ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006315
Parties:
| Complainant | Respondent |
Anonymised Parties | A school secretary | A national school |
Representatives | IMPACT | None |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00008581-001 | 5th December 2016 |
Date of Adjudication Hearing: 26th July 2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 5th December 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts.
The complaint was initially scheduled for adjudication on the 21st June 2017. The complainant was in attendance, accompanied by her union representative. There was no appearance by or on behalf of the respondent. Following the hearing, it was brought to my attention that the respondent had emailed the Workplace Relations Commission on the 13th June 2017 to ask that the case be adjourned. As the Workplace Relations Commission had not replied to this correspondence, the adjudication was re-scheduled and notices re-issued to the parties.
The case was then scheduled for hearing on the 26th July 2017. At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or on behalf of the respondent. I verified with the Workplace Relations Commission that the respondent had been served with notice of the time, date and venue of the adjudication. Having been satisfied of this, I proceeded with the adjudication in the absence of the respondent.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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, a school secretary, challenges the fairness of her dismissal from the respondent, a national school. She seeks redress of compensation following her dismissal of the 17th October 2016. Her weekly remuneration was €273.
Summary of Complainant’s Case:
The complainant commenced working for the respondent in or around September 1998 by way of a Community Employment placement. She was then directly employed as school secretary from the 7th January 2001. She worked for the respondent until her dismissal on the 17th October 2016. At the adjudication, the complainant outlined that she was never provided for a statement of the terms of her employment or offered a contract of employment. She worked 25.5 hours per week and in July 2016, the respondent proposed to reduce her hours to 10 hours per week, consisting of two hours per day. The complainant challenged this reduction in hours and referred a dispute to the Workplace Relations Commission pursuant to the Industrial Relations Acts.
The complainant outlined that the school closed over the summer months and she did not work for the months of July and August. Over the summer, she continued to check the school email and would also call in once a week to check post. It was practice that the respondent would pay her two weeks of holiday pay and that she was paid 44 weeks in a year. The practice changed in 2014 and 2015 when the respondent paid her for the full summer, but in 2016 reverted to the practice of paying the two weeks of holiday pay. This was in the amount of €540.
The complainant said that it was part of her role to prepare cheques for the school and she did so in respect of the cheque of €540 for the holiday pay. She presented the cheque for signature by two signatories, a member of school management and a member of the Board of Management. Accordingly, they signed the cheque. On the 3rd October 2016, the complainant attended a meeting with two members of the Board of Management, when she was informed that she was being placed on paid suspension pending the investigation of this matter. This was confirmed in writing by the Chairperson of the Board of Management, where she states that the issue will be discussed at the forthcoming board meeting on the 13th October 2016. On the 7th October 2016, the complainant’s union representative emailed the Chairperson to ask the reason for the suspension and to say that the complainant had not been paid. On the 17th October 2016, the complainant received an email from the Chairperson (via the Chairperson’s own work email) to say that the Board of Management had made the decision at its meeting of the 13th October 2016 to terminate her employment with immediate effect. This email was sent as 1.17pm and the complainant replied a few minutes later to ask for her P45 and for a written statement as to the reason her employment was terminated. In an email of the 18th October 2016, the complainant’s union representative asks the Chairperson to outline the appeals process and asks whether the complainant was afforded fair procedures and natural justice. The union representative followed up with further emails to the Chairperson, but did not receive any reply. The complainant said that she never received a P45 from the respondent.
The complainant gave detailed evidence of efforts to find alternative employment. She had made 150 applications since the ending of her employment with the respondent and has not been able to find work. She applied to another national school and commented that school secretaries tend to stay in place for many years. She held the position in the respondent for 15 years. The complainant outlined that she had sought roles in office administration, in retail and via employment agencies. She commented that the respondent had since employed a school secretary to replace her and that this person worked three days per week. She also said that she had wished to say goodbye to the children and asked to attend the school Christmas event to do so. The respondent did not agree that she could attend the event. The complainant further outlined that members of An Garda Siochána called to her home in early 2017 following a complaint made by the respondent. The Gardaí inquired into the cheque for €540 issued by the respondent for the complainant’s holiday pay. The complainant explained the circumstances of the payment and the respondent’s practice of paying her two weeks’ holiday pay. The Garda said that he thought the complainant was a nice person and would send the matter to the Director of Public Prosecutions for her determination. The complainant had not heard anything further.
Summary of Respondent’s Case:
The respondent did not attend the hearing and nor did it make submissions in relation to this claim. The complainant exhibits emails sent to her by the respondent regarding her hours of work, the reporting structure in the school and access to a password. On the 3rd October 2016, the respondent wrote to say that the complainant was suspended. On the 17th October 2016, the respondent emailed the complainant to say that the respondent had made the decision to terminate her employment with immediate effect.
Findings and Conclusions:
Section 6 of the Unfair Dismissals Act provides as follows in relation to an unfair dismissal: “6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. … (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. … (6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so — (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred”
The onus is on the employer to show that a dismissal was wholly or mainly arises from one of the matters referred to in subsection 4. The respondent did not present evidence as to the basis of the dismissal. If it is a conduct issue arising from the cheque, I note the evidence of the complainant that it reflected an established practice of paying holiday pay and the cheque was signed by two authorised signatories. In respect of the fairness of the dismissal, there were significant procedural failings on the part of the respondent, for example in not carrying out an investigation or in not complying with any disciplinary procedure. It follows that the complainant’s dismissal was substantively and procedurally unfair.
In respect of redress, I note the considerable efforts of the complainant to find alternative employment as school secretary but also in a great number of other fields. I note that she worked for the respondent since 1998 and her evidence that she has found it difficult to explain to prospective employers the circumstances of how this longstanding employment came to an end. Having regard to the circumstances of the case, I award redress to the complainant of €20,000. |
Decision:
CA-00008581-001 Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
Pursuant to the Unfair Dismissals Act, I find that the complaint is well-founded and the respondent shall pay to the complainant compensation of €20,000. |
Dated: 10 November 2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act, section 6 |