ADJ-00004152

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004152

Complaints for Resolution:  

Date of Adjudication Hearing: 13/02/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and 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: 

Respondent’s Submission and Presentation: 

The respondent describes the events of April 18^th to 20^th as a ‘mis-communication’.

It did not intend to terminate the complainant’s employment but merely to discontinue her involvement at the particular site on which she was working. It is a contract cleaning company and operates many sites to which she might have been re-deployed.

Part of the background is that a complaint was allegedly made against her by an employee of a different company but on the same site. No evidence was offered as to the nature of the complaint and there was no follow up investigation.

The respondent says that following the incident which has given rise to the complaint a number of attempts were made to contact the complainant by telephone but that these were not successful. There was no written communication with her.

The respondent views the complainant as still being ‘on the books’.

Regarding the complaint under the Terms of Employment (Information) Act, 1994 the respondent could offer no evidence that it had complied with the terms of the Act. The complainant had come to its employment by means of a TUPE transfer and it is not clear if the statement required under the Act transferred as part of the transfer.

Complainant’s Submission and Presentation: 

On April 18^th, 2016 the complainant was unwell and did not attend work. She attempted, unsuccessfully, to alert her employer to her absence. She did not attend work on April 18^th and obtained a doctors certificate to cover her absence.

She returned to work on April 20^th, (she was not rostered for work on April 19th) and while approaching her place of work she was met by two colleagues who advised her that her supervisor was not happy as a result of her absence and that she should not attempt to enter the building.

The complainant contacted her supervisor, via telephone, and was told not to come to work. He accused the complainant of "going A.W.O.L." on April 18^th and that a complaint had been lodged against her by the porter of the building. The porter was not employed by the respondent. The complainant was not given any opportunity to discuss the matter further with her supervisor nor was she permitted to present him with her doctor’s certificate.

She sent a text message to her supervisor, who suggested in his reply that she was under investigation.

However, she has not received any further communication from the respondent since April 20th 2016 (and up to the date of the hearing) in relation to any such investigation. She has not received any update with respect to her employment and has, essentially, been left in a ‘state of limbo’.

She has continued to work some hours with another contractor and evidence was given of the satisfactory quality of her work there.

Nonetheless, she has been at the loss of the hours previously worked with the respondent which were stated as being twelve hours per fortnight.

Conclusions and Findings 

The facts of the case were not contested. After a very brief, certified absence on sick leave the complainant appears to have incurred the wrath of her supervisor to the extent that not only did he tell her not to return to duty but other co- workers were aware of this to the point that they ‘warned her off’ entering the building.

Shortly after this she was sent a letter by the company advising her that if she did not respond within seven days further consequences might follow.

In fact, there were no consequences of any description to this and it was the last communication she received from the company.

The complainant described herself as being in a ‘state of limbo’.

In fact, there is no such state as ‘limbo’ in Irish employment law. One is either employed, and paid wages under a contract of employment, or suspended on some basis, (normally for a short period), or one is on some version of approved leave such as sick leave, again in accordance with the provisions of the relevant contract of employment or on one of the other forms of agreed breaks, more common in the public service.

If there was a ‘mis-communication’ as postulated by the respondent it had every opportunity to remedy the matter by making contact with the complainant and taking whatever follow up steps it deemed necessary. It failed to do so and in its duty to the complainant to clarify what exactly her position was.

Accordingly, there is only one conclusion one can reach and I find that the complainant was dismissed and that the dismissal was unfair. The total absence of any semblance of process, to which one can add the equally total absence of any grounds to trigger one place this dismissal at the extreme end of unfairness.

Her losses were stated as being €2,550 as a direct result of the termination of her employment.

I also uphold her complaint under the Terms of Employment (Information) Act 1994. The respondent submitted that she may have had a statement with a previous employer from whom she transferred to the its employment but they could not produce evidence of this.

Decision: 

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

I uphold her Complaint CA-0005644-001 under the Terms of Employment (Information) Act 1994 and award her four weeks wages in the amount of €234.00 gross.

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.

I uphold CA-0005644-002 under the Unfair Dismissals Act 1977 and award her €2550.00. 

Dated:             15 May 2017