Complainant

Respondent

Anonymised Parties

A Worker

Retailer

Representatives

Ciaran Campbell Mandate Trade Union

Stephen Kane Byrne Wallace

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-00017123-001

29/01/2018

The complainant’s submission relates to the complainant, regarding a complaint against her employer, the respondent. The complaint is in respect of the respondent’s unilateral decision to summarily dismiss the claimant from her employment without due regard to the respondent’s own procedures and due natural justice.

The claimant was dismissed from her employment on the 31st December 2017 and the claim lodged to the Workplace Relations Commission as per the Unfair Dismissals Act, 1977, Section 8.

Background

The claimant was employed as a General Sales Assistant with the respondent on the 20th March 2015. She was contracted to work 15hrs/week earning €11.21/hour. On occasion the claimant worked more and less hours than the contractual minimum of 15hrs/week. The claimant in all the time she was employed with the respondent was never furnished with a contract of employment and/or a statement of her terms and conditions of employment.

While working for the respondent, the claimant started a course at third level in September 2017, and subsequently requested if she could have work rosters to accommodate her course hours and commitments. Local Management agreed to this request on a 'trial' basis for the 1st semester, i.e.

September to end of December 2017, which the claimant was very thankful for.

In early December 2017 the claimant was approached by a local manager and was asked did she know her 2nd semester course timetable. The claimant advised that at that stage she had a preliminary timetable but that this was likely to change and she wasn't due to start the 2nd semester of her course until the 22nd January 2018.

The claimant told that manager that it would be around this date that she would be more certain of her hours for the 2nd semester. She was then told by the manager 'we would have to keep an eye on the situation and if it doesn't suitthe business needs then she would be let go'.

Whilst the claimant fully understood this situation she was firmly of the view that after the busy Xmas business period had settled, both sides would arrange to sit down and discuss the situation.

On the 15th December 2017 the claimant was brought into the local manager's office and advised that she was to be let go on the 31st December 2017, that she was now served with her entitled 2 weeks’ notice and that she was verbally being told the reason for this cessation of employment was that the company couldn't accommodate her current rostered hours situation. Two days later (the claimant was too upset to attend work the next day and thus took the day off on sick leave, while the local manager was off work the day after that), she asked to speak with the manager and advised her that while it wasn't much she must be entitled to some form of compensation, e.g. redundancy. The claimant was advised by that manager she wasn't entitled to anything and that her employment with the respondent would cease on the 31st December 2018. The claimant asked the manager for the reasons for this employment cessation in writing. She was informed that she would receive this written notification but to date nothing has been corresponded to her.

As and from the 1st January 2018 the employment was dismissed from her employment and to date has not received any communication from the respondent regarding same.

The claimant then lodged her claim for unfair dismissal on the 29th January 2018 which was communicated to the respondent.

It should also be noted on the claimant’s behalf that throughout her employment with the respondent she has not attracted any attention and/or sanction for her work performances and her personnel record is free of all disciplinary sanctions.

The claimant after considerable effort has attained further employment in her locality. She started this employment on the 5th June 2018.

Mandate submits on behalf of the claimant that the respondent’s actions which led to the claimant’s cessation of employment are procedurally inadequate, clearly in contravention of natural justice and a clear example of an unfair dismissal under this particular Act.

The respondent failed to acknowledge that the period from the date of dismissal to when the claimant was due to start back to college for the 2nd semester – the 31st December 2017 and the 21st January 2018 – the claimant was not at college and thus was still in a position to work any rosters the respondent so requested during this period.

Furthermore, the claimant and the respondent willingly entered into an arrangement that for the 1st semester the respondent would accommodate its business needs around the claimant’s 3rd level course commitments. While this is acknowledged by the claimant as a temporary trial, it remains the case that the respondent didn’t offer the claimant the chance to provide her 2nd semester timetable to the respondent, and thus determine if she was in a position to meet the respondent’s business needs and requirements as per the claimant’s ‘contracted’ hours.

Analysing the above it is very clear that the respondent has failed to honour its contractual and legislative obligations to the claimant. The claimant was denied due process in line with any good employer and natural ahead of her dismissal and thus Mandate argues she has been unfairly dismissed.

Conclusion

Mandate on behalf of the claimant, requests that the Adjudication Officer uphold her claim for unfair dismissal against the respondent.

As the claimant has since found gainful employment on the 5th June 2018, the claimant is not seeking either reinstatement nor reengagement.

It thus remains that in the event her claim is upheld she should receive due compensation according to an assessment of her financial losses which, based on her ‘contracted’ weekly hours of work, equates to 15hrs/week @ €11.21/hr, i.e. a loss of €168.15 for every full week she wasn’t employed.

The period for which she remained unemployed is 1st January to 4th June 2018.

This period equates to 23 weeks and 1 day. In financial terms this calculates as the following – 23 full weeks @ €168.15/week + I day which equates to €24.02.

In total this represents a value of €3,891.47.

Mandate respectfully requests that the Adjudication Officer award the claimant the compensation amount of €3,891.47.

In a post hearing, submission the union attached a copy of the claimant’s time table for her second semester – it was asserted that this only became available to the claimant after the termination of her employment. It was submitted that the respondent’s meeting notes confirmed that the claimant had signalled that her preliminary time table was likely to change. It was submitted that this time table demonstrated the claimant’s availability to work Mon, Wed, Thurs, Friday afternoons and all-day Saturday and Sunday.” A common mid-week evening shift roster was 4/4.30p.m.- 7.00p.m. Mon – Wed as the store opens late on Thursdays and Fridays (9.00p.m. closing time).

In response to the respondent’s contention that the foregoing submission was inaccurate Mandate asserted that the claimant was not made aware of at the time of, before nor after her date of dismissal that closing times for Mon-Wed were to be changed from 7.00p.m.- 6.00p.m. It was submitted that this change was not effected until Feb. 2018 and accordingly it was contended that the claimant could have been rostered on for regular 3 hour shifts until the date of change and this would have allowed her pursue her studies.” It is the claimant’s position that while the store closing time changes would preclude her from being rostered for 3-hour shifts Mon-Wed, there was still an opportunity for the respondent to roster her on all remaining days that could provide for her contractual hours – 15 hours per week – and her 3rd level study commitments”.

At the hearing, the claimant, while acknowledging the respondent’s presentation of a copy of her signed contract of employment together with an acknowledgement of receiving a copy of the company handbook, did not recall receiving her contract of employment or the handbook. It was submitted that the claimant had sought a copy of the notes of the meetings leading up to the ending of her employment but these were denied; it was submitted that she had notified the manager that her time table was subject to change: it was contended that the company complaints procedure on page 60 of the handbook should have been brought to the claimant’s attention. It was contended that the claimant potentially had greater flexibility during her second semester – it was submitted that during her college term the claimant had worked between 15-17 hours per week and had worked less than 15 hours per week on 3 occasions prior to Sept. 2017.

The respondent set out the claimant’s employment history with the company and stated that the claimant’s contract of employment provides:

“Your minimum hours of work are 15 hours. You are employed on a flexible hour’s basis and your hours can be changed to suit business requirements and needs at any time in the future. You are asked to take particular note of this requirement”. The respondent’s handbook provides “Your hours will be subject to change according to the store needs and at any time during the course of your employment as dictated by the business …All employees must work flexible hours and days including late nights, Saturdays, Sundays and Public Holidays as part of your working weeks”.

It was submitted that from the commencement of her employment to Sept. 2017, the claimant worked in accordance with her contract. Her average weekly hours from March-September 2017 were 26 hours. It was submitted that when the claimant commenced full time education in Sept. 2017, she was advised that while the respondent would attempt to accommodate her to the 2017 side of Christmas, her limited availability for work posed a difficulty.

It was submitted that in circumstances where the claimant was simply not available to work in accordance with her contract, the respondent gave the claimant notice of termination of employment with effect from the 31st December.” The claimant was simply not in a position to work in accordance with her contract of employment. Her availability to work was so limited that she could not work the 15 hour minimum provided for under her contract”.

In response to clarification from the claimant regarding her availability for work the respondent submitted as follows:

We refer to your letter dated 15 August 2018 enclosing additional written submissions on behalf of the Claimant and to the letter from MANDATE trade union dated 26 July 2018 enclosing a copy of the Claimant's timetable covering the period from 8 January to 13 May 2018[…].

We note that the additional submission provided on behalf of the Claimant does not contain any new information beyond that which was previously covered in the Claimant's original written submission or at the hearing of this case before Ms. Emer O’Shea, Adjudication Officer, on 25 July 2018. The Respondent has already provided their responses to all of these points and so will not be making any further written submission.

However, the Respondent does wish to correct the record in terms of the statement set out in the MANDATE letter of 26 July which states:

““[...] the claimant also advises that her timetable demonstrates her availability to work Monday, Wednesday, Thursday, Friday afternoons and all day Saturday and Sunday. A common midweek evening shift roster was from 4/4.30pm until after 7pm for Monday to Wednesday as the store opens late on Thursdays and Fridays (9pm closing time).”

This statement is incorrect. During the period in question (the Claimant's second semester) the Respondent's Wine Street store opening hours were 9am to 6pm, Monday to Wednesday, and 9am to 8pm on Thursdays and Fridays.

As the Respondent operates a policy of rostering employees for a minimum of 3 hours per shift, the Claimant would have had to be in store at 3pm, at the very latest, during this period in order to work a shift from Monday to Wednesday.

Given that the Claimant’s classes only finished at 4pm, or later, on Monday to Wednesday, it would not have been possible for her to be in store at 3pm to work shifts on these days.

As noted above, the Respondent will not be making any further submissions in respect of this matter.

We await the decision of the Adjudication Officer”.

At the hearing the respondent submitted that the ending of the claimant’s employment was not processed as a disciplinary matter and consequently the disciplinary procedure was not applied. It was treated as a contractual matter.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.   I note in the respondent’s record of the first meeting with the claimant on 07.09.17 the manager states that she did stress to the claimant “that she is a flexi staff member no decision could be made as to whether or not we could continue working together until we were fully informed as to her flexibility”

At the next meeting on the 30th Sept. the manager undertook to “try and facilitate the claimant’s limited flexibility this side of Christmas”.

The meeting of the 10th Nov. records the respondent indicating that the claimant’s limited flexibility could not continue going forward.   The claimant indicated that she would get her new timetable after Christmas – the claimant indicated that she would appreciate any hours. The manager stated that weekends only would not be workable. The manager advised the claimant “that the schedules have been completed up to Christmas and we would talk again closer to the time”.

The respondent’s record of the 15th Dec. meeting indicates that in the intervening period a decision was taken to let the claimant go because of her limited availability and she was given notice of termination at this meeting. The claimant denied the respondent’s contention that she declared her unavailability for work and contended that she was unaware she was attending formal meetings. The manager said to the claimant “you are in College full time. Are you available to fulfil your flexi hours, the answer is no and it is for that reason alone this situation has arisen”.

Having reviewed the evidence at the hearing and noted the chronology of exchanges outlined in the respondent’s records of the meetings, I am satisfied that the claimant had a legitimate expectation that a meeting would take place to discuss options for continuing in employment when the claimant’s availability for 2018 became clear. This did not happen. While I acknowledge the respondent’s argument that the ending of the claimant’s employment was processed as a contractual matter as opposed to a disciplinary matter, the outcome of the process was the ending of the claimant’s employment. No formal procedures were observed in this regard. The claimant was not given formal notice that her employment was in jeopardy and alternatives to dismissal were not explored. I accept the union’ s contention that the claimant was entitled to her rights under natural justice whether the ending of her employment was processed as a disciplinary or contractual matter. Consequently, I am satisfied that the claimant was dismissed and her dismissal was unfair. I am upholding the complaint and require the respondent to pay the claimant €3,891.40 compensation within 4 weeks of the date of this decision.