Complainant

Respondent

Anonymised Parties

An Employee

A Restaurant

Representatives

Brendan Boyle Ballina Citizens Information Centre

Adrian P Bourke Adrian P Bourke & Company Solicitors

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-00019199-001

15/05/2018

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

CA-00019213-001

16/05/2018

The Complainant commenced employment with the Respondent, a café/restaurant, on 28 March 2016 in the role of Waitress/Food Prep/Deli Assistant.

Following a period of leave from 20 September 2017 to 9 October 2017, the Complainant was not provided with any further work as the Respondent’s business was experiencing a period of downturn. The Complainant commenced the process of seeking alternative employment in mid/late October 2017 and, following a request, from her, contained in a letter to the Respondent of 25 November 2017, was subsequently issued with her P45.

The Complainant submitted a complaint to the Workplace Relations Commission, under the Unfair Dismisses Act, 1977, on 15 May 2018. (Complaint Reference: CA-00019199)This was followed on 16 May 2018 by a further complaint under the Minimum Notice & Terms of Employment Act, 1973. (Complaint Reference: CA-00019213)

These complaints are the subject of the within adjudication.

CA-00019199: Unfair Dismissals

According to the Complainant’s submission, having completed work on 17 September 2017 she was due to work again on 20 September 2017. However, the Complainant submitted that she was unable to work that day due to illness which she advised to the Respondent.

It was submitted on behalf of the Complainant that the illness was due to personal difficulties she was experiencing and that she discussed these with the Respondent when handing in her certificate. According to the Complainant’s submission, the Respondent was sympathetic to her circumstances and suggested that the holiday, which she had booked from 29 September to 9 October 2017, could not have come at a better time. The Complainant submitted that the Respondent advised she could resume work on her return from leave.

According to the Complainant’s submission, she called to see the Respondent on 10 October 2017, which was the day after she returned from leave. The Complainant submitted that the Respondent advised her that the roster had already done for the next two weeks and as it was quiet he did not need her. It was further submitted that the Respondent then asked her to bring in a certificate from her doctor confirming her fitness to return to work and committed that she would be back on the roster after that.

It was submitted on behalf of the Complainant that, when she returned to work with a certificate from her GP, confirming her fitness to return to work, the Respondent said that he had to check the matter with his insurance company, to make sure it was in order for her to return to work.   According to the Complainant, the Respondent advised that he would get back to once this had been done. The Complainant stated that, while she was surprised at this development, she presumed it was a new protocol.

According to the Complainant’s submission, having heard nothing from the Respondent, she called in on 16 November, to see what was happening. The Complainant submitted that the Respondent advised her that he had no hours for her and that the new part-time staff had priority over her as they had covered for her when she had to take some unpaid leave the previous June to look after her grandmother. The Complainant further stated that she questions why the Respondent was now making an issue of that leave when at the time there was no problem with her taking leave. According to the Complainant, the Respondent shrugged his shoulders and give no reply to this question.

The Complainant submitted that, as she had no idea where she stood in relation to employment, she wrote a letter to the Respondent seeking clarification regarding the situation. The Complainant stated that, as it appeared to her that the Respondent had decided to end her employment, she requested him to confirm this in writing and sent her P45. The Complainant further stated that, in the context of the letter, receiving her P45 was confirmation that employment had been terminated and, on that basis, she considers her dismissal to have been unfair.

CA-00019213: Minimum Notice & Terms of Employment

According to the Complainant’s original complaint form, she was given no notice of the termination of her employment nor was she provided with any pay in lieu of notice.   However, the Oral Hearing, her representative confirmed that, as there was no longer an issue in relation to Minimum Notice, the Complainant’s complaint in that regard was withdrawn.

CA-00019199: Unfair Dismissals

According to submission made on behalf of the Respondent, in July 2017 it became clear that there was a downturn in the business and, as a result, no additional staff were hired in the restaurant from that date.

The Respondent submitted that throughout 2017, his accountant wanted him to close the restaurant, but he struggled on hoping for an upturn in business. According to the Respondent, unfortunately that upturn did not happen and he had to close the restaurant at the end of January 2018 or he would have lost everything. In support of the submissions made in this regard, the Respondent provided documentary evidence from his accountant setting out the business performance during 2017.

According to the Respondent’s submission, in the summer of 2017, when the Complainant was asking for more hours, it was becoming clear that while the restaurant was struggling, the coffee shop downstairs was busy. The Respondent stated that the Complainant was offered additional work hours in the coffee shop, but she declined these giving the reason that she did not like the kind of work involved, which was prepping food, making coffee and service.

The Respondent submitted that the Complainant was absent from work for a month in June/July 2017. According to the Respondent, this absence was due to two weeks leave which the Complainant requested because her grandmother was unwell and two weeks pre-booked holidays. The Respondent denied the Complainant’s allegation that he made an issue of this period of absence.

According to the Respondent’s submission, during the period before the Complainant went on sick leave in September 2017, there were many times when she had been upset at work because of her grandmother’s illness. The Respondent also submitted that the Complainant requested to go home early on a number of occasions and that these were facilitated as he empathised with her predicament. According to the Respondent, it was for that reason that he told the Complainant that he felt the subsequent holiday had come at a good time for her.

The Respondent submitted that the reason he requested the Complainant to provide a certificate confirming fitness to return to work was because he had some concerns about her ability to do so as she had been quite emotional at work in the previous period. According to the Respondent, once he received the certificate of fitness to return to work, which was dated 20 October 2017, he instructed the Restaurant Manager to put the Complainant back on the rota. However, the Respondent further submitted that, at that stage, there was a significant downturn and there were no immediate hours available to the Complainant. In this regard, the Respondent submitted that, in June 2017, prior to the Complainant’s first leave of absence, he had hired two employees to work in the restaurant.

The Respondent confirmed that he advised the Complainant at their meeting that he was in difficulty for hours at the time, but he would come back to her as soon some became available. According to the Respondent, he said that the Complainant accepted and understood the situation at that time. In addition, the Respondent submitted that the Complainant knew, at all times, the restaurant was in trouble is during August opening times were cut from 5 to 3 nights.

The Respondent disputes the Complainant’s contention that she worked 35 hours per week. The Respondent submitted that the hours of work per week were varied and when the Complainant worked more than 35 hours a week it was to cover other employees who are on annual leave. In support of his submission in this regard the Respondent submitted a detailed account of the Complainant’s hours worked during 2017. The Respondent also submitted a copy of the Complainant’s Contract of Employment which showed that she was employed as a temporary employee in such a way as to facilitate the trading hours of the business.

With regard to the Complainant’s P45, the Respondent submitted that he received a letter from the complainant, in about November 2017, requesting her P45, which was duly sent to her. The Respondent stated that while he no longer has a copy of the letter in question, he was satisfied that, from memory, the Complainant wrote “send me the P 45”. The Respondent further submitted that another staff member could witness the fact that there was a clear request from the Complainant to forward her P45. In addition, the Respondent submitted that the Complainant requested all outstanding holidays to be paid up-to-date and that this was duly done.

The Respondent submitted that the Complainant did not seek, at any stage, to invoke the Grievance Procedure, referred to in the Contract of Employment which had been provided to her. In addition, the Respondent submitted that the Complainant did not avail of the opportunity which was given to her to work in the café downstairs.

In conclusion, the Respondent submitted that he did not, at any time, tell the Complainant that her employment was terminated or that he wanted her to leave. The Respondent stated that the truth was he was very hopeful that hours would become available.

CA-00019199: Unfair Dismissals

The Complainant submitted her complaint under Section 8 of the Unfair Dismissal of Act, 1977, claiming that she had been unfairly dismissed. Therefore, I am required to investigate the Complainant’s claim in this regard and establish if she was unfairly dismissed. However, having carefully reviewed all of the evidence presented, there was first a requirement to determine whether or not a dismissal had taken place, as this was clearly in dispute between the parties.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“subject to the provisions of this section 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 “.

Section 1 of the Act defines a “dismissal”, in relation to an employee, as follows:

“(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,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

Having carefully reviewed all of the evidence and the submissions made by and on behalf of the Complainant and the Respondent, I am not satisfied that a dismissal, in line with the definitions as set out above at either subsection (a) or (b) of the Act, occurred in this case.

It is clear from the evidence adduced, that the Complainant did not work for the Respondent after 20 September 2017, when she availed of a combined period of sick and annual leave which was due to conclude on 9 October 2017.

When the Complainant presented herself, as available for work, on or after 10 October, the Respondent sought a medical certificate confirming that the Complainant was fit to return to work. I am satisfied, from the evidence presented, that this requirement came, primarily, at the behest of the Respondent’s insurance company. The Complainant questioned the appropriateness of this request. I do not concur with the views expressed by the Complainant, in this regard, as I do not consider it an inappropriate and unreasonable request in such circumstances.   In fact, it must be considered as a prudent step on behalf of any employer, even if it was not specifically required by an employer’s insurers.

Based on the documentary evidence presented by and on behalf of the Respondent, I am satisfied that there was a significant downturn in the financial performance of the business throughout 2017, particularly in the second half of the year and that this eventually led to the closure of the restaurant in early 2018. I am further satisfied that the reason the Respondent was not in a position to provide the Complainant with rostered work, following her return from leave in October 2017, was due to this deterioration in the business.

While the evidence shows that the Respondent was not in a position to provide the Complainant with hours of work when she returned from leave in October 2017, the Respondent strongly contended that it was his hope that he would be in a position to provide hours if/when an upturn in the business occurred. The Respondent further submitted that the Complainant was actually put back on the roster on 20 October 2017, with a view to her being provided with hours if they materialised.

Having carefully reviewed all of the evidence, I am satisfied that the Complainant was aware of the matter relating to unavailability of hours/work, as she refers to this out in her letter of 25 November 2017 to the Respondent, when she also references a discussion which took place with the Respondent on 9 November 2017 with regard to there being no hours for her. In addition, I note from the evidence submitted that the Complainant commenced her search for alternative work in October 2017, almost one month before she submitted the letter of 25 November to the Respondent. In my view, this suggests that the Complainant had accepted the situation with regard to the non-availability of hours with the Respondent and was, not unreasonably, seeking alternative employment.

The key issue in this case and the matter on which it turns, relates to the Complainant’s request to the Respondent to provide her with a P45 and whether or not the Respondent’s provision of same constituted a termination of the employment contract. The request for the P45 is clearly contained in the Complainant’s letter of 25 November 2017. However, according to the Respondent’s oral evidence, this request was originally made verbally at an earlier meeting. The evidence shows that the Respondent complied with the Complainant’s request and provided her with her P45.

According to the Complainant, in the context of her letter of 25 November 2017, the issuing of the P45 could only be seen as a dismissal, which in the absence of consultation with the Complainant must be considered as an unfair dismissal. Having given this matter careful consideration, I do not concur with the Complainant’s contentions in this regard.

Firstly, I note that in the letter of 25 November 2017, in addition to requesting her P45, the Complainant also requested the Respondent to confirm whether or not he had decided to end her employment. While the Respondent clearly provided the Complainant with her P45, no evidence was presented which would indicate that he confirmed, as requested, that the Complainant’s employment was at an end. On the contrary, the Respondent’s evidence at the hearing was that he did not consider the Complainant’s employment to be at an end and was still hoping to be in a position to provide her with work.

Secondly, other than the provision of her P45, at the Complainant’s request, which I do not consider in and of itself to be an act of termination, there is no evidence either by way of word or action which would suggest that the Respondent terminated the contract of employment.

The above view that the Respondent did not terminate the Complainant’s contract of employment, is further underpinned by what I consider to be the bona fide manner in which the Respondent attempted to retain the Complainant in employment. This is particularly so in relation to the offer of alternative employment at the café which operated downstairs from the restaurant. While I note the Complainant disputes this offer and/or her refusal to accept same, the Respondent’s evidence in relation to the Complainant’s refusal to accept work in the café was convincing.

Having carefully considered all the evidence adduced and the submissions made, I find that due to the continuing and accelerating deterioration of the business during and after the Complainant’s period of absence in September/October 2017, the Respondent was not a position to provide her with work on her return. I am further of the view that, recognising the situation for what it was, the Complainant requested her P45 and proceeded to source alternative employment.

Therefore, taking all of the above into consideration, I find no evidence to support the Complainant’s contention that she was dismissed and, consequently, her claim for unfair dismissal must fail.

CA-00019213: Minimum Notice & Terms of Employment

This complaint was withdrawn at the commencement of the Oral Hearing.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my findings in relation to the Complainant’s complaints as follows:

CA-00019199: Unfair Dismissals

I find that the Complainant’s claim under the Unfair Dismissal’s Act is not well founded and is, therefore, rejected.

CA-00019213: Minimum Notice & Terms of Employment

As the Complainant’s claim under the Minimum Notice & Terms of Employment Act was withdrawn at the Oral Hearing, no decision issues.

Unfair Dismissals Act