Complainant

Respondent

Anonymised Parties

Child Care Worker

Child Care Facility

Representatives

Self

Owner Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00030497-001

27/08/2019

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

CA-00030497-002

27/08/2019

The complainant was employed as a child care worker from 07 December 2018 to 26 August 2019.   She worked 39 hours per week and she was paid €11.00 per hour. The complainant submitted two complaints to the Workplace Relations Commission on 27 August 2019:

CA-00030497-001 – A complaint under the Industrial Relations Acts that she had been unfairly dismissed on 26 August 2019.

CA-00030497-002 – A complaint under the Minimum Notice & Terms of Employment Act, 1973 that she did not received her statutory minimum period of notice or payment in lieu thereof on the termination of her employment.

CA-00030497-001 – Investigation of a dispute under Section 13 of the Industrial Relations Act, 1969.

The complainant commenced work on 07 December 2018. She was a child care worker at a creche and Montessori establishment. During the period of employment, she was absent from work on three days, 29 April, 29 May and 08 August 2019 and a further four days certified sick leave from 24 to 27 June 2019 inclusive.

The respondent issued a contract of employment on 05 June 2019 which the complainant signed on 10 July 2019. The contract provided for a six-month probation period. The complainant had completed six months employment at the date the contract was signed. Following the signing of her contract of employment the complainant was absent from work on one day, that was 08 August 2019.

The complainant went on annual leave in August. She returned to work on Monday 26 August 2019. At the end of that day the respondent asked her to have a chat in her office. The complainant understood this would be a catch-up after her period of annual leave.   The respondent, without prior notice, dismissed the complainant for failure to attend work regularly and for frequent short-term absences.

At the investigation hearing the complainant provided a copy of the letter of dismissal which she received on 26 August 2019. In the letter the respondent confirmed that the complainant was being dismissed for failure to attend work regularly and frequent short-term absences.

The complainant was not given prior notice of the meeting of 26 August 2019, she was not made aware of the purpose of the meeting and she was not accompanied at the meeting, she had no opportunity to respond to the complaints. She was surprised and very upset at being dismissed in this manner.   She believed she was unfairly dismissed from her employment.

CA-00030497-002 – Complaint under the Minimum Notice & Terms of Employment Act, 1973, Section 11.

The complainant claimed she had not received her statutory minimum period of notice or payment in lieu thereof when her employment was terminated. Her contract provides for one months’ notice, but a lesser period of notice may be agreed between the parties. The complainant was paid for one week in lieu of notice. She claimed that she should have received one months’ notice as per her contract and she disputed that she had agreed to accept one weeks’ pay in lieu of notice.

CA-00030497-001 – Investigation of a dispute under Section 13 of the Industrial Relations Act, 1969.

The respondent provided a written submission which stated that as the complainant did not have twelve months service the provisions of the Unfair Dismissals Acts do not apply.   At the investigation hearing the respondent stated that the complainant had been dismissed for gross misconduct.

The complainant had been absent on 29 April, 21 May, 08 August 2019 and on certified sick leave from 24 to 27 June 2019. The respondent submitted that the manager of the facility had given verbal warnings to the complainant about the use of her mobile phone when she was supposed to be teaching and/or supervising children. The respondent had issued a verbal warning to the complainant on 15 July 2019 about her attendance record.

The duty manager reported to the respondent that on 07 and 09 August the complainant had spent a large part of the day on her mobile phone at a time when she should have been teaching and/or supervising children. The complainant was absent from work on 08 August 2019. The duty manager took several photographs of the complainant using her mobile phone at work on 07 and 09 August 2019.

The respondent asked to meet the complainant at the end of the day on Monday 26 August 2018. The complainant was told that she had been using her mobile phone while supervising children and this had prevented them from being minded in a safe manner. These actions were in breach her duties to her employer and the children in her care.

The respondent stated that she had received verbal complaints from parents and that there was negative comment in a recent TUSLA inspection concerning the complainant.   The complainant was dismissed for gross misconduct along with frequent short-term absences.

CA-00030497-002 – Complainant under the Minimum Notice & Terms of Employment Act, 1973, Section 11.

The respondent submitted that It was agreed between the complainant and the respondent that a weeks’ pay in lieu of notice would be paid and that the complainant need not work for the rest of that week. The respondent submitted that this arrangement was in line with the termination clause of the contract of employment which provides that a notice period of less than one month may be agreed between the parties.

CA-00030497-001 – Industrial Relations Acts investigation – The complainant requested an investigation of a dispute with the respondent concerning the termination of her employment on 26 August 2019.

The complainant was asked to attend a meeting at the end of her work day on 26 August 2019. She was not notified that this would be a disciplinary meeting, she was not given the opportunity to have anyone attend the meeting with her. The respondent had a letter of dismissal prepared, which was handed to the complainant at the meeting.

The complainant provided a copy of the letter at the investigation hearing. It states “This letter is to confirm your dismissal in your role as childcare assistant with (name of facility). This decision has been made for the following reason: Failure to attend work regularly and frequent short-term absences.”  The letter does not mention gross misconduct or refer to the complainant using her mobile phone at work.

At the investigation hearing the respondent could not explain what disciplinary procedure is set out in the disciplinary policy document contained in the Employee Handbook.   Following the hearing the respondent submitted a copy of the Employee Handbook and a Policy statement. I note that the Disciplinary Policy contains the following statement under Employee Rights: “At each stage of the disciplinary procedure, employees have the right: - To be informed of the complaint against them and be given sufficient opportunity to present their case and call witnesses to support their case, as appropriate.” The respondent did not follow this procedure.

Employees are entitled to fair procedures no matter how little service they have accrued. It is not open to employers to ignore fair procedures or breach their own disciplinary policy because the employee has less than twelve months service.

I find that the complainant was unfairly dismissed. I recommend that the respondent pays to the complainant compensation equal to four weeks’ pay, this amounts to €1716.00. This recommendation takes into consideration the fact that the complainant was successful in obtaining a new position which she commenced on 23 September 2019.

CA-00030497-002 – Minimum Notice – I find that the complainant did receive her statutory entitlement as she was paid for one week in lieu of notice. The legislation provides for one weeks’ notice period or payment in lieu of notice. The complaint is not well founded and fails.

CA-00030497-001 – Industrial Relations Acts Recommendation. I recommend that the respondent pay to the complainant compensation of €1716.00 .

CA-00030497-002 – Decision - The complainant did receive her statutory entitlement as she was paid for one week in lieu of notice. The complaint is not well founded and fails.

Industrial Relations Acts – dismissal, Minimum Notice – payment in lieu