts  and this was why she was dismissed. There was never an issue with her performance, never complaints about her, and she had never received a reprimand or warning.

The Complainant further advised that when she departed in December 2015 to seek full time employment elsewhere she found it difficult to get a reference from the Respondent and this further impacted on her ability to find work. Despite a number of job applications and being interviewed she has still not found employment and she has had to rely on her savings, job seekers allowance, and family income support.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision regarding whether the Respondent is in breach of the statutory notice period in accordance with the relevant provisions under Section 12 of that Act

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.

Decision in relation to Complaint CA-00001884-001- Notice

The evidence presented to the adjudication confirms that the Complainant was given three days’ notice regarding her termination of employment. As the Complainant was over three years in employment she is deemed to be on a contract of indefinite duration. I find that in accordance with Section 4(2) the Complainant was entitled to at least two weeks’ notice.   I therefore award the Respondent pay the Complainant compensation of two week pay based on her monthly salary of €919.60 gross which amounts to €1,839.20 compensation.

CA-00001884-002- Unfair Dismissal

The evidence presented confirms that the Complainant received three days’ notice of her termination of employment.   The evidence does not support that the Complainant was offered a redundancy, nor did the Respondent operate any redundancy procedures in making its decision to terminate the employment of the Complainant. The evidence also supports that a new staff member with similar responsibilities to the Complainant was recruited prior to the Complainant’s contract of employment being terminated.

I therefore find, based on the evidence presented, that the decision to dismiss the Complainant was not based on an actual redundancy, nor on any reasonable grounds. It was an arbitrary decision, given with three days’ notice, and without proper consultation, or prior notice in accordance with Section 17 of the Redundancy Payments Act, 1967. On that basis I find that the Dismissal was not a redundancy and was unfair, and I uphold the complaint.

I decide that compensation is the most appropriate remedy and award the Complainant €9,500 to compensate her for her loss of earnings.

I order that the compensatory payments should be made within 6 weeks of this decision.

Dated:   3^rd November 2016