ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004747

Complaint for Resolution:

Date of Adjudication Hearing: 8th November 2017

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

In accordance with Section 80 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977 and 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 by the Respondent from 22^nd September 2008 to 26^th February 2016 and her fortnightly rate of pay was €1,076.92c.   The Complainant was submitting that she had been unfairly dismissed by the Respondent.

Summary of Complainant’s Position:

The Complainant said she was unfairly dismissed by the Respondent.

The Complainant said that she was an employee of the Respondent from 22^nd September 2008 to the 2016 as a Clerical Officer.    In that respect the Complainant submitted the following:

• She applied to the Respondent for position of Clerical Officer

• She was interviewed for the position by 2 named managers of the Respondent along with the CEO of another organisation

• She was informed at interview she would receive the pay of a Respondent Clerical Officer

• The Line Manager to whom she reported to and was instructed by was an agent/manager of the Respondent

• All those she worked with were employees of the Respondent

• The Respondent sent her an email in relation to her Personnel Number

• She received a Respondent email address for work purposes

• She notified the Respondent of her maternity leave and her employer confirmation in relation to it was received from the Respondent

• A named member of the Respondent’s HR Department dealt with her in relation to annual leave and sick leave

• She was included in letters and circulars from the Respondent to all Respondent staff

• She said that she was not employed by an employment agency and she had no dealings or interaction with any employment agency.

The Complainant submitted that for all of the foregoing reasons it was clear that she was an employee of the Respondent.

The Complainant said that she worked as a Clerical Office for the Respondent from September 2008 to September 2015 that without incident.  

The Complainant said that in September 2015 she was asked to put in a CV for her post of Clerical Officer with the Respondent.   The Complainant understood that this was a matter of form and done for administrative reasons.   On 15^th September 2015 she was invited to an interview.   On 30^th September 2015 she was told that she had been successful in her interview.   The Complainant said that however she was not being afforded pay at the level on the Clerical Officer Pay Scale she was already on and accordingly what was being offered was a considerably lower rate of pay.    

The Complainant said that she was not willing to accept this reduction or diminution in her salary or pay rate.   The Complainant said that she and others sought, but without success, to have her salary or pay level maintained .   The Complainant said that the present postholder is now a permanent employee of the Respondent on a salary of €31,000 per annum compared to the €28,000 per annum offered to her.

The Complainant said that she was dismissed from her employment with effect from 28^th February 2016.

The Complainant said that she was afforded/paid a redundancy payment of €8,513.00c.

However the Complainant said that what occurred could not possibly be considered as redundancy as she was directly replaced in the work she was doing.

Based on the forgoing the Complainant said that it was clear that she had been unfairly dismissed and she sought a decision to that effect.

In relation to the question of mitigation the Complainant said that she had been unemployed for a period of 6 weeks with a loss of €3,230.00c and that her new job paid less than the one with the Respondent and the loss in that respect was €6,500.00c per annum.

Summary of Respondent’s Position:

The Respondent was not present or represented and they sent no submissions.

Findings and Decision:

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

Section 8 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 that Act.

The Respondent was not present or represented and they sent no submissions accordingly I only have the submissions and evidence of the Complainant to rely upon in these matters.

Based on the uncontested evidence of the Complainant she was unfairly dismissed by the Respondent and accordingly I find and declare that the complaint under Section 8 of the Act is well founded and it is upheld.

In accordance with the provisions of Section 7 of the Act I have considered the appropriate redress and in that respect I have concluded that because of the circumstances of the dismissal there is an absence of the minimum level of trust necessary to sustain an employer/employee relationship and that accordingly the only appropriate redress in all the circumstances of the instant case is compensation.

In relation to compensation I note the following, the Complainant was unemployed for a period of 6 weeks with a loss in wages of €3,230.00c, her salary in her new job is €6,500 per annum less than that earned in her employment with the Respondent (€125.00c per week).   Thus the loss attributable to a lower pay rate is €12,250.00c which added to the €3,230.00c makes the total loss €15,480.00c.   However from this sum must, in accordance with settled law including the High Court Judgement in TVC Europe Ltd -v- Pansi [2011] IEHC 279, be deducted the redundancy payment is the sum of €8,5000.00c already paid to the Complainant for loss of her job with the Respondent leaving a total maximum loss of €6,980.00c.

Based on the forgoing I find and declare that the Complainant was unfairly dismissed by the Respondent and in accordance with the provisions of Section 7 of the 1977 Act I have decided that the amount of compensation that is just and equitable is €6,980.00c and I require the Respondent to pay her that amount within 6 weeks of the date of this decision.

Sean Reilly, Adjudication Officer.

Dated: 20^th February 2017