ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002560

Complaints for Resolution:

Date of Adjudication Hearing: 5th July 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 29^th January 2016, the complainant referred complaints to the Workplace Relations Act pursuant to the Terms of Employment (Information) Act and the Unfair Dismissals Act. The complainant is a marketing assistant and a teacher; the respondent is an English language school.

The complaints were scheduled for adjudication on the 5^th July 2016. The complainant attended in person and was accompanied by her mother. Three representatives attended for the respondent.

In accordance with the Workplace Relations Act and the Unfair Dismissal Acts, 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 hard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

In the complaint form, the complainant raises four issues, of which three are referred to adjudication. The first two claims are made pursuant to the Terms of Employment (Information) Act. The first issue (CA-00002302-001) relates to the complainant not receiving a statement in writing of her terms of employment. A second issue (CA-00002302-002) relates to not being notified in writing of changes to her terms of employment. The other issues are raised pursuant to the Unfair Dismissal Acts. The first claim under the Unfair Dismissal Acts (CA-00002302-003) relates to having to leave her employment because of the conduct of her employer. The final claim (CA-00002302-004) relates to not receiving a notice in writing setting out the respondent's disciplinary policy. This is referred to inspection and does not form part of this adjudication.The complainant commenced working for the respondent in a teaching role in June 2008. Three years ago, she also took on a part-time, office-based role. This was in addition to her 20 hours of teaching work. She did not receive a contract of employment or a statement of terms in relation to this role. In June 2015, the complainant covered the maternity leave of a full-time office worker and worked these full-time hours until the end of her employment with the respondent. The complainant outlined that in early 2016, she returned from one week’s annual leave to be asked by the respondent to attend a meeting. This occurred on Monday, 11^th January 2016. She had already asked to leave early that day as she had to pick a family member up from hospital; he had been diagnosed with cancer. She met with a representative of the respondent, who informed her that her full-time role would come to an end on the following Friday. She was also told that there were no teaching hours available for her. She said that while the full-time position was temporary, she still had her part-time office-based role. The complainant outlined that this was her last day in work and the day she was dismissed. She said that the respondent had referred her to 20 hours work to assist the Director of Studies. This role was being carried out by an intern, but his time was coming to an end. The respondent informed her that this would be temporary. The complainant outlined that these events caused her great stress. She had submitted sick certificates to the respondent until the 28^th April 2016. She was currently on Illness Benefit, but could have gone back to work had her part-time office role been restored to her.

In response to the respondent’s submissions, the complainant outlined that she had taken teaching hours during all the time that she was doing the part-time office role. This dispute related to the part-time office role and the availability of teaching hours was not relevant. She had not been given a date when the full-time role would come to an end but she always knew that it was temporary. She referred to email correspondence that indicated that there would be no teaching hours for some months. She had confirmed with the Director of Studies that the respondent had not explored with him the availability of teaching hours prior to the meeting of the 11^th January 2016, so could not have known what alternative employment would have been available to her. The complainant outlined that there were still possessions of hers in the respondent’s offices. She was also owed expenses and hours back to 2014. The complainant outlined that the certificates she had submitted had been signed by her doctor. This was a very stressful time and she had been physically unable to attend work. She had been referred to counselling and did not go “missing” as contended by the respondent.

Respondent’s Submission and Presentation:

The respondent outlined that in 2008 the complainant had initially been engaged as a teacher and worked full-time teaching hours, i.e. 20 hours per week. She later took on a marketing role, working an additional 20 hours per week. In June 2015, she was appointed as maternity cover for a full-time administrator and it was intended that this continue until February 2016. Before Christmas, the respondent decided to end the maternity cover role as they did not need this support. They met with the complainant on the 11^th January 2016 to say that they would be ending the full-time maternity cover post at the end of the week. They offered to pay her full-time hours for this week. The respondent also indicated that it was dissatisfied with her performance in the marketing role and it was ending this too. It was put to the complainant that she would return to her teaching role at the same seniority level. She was also offered a part-time role to assist the Director of Studies for the remainder of January 2016. There was no further opportunity to discuss this with the complainant as she never returned to work. The complainant was, therefore, never dismissed from her employment with the respondent. She was also offered teaching hours after February 2016 and the respondent submitted a letter to this effect at the adjudication.

The respondent confirmed that the complainant’s hourly rate was €19.50 per hour and this was paid to her for whichever role she did for the respondent. At the adjudication, the respondent submitted two contracts of employment, both relating to part-time teaching positions. The respondent outlined that the complainant was paid the sick leave she was entitled to for the week, but not paid the additional amount for full-time hours for the week of 11 – 15 January 2016. She was also not paid for the part-time hours for the remainder of January 2016. The respondent outlined that it had asked the complainant to attend work during the month of January 2016, but she never attended. She was also aware of the disciplinary procedure and referred to an incident the previous year with a colleague. She had been provided with a written statement of her terms and she was also out of time in bringing any such complaint.

In response to the complainant’s evidence, the respondent outlined that the complainant was aware of the grievance procedure and had not claimed for any outstanding hours or expenses. Under her sick pay entitlement, she was due one week’s pay, which she received. The certificates submitted by the complainant were only for the purposes of the Department of Social Protection and state as such on the document. It offered to facilitate the return of the complainant’s possessions and with regard to the reference, work was still available for the complainant.

Findings and reasoning:

The complainant worked for the respondent over a period of eight years. She worked in different roles, including those of a teacher, a marketing assistant and latterly an office assistant. This employment came to an end on the 11^th January 2016. The complainant asserts that she was dismissed. The respondent asserts that the complainant left the role of her own choice and that alternative work was available to her. The complainant also brings claims under the Terms of Employment (Information) Act.

The first issue to address is the provision to the complainant of a written statement of the terms of her employment, as required by the Terms of Employment (Information) Act. No such statement was provided regarding the part-time marketing assistant role, nor with regard to the full-time and temporary office assistant role. The Act provides that such a statement be provided an employee within two months of their commencement with an employer. I find that this requirement was not complied with and I award the complainant €3,000 for this breach. Such an award is warranted as the complainant was entitled to know when the full time role would come to an end and how performance issues would be addressed in relation to the marketing role. I make no finding or award in relation to the second Terms of Employment (Information) Act claim as the issues raised by the complainant have been addressed in the first finding.

On the 11^th January 2016, the complainant was informed that both her current full-time and her part-time marketing assistant role were both coming to an end. In the alternative, she was offered a part-time support role for another month and the possibility of teaching hours. No guarantee was provided in relation to the teaching hours. The complainant was informed that the office assistant role was coming to an end because it was no longer necessary. She was told of performance issues regarding the marketing assistant role. The respondent did not engage in a performance management or disciplinary process regarding these performance issues. Instead, the complainant was told of the respondent’s conclusion without possibility of her input or improvement. It follows that the termination of the marketing assistant role amounts to an unfair dismissal. The alternative suggested by the respondent was a different role and a temporary one. There was also no guarantee of teaching hours to replace the part-time hours associated with the marketing role. It follows that the claim in this regard is well-founded.

In assessing redress, I have regard to the fact that the complainant was certified as unfit for work. She outlined that she could have gone back to work had the marketing role be re-allocated to her. I cannot, however, look behind the certification of unfitness to work. With this in mind, I award the complainant redress of €3,000.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and the Unfair Dismissals Acts require that I make a decisions in relation to the complaints in accordance with the relevant redress provisions of those Acts

(CA-00002302-001)

I find that this claim made pursuant to the Terms of Employment (Information) Act is well-founded and I award €3,000 as redress for this breach.

(CA-00002302-002)

I find that this complaint is not well-founded as any breach is covered by the redress awarded in the previous complaint.

(CA-00002302-003)

I find that this complaint is well-founded and that the complaint was unfairly dismissed. Pursuant to section 7(1) (c) (ii), I award the complainant €3,000 for the unfair dismissal, taking account that she was unfit on health grounds to work.

Taking the sum of these awards, the respondent shall pay to the complainant the amount of €6,000 as redress for breaches of the complainant’s statutory rights.

Dated:   16^th September 2016