ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003617
Parties:
| Complainant | Respondent |
Anonymised Parties | An Office Administrator | An Environmental Services Company |
Complaint(s):
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-00005271-001 | 17/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005271-002 | 17/06/2016 |
Date of Adjudication Hearing: 16/03/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and section 7 of the Terms of Employment (Information) Act, 1994 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Section 1: Summary of Complainant’s Case:
(1) CA-00005271-001 Unfair Dismissal Act, 1977
The Complainant was due back from Maternity Leave on the 28th March 2016. She received a text message from the Director, MR AX, on the 8th February informing her inter alia “that there was no work for her and that she would be engaged on a contract basis as the need arises”. None the less she attended at the offices on the 28th March and found that there was no work for her. Her Solicitors had contacted the Respondent on the 15th March 2016 to seek clarification of her situation but had not been replied to. She was now advancing a claim of Constructive Dismissal. |
(2) CA-00005271-002 Terms of Employment (Information) Act, 1994
The Complainant had never received a statement in writing of her terms of employment. |
Section 2: Summary of Respondent’s Case:
(1) CA-00005271-001 Unfair Dismissal Act, 1977
The Respondent alleged that the Company had been the subject of a most serious Fraud. The Complainant is a witness in a significant Garda investigation of this alleged fraud. The Respondent cannot comment any further at this stage. At the Oral hearing the basic employment facts as presented by the Complaint were not denied. On questioning the Respondent was not clear what was the actual current legal employment status of the Complainant. She had never been formally dismissed. The Complainant had been allegedly associated with irregularities in the Company and her return on the 28th March would have been an irreconcilable situation for the Respondent Directors, particularly as the Garda investigation was still ongoing at the time. |
(3) CA-00005271-002 Terms of Employment (Information) Act, 1994
The Complainant had received a Statement of her Terms and Conditions of Employment on the 8th of March 2005 from an associated Company which had been her then employer. She had moved seamlessly, as part of a Company restructuring, to the Respondent employer a number of years ago and the same Terms and Conditions applied. A copy of a Statement dated the 08/03/2005 was exhibited. |
Section 3: Findings and Conclusions: CA-00005271-001 Unfair Dismissal Act, 1977
3:1 The Relevant Law and the Burden of Proof required. The relevant law is now well established. The Complainant has to make a prima facie case to justify her claim of Constructive Dismissal. The Terms of S.I. 146 of 2000 – Code of Practice on Disciplinary and Grievance Issues is the operating guideline. The importance of Natural Justice is paramount and is set out by Mr. Justice Flood in Frizelle v New Ross Credit Union [1997} IEHC 137 and I quote below from the judgement. “1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. Put very simply, principles of natural justice must be unequivocally applied.” In the case in hand, specifically relating to the ending of the Complainant’s employment on either the 8th February, when the text issued, or the 28th March 2016, there was no evidence of any efforts at Natural Justice. In particular the letter of the 15th March 2016 from the Complainant’s Solicitor had not been replied to and no efforts at discussion /consultation in relation to employment matters had taken place. There may have been serious concerns regarding alleged business irregularities and a Garda investigation but these did not allow a complete non communication with the Complainant regarding her employment status. Constructive Dismissal has two legal tests, (1) Fundamental breach of Contract by one or both parties (2) Unreasonable behaviour by one or both parties. In the case in hand the effective refusal to allow the Complainant come back to work without any formal consultations /discussions and the refusal to engage with the Complainant’s Solicitors regarding the employment issue in March 2016 satisfy these tests to the Complainant’s advantage. The claim for Constructive Dismissal is well founded. 3:2 Redress /Considerations of: Section 7 (1) of the Unfair Dismissals Act ,1977 is as follows Redress for unfair dismissal. 7
( 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 F48 [(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 under section 17of this Act) as is just and equitable having regard to all the circumstances 3:3 Redress /Discussion of In considering Redress I point to the words in the Act “Having regard to all the circumstances”. The background circumstances in this case were extraordinary and not denied by any of the parties – a major Garda investigation into fraud, involving very significant sums of money, at the Respondent business was underway. The Complainant was, although noting was proven at the date of the 28th March 2016, a witness in the Investigation. The Respondent had serious question marks over her alleged involvement in the alleged fraud. None the less the handling of the employment relationship had been procedurally completely flawed and as a result unfair. The Complainant had stated that she was unemployed until July 2016 (approximately four months) and her new employment was irregular. Realistically any consideration of future earnings would be very difficult until all the difficulties regarding the alleged fraud with Respondent are finally disposed of. Accordingly, having regard to all the extraordinary circumstances, to what is just and equitable and bearing in mind the Complainant’s selection of Compensation as a Remedy I award the sum of four months pay –€8,000 (which is approximately four month’s pay) as Redress for the Unfair Dismissal. Section 4 CA-00005271-002 Terms of Employment (Information) Act, 1994 complaint.The statement dated and signed by the Complainant as of the 8th March 2005 was in my view adequate for the purposes of the Act. The claim is accordingly set aside and dismissed. |
Section 5: Decision:
In accordance with Section 41 of the Workplace Relations Act 2015 and section 7 of the Terms of Employment (Information) Act, 1994 and Section 8 of the Unfair Dismissals Acts, 1977 - 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.
Act | Complaint/Dispute Reference No. | Summary Decision ( ref Section 3 and 4 of this Adjudication above) |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00005271-001 | Claim is upheld /Redress to the value of €8,000 is awarded. Dismissal completelky procedurally unfair. |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005271-002 | Claim dismissed / acceptable statement provided in March 2005. |
Dated: 17 May 2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
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