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-00011803-001

08/06/2017

The complainant is a final year undergraduate student and from January 2013, she worked part-time as a kitchen assistant in the respondent’s nursing home. From around October 2013, she worked two six and a half hour shifts every week, mostly on Saturdays and Sundays. She was paid €9.60 per hour and time and a third for Sunday working. In September 2016, the nursing home stopped putting her on the roster and her last day at work was September 11th.

When the complainant was removed from the roster at the nursing home, she sought advice from the Citizens Information Centre who suggested that she could submit a complaint to the WRC. On November 11th 2016, she submitted a complaint of unfair dismissal.   She resigned from the nursing home on November 27th. She said that she resigned because she needed a P45 so that she could get her tax sorted out for the year and so that she could look for another job.

Having submitted a complaint to the WRC, a hearing was scheduled for June 8th 2017. At the hearing, the adjudication officer advised the complainant that she could not proceed with her claim, as it had been submitted before she formally resigned. She submitted a new complaint on the evening of the same day, now more than six months after the termination of her employment.

A preliminary issue arises therefore in respect of the delay submitting this complaint. Section 8(2) of the Unfair Dismissals Act 1977 (amended) provides that a claim for redress must be initiated within six months of the date of dismissal, or within 12 months, if there is reasonable cause for the delay.   I am satisfied that the delay submitting this complaint was due to the fact that the complaint submitted in November 2016 came up for hearing in June 2017 and that it could not be heard as it was submitted before the complainant resigned. The complainant submitted her original complaint after her last day at work, but before she formally resigned. She then re-submitted her complaint on the day of the hearing at which she was informed that her original complaint could not be heard. I am satisfied that there was reasonable cause for the delay, which was due to the error in submitting the original complaint before the date of resignation.

During a shift in July 2016, the complainant said that she felt unwell and had to go home. She received a verbal warning for being absent and her hours were cut to one shift per week. The complainant said that she was rarely absent, and if she needed time off, she swapped shifts with a colleague. Evidence was presented at the hearing of several text messages between the complainant and her colleague, arranging shift swaps.

The complainant said that she worked mostly weekends and that there was no manager on duty in the nursing home at the weekends. She therefore never got an opportunity to speak to a manager to explain that she wasn’t absent, but had swapped her shifts.

On Saturday, September 3rd, the complainant developed a rash on her arm and she showed it to a staff nurse. She said that the nurse advised her how to treat the rash and said that if it hadn’t improved, she should not come to work the next day. The complainant said that her priority was the health of the residents and she wanted to avoid bringing an infection into the nursing home. As the rash was still on her arm on Sunday, September 4th, she didn’t go to work that day.

On Sunday, September 11th, she worked her normal shift, and this was the last day of her employment at the nursing home. When she phoned the following week to find out her hours, she was informed that she hadn’t been allocated any shifts. She said that she phoned regularly to see if she was back on the roster, but she wasn’t given any hours. After sending a number of e mails to find out her hours, the complainant said that the director of nursing phoned her and told her that she wasn’t getting any more hours as she was “too unreliable.”

As she was about to start her final year in college, the complainant said that she needed money for a deposit for her accommodation and she had to look for another job.   To get a P45 from the nursing home, she felt that she had to resign and she submitted her formal resignation on November 27th.

The respondent did not attend the hearing and I can therefore make no assessment of their position with regard to this dismissal.

It appears that the complainant’s employment was terminated when she was not rostered for work after September 11th 2016. She said that in July 2016, she received a verbal warning about her absenteeism, but that she had to go home on that occasion as she became ill at work.   If she needed time off, she said that she swapped her shifts with a colleague, but the management did not seem to be aware of this. In September 2016, she stayed away from work for one day due to a skin rash and she was then removed from the roster.

As there was no submission from the respondent, I must accept the evidence of the complainant to the effect that no further warnings followed the verbal warning of July 2016.   The respondent did not proceed to the conclusion of a standard disciplinary process, by following the verbal warning with a written warning and, if required, giving the complainant an opportunity to improve on her attendance. On this basis, I find that the respondent’s failure to offer the complainant ongoing work amounts to an unfair dismissal.

I accept the evidence of the complainant that her decision to resign on November 27th 2016 was prompted by the need to procure a P45 so that she could start work with another employer and avoid paying emergency tax. It is my view that the dismissal took place when she was not rostered for work on September 18th 2016.

As I have found that the complainant was dismissed unfairly, I make an award of €1,745 gross, based on loss of earnings from September 18th until December 10th 2016. This is to be paid by the respondent to the complainant within six weeks of the date of the issuing of this decision.

Constructive dismissal