FULL RECOMMENDATION
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DROMINA COMMUNITY PLAYGROUP / DROMINA COMMUNITY COUNCIL LIMITED (REPRESENTED BY LEE'S SOLICITORS) - AND - VICTORIA MOREY (REPRESENTED BY JAMES LUCEY AND SONS SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. Appeal of an Adjudication Officer's Decision No. r-160055-ud-15/JOC
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 4th August, 2016 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 22nd March, 2017. The following is the Determination of the Court:
DETERMINATION:
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This is an appeal by Dromina Community Playgroup/Dromina Community Council against the Decision of a Rights Commissioner /Adjudication Officer r-160055-ud-15JOC given under the Unfair Dismissals Act 1977 - 1993 (the Act). Ms Victoria Morey claimed that she was unfairly dismissed by her former employer.
The Respondent failed to appear before the Rights Commissioner /Adjudication Officer. The Respondent’s legal representative was present at the commencement of the hearing, however as she had not recieved any instructions from the Respondent, she subsequently left the proceedings.
In this Determination the parties are referred to as they were at first instance. Hence Dromina Community Playgroup/Dromina Community Council is referred to as the Respondent and Ms Victoria Morey is referred to as the Complainant.
The Rights Commissioner /Adjudication Officer held in favour of the Complainant’s claim that she was unfairly dismissed and decided she should be reinstated backdated to the date of the dismissal and that a written contract of employment based on the Complainant’s implied terms and conditions be put in place.
Background
Dromina Community Playgroup operates under the auspices of Dromina Community Council providing childminding facilities to parents in the locality of Dromina, County Cork and its surrounds. It is a community based organisation with a volunteer management committee which is funded by government funding (Department of Children, Pobal and Tulsa), local fundraising initiatives and payment of fees by parents. It currently has three employees caring for twenty children.
The Complainant was employed by the Respondent as a Child Care worker from 1stFebruary 2011 until her dismissal on 25thAugust 2015.
Summary of the Complainant’s Case
Mr Dan O’Connor, Solicitor, James Lucey & Sons Solicitors, on behalf of the Complainant, submitted that the Complainant was unfairly dismissed. He said that throughout her employment with the Respondent, the Complainant did not receive written details of her terms of employment. However, in 2015, the new chairperson of the Committee, set about trying to introduce written contracts of employment and to that effect she retained the services of Elaine Ryan & Associates, HR Consultants, to implement an agreed contract, job description & employee handbook. Mr O’Connor said that these contracts of employment attempted to fundamentally alter the Complainant’s existing, albeit unwritten terms and conditions of employment.
Mr O’Connor stated that when the Complainant was presented with the written contract she was not happy that it reflected her existing conditions of employment and when she sought time to consider it she was informed that if she failed to sign the contract, she would have to be replaced.
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At a meeting on Thursday 20th August 2015, she informed Elaine Ryan that she was not ready to sign and asked her to explain certain parts of the contract. Ms Ryan indicated that her remit was not to explain the contract, but to get her to sign it. The Complainant told Ms Ryan that she was going to take legal advice, but was advised that if she did not sign it before the end if the meeting there would be serious consequences.
The Complainant’s solicitor spoke to Ms Ryan on the morning of 21st August 2015, to inform her that he was representing the Complainant and he had a meeting arranged for the following Tuesday 25th August at 3.30pm. He stated that he was formally requesting more time and would revert to her no later than Wednesday 26th August 2015.
On Tuesday 25th August 2015 the Complainant’s contract was terminated by two members of the Community Council, not committee members. The Complainant was given a letter from Dromina Community Council Ltdon that day terminating her employment.
The Complainant’s job was advertised in the local papers two days later.
Mr O’Connor said that no reason was given for terminating the Complainant's employment and she was not given the opportunity to appeal the decision. The Complainant through her solicitors wrote to the Respondent’s solicitor asking them to retract the letter of dismissal. They did not respond until the 8th September 2015 when they sent the Complainant her P45.
Mr O’Connor disputed the Respondent’s contention that Pobal funding was dependent on new employment contracts being in place. He submitted that as the signature of an employee is not a legal requirement under the Terms of Employment (Information) Act, 1994, therefore, the failure of an employee to sign terms of employment cannot possibly be used as a reason to justify the dismissal or to constitute substantial grounds for a dismissal.
He submitted that in this case there was a manifest failure to observe even the most basic requirements of procedural fairness in reaching the decision to terminate the Complainant’s employment. At a minimum she should have been informed that her continued employment was in question for the reasons relied upon and given a reasonable opportunity to address the Respondent’s concerns before a final decision was taken. The failure of the Respondent in that regard rendered the dismissal unfair and due process was not followed. In any event the Complainant was not provided with a written or oral reason for her dismissal - the first occasion a reason was proffered was over twelve months later when it was referred to in the Respondent's submission to the Labour Court.
Summary of the Respondent’s Position
Mr Brian Sugrue, B.L., instructed by Lee Solicitors, on behalf of the Respondent stated that the Respondent is obliged to comply with Health and Safety legislation, the provisions of the Childcare Act, and the Pre-School Regulations made thereunder. He said that as the bulk of its financing comes from government grants, the continuation of its services and the employment of its employees is wholly contingent on that funding remaining in place.
Pobal (Government Supporting Communities) is the government agency which has responsibility for ensuring compliance by community playschools with the relevant law and regulations, which said compliance in turn entitles those playschools to funding. He said that Pobal/State funding accounts for 61.6% of the overall funding of the playgroup.
In 2015 the new Chairperson of the Playgroup along with a new committee became aware that the Playgroup was non policy compliant. In consultation with the County Childcare Officer the committee was informed that the putting in place of proper contracts of employment for staff, together with formal policies and procedures (some 35 in total) was essential. The committee retained the services of Ms Elaine Ryan, HR Consultant, to liaise with staff to ensure that the terms and conditions
of their employment contracts were compliant with Pobal's terms of funding.
Mr Sugrue said that these contracts had to be in place, finalised and signed by the parties by the commencement of the new school term in September 2015. He said that the Complainant was on notice that her job was subject to continued funding being availablefrom Pobal. She was also on notice of the fact that in the event that the terms and conditions of her employment did not meet the conditions laid down by Pobal, no funding would be forthcoming for her position and therefore her job would cease to exist.
Ms Ryan met with the Complainant on a number of occasions to discuss terms of employment, however, her agreement to sign the necessary contract was not forthcoming, as she was seeking legal advice. He said that she would not accept her new terms and conditions notwithstanding the approach of the critical deadline of September 2015. Therefore the period allowed to the Complainant to sign her formal contract was extended by one week to 20th August 2015, but no executed contract was forthcoming.
As a result of her failure/refusal to sign her contract, the Respondent was faced with the prospect of losing government funding for the Complainant's position only days before the commencement of the new school year.
Mr Sugrue said that on 21st August 2015 an emergency meeting was convened by the Respondent's Board of Directors. The Committee decided that the Complainant had terminated her employment with the Respondent by refusing to sign a written contract in the terms required for continued funding. Therefore by letter 25thAugust 2015 the Complainant was notified of the termination of her employment, with two weeks’ pay discharged to her in lieu of notice.
Mr Sugrue argued that the Complainant's refusal to sign a written contract formalising the terms and conditions under which her duties would be performed, constituted a repudiation of the contract of employment by her. As such, the Complainant's employment was terminated by her as a matter of law, and the provisions of the Act do not apply. He stated that the Complainant's refusal to sign a written contract of employment, in the form necessary to secure Pobal funding for her job, acted such as to frustrate the Respondent's ability to continue employing her.
Without prejudice to the foregoing, he contended that should a dismissal be found to have taken place within the meaning of the Act, the Respondent's decision to dismiss the Complainant was reasonable in all the circumstances.
In that regard, Mr Sugrue relied upon Section 6(6) of the Act, which provides that a dismissal may be shown to have"resulted wholly or mainly from one or more of the matters specified in subsection4of this section, or that there were other substantial arounds justifying the dismissal"
In support of his contention, Mr Sugrue citedBrewster v. Burke and the Minister for Labour(1985) 4 JlSLL 98 the High Court held that:-
- "It has long been part of our law that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his master. Such a refusal justifies an employer in dismissing an employee summarily."
Summary of the Witness Testimony on behalf of the Respondent
- Ms Marianne Byrne, Chairperson of Dromina Community Playgroup& Director of the Community Council
Ms Marianne Byrne, Chairperson of Dromina Community Playgroup, gave evidence to the Court. She told the Court that when she took over as Chairperson and as a Director of the Community Council in September 2014 she was anxious to ensure that the Playschool was fully complaint with all policies and procedures necessary to ensure compliance with Pobal funding requirements and with its obligations as an employer. The Playschool employed two staff, a Manager and the Complainant who was employed as a Child Care Worker.
Ms Byrne set about seeking advice from a number of sources, including the County Childcare Officer and was advised that its Pobal funding could potentially be in danger unless it introduced 35 policies and procedures including job descriptions and contracts of employment for its staff. Ms Byrne said that when discussions were held with the staff in November 2014 they were not happy that certain terms and conditions were about to change as a result of this exercise. Ms Byrne stated that her sole aim was to ensure that the Playschool was complaint.
In March 2015 she engaged a HR Consultant and an employment law solicitor to assist in the process.
When the HR Consultant, Ms Ryan, commenced the process of drafting the job descriptions and contracts of employment, a number of issues were identified which did not comply with Pobal’s criteria regarding opening hours, periods of shutdown in the summer etc.. Ms Ryan identified a number of issues regarding the staff’s conditions of employment which the Committee were unaware of, e.g. amount of paid annual leave, not working on Good Friday, early finish on Fridays, issues relating to camps.
Ms Byrne said that during the months April, May and June, there was constant interaction between Ms Ryan and herself, and she then liaised with the Committee to keep them up-to-date on developments. During this time there was a lot of discussion on the staff’s terms and conditions with both sides eventually compromising on issues. However, she said that the Complainant was being objectionable when Ms Ryan produced draft contracts to be signed at the end of June/beginning of July 2015. The Complainant refused to sign the contract and she went on sick leave due to stress. However as it was necessary to have contracts in place before the commencement of the school year on 1stSeptember 2015 when the Pobal funding became due, Ms Byrne said that the Respondent was left with no alternative but to dismiss the Complainant on 20thAugust 2015 when she refused to sign the contract. The Respondent then proceeded to immediately replace the Complainant.
Ms Byrne stated that the Complainant had been made fully aware that if she did not sign the contract that her employment would be in jeopardy as funding for Playschool may not be forthcoming and it would have to close the school. She said that the Committee with the assistance of the HR Consultant and its solicitors had been working tirelessly to put contracts and procedures in place since January 2015, but had been faced with continual resistance by the Complainant.
Ms Byrne told the Court that the Complainant knew that Ms Ryan was coming to the Playschool on 20thAugust 2015 specifically to have the contract of employment signed. When Ms Ryan produced the contract for the Complainant to sign, the latter asked for fifteen minutes to make a phone call to her solicitor. Following which she said that she was refusing to sign the contract and asked for more time. However, Ms Byrne said that the Complainant was fully aware of the consequences of not signing the contract.
That evening Ms Byrne attending a meeting of the Committee to brief them on developments. At that meeting a decision was made to terminate the Complainant’s employment, as it took the view that the Complainant had ended her own employment by not signing the contract. She said that an advertisement seeking a Child Care Worker had been prepared in the event that they might be short staffed at the commencement of the school year on 1st September 2015. The advertisement was emailed to the newspapers that same evening.
On 25th August 2015, a letter of dismissal, signed by the Secretary to the Community Council was handed to the Complainant by two Directors of the Community Council.
Ms Byrne said that the funding from Pobal came through as the Playschool was now compliant.
In cross examination Ms Byrne said that she was not aware of disciplinary stages/procedures which an employer is required to go through before dismissing an employee as these procedures had not been finalised at the time. She said that she received legal advice and the letter of dismissal was drawn up by her solicitors. When questioned about a letter from the Complainant’s solicitor asking for the dismissal to be withdrawn, Ms Byrne said that the decision had been made by the Committee and they saw no reason to alter that decision.
- Ms Elaine Ryan, Elaine Ryan & Associates, HR Consultants
Ms Elaine Ryan, HR Consultant explained that she was engaged by the Respondent to put in place a number of policies and procedures, job descriptions, contracts of employment and a staff handbook. The Respondent has requested her to address any non-compliance issues. She said that she meet with the staff individually and explained her functions to them. She drew up draft contracts of employment and a draft handbook. Following which there were a series of meetings about a number of changes sought by the staff. Ms Ryan said that she relayed these issues back to the Committee on a regular basis. There were many issues in dispute which she said became the subject of discussion and negotiation and eventually a contract was furnished to the Complainant on 11th August 2105. The Complainant was advised to seek legal advice and that it should be signed by the next meeting, which occurred on 20thAugust 2015. Ms Ryan said that on a number of occasions the Complainant was informed that there would be serious consequences if she did not sign the contract.
On 20th August 2015, when Ms Ryan returned, a number of outstanding issues were addressed, however, the issue of the number of working hours was still in dispute, the Complainant said that she was not prepared to sign the contract and said that she needed time to seek legal advice. Ms Ryan said that she informed the Complainant that refusal to sign would be a serious matter and the Committee would need to consult their solicitors.
Ms Ryan said that the following morning the Complainant’s solicitor telephoned her requesting more time for the Complainant before being required to sign the contract as she was seeking legal advice and asking that this message be relayed back to the Committee. Ms Ryan said she did so.
Ms Ryan said that the first occasion that she heard that the Complainant was dismissed was when the solicitors telephoned her again on the evening of 25th August 2015 to inform her and again asking her to ask the Committee for more time and that he would come back to her the following day.
Witness Testimony on behalf of the Complainant
Mr O’Connor clarified for the Court that neither the Complainant nor anyone on her behalf wished to give oral evidence.
The Law
There is a statutory presumption that a dismissal is unfair unless there were substantial grounds justifying it.
Section 6(1) of the Act states
- 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
The Respondent on the one hand submitted that it was entitled to summarily dismiss the Complainant in light of her refusal to sign a written contract which could potentially endanger its Pobal funding and thereby jeopardise the existence of the position held by her. This, it submitted, acted to frustrate the Respondent’s ability to continue to employ the Complainant.
On the other hand, the Respondent submitted that the Complainant repudiated her own contract of employment by refusing to sign on 20thAugust 2015. Therefore, it submitted that as such, the Complainant’s employment was terminated by her as a matter of law, and the provisions of the Act do not apply.
Furthermore, the Respondent contended that even if the dismissal is taken to beprocedurallyunfair, it is submitted that, in all of the circumstances, it was neverthelesssubstantivelyfair and relies on Mary Redmond, Dismissal Law In Ireland:-
- “procedural defects will not make a dismissal automatically unfair. The
legitimacy of the processes adopted by an employer may be subordinated to the substantive merits of a particular case. An employer may be able to justify a procedural omission ifitmeets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee.”
Counsel for the Respondent argued that notwithstanding the imperfect procedural manner in which the dismissal had been conducted, which was conceded, there were substantial grounds justifying the dismissal and the Complainant had contributed fully to her dismissal.InBunyan v United Dominions Trust[1982] ILRM 404, the EAT adopted and applied the following principle enunciated by the UK EAT inNC Watling Co Ltd v Richardson[1978] IRLR 225:-
- [T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.
Thus the function of this Court is to determine whether the decision to dismiss was within the range of the reasonable responses available to the Respondent in the situation in which it found itself. If the decision to dismiss was not with the range of reasonable responses then there cannot besubstantial grounds justifying the dismissal.
The Court notes that no evidence was produced by the Respondent to substantiate its position that Pobal funding was at risk. The Complainant had been employed for the previous four occasions when funding was forthcoming yet she had no written contract of employment during that time. The Court considers it commendable that the new Chairperson along with the new committee sought to ensure that the Playschool was fully complaint with all necessary regulations and statutes. However, from the submissions made and the evidence adduced it appears to the Court that while there were a number of issues in contention between the parties, at the final stage only one issue had not been resolved.The only remaining issue concerned the Respondent’s intention to increase the Complainant’s hours from 36 hours to 39 hours per week.In circumstances where both sides were represented by solicitors and the Complainant’s solicitors sought extra time (five days) to deal with the outstanding issue and stated that the Complainant was only back at work after stress related illness, the Court cannot see how a reasonable employer in those circumstances would refuse such time and proceed to immediately dismiss the employee. The Court is strengthened in this view by the fact that there were a substantial number of areas where the Complainant’s terms and conditions of employment were being altered and all except one issue had been the subject of negotiation and compromise between the parties. The Respondent stated that it was under pressure due to the impending deadline; however, no evidence was produced to show that the Complainant’s position was in danger.
The Court notes that the decision to dismiss was made without regard to a number of factors: the Complainant’s four year unblemished record; the Complainant’s request through her solicitor for reasonable time; the substantial compromise made by the Complainant on other issues in dispute; no consideration being given to the question of whether there were any alternatives to dismissal; an acknowledged lack of dismissal procedures and the Complainant not being warned that failure to sign the contract would result in her summary dismissal within days.
It is clear to the Court that a decision had been made before 20th August 2015 by the Committee to dismiss the Complainant in the event that the contract was not signed on that day. On 19thAugust 2015 Ms Ryan had been instructed that if the Complainant refused to sign the contract of employment then to note the date and time of this refusal and to inform the Committee, who would then contact their solicitors and the Complainant would be contacted in due course. In the meantime the job advertisement was drawn up to be ready in the event of a refusal to sign the contract.
The Court cannot accept that the Complainant repudiated her own contract of employment and finds that the provisions of the Act do apply in this case. Such contract was in negotiation between the parties, the Respondent was represented by both a HR Consultant and by their legal advisors, yet when the Complainant sought time to get her own legal advice, this time was not provided to her. The Court is of the view that the Respondent was unduly influenced by a looming deadline that may have had little impact and in any event could potentially have been circumvented by asking the Complainant to sign the contract without the offending term, which could then have been the subject of further negotiations between the parties in a timely fashion, without the pressure of an impending dismissal and with the possibility of recourse to third party arbitration if necessary.
In all the circumstances of this case, finds that the actions of the Respondent were not within the range of reasonable responses open to it and that substantial grounds did not exist to justify the Complainant’s dismissal.Therefore the Court finds that the dismissal was unfair.
Redress
Section 7 of the Act states
- 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
(a)re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b)re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c)(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
The Court has given careful consideration to the circumstances in which the Complainant was dismissed and the effect it has had on her economic wellbeing. In that regard the Court notes that the Complainant has secured part time work for six months from January 2017. This is remunerated at a considerably lower rate of pay than that which applied to her before her dismissal.
The Court has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.
Determination
The Court determines that the Respondent’s appeal fails and the Complainant’ complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €22,000. The decision of the Rights Commissioner /Adjudication Officer is varied accordingly. The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th April, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.