ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004214
Parties:
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-00006094-001 | 22/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00006094-002 | 22/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997( Withdrawn at Hearing ) |
CA-00006094-003 | 22/07/2016 |
Date of Adjudication Hearing: 12 /4/2017 and 18/07/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015, and Section 11 of the Minimum Notice & 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.
Background:
This is a claim for Unfair Dismissal and Minimum Notice . The Complaint was lodged on 22 July 2016 . |
Summary of Respondent’s Case:
CA-00006094-01 Unfair Dismissal Claim The Respondent disputed the claim .The Complainant was employed as a “New Product Development Assistant “since August 2014. The Respondent outlined that a decision was taken to terminate the complainant’s employment on foot of gross misconduct and she was summarily dismissed effective from 30 March, 2016, without notice. The Respondent submitted that the Company was heavily engaged in providing costings for a prospective return customer .These costings had to be redone and the pressure was on. The Company is co owned and directed by a Husband and Wife team of Mr and Mrs A. On the morning of March 30, 2016, the Directors requested that the Complainant assist another employee in product costings to be completed in time for March 31.The Complainant was advised of the urgency of the task and the Complainant was requested to prioritise costings and put all other duties aside until these costings were completed .The Respondent submitted that this request was deemed impossible within the requested time frame and they discovered that the phone had been disconnected. The Respondent followed up this action by placing calls for the complainant through the main reception desk to return their calls .They did not receives a return call. At 15.15 later that day, Mr A asked Ms B, (Manager) to attend his Office along with the Complainant. Mr A. asked Ms B to wait in another area while he wished to speak to the Complainant. The Complainant was asked to address : 1 Failing to return calls 2 Hanging up on the Owners 3 Failure to carry out instructions. And was given an opportunity to respond. The Respondent submitted that the Complainant had confirmed that she had hung up the phone during the morning call .She did not provide a reasonable cause for refusing to carry out instructions or to return the calls. The Respondent contended that the Complainant responded by stating that she wouldn’t complete the tasks asked , even if she were still employed in 12 months time .The Respondent stated that the Complainant was verbally abusive towards Mr A . The Respondent determined this behaviour as unacceptable and advised the complainant that the Complainants conduct constituted gross misconduct warranting summary dismissal .The Respondent felt there was no alternative. The Respondent then explained the company protocol on leaving the site .The protocol is in accordance with the Respondents legal obligations for food safety .This was accepted by the complainant who then left the Owners office and proceeded to shout at staff members that she “ had been fired “ . The Respondent stated that the Complainant had ignored the Owners direction when she detoured from the exit mechanism and doubled back up to her Office to retrieve her belongings. This was in direct conflict with the stated direction of Mr A, who asked the complainant to accompany him to her car and her belongings would follow separately .The Complainant alleged that Mr A had assaulted her during the course of this detour arrangement and subsequently made a complaint to the Gardaí. The Respondent received a communication from the Complainants Solicitor dated March 31 2016 seeking compensation for unlawful termination of employment .The Respondent wrote the letter of Dismissal on April 7 , 2016 citing the reasons for Dismissal as : 1 Refusal to carry out lawful and reasonable instruction. 2 Wilful and deliberate insubordination, inconsistent with the continuation of your contract of employment. 3 Verbal abuse of a fellow employee, member of management, company owner or customer. The Complainant was provided with an appeal but did not action this. The Respondent submitted that there were substantial grounds of gross misconduct justifying the complainant’s dismissal on March 30, 2016.The Complainant was afforded fair procedures and was given an opportunity to respond to the allegations placed by Mr A. The Respondent acted in the face of the complainants “insubordinate behaviour and an unc-operative attitude “by summarily dismising the complainant. The Respondent submitted that the claim for Unfair Dismissal was compromised through the lack of utilisation of the Appeals Mechanism set out in the letter of dismissal. The Respondent acted in accordance with the Company Disciplinary procedure. Evidence of Mr A. Mr A submitted that he was the co owner of the 200 employee business with his wife. He had been 23 years in business .The Complainant had not presented any issues since she joined the company as a Graduate and had been offered an 11.5% pay increase when competition loomed . On March 30, he and his wife, Mrs A, phoned the Office to speak to the Complainant. The phone was on speaker .He sought to establish whether costings could be done by the next day to enable the submission of a tender ?.The company had been loss making and it was important to identify the products that demonstrated that loss .He asked the complainant to put all her work aside to prioritise this work .The call was 5-6 minutes in duration .He was surprised when the phone went dead. Mrs A followed up the call on several occasions, leaving four messages which did not illicit a call back. Mr A confirmed that the request was reasonable in the time frame allowed. He arrived to the Office after 1pm, and approached Ms B, the Team Manager, where the Quality Team were in attendance. He noted that the complainant was not at her desk and sought her whereabouts? He asked that she contact him on her return, but did not hear back. He phoned Ms B at 3.15pm and asked whether she had asked the complainant to call him? He did not get a response. He asked that both The complainant and Ms B attend his office ,asking Ms B to go first to the canteen while he addressed the complainant .He observed the complainant to be fiddling with her phone and wondered whether he was being taped ? The Complainant confirmed that she had cut both of the owners off the phone call earlier that day. She added that if she “were here in 12 months, I would not call either of you back”. Mr A felt that he gave her a chance to express remorse, given that someone could have a bad day. He submitted that the complainant began to shout and accused him of having hearing problems and that he should attend a Doctor .He tried to explain how critical the costings were but was met with defiance and disrespect. He stated that it was not his intention to dismiss the complainant but he couldn’t tolerate the lack of cooperation in business matters and her insubordination .He contended that she had not shown regard for the business .He explained to the complainant that her behaviour would not be tolerated and dismissed her. She left the Office and shouted “ So I am being fired “ He proceeded to escort her to her car and explained that he would bring her belongings to her in line with HACCUP guidelines on the safe reception of food at the company .He again suspected that he was being recorded when he tipped the complainant on her sleeve to guide her passage, and she claimed that she had been assaulted . Mr A confirmed that the target was met for the tender with Ms Bs’ co operation. During cross examination : Mr A denied that the back drop to the morning call was weighted in pressure and stated that they had been calm on the phone .He confirmed that the complainant was asked to assist Ms B. He confirmed that the complainant was provided with an opportunity to explain things in the afternoon meeting “ not in front of her boss “.He confirmed that he had made contact with the Manageress, Ms B at 1.15. Mr A confirmed that he decided to summarily dismiss the complainant when she left him no choice. He stated that his explanations of the seriousness of the costings issue had gone unheeded by the complainant. He denied that he placed his arm on the complainant and confirmed that he touched her sleeve .He stated that the premises ended at the road and he went to the road with her. Mr A submitted that the complainant was given an opportunity to demonstrate a corrective action but he found her behaviour constituted gross misconduct .He denied that he had pre meditated the decision to dismiss the complainant .He did not want to dismiss her but her behaviour was inexcusable . He had not intended on actioning the Disciplinary procedure as he understood he would need the presence of another Company representative. In response to the adjudicator’s questions, Mr A confirmed that there had been a change in the complainant’s demeanour at work. The afternoon meeting lasted 30 minutes. Mr A confirmed that he had dismissed a total of 2 people in his professional life .The Company had the Chief Financial Officer available to complete the appeal . He confirmed that the tender was successful. Evidence of the Chief Financial Officer ( Ms CFO) Ms CFO had worked part time with the company from January 2016.She stated that the owners were “hands on”. She understood that the company was chasing a large tender with an existing customer. She had observed some duplication in the work of Ms B and the complainant on costings. She had met with both employees informally at 12.45 hrs on March 30 as she worked until 1.30 pm She had come from meeting with the owners and stressed the importance of the costings .She was aware that the costings took too long too complete and offered to assist the process .She submitted that she received an abrasive response .She confirmed that 50 costings were required for the following Friday and this work had been going on for a month when it was a 4-5 hours piece of work. Ms CFO submitted that she had subsequently sent an email at 13.21 hrs to all parties involved in the costing process which outlined the objective of her involvement. “ The aim of this is to try and help everyone involved and give us visibility over the profit margins or unfortunately from time to time the loss margins” Ms CFO contended that the complainant expressed the view that the company was profitable and “she wasn’t going to be there this evening “. Evidence of Mrs A. Mrs A is a Director and half owner of the company. She confirmed that both she and Mr A were on the phone call early in the morning of March 30 and she asked the complainant whether the costings for a particular product were complete?. She denied that she shouted or roared. She confirmed that the call was disconnected and she assumed that she had got cut off and tried to call back. During cross examination, She denied mentioning the mortgage or the economical state of the company on the call. The staffs were aware of re financing. Mrs A confirmed that she was not informed that the requested costings were almost complete. She denied being aggressive or agitated towards the complainant. The Respondent Solicitor summarised the case : The Respondent had behaved reasonably in the face of the complainant’s refusal to take reasonable instructions .The Employer was left with no option but to terminate the employment .The costings were a crucial part of the business and the complainant was both qualified in the area and had experience of costings .She knew how central the costings were. The Complainant waivered her right of appeal and had not exhausted the internal remedies open to her .She had access to Legal advice during the period covered in the appeals mechanism. The Respondent contended that the complainant contributed to her own dismissal through her insubordinate approach. The Respondent submitted case law in : Employee V Employer UD 1136/2011 Frizelle and New Ross Credit Union , High Court ,1997 Niamh Shelly V Shelley Pharma Ireland UD 142/2015 April Woods v UHY Farrelly Dawe White ltd UD 1700/2013 CA -00006094-02 Minimum Notice This claim was disputed by the respondent .Gross Misconduct may give rise to summary dismissal without notice or payment in lieu of notice .The Respondent submitted that there were no grounds on which the company should meet the payment given the dismissal was linked to gross misconduct.
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Summary of Complainant’s Case:
The Complainants Representative outlined that the complainant had commenced work on 6 August 2014,she worked a 40 hour week for a gross weekly salary of €557.69.He stated that the complainant had worked without incident until the events of March 30, 2016. He submitted that the complainant had received a phone call from Mrs A who yelled at her and verbally abused her in pursuance of costings which couldn’t be down in the time allowed. Mr A subsequently commanded the Office Manager, Ms B and the complainant downstairs to his Office, where Ms B was to remain outside. Mr A held a disciplinary meeting which culminated in him instructing the complainant “to get the hell out of here” and she was asked to leave .This amounted to a summary dismissal where the complainant was denied her right to be heard. He submitted that the complainant had been doing well at the company and had received a pay rise not long before the incident. He had addressed the company by letter seeking reasons for the dismissal and compensation on March 31, 2016. The response to this was contained in the letter from the company dated April 7, 2016. He submitted that the dismissal was unfair and disproportionate. Evidence of the Complainant : The Complainant submitted that she had studied food science and had worked through college .She interviewed for a position at the respondent company and was offered the job the same evening. She commenced work in the New Product Development Team on 6 August 2014. She worked with the Manager, Ms B, who had been there for 15 years and another colleague of 1 year tenure .Her job, was to develop product and involved sampling and costing .She received a raise in October 2016. Mr A was inclined to request the costings from Ms B on excel rather than on the PC and she and the other team member would sign, photocopy and save on the computer .The costings would then be passed to the National Accounts Manager. In March 2016, discrepancies arose in the calculation of the costings, the owners were not happy and got them to change the overheads , previously done annually .Further changes arose on the appointment of Ms CFO as everything had to go through her .Mr A had the superior knowledge of the costings . On March 29, she was aware that Mrs A had yelled at Ms B, who told her that she was being blamed for the issue of delayed costings .They prioritised the costings for the prospective renewed customer and they worked the whole day on it. On the next morning, Ms B collected samples from the sister plant( for the biggest customer) and the complainant started work at 08.30hrs. The Complainant submitted that she received a call from Mrs A. a short while after she started work.She had never rang her before and she was cross . Mrs A inquired whether she knew about the loss on a particular customer account?. She was informed that costings were needed and was requested to get all the costings by the following morning. She was unaware that Mr A was on the call. She stated that she couldn’t understand and was hoping that Ms B would come down and manage the situation .She put down the phone and went to the Bathroom crying .She rang Ms B and told her that costings were needed straightaway for the next morning. The Complainant stated that she didn’t get the follow on calls from Mrs A and described that “she was a mess “.She stated that she had not refused to do the costings. She recalled that Ms CFO had come to the office seeking to discuss costings to improve the system. Ms B was annoyed and her phone rang and she left. The Complainant did not respond to Ms CFOs email as she was gone the next day .She denied stating that she would not be there this evening . The Complainant submitted that she returned from her lunch to discover that she and Ms B were required to attend Mr As office straightaway .She went downstairs passing Mrs A, who had her back turned .She entered the office second and Ms B was asked to leave .Mr A pointed to a chair and he closed the door .He asked her why she had hung up on Mrs A, earlier? She stated that she was afraid to call her back , but had not refused to do the costings .She just could not tell her when they would be done .She recalled that Mr A called her a liar on two occasions. The Complainant told Mr A that she would do her best and didn’t want to cry in front of him .She recalled Mr A stating that “It better not happen again as you will be out the gate “to which she replied “that’s fine”. Mr A then roared “You are Fired”. She submitted that she began to walk outside he Pre Fab when, Mr As hand grabbed her, throwing her backwards and she panicked .This was observed by the Receptionist .She instructed Mr A to remove his hands from her .She went on to say good bye to the receptionist at the bottom of the stairs and to Ms B in the canteen and went out towards the Public Road. She was confused at this point as she was not alerted to any stages of the Disciplinary procedure and did not have a representative .The Complainant submitted that she was living in the town adjacent to the Company and was terrified to meet the owners . She had bruises on her arm and she couldn’t leave the house. She was aware that MS CFO was to do the appeal of the Dismissal .This was the only issue she had with Mr A. During cross examination, she confirmed that she stayed in the town for a month post dismissal and was too terrified to do the appeal .The Gardaí had not taken further action in relation to the alleged assault. She confirmed that she then moved home. The Complainant confirmed that Mrs A had looked for all costings not just the prospective tender as that was nearly done .She was aware that Mrs A had hung up on Ms B the day before. She couldn’t contemplate taking a grievance due to being terrified. She couldn’t understand why Mrs A phoned her and not Ms Bysshe explained that she wanted to speak to Ms B as she didn’t know what to do . She confirmed that she had not requested CC TV footage. The Complainant confirmed that the walk to the road was of 5 steps. She confirmed that she had contacted him Office later that day for her P45 as she was out of pay and expected to have to sign on for benefit. She confirmed that the meeting which concluded in Dismissal lasted 10-20 mins .She had concluded her probationary period and had not seen the company procedures. She confirmed that she had not taken any action post a “ cooling off period” outside speaking to several people at the company .She confirmed that she understood that she was asked to complete all the costings . The Complainant gave evidence of loss and mitigation where she attended 20 interviews. She secured new work on October 3 , 2016 The Complainant Solicitor summarised the case : There is a clear dispute on the topic of the phone calls .The costings on the prospective tender were almost complete .The Respondent contacted the complainant and by passed the Office Manager, Ms B. The Complainant was requested to go to a meeting after lunch without warning .She was not afforded a right to a representative, afforded details of the allegations or given a right of reply .No action was taken against the Manageress. The Complainant did not have previous warnings or difficulties .The dismissal was a disproportionate action CA -00006094-02 Minimum Notice The Complainant submitted that as she was fired on the spot and asked to leave, she was denied her statutory minimum notice on termination of her employment. |
Findings and Conclusions:
CA -00006094-01 Unfair Dismissal Claim I have considered both party’s submissions and evidence adduced in this case .I have also considered the company Disciplinary Procedure. The Law on Unfair Dismissal is outlined in Section 6 of the Act. Unfair dismissal.
Section 6(4) (b) permits a dismissal to be determined fair if it results “wholly or mainly from” Conduct. Section 6(7) of the Act permits me to consider the case for reasonableness of the approach of the employer by act or omission and whether codes of conduct were adhered to?
I found this to be a very unusual case. The parties had co –existed in a positive vein from August 2014 to March 29, 2016 without incident .This period reflected a pay rise for the complainant as the Respondent was keen to retain her skills .This changed in the first 8 hours of business on March 30, 2016. I accept the evidence of Mr A, as confirmed by Ms CFO that the company was having trading difficulties and was keen to win back business and the costings provided an essential back drop to that process. I was struck by the absence of Ms B from either parties witness line up , given : 1 Her centrality to the events of March 30 2 Her 15 years at the helm of the three person team who compiled and submitted the costings. In her complaint form, the complainant referred to a number of “ abusive and frightening calls “ from Mrs A that morning , yet her evidence reflected just one call .She did refer to her understanding that Ms B had been in negative dialogue with Mrs A the day before, however her evidence detailed one call . I found considerable conflict in relation to both parties recall of the first phone call of the day which was followed up by a number of failed attempts to secure a resumed conversation with the complainant during the course of the morning. I found that the complainant understood that she was being asked to complete a far broader portfolio of costings than she actually was .The costings required in the narrow time frame were based on a one customer account . I appreciate that it is not my role to decide who did the right or the wrong thing in terms of the circumstances surrounding dismissal. Suffice to say, I found that there was a communication breakdown between the parties which could have been remedied in the follow up phone calls .I cannot accept that it was reasonable for the complainant to evade all those calls, given her undisputed calm participation in the unannounced collective meeting with Ms CFO, Ms B and the complainant shortly after 1 pm. I was struck by Ms CFO’s account of her encounter with the costings team and how she believed she encountered an abrasive approach from them. I found a certain inconsistency in the reports of this team being under pressure to complete costings, coupled with an undisputed delayed start time at the company base by Ms B and extended periods away from her desk by the complainant. I found it difficult to identify from the evidence adduced that this was a team under pressure to meet a deadline on that day. This, for me at least imported some credibility into the Respondent evidence on apprehension that the costings were far from completed to anchor their bid to submit a tender. However, not withstanding the commercial reality and associated apprehension of the Respondent, I was dissatisfied at the approach adopted by the Respondent on the management approach to their perceived lack of co-operation. In a very recent Labour Court case of DHL Irk ltd and Michael Coughlan ,UDD 1738, the Court set some time aside to reflect on the concept of “ gross misconduct “ “The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v BredinM160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary(IBEC, 1996)) wherein the Tribunal states: ‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. have always held that this exemption applies only to cases of very bad behavior of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’ I take from this that “gross misconduct” is very narrowly defined. I noted from the Company Disciplinary procedures that any decision taken by the company to invoke either the Disciplinary procedure or Dismissal, was to be prefaced by investigation .I have found a clear omission in this commitment . I found that the Respondent made several efforts to manage their unease regarding the incomplete and unfurnished costings up to 3 pm that afternoon .I was taken aback by the lack of a traceable response from the New Products team. However, I found the circumstances surrounding the meeting between Mr. A and the complainant to be deficient in fair procedures and natural justice. I was at a loss to understand, given Mrs. As proximity to the Office and their confirmed collective approach to business that Mr. A took this meeting alone. On the other hand, I must have regard that the owners expressed a serious concern regarding the ability of the company to generate a competitive tender in a stated time frame and these concerns had escalated due to a communication void with the key team. This was not the ideal back drop to having a reflective discussion. I found that Mr. A was subjected to an element of provocation by the complainant, which might ordinarily have been grounds to seek a recess in a discussion .However; I accept that the situation deteriorated rapidly on both sides and resulted in a confirmation of dismissal. I found that Mr. A was genuinely upset at the complainants personal attacks levied towards him. I found that the complainants upset resulted mainly from the after events to the dismissal and the alleged assault. I have considered the circumstances surrounding this meeting carefully and I found a number of cardinal procedural errors both at variance to the company procedures and the Statutory Code of Practice on Disciplinary Procedures SI 146/2000 The Complainant was denied adequate notice of a meeting where her dismissal on an unblemished record was being considered. She was denied an opportunity to state her case through representation. She was denied an impartial determination of the issues at hand. I also found that the complainant was not provided with an opportunity to improve. When I considered the circumstances , I was mindful of the evidence of Ms. CFO when she stated that the complainant had intimated that she intended to leave on that day also .While , this was hotly disputed by the complainant , I find that I preferred the Respondent version in that regard .I based this finding on the level of provocation levied by the complainant towards Mr. A during the meeting .I did not pick up that she was in any way afraid during the meeting and this was in sharp contrast to the fear she attributed to the aftermath of the first phone call of the day . I was left with a conclusion that this was a case where there was wrong on both sides. I have considered the Appeals mechanism offered by the Respondent and note that it emerged some 7 days after he dismissal and followed a cause of action instigated by the Complainants Solicitor .However , the appeal was waivered .I probed the complainant on this and while I accept that she did not have another job to go to ,I was not reassured by her reasoning for this waiver .By that stage , she was clearly represented legally and any conflicts on the composition of an Appeals forum could have been addressed at that level . I found the omission to progress an appeal to be profound but not fatal to the case. I was also struck by the speed in which the P45 was requested by the complainant. I have found there were considerable shortcomings in the behaviour of both parties in this case. On the Complainants side, I noted the prolonged lack of engagement with a reasonable request by her employer’s .On the Respondent side; I noted a summary dismissal devoid of fair procedures, natural justice and adherence to the company Disciplinary procedure. It was unreasonable that the complainant was excluded from the sequential steps of being allowed to register an improvement prior to the invocation of a Disciplinary procedure and certainly in advance of the ultimate disciplinary sanction of Dismissal .I found that the decision taken to dismiss the complainant was disproportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee .Frizelle v New Ross Credit Union, 1997, Flood J. applied. Base on the above findings, I must conclude that the Complainant was unfairly dismissed and the Respondent is not entitled to rely on the exclusion of Section 6(4) on conduct. However, I have found that the complainant made a 50% contribution to her dismissal. CA-00006094-02 Minimum Notice I have found that the complainant was unfairly dismissed and is entitled to one weeks pay in lieu of notice .Lennon V Breddin MN 160/1978 applied. |
Decision:CA-00006094-01 Unfair Dismissal 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. I have found that the Complainant was unfairly dismissed with a 50% contribution to her demise. I heard some evidence of mitigation and note that the complainant was re-employed by early October 2016. Therefore , I have found that compensation is the only practical avenue open to me in redress terms .I order the Respondent to pay compensation of a reduced award of €7,500 in respect of the Unfair Dismissal . CA-00006094-02 Minimum Notice Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 11 of the Minimum Notice and Terms of Employment Act, 1973, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. I have found that the complainant is entitled to one weeks pay in lieu of notice .I order the respondent to pay to the complainant the sum of €557.69 under the Act. |
Dated: 8th November 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Claim for Unfair Dismissal and Minimum Notice |