ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016628
Parties:
| Complainant | Respondent |
Anonymised Parties | A Property Administrator | A Property Management Company |
Representatives |
| Eamonn Gibney |
Complaint:
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-00021605-001 | 06/09/2018 |
Date of Adjudication Hearing: 06/11/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts 1977 - 2015, this complaint was assigned to me by the Director General. I conducted a hearing on November 6th 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint. The complainant attended alone and was not represented. The owner of the respondent business attended and was represented by Mr Eamonn Gibney, HR Consultant.
Background:
The respondent runs a real-estate, sales and letting business employing four people and the complainant started work as an administrator on April 3rd 2018. She was dismissed 22 weeks later. She complains that she was dismissed on August 31st 2018 because, when her weekly wages had not been credited to her bank account by around 8.00am on that day, she informed her employer that she intended joining a trade union and making a complaint to the Workplace Relations Commission. |
Summary of Respondent’s Case:
The evidence of the owner is that on August 31st 2018, she received a text message from the complainant at 7.49am saying that her wages were not in her bank account. The complainant said that she couldn’t come to work because she had no money for a taxi and she said she could work from home. The owner discovered that there had been a problem with the payroll and she got cash for her employees so that she could pay them that day. She sent an e mail to the complainant to tell her that she would be paid. The complainant replied that she couldn’t come to work until she had money in her bank account. In response, the owner sent a mail to say that wages would be paid in cash and that the complainant was expected at work. The complainant arrived at work just before 11.00am and the evidence of the owner is that she was aggressive in her manner and that “she asked about her pay while leaning over me and when she returned from paying her taxi, she announced to the whole office that she was lodging a complaint to the WRC and joining a union.” At 11.19am, the complainant sent an e mail to the respondent stating: “Just to recap on our conversation, I will be joining a union and making a complaint to the work relations commissions (sic) due to this matter. “It has happened too many times, just to overlook now.” When questioned about delays with the payment of wages to her employees, the respondent said that on three occasions in the 22 weeks that the complainant worked for her, there was a delay with the payment of wages, but, in general, staff got paid every Friday. Mr Gibney said that the complainant’s contract provides that she is paid every Friday, and it does not stipulate that she will be paid before 8.00am, but simply that she will be paid weekly on Fridays. The owner denies that the complainant was dismissed because she threatened to join a union. From her evidence, it appears that after their altercation on August 31st, she decided that she could not tolerate the complainant’s lack of respect and aggressive attitude. At the hearing, the owner said that she had concerns about the complainant’s interactions with the company’s clients and, in her book of papers, she submitted copies of written complaints from clients. Also, in the short time she was employed, the owner said that the complainant had been absent due to illness on two occasions and she was concerned about this. In her evidence, the owner submitted a copy of an e mail dated August 15th, which was in response to the complainant’s request for holidays in November. Approving the holidays, the owner said, “Just to note your request for holidays in November 2018. Please note in the diary as I requested. Your 6-month review will take place towards the end of September and we can review your holiday entitlements and other matters at that time. “Thanks for all your efforts and work to date. “In the meantime, should you have any matters to discuss, please feel free to talk to me.” Summarising the respondent’s position, Mr Gibney said that, as an employer of just four people, the owner had no dealings with a trade union, but that she had no concerns about the prospect of an employee joining a union. She had also never been before the WRC, so she didn’t know what this involved and did not consider either of these references as being of concern. The owner’s position is that the complainant was dismissed for her “disrespectful and aggressive attitude when dealing with me.” |
Summary of Complainant’s Case:
When she examined her bank records at the hearing, the complainant said that, on four occasions during her employment with the respondent, her wages did not get credited to her bank on Friday. She said that she has a child with special needs and it is important that she gets paid on time. On the morning of August 31st, the complainant said that she had no money for a bus or a taxi and at 7.49am, she sent a message by “Whatsapp” to the respondent: “Hi (name of owner) “I haven’t been paid yet. Bills have come out of my account and now I’m overdrawn. I have no way of getting (name of daughter) to her Granny’s this morning, with no money in my account. Do you know when I will be paid? “How would you prefer I handled this? I could come into the office but (daughter) will have to come with me or I could work from home on my laptop. “Apologies for this. It is a huge inconvenience for me as well as you. Please advise.” The owner responded by 9.10am to let the complainant know that she would be paid, and the complainant wrote back to say that she couldn’t come in until money had transferred to her account. When the owner replied to say that she would be paid in cash, the complainant arrived at work just before 11.00am. When she arrived, the complainant said that she asked to speak with the owner, and, as there was a cleaner working in an upstairs office, they spoke in the main office where other staff also work. The complainant said that she told the owner that she would be lodging a complaint with the WRC and joining a union, “as the problem with pay had happened too many times before.” The complainant said that she confirmed this statement in an e mail at 11.19am. A few minutes later, the complainant said that she was called into an office by the owner and informed that she was being let go and that she would be paid one week’s pay in lieu of notice. The complainant said that she challenged the owner and said that this was an unfair dismissal, that meetings should have taken place and that a disciplinary procedure should have been followed. Her recollection is that the owner responded that, as she was on probation, she could be dismissed at any time. She informed the owner that she would bring a case to the WRC regarding her unfair dismissal. In response to the criticism about her interactions with clients, the complainant said that she never received any warnings, and that the disciplinary procedure was never invoked with regard to her performance or conduct. It is her view that the reason she was dismissed is because she informed the respondent that she intended joining a union. |
Findings and Conclusions:
The Relevant Law The complainant alleges that her dismissal occurred because she told her employer that she intended to join a union. Section 6(2)(a) of the Unfair Dismissals Act (as amended) sets out the legal provisions concerning dismissal and trade union membership or activity: “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following: (a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage” Section 14 of the 1993 amendment to the Unfair Dismissals Act removes the requirement for a person claiming that their dismissal arose from trade union activity to have completed one year of service with their employer. I refer to the decision ofMr Justice Sheridan in Michael Reid v John Oxx, [1986] ILT 4, 207, where he decided that, “…where a person is dismissed for trade union activity the necessary qualification of a year’s employment so as to qualify for redress under the Act is dispensed with but at the same time the presumptions under subsection (1) and (6) of the section putting the onus of proof on the employer shall not then apply.” It follows therefore that the legal burden is on the complainant to show that her dismissal was wholly or mainly on the ground of trade union activity. Payroll Issues Following the hearing of this complaint, the respondent sent a cover note and a copy of her bank records from April 3rd to September 5th 2018. The bank records are difficult to read due to the quality of the photocopy, but the note confirms that, on three occasions, including the complainant’s last day at work, she was paid in cash rather than directly into her bank account. The complainant also sent in bank statements for the period from April to August 2018. These show that on two Fridays, April 20th and 27th, her wages were not credited to her bank account until the following Monday. Her wages for Friday, May 4th arrived in her bank on Wednesday, May 9th. It is apparent from this summary, that the respondent failed to pay the complainant on time on three occasions. This is upsetting and annoying, as an employee needs to have confidence that wages will be paid on time and using a consistent method. Apart from when her wages were not credited to her bank on time, on three other occasions, due to problems with payroll or bank transfers she was paid in cash. The Complainant’s Intention to Join a Union While any person is entitled to become a member of a union, the objective of membership is not to sort out basic problems of administration or cash flow. Nor should union membership be suggested as a threat to an employer, as appears to be the case here. From the evidence submitted at the hearing, there were some problems with the complainant’s work and the way she dealt with clients. It seems however, that the respondent intended to review her performance at the end of her probation as she stated that they would talk about holidays and “other matters” then. However, on August 31st, it appears that the way the complainant spoke to the respondent because her wages were not in her account by 8.00am was the last straw for the respondent. It is evident to me that, because of her disrespectful conduct, the complainant was dismissed. My impression of the events of August 31st is that, when she discovered that her wages had not been transferred to her bank, she decided that she would work from home and when she was instructed to come in, she was annoyed. Her only reference to a union was shortly after she arrived at work that day. It seems to me that she decided that it would be in her interest to have a record of this and, shortly after she made the statement, she confirmed her intention in an e mail. At the hearing, it was evident that she never took any initiative to contact a union. It is my view that the complainant’s statement was contrived and disingenuous. I find that the complainant has not discharged the burden of proof required to show that her dismissal was “wholly or mainly” related to any intention on her part to join a union. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the reasons set out above, I have decided that the complaint under the Unfair Dismissals Act is not upheld. |
Dated: 18th January 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Unfair dismissal, trade union activity |