ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002734

Complaint for Resolution:

Venue: WRC, Tom Johnson House, Haddington Rd, Dublin 4.

Date of Adjudication Hearing: 06/10/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

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.

Background

The Complainant was employed as a Catering Assistant from 14^th August 2015 to 28^th January 2016. She was paid €9.15 per hour and earned on average €256.65 per week. She has claimed that she was unfairly dismissed for trade union membership/activity. She has sought compensation.

Complainant’s Submission and Presentation:

She had been certified unfit for work from 11th January 2016 to the date of dismissal for work related stress. The union wrote to the manager on 22^nd January 2016 seeking a meeting to address the Complainant’s grievances. No response was received. During this tempestuous employment the Complainant told the manager that she was going to get her union’s help. The union rep met with the complainant and her mother and in their presence phoned the manager looking for a meeting. The Complainant categorically identified the manager’s voice on the phone. On the following day 28^th January 2016 she received a letter of termination from the manager. The union tried to engage with the manager following the termination but got no response.

It is her position on the balance of probabilities that the decision to terminate her employment was because of her union membership. This automatically renders the dismissal unfair. In White v Betson [1992] ELR 120 the EAT held that the coincidence of the employer having received correspondence from a trade union prior to the termination of the claimant’s employment and the making of the decision to dismiss was such that the claimant was dismissed because of his trade union membership.

In this case the letter of termination refers to a significant downturn in business. But the complainant was not the one with the least service. Last in first out practice was not used.

This dismissal was unfair and she is seeking compensation. She sought work and found full time employment as a catering Assistant on 19^th April 2016.

Respondent’s Submission and Presentation:

The Complainant was employed as a part time Catering Assistant on 13^th August 2015. Her probationary period was due to conclude on 13^th February 2016. Her hours of work were not guaranteed and could vary based on the needs of the business. On 20^th August 2015 she was given a contract of employment and a staff handbook. She refused to sign for them. Rosters were provided in advance. On 11^th January 2016 she was rostered to attend but she did not turn up for work and did not contact her manager. She subsequently submitted a retrospective medical certificate dated 13^th January certifying her unfit to work on 11^th January 2016. Due to an unprecedented and significant downturn in business after Christmas the company found it necessary to review staffing arrangements and a decision was taken to terminate her employment on 28^th January 2016.

The company stated that they operated to high standards of health and safety. They had passed inspections. They denied receiving a letter dated 22^nd January 2016. Their registered address was in Kildare. They deny receiving a telephone call on 27^th January from the union and/or the Complainant. It is denied that she was dismissed for trade union membership. They became aware of her membership in December 2015. This claim is rejected. Her employment was terminated due to the downturn in business.

Findings

The complainant had less than 12 month’s continuous employment. It was alleged that she was dismissed for membership of a trade union. This became the substantive argument on the Complainant’s part. In these circumstances I find that it is not a requirement to have 12 months continuous service. Therefore I find that I have jurisdiction to hear this case.

I note the conflict of evidence in this case concerning her earnings. I have referred to the P 60 issued and I find that her average earnings were €256.65 per week.

I note the conflict of evidence regarding a potential dismissal on 14^th December 2015.

I find that the employment had not been broken and so there was continuous employment from the commencement date of 13^th August 2015 to 28the January 2016.

I note that the Respondent stated that the reason for the dismissal was the downturn in business. They stated that the Complainant was not the best performer amongst the staff.

I find that post Christmas and January sales is usually a quiet time for business.

I find that companies are entitled to adjust their staffing levels based on the needs of the business.

I find that companies are entitled to select their best staff to be retained in the business. However I find that there was no evidence of poor performance attributed to the Complainant.

I note that there was one employee withy less service than the Complainant.

I find that the selection process should be objectively justified and a criterion of last in first out is regularly used for such a selection in the absence of a more scientific selection process based on abilities, aptitudes and attitude.

Therefore I am not convinced that her selection was based on the downturn of the business.

I note the conflict of evidence regarding the receipt or non-receipt of the letter dated 22nd January 2016. I do not accept that the letter should have been sent to the registered office in Kildare. I find that the address used was that on the headed paper used by the Respondent in communicating with the WRC.

I note the conflict of evidence regarding the telephone call on 27^thJanuary 2016. On the balance of probability I find that the manager took that call and when informed that it was the union they did not continue the call.

I find that the Respondent knew that the Complainant was a member of the union by 14^th December at the latest.

On the balance of probability I find that the Respondent was informed by that knowledge. I conclude that the Respondent formed the view that this employee was perceived as troublesome, based on a number of incidents such as refusing to sign the contract of employment, absence from work, not contacting the company in time and the supply of a post a retrospectively dated medical certificate and was now seeking trade union assistance.

I conclude that when they received the call from the union on 27^th January they decided to terminate the employment under the guise of a rationalisation of their business.

I have concluded as in the White v Betson [1992] ELR 120 the EAT case above the “coincidence” is convincing.

On the balance of probability I find that the dismissal was because she was a union member and was troublesome.

I find that this renders the dismissal unfair and compensation was warranted.

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.

I have decided that the Complainant was dismissed for membership of the trade union.

I have decided to award her €1,750 in compensation,

This is to be paid within 6 weeks of the date below.

Eugene Hanly

Adjudication Officer

Dated:   18/11/2016