ADJ-00002421

ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00002421

Parties:

Complaint(s):

Date of Adjudication Hearing: 08/03/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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 respondent employed the complainant as a child care worker from the 10th of September 2012 until the 24th of October 2015. She was paid €1,600 per month. The parties made written and oral submission to the hearing.

Summary of Complainant’s Case:

The complainant submits that she was unfairly dismissed. On the 24th of September 2015, the complainant raised concerns in respect of working conditions and safety regulations pertaining to the welfare of the children in the respondent’s care. In particular, she pointed out that the owner’s mother who was employed as a cook undertook cooking and child care duties and switched between both. Furthermore, she referred to the fact that childcare regulations concerning the ratio of staff to children were being severely breached. Her genuine concerns were met with a hostile and angry reaction in public in front of other members of staff. She was informed that if she didn’t like the working conditions she could “get the fuck out of the crèche”. On the morning of the 24th of September 2015, she was required to work in a room with 11 children (aged between 18 months and 2.5 years) without assistance. A discussion took place between the respondent, the complainant and three other members of staff concerning the conditions at work on the day. The respondent said another member of staff could help the complainant when she remonstrated about her having been required to look after 11 children at which point the respondent reacted in the manner previously outlined. She was effectively dismissed on the day (told to leave) for having raised the matter of a breach of the child care Pre-school Regulations 2006 which in effect amounts to a protected disclosure within the meaning of this Act. She did not return to work thereafter. The child care pre-school Regulations 2006 require an adult ratio of 1:3 for children less than 2 years of age and 1:5 for children greater than two years of age.

Summary of Respondent’s Case:

The respondent submits that the complainant was not dismissed. There were no issues arising from the complainant’s employment for more than two years to the extent that no issues were raised nor was she the subject of any disciplinary action. Indeed, the complainant was entrusted to open the centre and was involved in all operational issues. Her mother and sister also worked for the respondent. At noon on the 24th of September 2015 the complainant requested to take her lunch break. Lunch break is taken between 12.00 and 14.00 hours depending on business need. When advised that she could not take her break at that time the complainant responded in a “confrontational and aggressive fashion.” She was then advised that if she were tired she should go home which she duly did. The respondent received calls from clients on the following morning at around 08.00 hours that the premises were not open. She immediately attempted to contact the complainant by text enquiring as to why she had not attended for work. She received no response until later that evening at which point the complainant made allegations against the respondent based on the interaction on the previous day. She did not allege that she was dismissed or indicate that it was her intention to resign. The respondent was shocked at this turn of events and invited the complainant to a meeting to discuss the matter. In the absence of a response the respondent contacted the complainant on the 2nd of October 2015 for clarification. The response was to the effect that she would not be returning to work based upon the behavioural allegations previously made. The respondent wrote to the complainant on the 5th of October requesting that she would reconsider her resignation and suggesting a meeting on the 14th inst.                                                      A letter of response from the complainant’s solicitor was received some six weeks later (30th of November) requesting her P45. In response, the solicitor was advised that she was not dismissed. The respondent relied upon its own role books and staff rosters to dispute the complainant’s submission that she had been left in charge of 11 children on the day in question.

Findings and Conclusions:

The pertinent questions to be addressed in the instant case are whether a dismissal within the meaning of the act has occurred or not in the first instance and if so whether in all the circumstances that dismissal arose as a direct result of the complainant having made a protected disclosure within the meaning of the Protected Disclosure Act, 2014.

The respondent’s efforts to engage the complainant post termination would suggest that this was not a dismissal within the meaning of the Act. The events as described (disputed between the parties and referred to in the complainant’s text message of the 25th of September) which took place over a short period of time could not be reasonably regarded as being so oppressive as to make it impossible for the complainant to continue in the employment in circumstances where it was equally imperative that the complainant to behave reasonably (mirror image concept) in her dealings with the respondent.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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 find that the complaint is not well founded.

Dated:   14 February 2018

Workplace Relations Commission Adjudication Officer: Michael Hayes