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-00016279-001

11/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00016279-002

11/12/2017

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

CA-00016279-003

11/12/2017

The Complainant was employed as a General Operative from 19th May 2005 to 4th October 2017. She was paid €284.38 and worked a 25-hour week. She has claimed that she was unfairly dismissed, maybe was made redundant and did not receive minimum notice. She has sought compensation.

The complaints ADJ 12158 and 12172 are duplicates and are withdrawn.

The last supplementary submission was received on 15th January 2019.

The Complainant started in Morehampton Rd site in 2005. In January 2013 there was a transfer of undertakings and her role remained the same. In February 2013 the Respondent requested her to move to the Clondalkin site, which she did. In June 2017 she requested a move to the city centre for family reasons. She was a single parent and she had to take and collect her child to school.   She was moved to the Baggot St site. She worked 9.00am to 2.00pm. Occasionally she worked extra hours and some Saturdays. On 23nd September 2017 she was requested by her manager to move back to Clondalkin. She was told that the Clondalkin manager wanted her to move there. She had moved to Baggot St because of her family commitments and could not move back. She did not request a reduction in her hours of work. It was the Respondent who asked her to go to the Clondalkin site. She declined the request as she was happy to stay there.   The Respondent then removed her from the roster. The manager gave her two weeks’ notice. She has claimed that she was unfairly dismissed because she refused to move to the Clondalkin site.

She has not worked since. She sought part time positions to suit her family commitments and she is restricted with the hours that she can do and where she can travel to. She has not applied for any jobs since July 2018. She injured herself in 2016 and it has impaired her ability to work. She is awaiting an MRI scan result. She is not able to perform the same work as before. She had intended to leave Ireland and return to her home.

The Respondent stated that there was no dismissal. The Complainant was a very good employee and highly regarded. In June 2017 she sought a move to the city centre for family reasons. She moved to the Baggot St site and worked 25 hours per week 9.00am to 2.00pm to cover breakfasts and lunches. In early September she approached the manager to request a reduction in hours of work to 20 per week. The Respondent was unable to provide these hours. He checked around the business and he contacted the manager of the Clondalkin site who was willing to take her back because she was such a good worker. The Complainant initially accepted these hours in Clondalkin but then declined them. The Baggot St manager understood that she was moving to Clondalkin and was not aware that she had declined the offer to work in Clondalkin. It was the manager’s position that he was off on Monday 25th and she was due to be in Clondalkin that Monday. The Complainant stated that she finished up in Baggot St on 4th October. The manager didn’t see her after that. He did not contract her. He believed that she had left the employment. There was no dismissal and this claim is rejected.

I find that there was a total conflict of evidence in this case.

There was a conflict about the Respondent’s statement that the Complainant requested a reduction in hours in the Baggot St site from 25 to 20.

There was a conflict of evidence concerning the move to Clondalkin. The Clondalkin manager gave evidence that she was asked to see if she could accommodate the Complainant with reduced hours there.

I note that the Complainant recorded a conversation with the Baggot St manager concerning the possible move to Clondalkin.

I note the objection to this recording because the Complainant did not get permission to do it.

I question why the Complainant thought it necessary to record this conversation.

I find that this meeting took place in late September 2017 and the manager has subsequently left the business. I accept that recall must be limited.

I have decided to allow the recording to be considered because it may throw some light on this conflict of evidence.

It appears from this recording that the manager had told the Complainant that her hours of 9.00am to 2.00pm won’t work. “I’m happy to keep you here but 9-2 isn’t going to work”.

It appears that the move to Clondalkin was declined at that meeting.

It appears that the Complainant then accepts that her job is gone in Baggot St and the manager allows her 14 days (two weeks) notice.

It appears that he would allow her to work on longer than two weeks if necessary.

It appears that the manager said, “I’m really sorry that it’s not working out”.

So that recording would suggest that the Respondent confirmed that her existing hours of work 9.00am to 2.00pm was not suitable to the needs of the business. The manager sought to find work elsewhere and offered Clondalkin, but the Complainant declined. She was then given two weeks’ notice of termination of the employment.

However, the Complainant didn’t work the two weeks, no reason was given.

I note that there was a conflict of evidence regarding the last day at work, September 25th or October 4th, 2017.

On the balance of probability, I find that the Respondent confirmed that the hours of work didn’t suit the needs of the business. The parties did not agree alternative hours or location and so the employment was terminated by the Respondent’s manager.

Therefore, there was a dismissal

Consequently, I find that this dismissal was unfair both substantively and procedurally.

I find that the Complainant has contributed to the confusion by not accepting the two weeks or possibly three weeks’ notice.

I find that the Complainant has not made any concerted effort to mitigate her loss.

I am informed by the Employment Appeals decision: Sheehan v Continental Administration Co Ltd (UD858/1999) which stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

I find that as a result of the Complainant not mitigating her loss then there was no financial loss.

Sec 7(1) ( c) (ii) of the Unfair Dismissals Act states, “If the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances”.

Therefore, I find that the compensation may not exceed 4 weeks’ pay.

2)Redundancy Payments Act CA 16279-002

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have decided that this complaint is not well founded and so it fails.

3)Minimum Notice & Terms of Employment Act CA16279-003

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the dismissal was unfair and that minimum notice was warranted.

I have decided on the balance of probability that the Complainant declined the offer of at least two weeks’ notice therefore she is entitled to the balance of 4 weeks’ notice.

I have decided that the Respondent should pay the Complainant €1,137.52 within six weeks of the date below.

Unfair dismissal, minimum notice and or redundancy