Complainant

Respondent

Anonymised Parties

A customer assistant

A Supermarket

Representatives

Mandate Trade Union

IBEC

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-00011187-001

08/05/2017

The complainant asserts that she was dismissed by the respondent because of trade union activity at the time of industrial action; the respondent denies the claim and states that her employment ended at the expiry of an extended fixed term contract and not renewed for business reasons. As this complaint relates to section 6(2)(a) of the Unfair Dismissals Act, the legal burden falls on the complainant and the presumption of an unfair dismissal does not apply. The complainant, therefore, presented her case first.

In submissions, the complainant outlined that she commenced employment with the respondent on the 13th September 2016 on a contract that ended on the 3rd December 2016. This was extended to the 4th March 2017. There was industrial action in the respondent stores, including the store where the complainant worked. Pickets were placed on the store as and from the 17th February 2017. The complainant referred to the Labour Court recommendation, which included a statement that there would be no recriminations from the now-resolved dispute. The complainant was given an undertaking that her contract would be renewed in the first week of the new financial year; this undertaking was made before the ballot for industrial action. The complainant was asked to commence training for the supervisor role on the 19th February 2017. On the 20th February 2017, a colleague texted the complainant to say she needed to “redeem” herself with management for staying out on strike action. The complainant referred to one colleague who returned to work during the strike and who was retained. Three other staff were retained but they had later start dates and the store management changed by the time their contracts ended. It was submitted that the sequence of events arising from staff engaging in lawful industrial action led to a conclusion that the dismissal was for engaging in trade union activity. The complainant exhibited the following documents to her submission: the letter of dismissal of the 1st March 2017 which states “I am writing to confirm the end of your temporary/fixed term contract with [the respondent]” and the advertisement, which gives a closing date of the 21st March 2017.

In evidence, the complainant outlined that the respondent had given an undertaking that her fixed contract would be renewed. She was paid €253.75 per week. She was to start training as a supervisor. The complainant referred to messages from a named colleague about the end of her employment and this colleague could only have known this from management. At the time of the strike, there were five staff members on short-term contracts; one returned to work and received an extension. Three others were given an extension but the managers had transferred prior to their contract ending. The respondent advertised to fill the complainant’s position. This advertisement appeared ten days after her dismissal and the complainant applied for this position, but did not hear anything. Four people were employed arising from this advertisement and three more employed on the 14th May 2017. Since her dismissal, the complainant took up employment with another retailer. She is now paid €208 per week for the same 25-hour week. She submitted that there was clear evidence of anti-union activity.

In submissions, the respondent outlined that the complainant was not dismissed, but her contract ended. She has less than 12 months service so cannot advance a case pursuant to the Unfair Dismissals Act. The respondent submitted that the complainant’s contract was temporary and extended from the specified end date of the 3rd December 2016. Her contract was not extended beyond the 4th March 2017 because of the store’s budget and sales forecast. It denies that the complainant was dismissed because of trade union activity.

In evidence, the respondent submitted that the complainant was not dismissed. Her contract was extended to the 4th March 2017 and ended in line with her contract. It was not extended again because of sales forecasts. The contract referred to the temporary nature of the role and stated that the Unfair Dismissals Act did not apply to the termination of the contract. Membership of the union is an automatic contractual term so everyone is in the union. This applied at the time the complainant’s employment came to an end. The respondent is not in the business of taking action because of union involvement.

The store manager gave evidence. The colleague who was retained had skills in the meat department as he was a meat cutter. The other three contracts ended at a later date but the respondent was then more confident about sales coming back. He had left the store at that point. He was not aware that the complainant was asked to be trained as a supervisor but it sounded appropriate. No one was interviewed or taken on to the store.

The personnel manager outlined that the complainant’s dismissal would not have been about the union and arose from sales and forecasting. It was unfortunate that the complainant was let go and she had not wanted to give the letter of dismissal to her.

The complainant submits that she was dismissed because of trade union activity at a time of industrial action; the respondent denies this and states that the dismissal occurred at the end of a fixed term contract for business needs. The contract provided by the respondent to the complainant states “This role is for a temporary duration commencing on the 13 September 2016 to 03 December 2016 and the provisions of the Unfair Dismissals Act 1977 – 2015 will not apply to such termination.” The complainant was supplied with a second contract, ending the 4th March 2017 in the same terms.

While the complainant had less than one year’s continuous service with the respondent, she claims her dismissal was because of trade union activities and this invokes section 6(2)(a) of the Unfair Dismissals Act. This provision states:

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage”

This places the legal burden on the complainant to show that her dismissal was wholly or mainly on these grounds (see Reid v Oxx (1986) 4 ILT (n.s.) 207). The presumption that the dismissal is unfair does not, therefore, apply.

In assessing the evidence, I note the respondent assessed the complainant’s performance at work in the following terms: “[the complainant] received her New Starter Review, dated 06.10.16, 04/11/2016 and 28/11/16. In these reviews [the complainant] was described as having settled into the Team very well and as having excellent customer service skills and with having excellent attendance.” It is not disputed that the complainant was scheduled to start training as a supervisor around the time of the industrial action. The complainant was dismissed at the end of her contract, while a colleague who started at the same time and who returned to work during the industrial action was retained. The respondent has not adduced documentary evidence of the sales forecasts that led to the ending of the complainant’s employment, nor of the upturn that led the respondent to advertise for roles shortly after her dismissal. No information is provided why a strongly performing employee was not called for interview when she applied for her role in the weeks after her dismissal. Taking these facts together, I find that the complainant’s dismissal was wholly or mainly because of trade union activities. The complaint is, therefore well founded.

In assessing loss, I note that the complainant secured alternative employment, but was paid €208 per week, a weekly shortfall of €45.75. I award redress that is just and equitable and which covers financial loss. I award €4,750.

CA-00011187-001

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay redress to the complainant of €4,750.

Unfair Dismissals Act / section 6(2)(a)

Trade union activity

Reid v Oxx (1986) 4 ILT (n.s.) 207