ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012553
Parties:
| Complainant | Respondent |
Anonymised Parties | A Company Assistant | A Tool Supply Company |
Representatives | Self-Represented | Kirsty Kavanagh of Kavanagh Coleman Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016587-002 | 03/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016587-003 | 03/01/2018 |
Date of Adjudication Hearing: 16/05/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; Section 7 of the Terms of Employment (Information) Act, 1994 and 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 case concerns the alleged Unfair Dismissal of a Company Assistant by a Tool Supply Company and in addition the alleged failure to supply the Complainant with written terms and conditions of employment. |
1: Summary of Complainant’s Case:
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1:1 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994. Statement | CA-00016587-002 |
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No written details of Terms and Conditions received despite requests to the Respondent. | CA-00016587-003 | ||
1:2 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Statement
On the 15thth December 2017 the Complainant attended at the Company Office at approximately 8.15 hrs where she met with the MD, Mr.XA. Issue of concern to her were discussed. Relations deteriorated during the meeting and the MD informed her that he was “going to pay her up for two weeks and that was that”. The MD referred to job interviews that the Compliant was attending with other companies and the fact that he had agreed to give her paid time off to attend these interviews.
She asked if she was being dismissed but no formal reply came from the MD save a shrug of the shoulders. She continued to work for the rest of the day.
Later that evening the wife of the MD, Ms XB gave the Complainant a Termination Agreement letter which she signed. She was not given a copy of the letter and can only recall that it concerned her Termination.
2: Summary of Respondent’s Case:
2:1 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016587-002 |
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Respondent Reply Evidence was presented of a Written Contract and Statement of Terms of Employment dated the 2nd October 2016. The Contract was signed by the Complainant. On this basis the Claim has no substance. | ||||
2:2 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016587-003 |
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Respondent Reply
The Complainant was engaged by the Company in October 2016 in a new role -that of Assistant to the four other employees. Her function was to do administrative work and allow the other employees especially the Managing Director concentrate of increasing Sales and growing the business. This type of role had never existed before in the Organisation but was suggested by the parent Franchise company in the UK.
Regrettably the level of business traded by the Company did not increase to a degree that was expected and the economic rationale for the Complainants’ position ceased to exist. Detailed evidence from the Respondent’s accountant was supplied regarding Trading figures. The ending of the Complainant’s employment was effectively a Redundancy situation.
The trading situation would have been known to the Complainant from mid-2017 forward and she was encouraged to seek other work opportunities. This extended to the Respondent allowing the Complainant paid time off to attend job interviews.
Evidence was also given of difficulties with the Complainant over her work hours and selling to some customers, against management instructions, who were major credit risks.
Evidence was given by way of signed statements form two other employees regarding the Complainant’s personal dissatisfaction in the job, the fact that it was well known that the role of Assistant was not working out and that the Complainant was actively seeking other work.
The Complainant signed a Termination Agreement without objection on the 15th December. The meeting of that date was not as described by the Complainant but was a meeting where the business rational for ending her position was explained to her.
In summary the position of Assistant that the Complainant had been hired for had not worked out, the trading revenues to support the role had not materialised and the ending of the employment was a simple Redundancy.
This situation was well known to all staff.
3: Findings and Conclusions:
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA -00016587-003 |
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3:1 The applicable Law The Unfair Dismissals Act, 1977 and SI 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures. Considerable legal precedent exists in this area and the role of the rules of Natural Justice must be paramount. In cases involving Redundancy the employee must be informed in good time that his/her position is at “Risk of Redundancy”, the economic facts should be set out and alternatives that may be propose by the employee have to be properly considered by the Employer. It is only when all these steps have been exhausted that a genuine Redundancy can be considered. All cases have to be seen on their own merits and the evidence carefully considered by an Adjudication body. 3:2 Consideration of the Evidence The Oral evidence was important in this case as were the unchallenged written signed statements of two fellow employees. It was clear that the idea behind the creation of the Complainant’s position had come from the main Franchise holder in the UK. It was a business growth idea to allow the Irish franchise Holder to concentrate on Business development while delegating the administrative duties to the Complainant. It was obviously dependent on the Business generating the Revenue to support the additional overhead. A disputed meeting took place in a major local Hotel in mid-September 2017 which was attended by representatives of the UK Company. From the outcome of this meeting it was clear to all employees that the figures were not sufficiently strong to support the Complainants position. It appeared that she began job searching shortly afterwards and was supported in this by paid time off from her employer – the interview in a major local motor dealer and the Mobile Phone Company offer of an Interview which was not taken up on. It appeared clear that the Complainant was obviously looking out for another position outside the business of the Respondent since September. None the less the meeting on the 15th December 2017 between the Complainant and the Respondent MD was lacking in a number of procedural regards. It is customary in these types of situations to formally notify the employee of the Risk of Redundancy and to allow time for consideration of alternatives. It was the view of the Respondent that this had all happened informally in the period since the September meeting in the local Hotel and there was nothing further to add at the December stage. Procedurally this would not be deemed to be a good practice and more formal correspondence might have been useful. In addition, there did not seem to be any suggestion of the Complainant obtaining any Independent advice or Representation. The presentation of the Termination Document later that evening was hasty to say the least. The Complainant signed it that evening but from her oral evidence and the text messages exchanged it was clear that it had not come as a complete surprise. On procedural grounds there appeared to have no effort made to allow some time, even a day or two to elapse, to allow the Complainant to seek outside independent advice. It probably would not have changed the outcome but it was a procedural weakness in the Respondent’s case. 3:3 Conclusions On a purely Procedural basis this Dismissal has to be found Unfair on the grounds identified above. However, in a Company of five employees it was clear that the Dismissal on Redundancy grounds was clearly well foreseen by all parties, procedural weaknesses notwithstanding. In considering any Redress this has to have a significant bearing. I noted that the Complaint was unemployed for the month of January and half of February before securing a part time position at variable hours up to 18 a week. This had lasted until Mid-March. At the date of the Oral Hearing in May she was confident that she had secured a new full-time position on a 39-hour basis on a comparable salary to the Respondent but with shorter hours As this was a very largely Procedural finding, the Redundancy / lack of Business Growth was clearly well flagged in advance and the Complainant had very short service (slightly over one year) on a wage below the Statutory Redundancy cap I make an Award of €1,200 being approximately three weeks’ pay. 3:4
As a copy of a Written Contract signed by the Complainant was produced in evidence I find that the claim is not well founded and is Dismissed. |
4: Decision:
Section 41 of the Workplace Relations Act 2015; Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Act | Complaint/Dispute Reference No. | Summary Decision /refer to Section 3 above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016587-002 | Claim dismissed /Contract provided. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016587-003 | Claim upheld / The dismissal was Unfair on largely Procedural grounds.
An Award of €1,300 is made in redress. |
The Taxation of all Awards made above is a matter for consultation with the Revenue Commissioners.
Dated: 5th September 2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
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