Complainant

Respondent

Anonymised Parties

A Cook

A Fast Food Outlet

Representatives

  Nil

 Nil

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00016855-001

16/01/2018

The Complainant commenced employment as a cook in a fast food outlet on 11th July 2017.  She worked between 20 and 30 hours per week at an hourly rate of € 9.15.  The Complainant’s employment ended on 9th January 2018, she has not worked since her employment ended. A complaint was lodged with the WRC on 16th January 2018.

The fact of dismissal is in dispute in this case.

The Complainant submits that on the 31st December 2017, while shopping with her daughter she became unwell, collapsed and was taken to hospital.  The Complainant’s sister rang the Respondent and told them that the Complainant would not be able attend work the following day.

The Complainant subsequently attended her own doctor and on the 3rd January informed the Respondent that she would return to work on the 4th January. On the 4th January the Complainant says she left a doctor’s note for her absence in her workplace. 

The Complainant attended work on the 6th January and was advised that a Fit to Return to Work Certificate was required.  When the Complainant returned to work later that day, a discussion took place with a manager and she was told the discussion was not a disciplinary meeting but that it was just to gather the facts surrounding her absence.  The Complainant was sent home.

The Complainant was subsequently contacted by her manager and told there would be a meeting on the 9th January.  The reason for the meeting was, as told to the Complainant, because management did not believe the information she had given them or the reason she had given for being sick.

The Complainant submits that the meeting of the 9th January only lasted seven minutes. She says her manager walked in, looked at her and said, “I think it best for us to part our separate ways now”.  The Complainant asked was she being dismissed to which her managed replied, “yes”.  She got no explanation for being dismissed when she asked for one. The Complainant left the meeting and did not hear form her employer until she received her final pay slip and a letter of dismissal.

In oral evidence, the Complainant stated that when she met with her managers on the 9th January she was told they did not believe her story about her absence, that they had checked with the shopping centre and the hospital and neither had any record of any incident or that she was a patient.  The managers, she said, kept saying, “I think we should part our ways”.  The meeting ended amicably, with the Complainant saying she enjoyed working with the Respondent and if they needed her in the future they should contact her.

The Respondent believes the termination of the Complainant’s employment relationship with them was mutually agreed and therefore not a dismissal.

The Respondent submits that they were first alerted to the Complainant’s illness on Monday 1st January 2018 at 8.15 that day, when the on-duty manager received a phone call from a woman claiming to be the Complainant’s sister, claiming that they were standing around her hospital bed and that the Complainant had “done something stupid.”

On the 2nd January the Complainant left a voice message with her Duty-manager saying she had been discharged from hospital.  Following this the Respondent decided to arrange a meeting with the Complainant for the 3rd January.

The Respondent submits that at the meeting of the 3rd January the Complainant was asked to account for her absences in the run up to and post New Year.   Regarding the absence of the 1st January, the Complainant told her managers that the shopping centre security had been notified of her collapse and that the emergency services had been called to bring her to hospital.  She continued by saying she had been treated in the hospital and was discharged on 2nd January.

The Respondent submits that due to the inconsistencies in the Complainant’s explanation they asked her to get a Return to Work Certificate along with a doctor’s note to include certain pieces of information.

On the 5th January the Complainant submitted a return to work cert dated 4th January, however this did not suffice as in the opinion of the Respondent it did not include the necessary information requested.

As part of its investigation the Respondent contacted the shopping centre and the hospital and made enquiries about the Complainant.  The Respondent contends that the shopping centre had no record of any such incident as described by the Complainant having taken place. The Respondent contends that the hospital also had no record of the Complainant having been a patient on the dates in question.

A meeting was arranged for the 9th January to discuss the findings of the investigation made by the Respondent. The Complainant was told in advance that she could bring a third party.

At the outset of this meeting the Respondent reiterated his disappointment at the stress and anxiety caused to staff believing that harm had come to the Complainant.  The Respondent submits that the Complainant did not refute any of the points put to her.  That being the case the Respondent put it to the Complainant “that given the situation that both parties found themselves in that they could both go their separate ways, to which the Complainant verbally agreed.”

The Respondent at all times believed the Complainant’s employment had been ended by mutual consent.

In oral evidence a witness for the Respondent stated that he thought the Complainant no longer wanted her job. He also stated that the Complainant had, at the time of the termination of her employment, received a Verbal Warning, with two more in process, for absences.

The Respondent stated that he did not want to let the Complainant go as they are constantly short of staff; her departure created a problem.

Regarding the meeting of 9th January, the Respondent stated that the Complainant had been made aware of her right of representation in advance.

This case is being brought under the Industrial Relations Acts as the Complainant does not have the required 12 months service for the Unfair Dismissals Act.1977. Nonetheless the requirements of Natural Justice apply and S.I. 146 of 2000 Code of Practice on Grievance and Disciplinary Issues can be referenced.

It is also well accepted law that the role of the Adjudication Officer is not to reinvestigate a Dismissal or Appeal but to ensure that proper procedures were followed and that Natural Justice was paramount throughout. A Dismissal decision has to be seen to be within the range of reasonable decisions that an employer in a similar sector might take.

In this case I find that a dismissal did take place. The Respondent may have had a genuine belief that the termination of the Complainant’s employment was by “mutual consent”, but when an employer says to an employee, “I think we should go our separate ways”, it is tantamount to saying, “you are dismissed”.

So, two questions need to be answered to decide if this dismissal was unfair or not unfair. Firstly, was it reasonable for the Respondent to dismiss the Complainant based on the evidence it had regarding her absence on 1st January? Secondly, was the Complainant afforded fair procedure in the process leading up to the decision to dismiss her?

In answer to the first question, I find that the Respondent was reasonable in deciding to end the employment of the Complainant due to the inconsistencies in her explanations regarding her absence on 1st January.  I believe it reasonable that such inconsistencies could lead to serious doubts about the integrity of the Complainant and were sufficient to break the required bond that must exist between employer and employee.  At the meeting of the 9th January the Complainant did not refute any of the points made by the Respondent. 

In answer to the second question, I find the Respondent was largely wanting in relation to the procedural aspects of the dismissal process.  The Respondent should have ensured that the Complainant was afforded all her rights, especially when it became clear that the issue could lead to her dismissal.  She was not warned sufficiently about the seriousness of the charge against her, she was not made aware of all her rights in advance of the meeting of 9th January. She was not granted an appeal. 

On account of the lack of proper procedures in this case I find overall that this was an unfair dismissal.  However, the Complainant, through her own actions, did contribute to her dismissal.

Given the short-length of service of the Complainant and her own contribution to her dismissal I recommend that the Respondent pay the Complainant a sum of €1,830 (approximately two months’ pay) in compensation in full and final settlement of the claim.

Absence, reasonableness, fair procedures