ADJ-00000588

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00000588

Parties:

Complaints:

Date of Adjudication Hearing: 29/05/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Location of Hearing: Room 4.01 Lansdowne House

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 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:

The Respondent to this complaint is a Householder and is in a private capacity.

1) Employment Equality Act 1998 CA 838-001

Summary of Complainant’s Case:

Preliminary Point – jurisdiction

Substantive complaint

The Complainant cited three incidents where she alleged that she was discriminated against on grounds of race.

1) November 2013

In November 2013 she stated that the Respondent spoke to her in an aggressive manner saying “who is hiring you? and “we don’t need someone like you from Africa to cook for us”. She was shocked and frightened by this.

2)24^th February 2015

She stated that the Respondent told her to “go back to your country I don’t care about the money”. The money refers to the contractual entitlement to three months’ notice.

3) 9^th April 2015

She stated that the Respondent approached her and told her that his colleague said “Ethiopians are like donkeys” and that he sounded like he agreed with the statement.

She filed a report on iReport Racist on 26^th May 2015 concerning incidents and was assisted by a migrants rights organisation.

Harassment

She stated that there were many incidents of harassment throughout the employment. She spoke to her colleagues about this. She did not have dates and times but it was an ongoing situation.

She is seeking an extension to the time limit. She is a non-national and not familiar with Irish employment legislation. She had visa difficulties following the dismissal.

Continuum

She stated that this discriminatory treatment continued to her dismissal on 24^th September 2016 and there is a continuum and the complaints of discriminatory treatment under race and harassment are in time.

She is seeking compensation.

Summary of Respondent’s Case:

Preliminary Point – jurisdiction; Withdrawal of the discriminatory dismissal claim under the Employment Equality Act.

Substantive matter

1) November 2013

The Respondent stated that he has no recollection of making this statement. He could not envisage any reason to make that statement. He has hired non-nationals in every place where he worked. He has worked abroad all his life. He rejects this allegation.

2)24^th February 2015

He has no recollection of making this statement. He could not see why he would make this statement. He doesn’t know what the circumstances were. He rejects this allegation

3) 9^th April 2015

He stated that he does not understand where this came from. He does not recall ever using this comment even if it was supposedly made by another person in another country. He never insulted her. This is rejected.

Harassment

He rejects any allegation of harassment.

He stated that he employed her on the basis of her availing of a single person accommodation. She was pregnant when she was appointed but they were not told of this. They facilitated her and following the birth of her child they rearranged her hours to start at lunch time not breakfast to suit her needs. They facilitated her wedding and got her husband a short term visa and allowed him to stay with them. They welcomed him into their home and dined with him on occasion. She was treated well and they deny these false allegations and they don’t know where they are coming from.

Findings and Conclusions:

Time limit

This complaint was received by the Commission on 13^th November 2016. As per the time limits under the Act the period that may be investigated and adjudicated upon is 14^th May 2015 to 13^th November 2015, a period of 6 months, unless an additional 6 months extension is granted due to reasonable cause.

The Labour Court in the Cementation Skanska V Carroll DWT0342 stated, “ in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”

I note that the Complainant stated that she was a non-national, didn’t know her rights concerning Irish employment law and she had difficulties in getting a visa after her dismissal.

I note that her solicitor in evidence to the hearing stated that she had been consulting them before the dismissal regarding the visa matter and that the firm was aware of her circumstances throughout the employment particularly towards the end of the matter.

I note that there was evidence that she also consulted a migrants’ rights organisation on 26^th May 2015.

Despite this advice being available to her she did not submit a complaint until 13^th November 2015.

Therefore I find that she has not established reasonable cause to extend the time limit.

Continuum

I refer to the decision under the Unfair Dismissals Acts.

I find that the issues relating to the dismissal concerned her alleged failure to return from holidays and did not concern equality matters.

Therefore I did not find that there was a continuum established between the incidents referred to above and the dismissal.

Therefore I find that these complaints are out of time and I do not have jurisdiction to deal with them.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the above stated reasons I have decided that these complaints are out of time and I do not have jurisdiction to deal with them.

1) Unfair Dismissals Act 1977 CA 838-002

Summary of Respondent’s Case:

The Complainant commenced employment on 19^th August 2013. In November 2013 she was granted 6 days leave to return home to marry. She returned 3 days late. The Respondent expressed their dissatisfaction over the late return as they were advised that she had been late back with the previous employer.

In July 2015 she expressed a wish to take holidays at home to see her father and wanted to be home for the New Year which fell on 11^th September 2015. The Respondent made it clear to her on appointment that she would take holidays to coincide with the Respondent’s and to return by 23^rd/24^th August. On 14^th August she purchased flights home with a return date of 20^th September 2015. She did not ask for prior authorisation nor did she inform them. She commenced her unannounced leave while the Respondent had begun their holidays. There was never a mutual agreement to take these holidays. As they were paying for the flights she was asked to book the holidays earlier. On the day of her departure from Dublin she was warned several times over the phone not to be late back. She was expected back on 24^th /25^th August 20105. Upon the Respondent’s return they did not get any contact from her. They then emailed her on 26^th August and also copied her mother and her husband who was in her home country. She finally answered on 28^th August asking for 2-3 weeks under several pretexts. She referred to her father’s skin problems and issues with infrastructures, which required her father to vacate his home. Her father’s illness was not serious and he commenced a treatment of antibiotics some 12 days after the Complainant returned to Dublin. She also stated that there were mistakes on her flight dates. She was given an additional 3 days to return and they set 31^st August as the last day to return. She was told clearly that her job would be gone if she did not return by that date. She did not contact the Respondent until 24^th September 2015. Her actions breached the bond of trust. The Respondent could not wait as they had work commitments which demanded a Cook. They had to make alternative arrangements. Because they had not heard from her they emailed her to remove her belongings and settle the account. She did not reply. Her failure to return to work was a fundament breach of the contract of employment.

She had no valid reason for her failure to return on time. In fact she initially booked a return flight for 20^th September 2015 and later changed it to 23^rd. Her father’s illness was not serious and did not require her presence. Her father was aware of the potential demolition of his home in October 20104.

She was dismissed for breach of her professional duties. This complaint is rejected.

Summary of Complainant’s Case:

The Complainant booked flights home to commence on 14^th August with a view to returning on 25^th August. A mistake was made with the tickets and the return flight was for 20^th September. When she discovered this she tried to change it but she was told that it would be cheaper to change the flight from her home rather than Dublin. When she arrived home she discovered that her father was ill and required her care. He had separated from her mother and she was the only person to care for him. Her husband lived a long way away and her brother was a teenager. She also discovered that her father’s home was being demolished for street widening purposes and she had to assist him find alternative accommodation. She contacted her employer and asked for an additional 2-3 weeks. She eventually returned to Dublin on September 23^rd and contacted the Respondent on 24^th September. He told her that her job was gone. He did not offer her a chance to explain what had happened and why they should not dismiss her. She was not offered a right of appeal. She didn’t contact the Respondent because she was afraid of him. He had screamed at her in the past and banged on walls. She had nowhere to stay and she had to stay in hotel for 2 days and then stayed with friends. Her last payment was in July and she did not get minimum notice. She has lived in Ireland since. She has not got a job since. On 14^th November 2016 she got approval to stay here and to work. She has not got a job and did not apply for work. This was why she didn’t make a claim earlier despite the fact that she had been dealing with a solicitor and a migrant rights organisation.

The dismissal lacked fair procedure. She was not given the right to explain her absence, not given the right to defend herself, not given the right of representation and not given the right of appeal. The dismissal was excessive. The Respondent did not take into account the impact of dismissal and the fact that she lost her home as a result. She initially sought re-instatement but then sought compensation.

I note that the dismissal centres round the taking of holidays.

Therefore in law the responsibility rests with the employer for the arrangements for the taking of holidays as long as they take into account the need to reconcile work and family responsibilities.

I find that the Respondent was reasonable to set the times for holidays to coincide with their holidays.

I note that the Complainant sought to take holidays to coincide with the New Year in her home country which was 11^th September and this was declined.

I note that the Respondent advised the Complainant to arrange her holidays with a view to being back on 25^th August.

I note that the Complainant booked flights at the airline office with flights to return on 20^th September 2015. She alleged that this was a mistake.

I find it incredible that she was not asked to confirm the dates before she booked these flights.

I note that she stated that once she discovered that there was an error with the return flight she tried to change it but was advised that it would be cheaper when she returned home rather than do it in Dublin

I note that she did not change the flights when she returned home and in fact she eventually changed the flights to a later date of 23rd September.

I was not convinced by her evidence that she tried to change her flights to an earlier date.

I note that she alleged that her father was ill and required her care. Yet she admitted in evidence that his condition was not serious that it was a skin condition warranting a non-serious treatment.

I note that she stated that her father was old as well as infirm when in fact she confirmed that he was 60 years of age.

I note that she advised that her mother and father were separated so her mother could not assist.

I note that she stated that her husband who lives in her home country lived too far away to be of assistance.

I note that she stated that her brother was a teenager and could not care for him yet she advised the hearing that he was 28 years old.

I note that she advised that her father’s house was being demolished and she only learned of this when she arrived home.

I note that the Respondent established that her father was notified of a demolition order in October 2014. I accept that the Complainant produced correspondent that the demolition was not to take place until 2015.

I note that the Respondent contacted her to advise her to return by 25^th August. I note that she sought an extra 2 to 3 weeks but this was declined.

I note that she failed to contact her employer until 24^th September. I note that the Respondent believed that she had left the employment.

I find that the Complainant took the law into her own hands, she booked flights to return over 4 weeks later than instructed by the Respondent, she didn’t change flights if a mistake had occurred, she did not present credible evidence regarding a possible mistake in booking flights, she didn’t establish a real need to stay in her home country, she failed to contact her employer, she failed to attend work as required and she failed to fulfil her contact of employment.

On the balance of probability I did not find her evidence credible.

I find that the dismissal was substantively fair.

Procedural Fairness

I find that the Respondent set out her holiday times that were reasonable.

I find that the Complainant did not adhere to them.

I find that the Respondent phoned and emailed her about the return date.

I find that the Respondent warned her of the consequences of not returning on time.

I find that the Complainant failed to engage with her employer.

I did not find any evidence that the relationship was so bad that she couldn’t talk to him.

I find that the Respondent failed to engage with her upon her return to Dublin.

I find that they failed to allow her give an explanation for her absence.

I find that they failed to give her the right of representation.

I find that they failed to give her the right to defend herself.

I find that they failed to give her the right to appeal the sanction of dismissal.

I find that the dismissal was procedurally unfair and this renders the dismissal unfair.

However I find that she has contributed substantially to her dismissal.

I note that she has sought compensation. Her contribution to her dismissal must be taken into account when determining the quantum of the award.

I note that she has remained in Ireland since. She did not have a visa until November 2016. Therefore she was unable to mitigate her loss to that point.

I note that since she was allowed to work she has not sought employment and has not applied for any job whatsoever.

In the Employment Appeals Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

I find that the Complainant has failed to mitigate her loss. This must be reflected in the quantum of the award.

Decision:

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.

For the above stated reasons I have decided that the dismissal was unfair.

I have decided that the Complainant has contributed substantially to her dismissal.

I have decided that the Complainant has failed to mitigate her loss.

I have decided that the Respondent should pay the Complainant €3,000 in compensation for the unfair dismissal which reflects her contribution to the dismissal and her failure to mitigate her loss.

This is to be paid within six weeks of the date below.

Dated:   25^th August 2017

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