ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002791

Complaints for Resolution:

Date of Adjudication Hearing: 05/09/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, and following the referral of the complaints 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.

The Complainant was employed as a Sales Assistant from 7^th September 2014 until the employment was terminated with notice on 1^st January 2016. The Complainant was paid €450.00 gross per week and she worked on average 45 hours a week. (She was paid €8.65 an hour).

The Complainant referred a complaint to the Workplace Relations Commission on 14^th April 2016 alleging the Respondent had breached Section 3 of the Terms of Employment (Information) Act, 1994 in that she had not been provided with a written statement of her Terms and Conditions of Employment and a complaint under the Unfair Dismissals Act, 1977 that she had been unfairly dismissed.

Terms of Employment (Information) Act, 1994

Summary of Complainant’s Position

The Complainant stated that she had not been provided with a written Statement of her Terms and Conditions of Employment during the course of the employment.

Section 3 (1) of the Act provides that an Employer shall provide an employee with a written statement of terms and conditions of employment within 2 months of the commencement of the employment and Section 3 (4) of the Act provides that this statement should be signed and dated by the Employer.

In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 7 of the 1994 Act I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €800.00 (eight hundred euro) within 42 days of the date of this Decision.

Unfair Dismissals Act, 1977

Summary of Complainant’s Position.

On Friday 18^th December 2015 the named Shop Manager requested the Complainant and another member of staff to keep the Shop open one hour later that the usual opening hours. And both employees agreed. It was only later that the employees were informed that the late opening would be in place until the end of the Christmas period. The opening hours are up on the website and the Complainant stated that the website was not changed to reflect the longer opening hours.

Later on 18^th December 2015 the employees notified the Shop Manager that they could not agree the extended opening hours on Monday 21^st December 2015 but that they would be happy to do so, on 19^th and 20^th December and the remaining days of the Christmas period just as they had done on 18^th December 2015 when requested.

When they reported for work on Sunday 20^th December they all received an email outlining the opening hours including for Monday 21^st December 2015. All employees notified Management that as already communicated they could not work the extra hour on Monday 21^st Dec only. All the employees left the shop at the usual closing time of 7pm on Monday 21^st December and closed the shop.

On Monday 21^st December 2015 approximately 43 minutes after closing the shop the Complainant received an email from the Shop Manager – copy provided – that she was dismissed with immediate effect with one weeks’ notice and that her P45 would be issued. The Complainant was the only employee dismissed.

The Complainant returned to the shop on 21^st December 2015 to speak to the Manager but she declined. The Complainant sent an email to the Manager later the same evening requesting an explanation and she also apologised for her part in closing the shop. There was no response from the Manager or the Respondent.

On 29^th December 2015 the Complainant received an email from the Respondent offering her a part-time job in another named premises of the Respondent Company. The Complainant stated that this offer was in a sweet shop and the Respondent was aware of the Complainant’s skin condition and her inability to work with food.

The Complainant contacted the Citizens Information Service on 4^th February 2016 seeking advice. The CIS made numerous attempts to contact the Respondent and finally had a meeting with the Manager and the Complainant on 29^th March 2016 without any result.

The Complainant stated that she had been unfairly dismissed without fair procedures and natural justice.

The Complainant stated that she had commenced employment on 31^st May 2016 and is paid €9.38 an hour but is only working reduced hours. The Complainant had been in receipt of Jobseekers Benefit from January to May 2016 and this was confirmed by the Department of Social Protection following the Hearing. The Complainant was requested to forward payslips in relation to her current employment and she did so post the Hearing.

The Complainant was dismissed by email dated 21^st December 2015 for “closing the shop early and leaving without any notice”.

I note that the Complainant was not advised in writing in advance of her dismissal in relation to any complaint by the Employer – the Complainant was not afforded an opportunity of a Disciplinary Meeting with the Employer prior to her dismissal and the dismissal email does not allow for an appeal.

I find that the dismissal of the Complainant did not observe any fair procedures in relation to her dismissal by email on 21^st December 2015.

Decision -CA00003835-002

On the uncontested evidence of the Complainant and in accordance with Section 8 of the Unfair Dismissals Act, 1977 as amended, I declare the complaint of unfair dismissal is well founded.

I direct the Respondent to pay the Complainant compensation of €2000.00 (two thousand Euros) within 42 days of the date of this Decision.

Date: 13^th October 2016