ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015132
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00019690-001 | 11/06/2018 |
Date of Adjudication Hearing: 16/10/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issues in contention concern the alleged Unfair Dismissal of a Travel Consultant by a Travel Agency. |
1: Summary of Complainant’s Case:
The Complainant was employed for over ten years. In January 2017, while on holidays, she suffered a very serious injury. The injury and its after effects continued to the date of the Hearing. She had been unable to go back to work for over a year. It was still unclear when she would be fully fit. The Respondent paid her full pay until February of 2018. On the 16th February 2018 the Respondent wrote to her informing her that he could no longer pay her salary and would be issuing her P45 that month and terminating her employment. There was no formal meeting to discuss the ending of the employment, no right of reply or representation offered and no Appeal process indicated. The Complainant was effectively all her rights under Natural Justice and SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary procedures. |
2: Summary of Respondent’s Case:
The Respondent paid the Complainant in full for over a year from the date of her injury. This was a very considerable burden on a small two-person business which had effectively been reduced to a one-person operation. By February 2018 it was still very unclear when, if ever, the Complainant would be in a position to return. In addition, by February 2018 the communications between the Complainant and the Respondent had become very “offhand” on the Complainant’s part. The Respondent was becoming very frustrated and the survival of the business was now in jeopardy. Accordingly, the Respondent wrote the P45 letter of the 16th February 2018, effectively terminating the Complainant’s employment, out of sheer frustration and the urgent need to have the Complainant’s work duties carried out as the Travel business was entering its busiest season. It was an entirely understandable response from an employer in the very stressful situation the Respondent found himself in.
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3: Findings and Conclusions:
3:1 The Law – Unfair Dismissals Act, 1977 and SI No 146 of 2000 - Code of Practice on Grievance and Disciplinary Procedures. The precepts of Natural Justice. The well accepted Law in this area, especially where a medical issue is involved, is that a Dismissal to be deemed fair, has to follow the precepts of Natural Justice and have well established Procedures regarding meetings, prior notification of agendas, seeking of full independent medical advice, advising / affording the Complainant Representational rights and allowing a fully Independent Appeal procedures post any Dismissal. Options other than Dismissal needed to have been considered. In this case none of these requirements were adhered to. Accordingly, the Dismissal must be deemed Unfair. 3:2 Redress A number of observations are necessary here. Firstly, the Complainant was still not (at the date of the hearing) available for work due to the ongoing after effects of her injury. Her future medical prognosis was quite unclear. Accordingly, the question of loss of future earnings does not arise. Secondly the Complainant was in receipt of full salary for a period of approximately 12 months from the date of her injury. The Respondent does not have a Sick Pay scheme and the salary payment was entirely on an ex gratia/goodwill basis from the Respondent. Thirdly the Respondent Company is a two-person business comprising the Complainant and the Respondent. The Respondent carried on the business on a one-person basis for most of 2017 but obviously this could not continue indefinitely. The question of the form of Redress was briefly discussed at the conclusion of the Hearing. Reinstatement and Revengement were considered as possibilities but it was felt between the parties that the very close business relationships required in a two-person operation had been sundered to such an extent as to render these options now unrealistic. According taking the above points into account Compensation is the only option available and I award a Redress sum of €2,500 (being approximately 4 weeks gross pay) to the Complainant.
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4: 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.
Act | Complaint/Dispute Reference No. | Summary decision/ Please refer to Section Three above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00019690-001 | Claim for unfair Dismissal is upheld. Redress of € 2,500 Gross is awarded to the Complainant.
The Taxation of this amount to be a matter for consideration in conjunction with the Revenue Commissioners. |
Dated: 04/12/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee