Complainant

Respondent

Parties

Lisa Archbold

Clear Mind Business Support Services Ltd

Complainant

Respondent

Anonymised Parties

A cleaner

A company owner

Representatives

self

self

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-00023092-001

08/11/2018

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

CA-00023092-002

08/11/2018

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

CA-00023092-003

08/11/2018

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

CA-00023092-004

08/11/2018

The Complainant commenced employment with the Respondent on 28/08/2011 and remained in employment until 14/05/2018, she was employed as a cleaner.

The complainant was a part-time worker, working 24 hours per week and earning €504.00 per fortnight.

The Complainant was employed by the Respondent as a cleaner based in a school from 28th August 2011 until her employment was terminated on 14th May 2018.

The Complainant carried out her duties to the best of her ability and never received any complaints about the standard of her work. On the contrary, she received many compliments and carried out additional cleaning duties on numerous occasions.

In October 2017 she had surgery on her foot which resulted in an absence from work from the day before her operation until early April 2018 when she contacted her employer to advise that she would be returning to work after the Easter holidays.

The Complainant subsequently attended 3 meetings with the Respondent in the course of which he advised her that her position had been given to another person. The Complainant was shocked to hear this news.   The Respondent spoke to the Complainant about two alternative positions. However, she did not find either of them acceptable as both required that she work in the evenings and she had been accustomed to working mornings for the 3 previous years.

The third meeting with the Respondent took place on 12th April during which the Respondent said that he would do everything possible to find the Complainant a position and he would revert to her in the coming days.

The next contact received from the Respondent was a letter dated 14th May terminating her employment on that date.

The Complainant was very distressed to read in this letter that the school (the client) insisted that she be removed.

The Complainant was also confused by this remark as one of the alternative positions offered to her by the Respondent was in the same school but working evenings.

The Complainant appealed the Company’s decision to dismiss her on 24th May and despite several attempts to have her appeal meeting arranged she had no formal communication until 21st November when she received an email requesting her to attend an appeal meeting on 29th November in Drogheda. (In advance of receiving this email the Respondent had emailed the Complainant to say he was waiting to hear from his advisors).   The Complainant replied to the email of 21st November stating that the notice received regarding the date of the meeting was totally inadequate and the venue unsuitable.

The Complainant then received a letter requesting that she attend the appeal hearing on 17th December in Dublin and advising her that it would be in her interest to attend as the Company wished to offer her an evening position in the School.   The Complainant found it very difficult to understand that she was again being offered a position in the school that had insisted on her removal from the school in May.

The Complainant met with the appeals officer and advised him that she felt she had been treated unfairly by the Company. She asked how she could be expected to take up a position in a workplace which she had been told in writing wanted her removed. At the end of the meeting the appeals officer said he would contact the Complainant. She received a letter on 23rd January which stated that the Company were maintaining their original decision.

After 7 years of dedicated service the Complainant feels that she has been treated in an appalling manner by the Company.

She was never advised of any dissatisfaction with my work.

The Complainant was led to believe that efforts were being made to find her a suitable alternative position when a month after her last meeting with the Respondent she received a letter terminating her employment with immediate effect.

On appealing her dismissal, she was ignored for almost 6 months and then received a request to attend a meeting giving her totally inadequate time to prepare and a location 30 miles from my home.

The entire experience culminating in her dismissal without warning or notice and subsequent poor treatment has been unfair, humiliating and distressing and merits substantial compensation.

Notice of Termination

With approximately 7 years’ service the Complainant is entitled to 4 weeks’ notice of termination of her employment. During the meetings she had with the Respondent in April 2018 he said “I might terminate your employment” which does not constitute actual notice of termination.

Furthermore, at the last meeting with him on 12th April he said he would do everything to find a position and would be in touch with the Complainant within a few days. The Complainant heard nothing from him until she received a letter of termination dated 14th May and terminating her employment on that date.

Annual Leave

The Complainant wishes to withdraw her complaint in respect of annual leave – on checking her bank account she confirms that payment was received.

The Complainant has been employed by the Respondent since 26th of August 2011.

The Complainant was employed for a part-time position of cleaning operative. Her place of work was in a school in the south of Dublin. Her duties included afternoon/evening cleaning works of classrooms, corridors and toilets with allocated 15 hours per week, Monday - Friday, between 5pm and 8pm.

The Complainant was always paid for hours that she worked (fortnightly in arrears). Due to the way the contract with the school is serviced, the Respondent company is required to work about 39

weeks in a calendar year and is being paid only for the worked time, this is commonly referred to as ‘term time’.

During school breaks (Mid-term, Easter, Christmas, Summer break etc.) the Respondent company are not providing regular cleaning services to the school and the company and its employees are not paid. This rule applies to all employees working in the school (usually between 8 and 9 part-time employees).

At the end of summer break 2015, the school requested the Respondent company to add a new cleaning position to the contract. This new position involved the addition of a cleaning operative to provide cleaning services during the school day, working between 9am to 2pm Monday - Thursday and 9am to 1pm on Fridays.

Responsibilities of the new cleaner included maintaining cleaning standards around common areas (corridors, toilets), cleaning of the staff room and responding to any calls from the school administration in relation to cleaning.

The Respondent held talks with staff employed in the school, the Complainant agreed

that she would change her cleaning hours to day time.

Since September 2015 the Complainant had been working as a cleaning operative during the day.

On 23rd of October 2017 the Complainant contacted the Respondent with information that she had damaged her Achilles tendon (during holidays) and that she had only went to her doctor today to check, what was expected to be a twisted ankle or pulled muscle. Upon receiving her diagnosis, she explained that she would not be returning to work soon, as she was due for a repair surgery.

In terms of continuation of service to the school the Respondent had to organise emergency cover.

The process was additionally difficult due to current regulations which require any person working in proximity of children to be Garda vetted, and this had to be organised through the school

procedures and this could take a considerable amount of time to achieve.

Upon a request to the school it was agreed to reduce morning cleaning hours and with help of staff

already vetted, the Respondent was able to continue the service uninterrupted. However, it was only a temporary measure until such time as the Respondent could organise a new person who could cover this position until the Complainant’s return to work.

It was always the Respondent’s intention to have the Complainant back at her position, as she is an experienced employee and back then the Respondent was struggling to recruit good staff (especially Garda vetted).

The temporary cover lasted until end of 2017, and since 8th of January 2018 an employee returning from long term sick leave (previously Garda vetted employee, returning from sick leave) to cover the Complainant’s work until her return. It was always made clear to the new employee that she was only covering for the Complainant.

On 13th of March 2018 the Complainant contacted the Respondent via text message to say that she would be ready to return to work after Easter break, which would had been on Monday 9th of April 2018.

At the next meeting the Respondent had with the school administration manager, the Respondent passed information about the Complainant’s availability to return to work only to be told by her, that the school had been so satisfied with the quality of work done by the replacement, that they did not wish for the Complainant to return.

The Respondent was surprised at this unexpected turn of events.

As this seemed like a complicated HR situation the Respondent turned for advice to a Human Resources Business Services who advised the Respondent that he did have a duty of care towards the Complainant.

The Respondent was advised to do everything he could to try to keep the Complainant in her position.

The Respondent was instructed to have a meeting with the Complainant in relation to this situation. This meeting took place on 28th March 2018.

On the 5th of April a second meeting with the Complainant took place. During this meeting the entire situation was explained and how difficult the situation had become.

The Complainant was offered alternative work however she was not interested in work in the afternoon as this was the only available work.

The Respondent expressed his concern, that if he could not convince the school to have the Complainant back or find different morning time work, her employment might be at risk.

The Respondent brought the subject up during his next meeting with the client in the hope that they would change their mind, the client did not change their mind.

On the 12th April 2018 the Respondent met with the Complainant for a third time. At this meeting the entire situation was discussed, the Respondent mentioned again two alternative jobs that had been offered to the Complainant who again refused to consider these offers due to the work times involved in same. It was again explained to the Complainant that the only morning job in the company was the one in the school.

At this meeting the Complainant informed the Respondent that she would be proceeding with an unfair dismissal claim.

On 30th April the Respondent decided to make one more appeal to the client and received a response that they had not been happy with the Complainant’s cleaning standards and would not be changing their minds in relation to the decision not to have the Complainant back as day time housekeeper.

The Respondent took the reluctant decision to dismiss the Complainant and this was communicated to her by letter dated 14th May 2018 to the effect that she would be dismissed from that date.

The Complainant exercised her right to appeal this decision and an unsuccessful appeal hearing was held on 29th November 2018.

I note that there were some difficulties in arranging the appeal hearing due to holidays and the availability of a suitable person to hear the appeal. The appeal was heard by the Respondent’s external accountant.

Complaint CA – 00023092 – 001

In the contracted services industries the employment relationship is unique, it is not a two party relationship i.e. employer and employee but is a three party relationship i.e. employer, employee and client. The client can, and often does, decide who may work on their premises, this can at times, be problematic for the employer. Third party pressures cannot be overlooked.

In this instant case the client was not happy about having the Complainant return to her normal job after a period of sick leave. This placed the Respondent (the employer) in a difficult situation.

The Employment Appeals Tribunal put it in Merrigan v Home Counties Cleaning Ireland Limited UD 904/1984:

‘The job of an employee cannot be at risk on the mere whim of a third party to the employment relationship’

I also have to consider that two alternative positions were offered to the Complainant – both were rejected by her.

My conclusion in relation to the complaint of unfair dismissal is that the Complainant was unfairly dismissed however she contributed 50% to her own dismissal through her rejection of two offers of alternative employment.

The Complainant stated at hearing that she had commenced other employment in June 2018, approximately 4 weeks after her dismissal.

Under the Unfair Dismissals Act, 1977 I award the Complainant four weeks pay (€1,008) this sum being reduced by the Complainant’s contribution to two weeks’ pay (€504).

Complaint CA – 00023092 – 002.

The Complainant commenced employment in August 2011, she had 6 years and 9 months service. Under the Minimum Notice and Terms of Employment Act 1973 she had an entitlement to 4 weeks’ notice. I now order the Respondent to pay to the Complainant a sum of €1,008 representing 4 weeks’ pay in lieu of this notice period.

Complaint CA – 00023092 – 003.

This complaint is a duplicate of complaint CA – 00023092 – 002. It is therefore disregarded.

Complaint CA – 0023092 – 004.

This complaint was withdrawn.

The amounts shown above will be paid within 42 days of the date of this notice.

As outlined above.

Unfair dismissal, minimum notice.