Complainant

Respondent

Anonymised Parties

A Kitchen Designer

Interior Design Company

Representatives

Aoife Hennessy, Sweeney McGann Solicitors

Kate Colbert, Colbert Solicitors

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-00009849-001

22/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00009849-002

22/02/2017

The Complainant commenced her employment with the Respondent on 1st January 2013 on a part-time basis as a Sales Assistant on a minimum wage. Within a very short period of time she was moved to a full-time position. She received two pay raises and in or around 2014 she was promoted to the role of Sales Manager and Interior Designer working 6 days a week. In September 2016 the Complainant was promoted to Kitchen Designer and Sales Manager. She was paid €520 gross a week and worked 57 hours a week. She is claiming she was unfairly dismissed by the Respondent and seeks compensation. She also seeks her entitlement to minimum notice.

The Respondent refutes the claims.

The Respondent disputes the fact of dismissal. The Respondent submits that the Complainant commenced her employment in January 2013 and resigned her position during a meeting on the 10th November 2016. The Respondent claims that the Complainant chose to resign her position by her own volition and refutes the claim of unfair dismissal. A P45 was issued to the Complainant following her solicitor’s request dated 23rd February 2017. The Respondent disputes also the position the Complainant held with the Respondent. The Respondent submits that the Complainant used the title ‘Sales Manager’ in her email signature and the Respondent never questioned it.

The Respondent submits that they had a good relationship with the Complainant and the Complainant and Ms A, the Director of the Respondent became friends.

Evidence of Ms A, the Director of the Respondent

Ms A submits that she became aware of the Complainant’s illness on the morning of the 7th November 2016. Following email exchange with the Complainant, it was agreed that she would go to the Complainant’s apartment to collect a medical certificate on 10th November 2016. She was aware of many different things going on in the Complainant’s personal and work life. She spoke with her on personal level about her illness. She stated that the Complainant told her that she wanted to leave. Ms A asked her “please make the decision not to make a decision”. Ms A in her direct evidence stated that the Complainant was distraught and clearly incoherent during the meeting. Ms A claims that she did not receive the medical certificate from the Complainant on that day. Ms A stated that she made the decision to request keys to the store from the Complainant, blocked her email access and social media privileges. She informed the hearing that it is a standard procedure.

In cross-examination Ms A confirmed that even though it was agreed that she was to visit the Complainant specifically to collect the cert she never got one from the Complainant. When asked why, taking that they were such good friends, she didn’t allow for some sick time she replied that she was only following procedures. The Complainant’s solicitor asked further if Ms A did not think that, since as she stated in her evidence the Complainant was incoherent during the meeting, she should have been extra careful on two levels, as an employer and as a friend. Ms A confirmed that for that reason she sent a text message asking how the Complainant was (20th November 2016). Ms A replying to further questions stated that she requested the Complainant’s key to the store to be returned on the 11th November due to security concerns. For that reason, she also blocked the Complainant’s access to work email and removed her as social media account administrator.

The Complainant submits that she was off during the week of 23rd October 2016. Following her return, she worked approximately 70 hour week, which was a very stressful week as it was the Christmas merchandising week and also a number of houses were being completed that she had to be on site for. By the Sunday of that week the Complainant became unwell and was certified off work due to exhaustion for two weeks. The Complainant contacted the Managing Director, Ms A on Monday 7th November and advised her that she was unwell but that she hoped only to take a week off. On 10th November Ms A called to the Complainant’s apartment to collect her sick certificate, this was not unusual as they had become personal friends. The Complainant expressed how difficult the previous week had been, how the long hours had been too much and that she felt that Ms A was not very understanding or appreciative with regard to the pressure and the hours for both the Complainant and the other staff. The Complainant also raised the issue with the manner in which she had been treated by a customer prior to going on holidays and the fact that the Gardaí had to be called and expressed her concern that there was no security in the store. Ms A advised her that she was overreacting. Ms A accused her of being depressed and offered her Prozac that she herself took. The Complainant refused. Ms A, seeing that the Complainant was distraught advised the Complainant “to make the decision not to make a decision”. Ms A advised that she was very stressed herself both personally and professionally. Ms A told the Complainant at that point that she had found someone else to fulfil the Complainant’s role, Ms F. She said that the Complainant no longer had a role but if she wished to re-apply, she could do so when a position became available and if she did get a role, she would be coming back on minimum wage. The Complainant was shocked and broke down into tears. Ms A left. The situation was even more difficult due to the fact that the Complainant believed that she had formed a close relationship with Ms A and her family. On the next day, the Complainant’s housemate and a co-worker asked her to return the store keys as per Ms A’s request. When the Complainant was advised later by another co-worker that they had been informed that she had “left”, she sent a text message to Ms A on 14th November 2016 asking her if she was being let go when she was just out sick. Ms A replied “there seems to be crossed wires” and asked her to call her anytime. She did not say that it was untrue and that her role was still available to her, as it’s clearly the case that it was not. On 15th November 2016 Ms A sent a further text to the Complainant asking her to call her but stated “I thought you were leaving” as if it was justification for her actions. Subsequently, the Complainant’s access to the work email was blocked.

The Complainant received nothing in writing and was not paid for the final week worked or any notice period. She sought legal advice in 21st November 2016 and a letter was sent to the Respondent. On 5th December 2016, the Complainant received an email from social media account advising that she was no longer an admin for the business and that she was removed on 5th December at 8am. This was without any notice. A response was received from the Respondent’s solicitor on 6th December 2016 and attempted to contend that the Complainant has not been dismissed from her position and stating that the position of a Trainee Kitchen Designer remains open to her. The Complainant was a Sales Manager and Kitchen Designer at the time of dismissal, which is confirmed in her contract of 14th October 2016.

A detailed reply was sent on 16th January 2017, setting out that the Complainant was clearly dismissed, she was removed from her work email, from work administration for social media and her shop keys were requested in return. The Complainant has still not been paid for the final week worked at that point in time. A reply was received on 7th February 2017 advising that the removal of the Complainant’s access to email and social media together with the request for the return of her keys was for security reasons. The Respondent still maintained that her position was opened to her. However, she still has not been paid. On 17th February 2017 a payslip was sent showing payment for 65 hours. On 24th March 2017 at 1.42am the Complainant received an email from Ms A. She requested that she “stop all this immediately”, “[The respondent] is my business & I get to choose who I get rid of who works for me”, “I will wrap this up in so much legal expense that you will have to give up”. A letter was sent to the Respondent’s solicitor on 27th March 2017 advising them that their client had sent a threatening email and that she was to cease and desist. They denied same by way of letter of the 29th March 2017 and sought a copy of same. The Respondent’s solicitor advised that their IT specialist had confirmed external interference with their client’s mailbox and was preparing a report and submitting same to the Gardaí. They advised that they object to the production of the email at the WRC and also sought that the Complainant would withdraw her complaint and threatened proceedings against the Complainant. By letter of 6th April 2017 it was advised on behalf of the Complainant that the latest letter was considered an attempt to bully the Complainant into withdrawing her claim. The Complainant’s solicitor sought that their IT consultant would meet with their IT consultant to view the devises. They also raised certain questions their IT consultant required information on. The Respondent did not reply to these queries or agree to such a meeting.

In summary, the Complainant was summarily dismissed on the 10th November 2016 from her position as Sales Manager and Kitchen Designer. The Respondent by its actions thereafter reaffirmed the dismissal by the removal of the Complainant’s from the administrator role on social media account, removal of access to the company email and the demand to return of her keys to the store. The Respondent failed to discharge the Complainant’s outstanding salary for upwards of 2 months. As a result of receiving a letter from the Complainant’s solicitor the Respondent attempted to represent that the Complainant’s role still existed. However, no attempt was made by the Respondent to in any way meaningfully engage with the Complainant form 10th November 2016 onwards. The email which the Complainant received from Ms A reaffirms the Complainant’s case.

The Complainant has been out of work for upwards 6 months. She commenced a new employment on 5th May 2015 and is earning approximately €30 less a month.

The Complainant’s evidence

The Complainant firstly addressed the matter of her position within the company and the Respondent allegation that she wasn’t a Sales Manager. The Complainant submits that her title was agreed upon and email signature was set up by the Respondent and therefore she could not “give herself the title” as alleged by the Respondent. The contract signed by Ms A states that her job title is ‘Floor Manager and Kitchen Design’.

The Complainant submits that the week leading to the dismissal was extremely stressful. She worked over 70 hours that week. The Complainant has just missed her grandfather’s funeral due to work engagements. There was also an incident in the office when she was abused by a client and the Gardaí had to be called. She was extremely busy trying to complete an assignment away from home. She got ill on Friday 4th November 2016 but worked on Friday and Saturday 5th November. She emailed Ms A directly on Monday morning 7th November informing her that has been certified sick for two weeks. Ms A asked her a few times when would she be back and requested the cert. They agreed that Ms A would call in to her apartment to collect the cert on 10th November 2016. The Complainant submits that first Ms A seemed to be concerned about her but later stated that her illness was unacceptable and the Complainant’s position is no longer there. The Complainant stated that she told Ms A that she loved her job and never mentioned that she would like to leave. The Complainant stated that Ms A ‘s mobile phone rang and she quickly collected the cert and left. On the next day, her housemate and co-worker requested the store keys to be returned to Ms A. The Complainant was subsequently informed via social media message by another co-worker that the staff were informed that she has left. The Complainant submits that sent Ms A a text message questioning this but she got no clear answer and she believed that she was dismissed. Thereafter, she sought a legal advice.  

Before examining the fairness or unfairness of an alleged dismissal, I must firstly be satisfied that the Complainant has been ‘dismissed’ as defined by Section 1 of the Unfair Dismissals Act 1977.

For a claim to be properly brought under Section 8 of the Unfair Dismissals Act 1977, an employee has to have been ‘dismissed’ on a particular date within the meaning of Section 1 of the Act as follows:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

Firstly, I am satisfied that paragraph (c) does not relate to the instant case.

There is a sharp difference in the evidence given by the Respondent and the Complainant in respect of practically all material facts of this case and no corroboration of either version of the events was available. It is not necessary for the Adjudication Officer to resolve all of those conflicts and it would be extremely difficult to do so given the divergence of the evidence adduced. However, there are a number of critical matters on which conclusion must be reached.

At the heart of this complaint is the meeting of 10th November 2016 and what exactly transpired at it. There were no witnesses to the actual conversation. It is agreed between the parties that up to the time of the events leading to the termination of the Complainant’s employment the relationship between the parties was positive and affable. The Complainant contended that the relationship deteriorated drastically after she informed the Respondent that she was ill. The Respondent denies it. The Respondent submits that the Complainant resigned her position during the meeting on the 10th November 2016. The Complainant submits that she was told at the meeting on the 10th November 2016 that her role was no longer there and once she was better she could apply when a position became available. There is no dispute that the Complainant became unwell and informed the Respondent of same on the 7th November 2016. On the 9th November 2016 the Respondent requested a doctor certificate to be delivered and it was agreed that Ms A will visit the Complainant at home to collect it. The evidence before me shows that Ms A visited the Complainant on the 10th November 2016 at around 5.15 pm. Ms A in her evidence submits that the Complainant was very upset and ‘clearly incoherent’ at the meeting. Ms A submits that the Complainant advised her that she wants to leave the company. Ms A submits that she asked her “Please make the decision not to make a decision”. Ms A said that she did not receive the cert from the Complainant. The Complainant submits that the medical cert was given to Ms A at the meeting. A certificate confirming that the Complainant attended with her GP on the morning of the 7th November 2016 and a medical certification was issued under stress/exhaustion related illness was delivered post-hearing.

The Complainant submits that at the beginning of the meeting Ms A seemed to be concerned about her illness but later she told the Complainant that it was unacceptable. The Complainant was told that her position is no longer there and a new person, Ms F has been employed. She was advised that once she felt better she could apply for a new position if it becomes available. However, she would be starting from the minimum wage. The Respondent denies that she told the Complainant that Ms F was to replace her. The Respondent informed the hearing that Ms F applied for the job some time after the 10th November 2016, signed her contract on the 14th November 2016 and started her work with the Respondent straight away. Ms A obliged to deliver evidence of same post-hearing. The evidence submitted post-hearing does not support this statement. The evidence before me shows that Ms F applied for a position of Kitchen Designer/Project Manager on the 2nd November 2016 and there is further email communication between Ms A and Ms F dated the 4th November to arrange a meeting. I note the Complainant’s concerns in relation to the timing of the emails, more specifically to the fact that it appears that Ms F reply was sent before Ms A asked to meet. In any event, from the evidence provided it is clear that Ms F was in contact with Ms A in relation to the job offer well in advance of Ms A’s meeting with the Complainant on the 10th November.

On the 11th November 2016, the Complainant’s housemate and co-worker collected her keys to the store as per the Respondent’s request. On the 14th November 2016 the Complainant was informed by another work colleague via social media message that the staff of the Respondent were informed that she has left. The Complainant sent a text message to Ms A saying “… I’m really upset. I’m out sick and she’s telling me you said I left? [Ms A] have you let me go without even discussing it with me? I’m so upset…everyone knows I love my job and you know I’m unwell we discuss this at my apartment and I am honestly so upset cause I trusted you and confided in you.. and you told [name of the co-worker] I’ve quit. I don’t know what to think right now. You need to clarify have you let me go from my position at [Respondent]?” [sic]. Ms A replied “…There seems to be crossed wires here! It’s much easier to discuss call me anytime” [sic]. She later sent another message “…We talked about all of the above and I thought you were leaving.” Within two weeks of the meeting on the 10th November the Complainant’s work email was blocked and on the 5th   December she was removed as Administrator of the Respondent’s social media account. The Complainant submits that she felt she was dismissed and she sought legal advice.

Even if the Complainant’s version of events at the meeting of 10th November were a complete fabrication (which I do not say it was) and it was accepted that the Complainant resigned her position at that meeting the Labour Court is clear in its decision Charles Shinkwin v Donna Millet (EED044) that there is a significant body of authority for the proposition that there are occasions on which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered.   In Kwik-Fit (GB) Limited v Linehan [1992] IRLR 156, the following passage appears at paragraph 31:-

·        “If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] IRLR 313). These we refer to as “special circumstances”. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively.” In Martin v Yeoman Aggregates Ltd [1983] IRLR 48 the following finding of the EAT is recited in the headnote:-“It is a matter of plain common sense, vital to industrial relations, that either an employer or an employee, should be given an opportunity of recanting from words spoken in the heat of the moment. It could not be accepted, as argued by the appellant, that once clear and unambiguous words are used the contract irreversibly comes to an end so that second thoughts make no difference”. In her book Dismissal Law in Ireland, Dr Mary Redmond wrote as follows at paragraph [21.24]: -“When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude that the employee has resigned. However, context is everything. A resignation should not be taken at face value where in the circumstances, there were heated exchanges or where the employee was unwell at the time. The intellectual make up of the employee may also be relevant.” Similar approach was taken by the EAT in Keane v Western Health Board (UD940/1988).

I find that in circumstances as described by the Respondent it would be unreasonable to accept the Complainant’s resignation. It is concerning that the Respondent, knowing that the Complainant was on sick leave due to stress and exhaustion, noting that she was distraught and ‘clearly incoherent’ at the meeting in question did not allow for a cooling off period and did not follow up on the matter.

One of the most concerning matters in this this case is the matter of a threatening email of 24th March 2017. The email was sent from Ms A ‘s email account to the Complainant. There was some dispute whether the email was sent at 01:42am or pm. However, it is not relevant to this dispute. The email states: “I advise you to stop all this immediately”,“I get too chose who I get rid of & who works for me.”, “… I knew I could get you out…”, …” i will wrap you in so much legal expense that you will have to give up…”, “…Call you Solicitor & tell her your dropping everything and I will meet you once i receive this in writing & give to you €1500 cash”, “…I should not of said them things to you or offered you pills”, ”… [named former employee] and you contently outshone me. Once [named employee] quit, I knew I could get you out also…” [sic]. Ms A denies sending the email and claims that there was interference with the Respondent’s IT system. On the first day of the hearing, 14th September 2017, the Respondent submitted that it has hired an IT expert, Mr. S to investigate the matter and his report would be send to the Gardaí. Mr. S concluded his investigation on the morning of the day of the hearing and gave evidence at the hearing. He confirmed that there was some activity from a device/devices other than Ms A’s. When asked to put his findings in plain language he confirmed that it seems like someone who knows the password logged in to Ms A’s account from a device other than hers. The information in the email shows clearly that the person sending the email was very familiar with the situation and the events which took place including the meeting on the 10th November. When asked by the Adjudication Officer, Ms A confirmed that at least 3 people excluding her know the password. Remarkably, despite her concern in terms of security outlined previously in respect of removing the Complainant’s access to email etc. she did not consider it necessary to investigate the matter. In reply to the IT expert engaged by the Complainant, Mr. S confirmed also that there was also no further checks of the ‘recovery email’, an email address to which information would be sent once Ms A’s email address was accessed form an unknown device. In fact, Mr. S was not certain if there is a recovery address. It was confirmed at the second day of the hearing that the report of the IT expert has not been and will not be submitted to the Gardaí.

Having reviewed all the oral and written evidence of the parties, I make the following findings:

·        In relation to the existence and delivery of a medical certification I find that the Complainant did obtain the cert on the 7th November 2017. The Complainant provided a letter from her GP confirming that she attended with her GP and a medical certification was issued under stress/exhaustion related illness. I don’t find it plausible that Ms A, having arranged a visit to the Complainant’s apartment on the 10th November 2016 to collect it did not, in fact, collect it.

·        In relation to whether or not the Complainant was informed that she was replaced in her role by Ms F I find that Ms A’s evidence was unreliable. She stated that Ms F applied for the job, attended interview and arranged her relocation from Dublin to Limerick after the meeting with the Complainant took place, to be precise in a short space of time between the evening of the 10th November and the 14th November when she started her job. The evidence submitted post hearing shows clearly that Ms F applied for the job on the 2nd November and was in communication with Ms A on the 4th November and started her employment on the 14th November.

·        In relation to whether the Complainant resigned her position or was she dismissed by the Respondent I find that both parties confirmed that the Complainant has had a very difficult time. She was exceptionally busy at work, she worked up to 70 hours a week, she was extremely stressed over abusive client, she has missed her grandfather’s funeral due to work commitments. Ms A confirmed that the Complainant was very upset and ‘clearly incoherent’ at the meeting on the 10th November. Nonetheless, she submits that the Complainant decidedly resigned her position and she accepted her resignation. I find it concerning that the Respondent did not consider that it owed the Complainant a duty of care in the circumstances. On the other hand, the Complainant submits that the Respondent dismissed her. The subsequent actions of the Respondent seem to validate her account of the events. She was asked for the store keys back, her email access was blocked and she was removed as an administrator of the social media account of the Respondent. At no stage did the Respondent claim that these actions were taken because of the Complainant’s resignation. Ms A clearly stated that it is a security measure adopted when a staff member is out sick. Ms F was recruited in the beginning of November and started her employment on the 14th November. The Respondent had an opportunity to clarify the matter when the Complainant asked her in a text message “have you let me go?”. However, all she said was “there seems to be crossed wires”, which clearly was of no assurance to the Complainant.

·        I note that in response to the Complainant’s solicitor correspondence the Respondent’s solicitor stated that the Complainant’s position as Trainee Kitchen Designed remains open to her. The Complainant submits that she was employed as a Sales/Floor Manager and Kitchen Designer at the time of dismissal as confirmed by her contract of 14th October 2016. I find implausible the evidence of Ms A that she did not draft the contract and did not read it before signing it.

Taking the above into consideration on the balance of probabilities I find that the Complainant’s version of the events is more credible. I am satisfied that the Complainant was dismissed by the Respondent.

Pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, the dismissal of an employee shall be deemed for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal. The burden of proof is firmly on the Respondent. Not only must the employer demonstrate that there were ‘substantial grounds’ but must also demonstrate that, in doing so, they followed a fair process.

I found no evidence to justify the dismissal. I therefore find that it was substantively unfair. I also find that the manner in which the dismissal was handled is unacceptable. I am satisfied that the Respondent has not discharged the onus of showing that the Complainant’s dismissal was fair.

Mitigation of Loss

EAT case Sheehan v Continental Administration Co Ltd (UD858/1999) 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”.

The Complainant submits that following the two week period of illness she was out of work for upwards of 6 months and secured new employment on 5th May 2017. She is earning approximately €30 less per month. The Complainant showed that she has sent over 25 applications, registered with various online recruitment services and attended a number of interviews. I am therefore satisfied that she made considerable effort to secure a new employment.

For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant was unfairly dismissed by the Respondent. Therefore, I consider it just and equitable in all the circumstances to award the Complainant €12,480 (approximately 24 weeks salary), subject to any lawful deductions, within 6 weeks of the date of this decision.

The Complainant asserts that she did not receive her statutory entitlement under the Minimum Notice & Terms of Employment Act, 1973.

The Respondent submits that on foot of the fact that the Complainant resigned her position she is not entitled to his statutory minimum notice.  

The evidence before me confirms that the Respondent dismissed the Complainant with immediate effect and did so without adhering to its obligations under the Minimum Notice and Terms of Employment Act, 1973 which under Section 4.2 (b) requires two weeks’ notice if the employee has been in the continuous service of his employer for two years or more.

In accordance with Section 4(2) d of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant was entitled to two weeks’ notice as she has over 2 years’ service at the time of his dismissal. In accordance with Section 12(1) of the Act I direct that the Respondent pay the Complainant compensation of €1,040 amounting to two week pay within 42 days of the date of this decision, subject to any lawful deductions.

Unfair dismissal, minimum notice