ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00007965
Parties:
| Complainant | Respondent |
Anonymised Parties | A Counter Assistant | A Restaurant |
Representatives | A Barrister | Not present |
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-00010650-001 | 05/04/2017 |
Date of Adjudication Hearing: 21/11/2017
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance 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 Complainant was seeking compensation for alleged unfair dismissal. |
Summary of Complainant’s Case:
The Complainant was employed from 2004 to February 6th 2017 as a Counter Assistant. She was employed by another company first and then the current employer took over that company. The current owner took over the business in January 2017 and there was continuity of employment always. The Complainant was involved in a road traffic accident in June 2016 and was out of work for a while and was certified to return to work on January 2017. She went back to her normal shift from 4pm to 9pm and had never worked any other shift. She was told by the owner’s daughter that there would be changes and the shift from 4pm to 0pm was no longer available. On the 26th of February she turned up for her normal shift and was told it was no longer available and she was dismissed instantly for refusing to change shift and for being disobedient. The Complainant had no contract of employment, no grievance procedure was available or no consultation took place on the change to her term of employment established since day 1 of her employment. The owner’s daughter said she had taken over the running of the business from her father in the previous week, the complainant was dismissed without notice, received no P45 and was told to work a late-night shift or go home. The Complainant is at a loss of 42 weeks of 150 Euros per week making a total of 6,300 Euros. |
Summary of Respondent’s Case:
The Respondent was not present at the Hearing. |
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.
The Complainant submitted a claim for Unfair Dismissal against a named Respondent “X ”. A hearing was scheduled for September 19th 2017 and both parties were requested to attend by the WRC. The Complainant and her legal Representatives were present. The named Respondent was not present. A letter was sent to the address provided on the Complaint form for the respondent “X ” but no one representing that Respondent appeared at the Hearing. At the Hearing dated September 19th 2017 the Complainants legal Representatives asked to change the decision in this case from Respondent name from “X ” to “X Ltd” under section 39 of the Organisation of Working Time Act 1977 (which grants that power to an Adjudicator) and the Complainant was asked to put this request in writing which they did by letter dated September 22nd 2017. This request to amend the decision accordingly was accepted by the Adjudicator but he required a new Hearing to be scheduled and notification sent to “X Ltd” at the address provided and a new Hearing date was set. The WRC notified the new respondent of the Hearing but the letter was returned to the WRC by An Post stating “the letter box was closed”. The new Hearing proceeded on November 21st 2017. There was no representative of the new named Respondent (X Ltd.). At the Hearing the Complainant stated she was employed from May 5th 2004 to February 2nd 2017 and was out sick for six months in 2016 due to an accident. When she returned to work she commenced on her normal shift but was told change her roster to nights and her hours of work were changed. She was also told in a hand written note by the Owners daughter which stated the following” you are not following the instructions of me..(named) and not following the roaster and working forcdly so I gave you already notice of disobedance and you again this week start work without roaster so I have not any other option to stop you working without roaster. If you would like to work according to the roaster you can but due to your rough attitude I give you notice that you are not allowed to work”. (spelling as per note).
Having considered all the matters in this case, and as there was no representative of the Respondent present to offer any evidence on their behalf, I find that the Complainant was unfairly dismissed for the following reasons;
- She was summarily dismissed without substantial reason and in breach of a term and condition of employment which had become implied in her contract over time.
- Her complaint was never processed through a grievance procedure.
- She was not given any right to representation.
- She was never given a right of appeal.
The Complainants claim for unfair dismissal is well founded and I award the Complainant 6,300 Euros.
Dated: 15/02/18
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Unfair dismissal |