Complainant

Respondent

Anonymised Parties

A neighbourhood shop assistant / security guard

A neighbourhood shop owner

Representatives

Mary Seery Kearney BL

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-00017308-001

06/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00017308-002

06/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017308-003

06/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017308-005

06/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017308-006

06/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017308-007

06/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017308-008

06/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017308-009

06/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017308-010

06/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017308-011

06/02/2018

The respondent is a neighbourhood supermarket in south Dublin and the complainant commenced employment there in May 1997. For the first 10 years of her employment, she worked as a shop assistant, and for the last 10, as a security officer at the front door. She also assisted with packing shelves. She was paid an hourly rate of €11.66, which, unusually, was paid in cash in separate instalments three times a week. In the 20 years that she worked in the supermarket, she never received a payslip.

The complainant was summarily dismissed on December 5th 2017. She complains that her dismissal is unfair and she has also submitted complaints under the Minimum Notice and Terms of Employment Act 1973, the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997 and the Industrial Relations Act 1969.

The respondent did not attend the hearing.

Background to the Dismissal

On behalf of the complainant, Ms Seery Kearney outlined the events leading up to December 5th 2017, when the complainant was summarily dismissed. This was preceded by an altercation between the complainant and the respondent on Friday, November 24th, when the complainant got permission from her manager, the son of the respondent, to go home as she wasn’t feeling well. On Sunday, November 26th, the complainant sent a text message to her manager and said that she would be back at work on Tuesday. Her manager responded by text saying that his father had instructed that the complainant need not come to work that week as there was no work for her. In her evidence, the complainant said that this had not happened before and she thought it was a bit unusual. She went to the shop on Friday of that week, and she met with the respondent, who told her that he would see her on Monday. The complainant said that she took this to mean that she was to come back to work on Monday and she came in on Monday, December 4th and worked for the day.

The following day at work, the complainant said that the respondent started shouting at her across the counter in the shop. An altercation ensued during which the complainant said that the respondent said that he wasn’t paying her and that he wanted a doctor’s note for the day and a half that she was on sick leave. He berated her because she had sent her brother to the shop to collect her wages while she was out sick, he complained that she took too many holidays, that she did what she wanted and that she didn’t say “hello” to the customers.   Finally, he said, “don’t even think about going to a solicitor.”   The complainant said that during this fracas, the respondent moved close to the complainant’s face, with the result that she asked him to move away. The respondent then ordered the complainant to leave and to “not bother coming back.”

The complainant visited her local social welfare office to claim any benefits to which she may have been entitled and was advised that she needed a P45 to indicate that her employment had been terminated. She returned to the respondent and explained what she had been told by Social Welfare. Two weeks later, she received her P45 in the post, with a cheque for her outstanding wages up to Monday, December 4th.

The Complainant’s Argument that her Dismissal is Unfair

At the hearing, Ms Seery Kearney argued that if the complainant’s dismissal is for reasons of incapacity, then the test which must be applied is that which was set out in Bolger v Showerings (Ireland) Limited [1990], ELR 184. Finding in favour of the appellant (the employer in this case) in the High Court, Lardner J stated:

“For the employer to show that the dismissal was fair, he must show that:

(1)   It was the ill health that was the reason for the dismissal;

(2)   That this was the substantial reason;

(3)   That the employee received fair notices that the question of his dismissal for incapacity was being considered and,

(4)   That the employee was afforded an opportunity of being heard.”

If the dismissal is grounded on the complainant’s conduct, then, Ms Seery Kearney said that the test which must be applied is that which arose from the Employment Appeals Tribunal case of Hennessy v Read and Write Shop Limited, UD 192/1978, where the Tribunal applied a test of reasonableness to:

“(1) The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

(2) The conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

To discharge the provisions of this test, it is necessary for the employee to be made aware of the allegations against him or her and any complaints that formed the basis of the dismissal. The employee must be given an opportunity to respond to the allegations and to explain the circumstances before the respondent decides that dismissal is the appropriate course of action.

Finally, Ms Seery Kearney referred to the case of Kilsaran Concrete v Vet, UDD 11/2016, where the Labour Court noted that fair procedures are based on certain fundamental requirements:

“(i) To make the employee that is the subject of the investigation aware of all the alleagations against him or her at the outset of the process;

(ii) That an employer who has published a disciplinary procedure to his employees follow those procedures scrupulously when conducting a disciplinary process; and

(iii) In the event that an allegation against an employee is upheld that any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.”

It is the complainant’s case that the respondent had no disciplinary procedure in place, and that he took no consideration of the code of practice for carrying out a disciplinary investigation which is set out in Statutory Instrument 146/2000.   No substantive matter was put to the complainant, no procedures were engaged in by the respondent and the complainant was dismissed without any recourse to her rights and entitlements as an employee of 20 years’ standing.

Section 6(1) of the Unfair Dismissals Act provides that,

“…the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The legislation intends that burden of proving that a dismissal is not unfair sits rests with the employer. As the respondent did not attend the hearing at the WRC, no cause has been put forward to show that there was any reason for the dismissal of the complainant.   On this basis, I must conclude that this was an unfair dismissal.

Between December 5th 2017 and January 4th 2018, the complainant was unemployed for 23 days and she was at a loss of her earnings for the three public holidays that fell between Christmas and new year. She also lost her entitlement to just under two days of annual leave, resulting in a total loss of 28 days’ pay. Based on a daily rate of €84.00, the complainant’s loss while she was unemployed amounts to €2,352.

Four weeks following her dismissal, on January 5th 2018, the complainant started a new job.   She earned €419.76 for a 36 hour week when she worked with the respondent. Evidence was presented at the hearing which showed that in her new job, her weekly wages are reduced to €360, resulting in an ongoing loss of €60.00 per week.

On the basis that I have concluded that the dismissal of the complainant is unfair, I decide that the respondent is to pay the complainant €8,352 gross, comprised of €2,352 in lost wages while she was unemployed for four weeks, and €6,000 to compensate for her loss of earnings in the two years following the termination of her employment on December 5th 2017.

At the time of her dismissal, the complainant was not given any notice of her employer’s intention to dismiss her and, following her dismissal, she was not paid in lieu of notice.

The respondent did not attend the hearing.

The complainant had 20 years of service and in accordance with section 4(2) of the Minimum Notice and Terms of Employment Act 1973, she was entitled to eight weeks’ notice.

As she was not given notice and not paid in lieu of notice, I decide that the respondent is to pay the complainant €3,360 in redress, equivalent to eight weeks’pay.

At the hearing, the complainant said that she was never issued with a statement setting out the terms and conditions of her employment, although, on a number of occasions, she said that she requested such a statement. For the complainant, Ms Seery Kearney said that the purpose of issuing a written statement to employees is to provide assurance to them with regard to their terms and conditions. Enacting this legislation in 1994, a key objective of the legislature was to provide certainty to employees with regard to the legal identity of their employer and a written commitment with regard to pay and benefits.   Ms Seery Kearney submitted that the respondent was in breach of the complainant’s entitlements in respect of this important piece of legislation.

The failure to furnish the complainant with a written statement of her terms and conditions meant that when it came to filing a complaint with the WRC, her legal advisors were uncertain about who exactly the respondent was. They had to rely on media reports regarding the respondent and his son, the manager of the complainant, in order to ascertain the address and confirmation of sole trader status of the respondent.

On January 24th 2018, in accordance with the Data Protection Act 1988, the complainant submitted a data access request to her former employer. At the date of this hearing on April 30th 2018, she had not receive a response to this request.

The respondent did not attend the hearing.

Section 3 of the Terms of Employment (Information) Act provides that, within two months of the commencement of an employee’s employment, they should receive a written statement setting out their terms and conditions of employment.   Generally written up in the form of a contract, these statements are to include the following:

(a) The name of the employer and the employee;

(b) The address of the employer;

(c) The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d) The job title or the nature of the work that the employee is required to carry out;

(e) The date that the employees commences in the job;

(f) If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g) The rate or method of calculation of the employee’s pay;

(h) The frequency of pay;

(i) Any terms or conditions relating to hours of work (including overtime);

(j) Any conditions relating to paid leave (other than paid sick leave);

(k) Any terms or conditions relating to –

       (i) Incapacity for work due to sickness or injury and paid sick leave;

       (ii) pensions and pension schemes;

(l) The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m) Details of any collective agreement which affects the employee’s terms and conditions of employment.

From the evidence of the complainant and her representative, it is evident that the respondent in this case has ignored his legal responsibilities to this employee with regard to her entitlement to a written statement setting out her terms and conditions of employment. The effect of this is to tarnish the employment relationship with uncertainty, and to make it difficult for the employee to assert her rights during, and at the termination of her employment. This is precisely what the enactment of the Terms of Employment (Information) Act intended to avoid.

On the basis that she worked for the respondent for 20 years and did not receive a written statement of her terms and conditions of employment, I decide that the respondent is to pay the complainant €1,680 gross, equivalent to four weeks’ pay.

For the entirety of her tenure with the respondent, the complainant said that she was permitted to take three weeks’ holidays. She said that she was unaware that she was entitled to four weeks’ holidays.

At the time of her dismissal, in accordance with the Organisation of Working Time Act 1997, the complainant was entitled to one week’s holidays in lieu of annual leave not taken in 2017.

For the complainant, Ms Seery Kearney referred to section 27(4) of the Act which prevents me from adjudicating on a complaint which is submitted after the expiration of six months beginning on the date of the contravention to which the complaint relates.   On this basis, I have jurisdiction to consider only any loss of annual leave occurring between July and December 2017, which comprises a loss of one week’s holidays. Ms Seery Kearney referred to the Labour Court case of Cementation Skanska v Carroll, DWT 38/2003, where, considering the requirements of the Working Time Directive, an award for compensation for loss of annual leave “need not be limited to the value of lost holidays.” In this case, the Court recognised that, where the right to annual leave is infringed, the redress “should not only compensate for economic loss sustained, but must provide a real deterrent against future infractions.”

The respondent did not attend the hearing.

As the respondent did not attend the hearing, I have no evidence to counter the complainant’s claim that, for the 20 years of her employment, she was only ever allowed to take three weeks’ holidays. I found the complainant to be a credible witness and, her experience with regard to her less than standard holidays is consistent with her description of the frugal nature of her employment relationship.

I have decided that the respondent is to pay the employee €420 for the loss of one week’s annual leave in 2017, plus €2,500 as compensation for this breach of the Organisation of Working Time Act in respect of the complainant’s entitlement to holidays, a total sum of €2,920.

The complainant worked five days a week, from 8.00am to 4.00pm on Mondays and from 8.00am until 3.00pm on Tuesday to Friday. Where a public holiday fell on a day that she was rostered to work, she worked her normal hours. She never received any benefit for working on a public holiday, in accordance with the requirements of the Organisation of Working Time Act which provides that an employee is entitled to a day off or an extra day’s pay.

On the complainant’s behalf, Ms Seery Kearney submitted that, as set out by the Labour Court in Singh v Singh Limited v Gautam, DWT 44/05, a contravention of the Organisation of Working Time Act with regard to holidays occurs at the end of the leave year to which the holidays relate. She submitted that the same approach should be taken with regard to public holidays. The effect of this is that the complainant, having worked on six public holidays in 2017, prior to the termination of her employment, is entitled to six days’ pay, amounting to €504.

The respondent did not attend the hearing.

I concur with Ms Seery Kearney’s position in respect of the complainant’s entitlement to public holidays. The complainant is owed €504 in respect of the non-payment of her entitlement to public holidays in 2017.

I have decided that the respondent is to pay the employee €504 for the loss of her entitlement to six public holidays in 2017, plus €2,500 as compensation for this breach of the Organisation of Working Time Act in respect of public holidays, a total sum of €2,920.

This is a complaint that, while the complainant was required to work 36 hours per week, she was not permitted to take any breaks and was expected to eat her lunch while she was working in the respondent’s shop. As section 2 of the Organisation of Working Time Act defines “rest period” as “any time that is not working time,” Ms Seery Kearney submitted that, to satisfy the entitlements provided for in the legislation, the complainant could not be working and on a rest break at the same time.   As the complainant worked for more than six hours per day, she was entitled to a daily rest break of 30 minutes, which, for the 20 years that she worked for the respondent, she said she was never permitted to take.

The respondent did not attend the hearing.

In the same way in which section 27(4) of the Organisation of Working Time Act prevents me from adjudicating on a complaint about annual leave or public holidays which is submitted six months after the date of the contravention to which the complaint relates, I am prevented from considering any complaint about breaks that goes back further than six months from the date that this complaint was submitted to the WRC. As this complaint was submitted on February 6th 2018, I can consider any breaches of the Act in respect of rest breaks going back to Monday, August 7th. From that day, until the termination of her employment on December 5th, the complainant worked for the respondent for 86 days. She was entitled to a 30-minute break on each of these days, which she did not receive. On this basis, I find that she is entitled to payment for the equivalent of 43 hours, and on the basis of her hourly rate of €11.66, this amounts to €501.38.  

I have decided that the respondent is to pay the employee €501.38 in respect of breaks not taken during the last 86 days of her employment with the respondent, plus €2,500 as compensation for this breach of the Organisation of Working Time Act, a total of €3,001.38.

This is a complaint about the fact that the respondent had no procedures in place to manage grievances and disciplinary matters and the complainant was never issued with a written procedure setting out the procedure that would be followed in the event of her being disciplined or dismissed.

The respondent did not attend the hearing.

When it was first drafted in 1996, the Labour Relations Commission intended the Code of Practice on Grievance and Disciplinary Procedures to be a process for small and informal enterprises to manage workplace relations. This code, updated by Statutory Instrument 146/2000, works as an “off the shelf” procedure for employers who do not have the resources to write up these procedures themselves. The code is available online and is not difficult to understand or apply in any workplace. In the context of this complaint, it is worthwhile to quote section 3 in its entirety, where the importance of procedures is set out:

“1.   Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.  

“2.   Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.

“3.   In the interest of good industrial relations, grievance and disciplinary procedures should be in writing and presented in a format and language that is easily understood. Copies of the procedures should be given to all employees at the commencement of employment and should be included in employee programmes of induction and refresher training and, trade union programmes of employee representative training. All members of management, including supervisory personnel and all employee representatives should be fully aware of such procedures and adhere to their terms.”

As this employer was in business for at least 20 years, it is my view that there is no excuse for any lack of awareness of the necessity for procedures, or of the availability of a procedure in the Code of Practice set out in SI 146/2000. I can only conclude that he preferred not to have any procedures in place.

Apart from the best practice set out in the Code of Practice, section 14(1) of the Unfair Dismissals Act provides that,

“An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.”

The purpose of issuing such a procedure is twofold; it provides clarity to the employee about the steps which may lead to their dismissal, and it provides the employer with a process which may lead to an improvement in the conduct or performance which they find unacceptable. Unfortunately, in this workplace, the respondent’s “my way or the highway” approach was the only procedure in place.

It is my view that there is little merit in making any recommendation with regard to the introduction of proper procedures in this workplace. It is evident that this respondent has no use for or respect for such procedures and it may be for a different forum to bring about any change in this regard.

If procedures had been in place, it is likely that the complainant would still be working for the respondent. Having been employed there for 20 years, it was evident that she liked her job, she enjoyed working with her colleagues and she was a loyal and committed worker.   I recommend that the respondent pay the complainant a sum of €500 as compensation for the failure to issue proper procedures and to use these procedures in anticipation of the decision terminate her employment.

This is a complaint about the fact that the respondent had no procedures in place to deal with incidents of bullying and harassment. As a result, Ms Seery Kearney submitted that the complainant had no recourse in the face of abusive treatment by the respondent, which is the treatment which ultimately, resulted in her dismissal.

The respondent did not attend the hearing.

It is widely understood and accepted that bullying has a negative effect on the health and welfare of people subjected to such behaviour. Section 8(2)(b) of the Safety, Health and Welfare at Work Act 2005 states than the duty of an employer extends to,

“…managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.”

To this end, in 2002, the Health and Safety Authority published a code of practice which was updated in 2007 as the “Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work.” The effect of this publication is to provide every workplace in Ireland with a process for managing workplace bullying.

Having considered the evidence of the complainant at the hearing, it is my view that her employer behaved in an aggressive, dismissive and vindictive manner towards her, and attempted to exert control in a manner that was inappropriate and unprofessional.   The complainant had no template for dealing with this behaviour, apart from her first response which was to ask him to “back off.”

This complaint is not about the bullying itself, but about the lack of procedures for dealing with the problem in this workplace. I have to conclude that, for his own particular reasons, this respondent preferred not to have any procedures in his workplace and to deal with incidents of aggressive behaviour in his own way. Thankfully, this approach belongs to history.

Similar to my decision in respect of disciplinary procedures, I think that there is little merit in making any recommendation with regard to the introduction of procedures to deal with bullying in this workplace. I recommend that the respondent pay the complainant a sum of €500 as compensation for the fact that procedures were not in place.

Complaint Reference

Complaint

Award

CA-00017308-001

Unfair dismissal

€8,352

CA-00017308-002

Minimum notice

€3,360

CA-00017308-003

Statement of terms and conditions of employment

€1,680

CA-00017308-005

Annual leave

€2,920

CA-00017308-006

Public holidays

€2,920

CA-00017308-007

Rest breaks

€3,001.38

CA-00017308-010

Grievance and disciplinary procedure

€500

CA-00017308-011

Procedure on dealing with bullying in the workplace

€500

Total

€23,233.38

Unfair dismissal, lack of procedures, multiple complaints