ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006079
| Complainant | Respondent |
Anonymised Parties | A Childcare Worker | A Pre-school facility |
Representatives | Suzanne Gorey, BL | David Gaffney, Gaffney Solicitors |
Complaints:
|
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00008379-001 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00008379-002 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001 |
CA-00008379-005 | 25/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00008379-006 | 25/11/2016 |
Date of Adjudication Hearing: 26/04/2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Location of Hearing: The Anner Hotel, Thurles, Co. Tipperary
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015, and Section 7 of the Terms of Employment (Information) Act 1994, and Section 11 of the Minimum Notice and Terms of Employment Act 1973, 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 withdrew the complaint under Section 19 of the Carer’s Leave Act 2001.
Background:
The complainant contends that she was unfairly dismissed whilst still on Maternity Leave, that she never received written terms of conditions of employment and no statutory minimum notice. |
Summary of Complainant’s Case:
The complainant was employed as a Childcare Worker from 3rd September 2014 until she received her P45 in the post which stated that her employment with the respondent terminated on 23rd June 2016. The complainant was due to go on maternity leave in July 2016. She was on sick leave from mid May 2016. She contends that it came as a shock to her to receive her P45 in the post in September 2016, backdated to 23rd June 2016. She contends that the respondent contacted her while she was out sick asking her to come to work and that she was unable to do so as she was on medication. The complainant further contends that she never received written terms of conditions of employment. The complainant submits that statutory minimum notice should be paid to her. |
Summary of Respondent’s Case:
The respondent was surprised that the complainant submitted the complaints in relation to dismissal and minimum notice. It is agreed that she did not receive a written contract of employment. In relation to alleged dismissal, it is the respondent’s case that the complainant was not dismissed, but rather she left the employment of her own accord. Copies of text messages were submitted in evidence to prove the respondent’s case that the complainant never had any intention to return to work following her maternity leave. In fact, the complainant wished for her P45 to issue in June 2016 but it was the respondent who pointed out to her that it would be better to delay the issue of her P45 as maternity benefit may have been affected by such an action.
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Findings and Conclusions:
CA-00008379-001 |
There was considerable conflict of evidence in this case. The respondent was convinced that the complainant never had any intention to return to work but the complainant professed herself to be shocked to receive her P45 in the post in September 2016. In some of the texts submitted, there is some indication of the complainant’s intentions, specifically references to obtaining DCYA (Department of Children and Youth Affairs) compliance checks (texts dated 20th May 2016 and 6th July 2016). On the other hand there is a text where the complainant states she is not coming back to work. However, there is no specific resignation with a date. I note the maternity leave period was not due to end until December 2016, and the P45 issued by the respondent issued in September 2016 and was backdated to June 2016.
The Maternity Protection Act 1994 states at Section 23:
“23. – Each of the following shall be void:
(a) Any purported termination of an employee’s employment while the employee is absent from work on protective leave”.
While I note the respondent’s genuine interpretation of the employee’s intention in this instant case, there was a rush to issue the P45 in circumstances where the complainant’s maternity leave period was not completed.
In the circumstances, I find that the complainant was unfairly dismissed.
I note the lack of attempts to find alternative employment and the complainant’s intention to pursue a course of study which she states will lead to increased pay. In the circumstances where no loss incurred, I award her the sum of €680.
CA-00008379-002
It is common case that the respondent failed to provide the complainant with written terms of conditions of employment as provided for in Section 3 of the Act. I uphold the complaint and require the respondent to pay to the complainant the sum of €680.
CA-00008379-005
As found in CA-00008379-001 above, the complainant was dismissed from her employment and she was entitled to statutory minimum notice. I uphold her complaint and require the respondent to pay to the complainant the sum of €170.
Decision:
The complaint of unfair dismissal is upheld and the sum of €680 is to be paid to the complainant by the respondent.
The complaint under the Terms of Employment (Information) Act 1994 is upheld and the respondent is to pay to the complainant the sum of €680 compensation.
The complaint under the Minimum Notice and Terms of Employment Act 1973 is upheld and the sum of €170 is to be paid by the respondent to the complainant.
Dated: 03/05/2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham