ADJ-00001821

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001821

Complaints for Resolution:  

Date of Adjudication Hearing: 06/12/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure: 

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

Attendance at Hearing: 

Complainant’s Submission and Presentation: 

The complainant says she was summarily and without any forewarning dismissed on 20 November 2015 with unfounded allegations of alleged under-performance.

She was not aware of any issues or given any advance notice of any disciplinary meeting and had no right to representation in connection with these allegations, no right to reply or any right of appeal.

She had no opportunity to defend these issues says the allegations are a distortion of the facts. The issues complained of were never brought to her attention and in one case she paid the discount refunded to the customer from her salary (unlawfully) to make reparation for the incident.

She was not expecting that to be disciplined twice for this.

She signed a letter terminating her employment in the belief that by failure to do would result in her not receiving pay and holiday entitlements and did so without the benefit of legal advice.

The alleged history of written warnings listed in the letter is the first time she was aware of these and they had not previously been issued to her in the first place.

She worked for the respondent for 18 months and never received a contract of employment or statement of her Terms of Employment.

Regarding her claim under the Organisation of Working Time Act worked alone in the shop working three shifts since April, 2015 and prior to that 4 shifts. Her shifts from April, 2015 to date of termination were: shift 1: 2pm to 6pm shift 2: 9am to 2 pm and shift 3: 9 am to 6pm. As she was alone and could not close the shop she had to forgo lunch.

In her direct evidence she stated that in her period of employment she only managed to complete a proper meal break on a few occasions.

Respondent’s Submission and Presentation: 

The respondent outlined a number of performance problems with the complainant including late attendance, not wearing the uniform staining of product with cigarette stain. She says that these had been the subject of a number of warnings; the final one was on October 11^th.

In September the respondent had accommodated the complainant with a reduced working week.

The letter terminating the complainant’s employment, headed in those terms was described as a final written warning. It itemised the issues which gave rise to the respondent’s dissatisfaction with her. No disciplinary meeting took place and there was no appeal.

She did not dispute the complaint under the Terms of Employment Information Act. She submitted in previous correspondence to the complainant that ‘the terms of employment were agreed between me and [the complainant] and we worked on that basis’.

She stated that there was no deduction for breaks, in other words the breaks were paid.

Findings and Conclusions

Complaint under Section 6 of the Unfair Dismissals Act CA-00002506-004

The respondent in this case stated that the letter of dismissal which she gave to the complainant, and which she described, oddly as a ‘final written warning’ was written under advice. It is hard to believe that this is the case.

The manner of the termination showed no regard for the rather simple elements of fair procedure required in such a situation.

These are that a person be on notice of what they are charged with (i.e. misconduct, serious or gross misconduct), be given advance notice of the facts on which the charge is based, be advised as to the range of possible outcomes should the matter go against her, and have the right to be accompanied at a hearing at which she will be given the opportunity to have her case heard and impartially adjudicated.

These are known as principles of fair procedures or natural justice. As can be seen they are not onerous or difficult for any person in business but they represent constitutional rights for the employee which cannot be set aside.

An adjudicator will generally not ‘second guess’ the judgement of a respondent, or substitute their opinion for his or hers in respect of issues relevant to their business, but regard will also be had to whether those facts on which the charge is based are sufficient to ground the proceedings at all.

The final leg in the stool is, having passed the above two tests, whether the sanction is proportionate, and again some deference will be shown to a judgement made in good faith by an employer who has got over the first two hurdles.

It will be seen from the outline of the submissions above that this respondent fell at all three hurdles. There was no notice, no indication of charges, no hearing,; the allegations were flimsy at best and the termination (on these facts) harsh and unjustified.

The respondent, on whom the burden of proof falls in such cases failed to discharge it.

Complaint under section 7 of the Terms of Employment (Information) Act, 1994 CA-00002506-001

The respondent did not dispute that she had not issued a statement in compliance with the Act

Complaint under section 27 of the Organisation of Working Time Act 1997 CA-00002506-003

The respondent appears to seriously misunderstand the purpose of legislation requiring workers to have access to breaks. Her submission that the complainant was paid for them seriously missed the point which is to give workers rest periods. She was not in a position to provide evidence that the breaks had been given.

Complaint under section 11 of the Minimum Notice and Terms of Employment Act 1973 CA-00002506-005.

The respondent did not dispute that notice was not given.

The respondent is a young, and doubtless enterprising business person. However, her lack of awareness of the employment rights responsibilities to those she employs represented by the facts in this case is alarming. 

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

For the reasons set out above I uphold all four complaints and I award as follows.

Complaint CA-00002506-004 under Section 6 of the Unfair Dismissals Act, I award her €2,500. This is compensation for the breach of her rights and is not taxable.

Complaint CA-00002506-001 under section 7 of the Terms of Employment (Information) Act, 1994 I award her two weeks’ pay in the amount of €360.

Complaint CA-00002506-003 under section 7 of the Organisation of Working Time Act 1997 1994 I award her two weeks’ pay in the amount of €360.

Complaint CA-00002506-005 under section 11 of the Minimum Notice and Terms of Employment Act 1973 I award her one week’s pay in the amount of €180.

Dated:   08 March 2017