Act

Complaint Reference No.

Date of Receipt

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

CA-00011218-001

09/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011218-002

09/05/2017

The complainant commenced employment with the respondent on June 1st, 2015 and her employment was terminated on January 12th 2017.

She was paid €366.00 for a forty-hour week.

The complainant discovered that she was pregnant on January 6th, 2017 and became unwell on January 10th. She had advised the respondent of her pregnancy on that day.

She submitted a medical certificate to cover her absence up to the end of the month of January.

Sometime later, while on sick leave the complainant got a phone call from a co-worker to tell her that there was an envelope for her in her workplace for collection.

At this stage the respondent was aware of her pregnancy.

In due course, after her husband collected the envelope, the complainant discovered that the letter contained her P45. She gave evidence that she had never requested a P45 nor had anyone on her behalf.

Her husband, who also gave direct evidence said that he got a message to call to the respondent and when he was handed an envelope did not know what it contained.

She has had no further contact from the company since. There were no procedures followed in relation to the termination of her employment.

In relation to her losses, her baby was born on September 19th and she was available for work from October 20th. 2017. She was also adversely affected as a direct result of the dismissal in relation to her entitlement to maternity benefit. Her losses were €6110.00.

On the basis of earnings of €257.40 per week she claims sixty-four weeks (being the balance of the two-year period in which she is available for work, in the amount of €16,473.60.

Her complaint under the Terms of Employment (Information) Act is that she was not given a statutory statement in compliance with the Act.

The respondent says that the complainant finished work on December 16th 2016 and was due to return on January 9th 2017.

She did not do so.

Instead she attended with a medical certificate indicating her unfitness to work.

Subsequently the company received a telephone call requesting that her P45 be made available to her for collection and that her husband would call to collect it.

The company arranged for this and the item was collected by the complainant’s husband.

The conflict in the evidence in relation to the key question in the case is stark.

The respondent claims that the complainant, or someone on her behalf requested that her P45 be prepared for collection. He was quite specific that the date on which this was sought was January 17th but there was no evidence offered to support this claim and the named person who allegedly received the call did not attend the hearing.

The complainant flatly denies that she, or anyone acting for her ever sought her P45 and that having discovered she was pregnant in the early part of January 2017 she fully intended to return as soon as she had recovered from the episode of illness she was experiencing.

Her husband, who also gave direct evidence said that he got a message to call to the respondent and when he was handed an envelope did not know what it contained.

Both he and the complainant denied ever making a call to request the P45. The complainant also gave direct evidence that when she got the envelope she did not know what it contained and was surprised that it was her P45.

There are a number of aspects to the respondent’s evidence which are not convincing.

There was no reason why the complainant should seek to terminate the employment. A resignation or a termination on the date it occurred would have had adverse effects for her claim for maternity benefit.

Further, any presumption on the part of an employer that a request for a P45 is equivalent to a resignation, or that it otherwise triggers the termination of the employment is simply that; a presumption.

The Department of Social Protection may seek a P45 in connection with an application for benefit and an employer who translates this into a resignation is taking a very considerable risk and would be well advised to verify the purpose for which it is being sought.

The corollary of this may, of course be that the provision of a P45 is not conclusive evidence of intention to terminate of employment.

However, in this case where the evidence of the complainant was that she did not at any stage even request the P45 it becomes a different matter. The only defence offered by the respondent was that the P45 was provided in response to a request from the complainant.

The Unfair Dismissals Act places a clear onus on an employer to demonstrate that a termination of employment is fair. This means that there must be cause to terminate the employment and some fair procedure by which it is effected.

In his evidence the respondent stated that ‘he assumed’ that the complainant was terminating her employment.

This will not suffice to discharge the burden of proof, and   certainly not in the face of strong contrary evidence by a credible complainant.

It follows that a respondent who cannot discharge that burden of proof will fail to meet the test in the Act that a dismissal is fair.

It would not have been difficult to discharge that burden in relation to the facts of this case. At a minimum, the respondent could have sought confirmation of the complainant’s actual intentions, and ideally in writing for the purposes of good record keeping and, as things turned out, for the equally important purposes of discharging the burden of proof in respect of this complaint.

This would have been no more than prudent management.

On the basis of the available evidence and the inferences which can reasonably be drawn from it, the respondent’s position is not credible.

His failure to present the witness who allegedly received the request for the P45 was especially inexplicable given the nature of the evidence the respondent claimed she would be able to give regarding the request for the P45.

I find therefore that there was a dismissal and that it was unfair.

The complainant is entitled to compensation in respect of losses attributable to the termination.

In making my award I take into account the loss of maternity benefit in the amount of €6110.00 as being a direct consequence of the termination, and her availability for work again from October 20th, 2017.

In respect of her complaint that she did not receive the statutory statement of her terms of employment the respondent claimed that all employees were given such a statement.

However, no evidence was available that there had been compliance with the Act in respect of the complainant. This complaint also succeeds.

I uphold complaint CA-00011281-001 and award the complainant €12,000 in respect of the unfair dismissal. I uphold complaint CA-00011281-002 and award the complainant €500.00.

Unfair Dismissal