Complainant

Respondent

Anonymised Parties

A Shop Assistant

A shop owner

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-00020560-001

16/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020560-002

16/07/2018

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

CA-00020560-003

16/07/2018

The complainant worked as a shop assistant for the respondent. Following complaints by a customer the respondent summarily dismissed the complainant by phone.

The complainant did not received a copy of her terms of employment at any stage.

The complainant did not receive payment in lieu of notice and is entitled to 4 weeks’ pay

The complainant was an employee of the respondent since November 2012. On 25th April 2018 she received a phone call from the respondent who informed her that a customer had made a complaint that day about her. He gave her details of the complaint but refused to take her version on board.   The respondent referred to another complaint made two years earlier. The respondent phoned her again that evening and informed her that because there were two complaints against her he had decided to dismiss her. The respondent dismissed her without fair procedures and without justifiable reason. He did not write to the complainant detailing the allegations, invite her to an investigation or notify her that she could be represented.   He did not properly investigate the allegations.

The respondent acknowledges that he did not give employees copies of their terms and conditions.

Because she was dismissed for gross misconduct the respondent submits that the complainant was not entitled to minimum notice.

The respondent had received previous complaints about the complainant’s attitude to customers.   In December 2016 he spoke with her about an incident and told her that this was something he didn’t wish to have to deal with again. In April 2018 a customer rang him and complained about the complainant’s conduct.   The respondent examined the CCTV and was satisfied that this bore out the version of the complaint made by the customer. He spoke with the complainant and told her not to do the till for the remainder of the day. The complainant said that the incident had not been that bad.   The respondent phoned the complainant later that evening and informed her that she was dismissed.

Terms and Conditions of employment

The Terms of Employment (Information) Act, 1994 requires;

3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),  

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or 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, and

     (ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

It is clear from the evidence of both parties that the respondent did not comply with this statutory obligation and therefore this complaint is upheld.

Unfair Dismissal

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 (6) of the Act states;

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

The burden is therefore on the employer to demonstrate that the dismissal is fair.

The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

It is clear that the respondent failed to afford the complainant proper procedures in dismissing her.   She was not advised before the phone call with of her of the purpose of the call nor of her right to be represented in a properly convened disciplinary hearing, and therefore was not in a position to respond properly to the allegations.   The complaint of unfair dismissal is therefore upheld.

The complainant commenced her employment with the respondent on the 16th November,2012 and her employment was terminated on the 26th November, 2018.

Section 4 of the Minimum Notice and Terms of Employment Act 1973 states;

”An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

((c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks

The complainant was earning €224.25 per week. She is entitled to four weeks’ pay in lieu of notice.

The complaint under Section 7 of the Terms of Employment (Information) Act, 1994 is well founded and I order the respondent to pay the complainant €200 in compensation.

The complaint in relation breaches of the Unfair Dismissals Acts1977 - 2015 is well founded and I order the respondent to pay the complainant €9,000 in compensation.

Both of the above awards are in redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004

I find the complaint of breach of S11 of the Minimum Notice & terms of Employment Act 1973 is well founded I order the respondent to pay €897 to the Complainant being the equivalent of 4 weeks wages.

Dismissal. Inadequate procedures.