Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Retailer

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-00012793-001

26/07/2017

The complainant commenced employment on February 2nd 2016 and her employment terminated on June 14th 2017. She was paid €9.25 per hour.

The complainant commenced employment with a predecessor company of the current respondent which acquired the business some months after she started.

She advised her employer at the time that she was pregnant and in due course went on maternity leave on June 26th 2016.

In the meantime, she had worked two to three days per week.

She was due to return on February 26th (or 27th) 2017 and contacted her manager to say she was ready to return.

She says the manager told her the shop was particularly quiet. However, she was offered a return to work on the basis of four hour shifts. In fact, she got very little work, a matter of seven days in total between March and July.

On June 14th, she received an email telling her that there was no more work and that her contract was being terminated with immediate effect.

The email (which was opened in evidence) stated that the respondent ‘no longer will be able to offer you any hours at our Dublin outlet’.

She says that she only ever declared herself unavailable for work on one occasion as she was doing examinations on that day. Throughout the rest of the period following her return from work she was available for work.

She denies that she requested termination of her employment; what she actually said was that if there were no hours for her she should be supplied with her P45 etc.

The respondent confirmed that there was no written contract of employment.

The representatives attending the hearing had taken over the business when the complainant was on maternity leave and not worked at the complainant’s location.

They were relying on reports from the shop manager and could not accept that she would have told the complainant that there was little work available for her on her return from maternity leave.

That was a very busy time for their business.

They had been given to understand that there were a series of dates when the complainant was not available for work or was refusing work and that his was because she was working elsewhere. However, this only emerged after the termination of the employment and was not put to her at the time.

A Key issue in this case is the complainant’s contract of employment.

She did initially sign a contract document on commencing with the respondent’s predecessor.

A document dated March 3rd 2017 purporting to be a contract was produced by the respondent at the hearing and contains among other things an odd reference to a six-month probation period.

It is odd in that the complainant had begun her employment about a year earlier and this document has no standing whatsoever and was clearly generated for some other purpose. It is not signed by the complainant. She states in her submission that it was ‘fabricated’. She was never given a copy of it.

In the absence of a written contract, or statement of Terms of Employment we turn to the facts of the case.

There can be no doubt that the complainant was employed on a contract of service. Between February and June 2016, when she went on maternity leave she worked regularly two to three days per week.

On its conclusion, she should have returned on this basis, or otherwise as provided for by the provisions of the Maternity Protection Act. The offer made to her by email on February 27th is, prima facie in breach of the provisions of that Act.

She did not make a complaint under that Act, but on the key question of her employment status she remained an employee, albeit getting very little work.

Any doubt on this score is removed by the email of June 14th (at 13.20) which, by means of the euphemism ‘we will no longer will [sic] be able to offer you any hours’ was a notice of termination of her employment.

In a second email on that same day (at 14.18) there was a reference to a message on February 22nd, four months earlier where the writer claimed that the complainant’s alleged request for her P45 (she denied asking for it in those terms) was offered as the basis for the very dubious revised contract.

There was a conflict in the evidence on this point. The respondent insisted that the complainant could not have been told there was no work for her in February, the complainant insisting that she was. The respondent witness was relying on what she had been told by the complainant’s manager who was not available to give evidence.

Worse again, it appears that the word of the manager was what gave rise to the newly drafted contract; it appears that the respondent did not consider it would have been of assistance to actually talk to its own employee direct about what the true position was. The respondent made an additional claim in its email of June 15th (at 10.53) that the complainant had given her notice to the shop manager in February, which she hotly denies.

There is a degree of discourse about ‘zero hours’ and other unpredictable working arrangements primarily from the point of view of the difficulty they create for employees in having a reliable pattern of work and therefore earnings.

It is not necessary to comment on the merits of that discussion except to say that variation in working hours, despite the obvious difficulties this creates for a worker, does not undermine the nature of the actual contract itself in considering how it is to be terminated.

This unpredictability is sometimes loosely referred to as ‘job’ insecurity but strictly speaking the security of the ‘job’ and the provision of work are separate issues.

Contracts of employment do not wither away as long as the employee remains available for work; they must be properly and lawfully terminated, either in accordance with the provisions of the Unfair Dismissals Act, or redundancy.

Therefore, a worker remains on a contract of employment until it is terminated in accordance with law. There is no requirement that there be a minimum number of hours worked to sustain the contract, that is a separate discussion, and in this case, there was no evidence of the purported new contract of February ever having been agreed by the complainant. It has no standing whatsoever.

The respondent used no process of any sort and seemed oblivious as to the need to do so. It seemed to simply assume that a simple statement that it had no more hours liberated it from the need to process the termination properly, or provide any respect for the complainant’s rights. That it acted on the basis of information which the complainant says is entirely wrong is quite extraordinary. Indeed the email of June 15th referred to above is full of hearsay which the complainant described in her contemporaneous response as ‘horribly incorrect’.

It offered justification at the hearing by referring to a matter which had not even been known to it at the time of the termination and did not form any part of the reason given for it at the time.

The respondent did none of these things and I find that the dismissal is unfair.

It is difficult to accurately assess the complainant’s losses attributable to the dismissal. Her P60 showed earnings to the year ended December 2016 in the amount of €3,028 although this covered only the period from February 2nd to the start of her maternity leave on June 26th, a period of five months. Her hourly rate was €9.50.

I uphold complaint CA-00012793-001 and find that the complainant was unfairly dismissed. I award her €7,500 subject to normal statutory deductions.

Dismissal, part time hours.