ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012283

Parties:

Complaints:

Date of Adjudication Hearing: 24/09/2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred the aforesaid complaints to the Workplace Relations Commission (hereinafter WRC) on 13th December 2017. In accordance with Section 8 of the Unfair Dismissals Acts 1977-2015 and Section 41 of the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into these complaints and gave the Parties an opportunity to be heard by me and to present any relevant evidence. The Complainant had received some assistance from a Public Information Service and Solicitors beforehand but represented herself at the hearing, and the Respondent was represented by Peninsula. The Respondent’s Director, Mr X, consented to an amendment reflecting the Respondent’s full legal title.

The complaint of unfair dismissal was referred as a regular unfair dismissal under the Unfair Dismissals Act 1977, along with an ancillary complaint that the Complainant had never received payment in lieu of her statutory notice, contrary to the Minimum Notice & Terms of Employment Act 1973. This case was initially listed for hearing on 26th June 2018 but was adjourned at the request of the Respondent. It was rescheduled for hearing on 23rd July 2018. On that date, the Respondent raised two preliminary objections, namely, (1) that the Complainant did not have one year’s continuous service required to pursue these complaints and (2) that she had never been dismissed by the Respondent. I firstly determined that it would be necessary to hear all of the evidence in order to adjudicate on these objections. Given that both requisite service and fact of dismissal were in issue, the Complainant’s evidence was adduced first. After she had commenced giving her evidence, it became apparent that a key witness, a Manager called Ms Y, would be required by the Respondent in order to defend these complaints and the case was adjourned to facilitate her attendance. I also allowed the Complainant to pursue an alternative complaint of constructive dismissal as anticipated and addressed in the Respondent’s submissions. The hearing proceeded on the rescheduled date of 24th September 2018 and the Complainant’s evidence was reheard before the Respondent adduced its evidence and submissions. The Parties’ respective positions are summarised hereunder followed by my findings & conclusions and decision. All evidence, submissions, supporting documentation and law presented by both Parties have been taken into consideration.

Background:

The Complainant brought a complaint of unfair / constructive dismissal against the Respondent in circumstances where she contended that she had been told not to return to work as she had been unable to attend a staff meeting on her day off when she was in college and/or she had been dismissed by virtue of the fact that her contracted days of work had been unilaterally changed following that meeting such that her job became unavailable. She also contended that she had not received payment in lieu of her entitlement to one week’s minimum notice and sought compensation in respect of both complaints. The Respondent raised the aforesaid preliminary objections and sought to have these complaints dismissed.

CA-00016294-001 – Unfair/Constructive Dismissal under Unfair Dismissal Acts

Summary of Complainant’s Case:

The Complainant gave evidence confirming that she was employed by the Respondent as a hairdresser in one of its Hair and Beauty salons on 16th August 2016 and reported to the Owner and Director, Mr X. She had originally worked four days a week but during the course of her employment this had been reduced to three days per week and then to two days per week. She also experienced interpersonal difficulties within the salon and became unhappy with her work in general. Much of her communication with Mr X was conducted by way of text messages. On 12th August 2017, a manager had made her aware of a conversation she had with Mr X about the Complainant’s work so she had texted Mr X enquiring: “Are you not happy with me in the salon?” He responded: “I am. But you need to put more effort. U know that.” When she indicated her intention to resign, Mr X responded: “Don’t be silly. I don’t want to loose u. But u need to put more effort that’s all.” She went ahead and verbally tendered her resignation giving a week’s notice and subsequently confirmed this in writing. In a further text message exchange of 17th August 2017 with Mr X, the Complainant confirmed her resignation but said she could work for another week so as not to leave him stuck for staff. She also requested her P45, outstanding pay and holiday pay. When Mr X enquired as to why she was leaving, she indicated her disquiet with her workplace situation and he offered her a transfer. During the course of a further text message exchange from 19th August 2017, the Complainant referred to issues with other staff and Mr X engaged her in referring to them in derogatory terms. He then asked whether she would reconsider her position and the conversation ended with the Complainant texting: “I’d like to meet with you during the week for a proper chat if I’m to reconsider staying and it won’t be hairdressing if so.” Mr X confirmed his agreement to meet the following week and the Complainant texted back: “Ok, Thursday for a proper chat, I’m going to think about everything over the weekend.” A copy of the undisputed text message exchange was furnished at the hearing.

From the exchange of text messages furnished, it appears that this meeting was delayed for a period owing to Mr X being away but it eventually went ahead on 7th September 2017. The Complainant outlined what was discussed at the meeting (in respect of which there were no minutes taken). Mr X had asked her to return to work as a receptionist which would also entail less interaction with the staff members with whom she had interpersonal difficulties. It was also verbally agreed that she would not be required to work weekends to accommodate her college course and she would be rostered to work weekdays and primarily Mondays and Fridays. There was another member of staff available to cover Saturdays. Her hourly rate of pay was also increased from €10 to €10.50 per hour. She further confirmed that no outstanding holiday pay or public holiday pay in lieu was ever discharged by the Respondent indicating an end to her employment as a hairdresser. She said that having reconsidered her position, she had returned to the salon as a receptionist from Monday 11th September 2017. She referred to a ‘Statement of Main Terms of Employment’ for a ‘Receptionist’ signed by Mr X on 30th September 2017 but not by the Complainant as furnished on behalf of the Respondent at the hearing. It stated: “Your employment began on 18/09/2017 and no previous employment counts as part of your continuous period of employment.” It noted her title, place of employment and hourly rate of pay and specified that the Respondent would provide her with a minimum of 16 hours work per week, “…however these hours, days of work, start and finish times will vary in accordance with the weekly roster.” She confirmed that she had never signed her agreement to same.

It was common case that throughout the Complainant’s employment, the Respondent had completed and signed off on Declaration of Unemployment Forms on her behalf. These are administrative forms required by the Department of Social Protection for the purposes of claiming Jobseeker’s Allowance by persons available for full-time work for the days that they are unemployed. This practice continued for the period between her hairdresser and receptionist roles and for the days not worked thereafter. At one stage during this period of time her text message exchange with Mr X confirmed that she had texted him: “I’m over in the salon, can I get (a manager) to sign my welfare form for last week until things get sorted?” As confirmed by the Forms furnished, they were completed by managers on behalf of the Respondent.

The Complainant said the new working arrangements were going well until she received a text message from Mr X on 17th October 2017 stating: “Please be informed that staff meeting has been scheduled on this Saturday the 21st @ 5.50pm all staff required to attend. Thanks”.The Complainant replied by text stating: “Heya, I’m in College Saturday unfortunately can’t make it”. She received a reply from Mr X stating: “Don’t come back to work then if u not Gina Make it”. She responded back: “Ah right, threatening to sack me because I can’t make a staff meeting as I’m in college & considering, taking into account Iv made ALL staff meetings previous? Alright Mr X”.She confirmed that she had worked on the Friday of that week and there were no further text messages exchanged. She was unable to attend the staff meeting as she had to attend college. A letter from the third level college where she was undertaking her course was submitted confirming her attendance there that weekend. She missed a call from a Manager, Ms Y, the following evening of Sunday 22nd October 2017 and rang her back as confirmed with phone records furnished. She recalled Ms Y as saying words to the effect that she did not want to be the one to do this but Mr X had asked her to ring the Complainant to let her know that she is not to come into work the following day as originally rostered (Monday) and he will arrange a meeting with her on Tuesday. She referred to her being on probation and when the Complainant had pressed her on what that meant, she would not elaborate further. Taking this together with the earlier text message from Mr X telling her not to come back to work if she was not going to make the staff meeting, she assumed she was dismissed. She did not hear anything further from Mr X the following week and went to a Public Information Service for advice and assistance. Thereafter ensued an exchange of correspondence between the Public Information Service on her behalf and the Respondent as furnished. On Thursday 26th October 2017, the Complainant wrote to the Respondent confirming that she had been advised to take an unfair dismissal claim and that the Public Information Service was available to meet to discuss the matter. The Public Information Service also sent a registered letter to the Respondent on the same date on her behalf stating that she had informed them that she had been dismissed by phone call on 22nd October 2017 and requested the written principle grounds justifying her dismissal, failing same within 10 days, proceedings would be referred to the WRC.

Mr X responded to the Public Information Service on behalf of the Respondent by letter dated 31st October 2017 as follows: “I can confirm that your client (the Complainant) wasn’t dismissed from employment and her job still available, on Sunday 22nd October @ 4.32PM she received a phone call from our manager (Ms Y) asking her to not attend to work on Monday the 23rd of October and she will be contacted soon to inform her what days she has scheduled for. On Monday the 23rd of October we have sent a letter to your client’s home address informing her that her working days will be every Saturday and Sunday. I attached a copy from that letter. Your client never show to work on Saturday and Sunday 28th & 29th of October. It is important to know that your client is fully aware that she is still within the probationary period as she resigned from her employment as a hairdresser on the 17th August 2017 she finished work with us as a hairdresser on the 26th of August 2017. On the 9th of September 2017 (the Complainant) re-applied for job with us as a Receptionist and she started employment with us as receptionist on the 18th of September 2017, a copy of her previous resignation and p45 attached.” This letter enclosed a copy letter to the Complainant dated 23rd October 2017 stating: “Please note that you have been rescheduled for work for every Saturday 9am - 6pm and Sunday 11am to 6pm. Your next working day for this week will be Saturday the 28th of October 2017 @ 9am.” It also enclosed a P45 with a date of cessation of 4th September 2017. The Complainant said that she had not received either the letter dated 23rd October 2017 or P45 before the Public Information Service passed these documents on to her. By letter dated 14th November 2017, the Public Information Service responded to Mr X setting out the Complainant’s position as outlined above to the effect that she had rescinded her resignation further to his request to reconsider her position and their meeting to discuss suitable days and consequent return to work on 11th September 2017. It further outlined the circumstances giving rise to her dismissal as set out above and confirmed that the Complainant had never received the letter of 23rd October 2017 rescheduling her work nor had she had sight of the P45 previously and “… was surprised this was even issued.” It concluded that she had been dismissed for not attending the staff meeting in question and allowed a further 7 days for a resolution before referral to the WRC. There was a further back and forth exchange between Mr X and the Public Information Service by way of post and email. Mr X contended that the Respondent had formally accepted the Complainant’s resignation before it had re-employed her, stating: “…I never asked her to reconsider her resignation.” The Public Information Service refuted this position contending that it was inconsistent with his text message exchange and meeting with the Complainant where he asked her to reconsider her position and the fact that the Respondent had continued to sign off on her Declaration of Unemployment Forms between roles.

In the course of his exchange with the Public Information Service, Mr X contended that the Complainant had returned to work on 18th September 2017. A P60 for 2017 was furnished recording her date of commencement of employment as 19th September 2017. However, the relevant Declaration of Unemployment Form indicated her return to work on Monday 11th September 2017. Mr X further contended that he had instructed Ms Y to phone the Complainant to tell her not to attend work the following day and that he would be in touch with her new hours. He maintained that the letter of 23rd October 2017 and P45 had been sent to the Complainant’s home address. However, no proof of postage was ever produced as requested by the Public Information Service on her behalf or at any stage. He again denied that she had been dismissed stating that her job was still available but she had not shown up for her rescheduled hours. The Public Information Service responded: “She was clearly dismissed, as the proposed new hours you wanted her to work could not be worked by our client, as you are aware she goes to college on Saturday and Sunday, this was where the whole original dismissal came from, she was not able to attend to a staff meeting and was then subsequently dismissed.” In response, Mr X commented: “The conclusion in this matter is that (the Complainant) wants to name her hours and days according to her pleasure that is not going to be happened under any circumstances, she was informed that her days in work are Saturday 9-6 and Sunday 11-6 and these hours are still available now.” Mr X maintained this position and wrote to the Complainant by letter dated 22nd November 2017 stating: “I would like to bring to your attention that you have been out on un-authorised leave since the 28th of October 2017. Please note that you have still not provided any proof or medical cert to cover this absence since.” Payslips continued to issue for a period thereafter and showed nil pay. Arising from the Respondent’s actions as outlined above, the Complainant contended that she had been unfairly and/or constructively dismissed and sought compensation by way of remedy. Whilst she had previously been working more hours and earning slightly more, for the duration of her new role and at the time of her dismissal, payslips confirmed that she earned approximately €168 gross per week. She had quickly found similarly paid alternative employment with a new Hair and Beauty Salon by the end of November 2017 and was only seeking compensation in respect of the period she was out of work. Mitigation was not in issue. These complaints were submitted to the WRC on 13th December 2017.

The Respondent’s representative put its position to the Complainant that she had never been dismissed. She replied that between Mr X’s text message, Ms Y’s phone call and the letter of 23rd October 2017 changing her working days, she had at least been constructively dismissed. She also contended that changing her working days was an effort by Mr X to cover his tracks. She denied ever directly receiving the letter of 23rd October 2017 confirming that she was rescheduled to work on weekends. She also denied knowledge of the written ‘Statement of Main Terms of Employment’ outlined above but accepted that she had been furnished with the Company Handbook. She also accepted that she had furnished Mr X with a pre-prepared letter at their meeting which suggested that she considered herself to have left the Respondent’s employment by including the following statement: “Right so as you know I’m no longer employed with you, so this meeting of which I don’t have to be here for, is to see what you have to offer me in order to change my mind to come back and work for you in the salon. IF I am to consider re-entering employment with you it will not be hairdressing, strictly reception work with a higher wage!” A screenshot from Mr X’s phone showing their text message exchange of 17th October 2017 along with an additional message stating: “Sorry I meant to send it to Gina - sent to you by mistake.” was also put to her to suggest that the message: “Don’t come back to work then if u not Gina Make it” had been sent in error and was intended for another staff member called Gina. She denied ever receiving this text message which was not included in the original exchange on her phone (as shown) and refused to accept the contended error.

Summary of Respondent’s Case:

Detailed written submissions on behalf of the Respondent were supplemented with oral evidence from Mr X and Ms Y who both outlined the factual position from their perspective. Mr X confirmed that he was the Respondent’s Director and operated a number of Hairdressing and Beauty Salons. The Complainant had been recommended to him and following an interview he appointed her as a hairdresser and was assisting her to obtain her stylist qualifications. They had a good working relationship and she had performed well until around July 2017 when she decided that she no longer wanted to do hairdressing and furnished her written resignation. He had asked her to reconsider her position and had tried his best to keep her but she had said that hairdressing was not her thing and had refused. Their subsequent meeting of 7th September 2017 was to discuss the receptionist role when she had furnished him with the letter as outlined above setting out her demands including more days, a higher rate of pay and limited weekend work, stating: “…as you know I’m doing a course which is weekends so what I could possibly do is work every second Saturday of which the course does not fall on?” Whilst he was aware that the Complainant attended college on weekends and her weekend availability was limited, he contended that he had told her that he would need her to work on weekends. Although Mr X contended that the Complainant had recommenced employment with the Respondent on 18th September 2017 as opposed to 11th September 2017, it was not in dispute that she had returned to work for the Respondent as a receptionist for two days a week at €10.50 per hour.

Mr X confirmed that the purpose of the staff meeting of 21st October 2017 was to discuss rearranging management and rostering amongst other matters. He denied that his text message of 17th October 2017: “Don’t come back to work then if u not Gina Make it” constituted a dismissal and said that it was sent in error and was intended for another staff member in a different salon as confirmed by his screenshot showing the additional text message: “Sorry I meant to send it to Gina - sent to you by mistake.” He explained that he had also been texting a staff member called Gina at the same time. She had gone out to get hair extensions but had been delayed and the message was sent to say that she did not have to return to work. It would not have made sense to dismiss the Complainant for not attending the meeting since other staff had not attended and he had done his best to keep her. He confirmed that he had instructed Ms Y to phone the Complainant on 22nd October 2017 to ask her not to attend work the following day as he was planning to get in touch with her to discuss her days as he needed someone to work on Saturdays and Sundays. He had sent her the letter dated 23rd October 2017 on that date by ordinary post confirming his decision to reschedule her days. He had intended to discuss this change of rostering with her at the meeting of 21st October 2017 and give her the roster then. She had failed to attend work on her next rostered workday being Saturday 28th October 2017 or thereafter and her job had remained open. He also confirmed the ensuing exchange of correspondence with the Public Information Service outlined above.

The Complainant questioned Mr X and put perceived inconsistencies to him including differences in what he had put in correspondence and said in evidence about asking her to reconsider her resignation. She questioned why he had not phoned or emailed her to inform her of her rescheduled working days. He said this was because he had sent her the letter of 23rd October 2017. He accepted that up until that point the Complainant had worked every Monday and Friday in her new role but he did not see any difficulty in unilaterally changing her working days to Saturdays and Sundays. He was unable to clarify the circumstances in which his managers signed off on her Declaration of Unemployment Forms on behalf of the Respondent during the period between her two roles. Mr X was also unable to say when or whether any accrued annual leave had been paid to the Complainant at the end of either role in question.

Ms Y confirmed that she was a Manager in the salon where the Complainant worked. She said that Mr X had asked her to ring the Complainant on Sunday 22nd October 2017 to tell her not to come into work the following day and he would contact her during the week to arrange a meeting. She confirmed that Mr X had asked her to do this as the Complainant had not attended the staff meeting on 21st October 2017 and he had wanted to be at his desk to discuss rostering. She also confirmed that the meeting included rearranging management and rostering. She said they talked normally and the conversation only lasted a few minutes. She denied any mention of the Complainant’s probation, or that she had been instructed to dismiss her or had done so during that conversation. She said that they had originally been good friends but that their relationship had deteriorated over this matter. The Complainant had no questions for Ms Y.

By way of legal submission, the Respondent maintained its preliminary objections to the complaints herein. Firstly, it was submitted that as the Complainant had resigned from her position as a hairdresser which had been accepted by the Respondent before commencing her new position as a receptionist there had been a break in service. Consequently, the Complainant did not have the requisite one year’s service required by Section 2(1)(a) of the Unfair Dismissals Act 1977 to pursue a complaint of unfair dismissal to the WRC. Secondly, it was submitted that in order for a dismissal to occur there must be an intention to terminate the employer-employee relationship as per Meenan on Employment Law (2014) who stated: “There is no rule as to the form that notice will take unless there is an express or implied provision in the contract of employment, i.e. notice may be oral or in writing. However, the intention to terminate the contract must be clear.” It was contended that in the instant case, such a clear intention was never expressed by the Respondent. Any misunderstanding which arose as a result of Mr X’s text message and the Complainant’s telephone conversation with Ms Y on 22nd October 2017 was on the part of the Complainant and it was incumbent on her to seek certainty with respect to her employment status. In any event, any such uncertainty had been promptly resolved by the Respondent’s letter to her of 23rd October 2017.

In the alternative, it was contended that in the absence of the Complainant being dismissed by the Respondent, it was necessary for her to show that she had been constructively dismissed and this could not succeed for a number of reasons. Firstly, as she had been unaware of the Respondent’s intention to change her days when she had deemed herself dismissed on 22nd October 2017, the change of roster could not constitute a constructive dismissal. Secondly, as she had not resigned from her role as a receptionist she could not claim constructive dismissal and/or meet the contract or reasonableness tests based upon the facts outlined. Reliance was placed on the very high bar required for a successful claim of constructive dismissal as confirmed in Nicola Coffey -v- Connect Family Resource Centre Ltd (UD 1126/2014) and A General Operative -v- A Religious Society (ADJ-00002814). Furthermore, the Complainant had not exhausted all alternative avenues as required and re-engaged with the Respondent or availed of the Grievance and Appeals Procedure as contained in the Handbook furnished. Overall, the Respondent contended that this complaint was fundamentally misconceived and sought to have it dismissed.

Findings and Conclusions:

It is necessary to examine the factual matrix giving rise to this complaint of unfair dismissal in light of the applicable law and hence of assistance to firstly set out the relevant statutory provisions. In relation to the requisite service required for referral of a complaint of unfair dismissal to the WRC, Section 2(1)(a) of the Unfair Dismissals Act 1977 provides: “Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons: (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him…” as computed under the First Schedule of the Minimum Notice & Terms of Employment Act 1973. Regarding continuous service for that period, Paragraph 1 of the First Schedule provides: “The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by- (a) the dismissal of the employee by his employer (subject to various other statutory safeguards), or (b) the employee voluntarily leaving his employment.” In relation to breaks in service, Paragraph 10 provides: “If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of (a) a lay-off, (b) sickness or injury, or (c) by agreement with his employer, such period shall count as a period of service.” As a part-time employee under the Protection of Employees (Part-Time Work) Act 2001, the Complainant enjoyed the same statutory entitlements as a full time employee under the Unfair Dismissals Act 1977 and Minimum Notice & Terms of Employment Act 1973 regardless of her requisite weekly working hours.

In relation to a complaint of unfair dismissal, Section 1 of the Unfair Dismissals Act 1977 defines ‘dismissal’ in relation to an employee as “(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee (regular dismissal), (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,” (constructive dismissal) or (c) which deals with the termination of fixed-term and fixed-purpose contracts and is not of relevance in the instant case.Section 6(1) of the Unfair Dismissals Act 1977 provides: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The remainder of Section 6 provides for dismissals deemed to be unfair/fair, none of which apply in the instant case. Section 6(7) further provides: “Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” Arising from the aforesaid statutory definitions, the employer bears the onus/burden of proving that a regular dismissal was fair whilst an employee bears the onus/burden of proving that he or she was constructively dismissed.

Turning to the factual matrix based upon the evidence adduced as set out above, it is necessary to firstly resolve a number of factual conflicts between the Parties before applying the relevant law as follows:

- I find on the balance of probabilities that the Complainant remained an employee of the Respondent during the period of time between the changeover of her role from a hairdresser to a receptionist. Although there was some disparity either side between the Parties as to when the Complainant discontinued the first role and commenced the second role, for all intents and purposes it was a period of less than a month. During that period, the Respondent continued to represent itself as her employer and various managers signed off on her Declaration of Unemployment Forms for the purposes of her claiming Social Welfare. As evidenced from the text message exchange this was clearly a stop-gap arrangement in between roles. Furthermore, I find that the Respondent’s contention to the effect that it had accepted the Complainant’s resignation before offering her a new role to be somewhat academic and inconsistent with the evidence. In this respect and based upon the undisputed text message exchanges outlined above, I am satisfied that the Complainant tendered her resignation, that Mr X asked her to reconsider her position and that further to meeting and negotiating the new role, she reconsidered her position and rescinded her resignation by resuming work with the Respondent shortly thereafter. It was not the case that she had taken up employment with any other employer in the interim. In the absence of any proof of postage or other evidence confirming that the Complainant was furnished with her P45 upon her tendering her resignation, I prefer the Complainant’s evidence that she was first furnished with same via correspondence to the Public Information Service. I further take the view that this was generated or issued at a later date with a view to bolstering the Respondent’s position that there was a break in the Complainant’s service. Whilst the Complainant’s payslips for her new receptionist role purport to recommence her employment for social insurance purposes from week 1, they also include cumulative pay and deductions. Notably, the last payslip for her former hairdresser role does not include any payment for annual leave accrued as of the date of cessation as would normally be included or expected within a final payslip. In all the circumstances, I am satisfied that by its actions and particularly by signing off on her Declaration of Unemployment Forms, the Respondent agreed to the Complainant’s absence from work between the two roles within the meaning of Paragraph 10 of the First Schedule of the Minimum Notice & Terms of Employment Act 1973.

- On balance, I prefer the Complainant’s evidence that it was orally agreed with Mr X that her working days would not clash with her college course on weekends as (1) she put this expressly in writing to him at the meeting, (2) he admitted to being aware of same and (3) she had primarily worked on Mondays and Fridays in her new role until she was told not to attend for work on Monday 23rd October 2017. I am therefore satisfied that it was a fundamental term of her contract of employment that she worked on those days. Again, I have to conclude that the Respondent is seeking to retrospectively rely on a document entitled ‘Statement of Main Terms of Employment’ for a ‘Receptionist’ signed by Mr X but not by the Complainant as furnished within the Respondent’s papers at the hearing. In particular, I find the clause “Your employment began on 18/09/2017 and no previous employment counts as part of your continuous period of employment” to be a further retrospective attempt to deny continuity of service and the clause “…however these hours, days of work, start and finish times will vary in accordance with the weekly roster” to be a retrospective attempt to suggest mutual agreement to complete flexibility regarding working days.

- I am satisfied on the balance of probabilities that the Respondent intended to dismiss the Complainant if she did not attend the staff meeting in question and/or accept a unilateral change in working days. In arriving at this conclusion, I find incredible, Mr X’s explanation for the text message: “Don’t come back to work then if u not Gina Make it”, being that it had been sent in error and was followed with a further message: “Sorry I meant to send it to Gina – sent to you by mistake.” Leaving the authenticity of the second message aside, if the first message had been intended for someone called Gina, I would have expected it to have started with her name and consider it more probable that ‘Gina’ was a typographical error especially given the typos throughout. Additionally, there is little in dispute regarding the phone call of 22nd October 2017 wherein Ms Y informed the Complainant not to attend for work the following day. Therefore, and when taken together with the text message of 17th October 2017, I find that she was entitled to regard herself as being dismissed at that stage. Even if I was to accept the Respondent’s evidence that she had not been dismissed and rather that her working days had been rescheduled to weekends, I am also satisfied that this unilateral change in her working days was so fundamental that it constituted a dismissal in circumstances where she was clearly unable to work on weekends owing to a direct clash with college.

- I am further satisfied that the Complainant never directly received the letter of 23rd October 2017 from the Respondent notifying her of the decision to reschedule her working days to Saturdays and Sundays. One would have expected a letter of such significance to have been sent by registered post and/or accompanied with a text message or phone call especially given that had been the main means of communication to date. If the Complainant had received the letter, I would also have expected this to have been reflected in her letter of 26th October 2017 to the Respondent and instructions to the Public Information Service. If the decision to reschedule her days had been made at the meeting of 21st October 2017, then I would also have expected this to have been communicated to her during the phone call with Ms Y on 22nd October 2017. For these reasons, on balance I prefer the Complainant’s evidence and find it more probable that the letter of 23rd October 2017 was generated following receipt of the initial letter from the Public Information Service. I regard this as an effort to backtrack on the initial dismissal, along with the Respondent’s letter of 22nd November 2017 to the Complainant stating she was on unauthorised leave.

Applying the relevant statutory provisions to the aforesaid facts, I therefore find (1) that as no break in service arose from her change in roles, the Complainant had the requisite one year’s service to pursue a complaint of dismissal; (2) that the Complainant was dismissed by the Respondent from 22nd October 2017 and (3) that as the Respondent has not demonstrated any substantial reasons justifying her dismissal, conclude that she was unfairly dismissed within the meaning of Section 6(1) of the Unfair Dismissals Act 1977. In so finding, I have also had regard to the reasonableness of the Respondent’s conduct or otherwise and find its conduct to be wholly unreasonable in all the circumstances. In particular, it was not in keeping with statutory obligations and good HR practice to “require” employees to attend a staff meeting on their day off and particularly where Mr X was aware of the Complainant’s unavailability owing to her college course. I also regard the manner in which he sought to cover his tracks with the retrospective generation of documentation and evidence to be wholly inappropriate. I am further of the view that he exhibited a poor attitude towards his staff including the Complainant which was not in keeping with the standard expected from a reasonable employer. Specifically, I find his engagement of the Complainant in the use of derogatory language and his attitude to the effect that he was entitled to unilaterally change the terms of his employees’ contracts as confirmed in correspondence and evidence to be particularly unreasonable.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint of unfair dismissal in accordance with the relevant provisions. For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant was unfairly dismissed by the Respondent. Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress to which an employee shall be entitled upon a finding of unfair dismissal including either reinstatement, re-engagement or financial compensation. Relevant to the instant case where compensation only is sought, Section 7(1) of the Act provides for an award of up to 104 weeks remuneration where the employee has incurred financial loss attributable to the dismissal and up to 4 weeks remuneration where no financial loss has been suffered. Section 7(2) sets out the factors which should be considered when determining the amount of compensation and of most relevance to this case where losses and/or mitigation of same are not in issue, is the extent (if any) to which the conduct of the employee or employer (whether by act or omission) contributed to the dismissal. In this respect, I am satisfied that the Complainant fully mitigated her losses by actively seeking and securing alternative employment within six weeks. I am further satisfied that the Respondent was wholly responsible for the Complainant’s dismissal. I therefore consider it just and equitable in all the circumstances to award her a sum of €1008 in compensation being equivalent to six weeks remuneration. The Respondent is therefore directed to pay the Complainant €1008 in compensation (subject to any lawful deductions).

CA-00016294-002 – No Notice or Payment in Lieu of Minimum Notice

Summary of Complainant’s Case:

In relation to this complaint, the Complainant confirmed that subsequent to having had her employment terminated on 22nd October 2017 as outlined above, she had not received any notice or pay in lieu of minimum notice. Having been in the Respondent’s employment since 16th August 2016, she contended that she was entitled to payment in lieu of one weeks’ notice for having more than 13 weeks’ service and less than two years’ service under Section 4 of the Minimum Notice & Terms of Employment Act 1973.

Summary of Respondent’s Case:

As outlined above, it was submitted that as the Complainant had not been dismissed by the Respondent and her employment had never been terminated, she was not entitled to any notice or payment in lieu of minimum notice under the Minimum Notice & Terms of Employment Act 1973. Alternatively, and in the event that she is held to have been dismissed, it was submitted that owing to the break in service between her roles as a hairdresser and receptionist, the Complainant does not have the requisite 13 weeks’ service under Section 4(1) of the Minimum Notice & Terms of Employment Act 1973 to entitle her to same.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions. Section 4(1) of the Minimum Notice & Terms of Employment Act 1973 provides: “An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.” Section 4(2) sets out the periods of minimum notice to be given by an employer to terminate the contract of employment of an employee based upon years of service. Relevant to the Complainant’s length of service, Section 4(2) provides: “(a) if the employee has been in the continuous service of his employer for less than two years, one week,”. Based upon my findings that the Complainant had firstly been in continuous service with the Respondent since 16th August 2016 and hence meets the 13 weeks’ continuous service requirement and secondly, that she was unfairly dismissed without notice on 22nd October 2017, I am satisfied that the Respondent failed to give the Complainant one weeks’ notice of the termination of her employment or make payment in lieu.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 of that Act and Section 12(1) of the Minimum Notice & Terms of Employment Act 1973 which provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.” Having found this complaint to be well-founded, I direct the Respondent to pay the Complainant €168 in compensation (comprising of one week’s pay), being the loss sustained by reason of the contravention.

Overall Award:

For the avoidance of doubt, the total award to the Complainant is €1,176 comprising of €1008 (less any lawful deductions) in respect of CA-00016294-001 and €168 in respect of CA-00016294-002.

Dated:   30th May 2019

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Unfair Dismissals Acts 1977-2015 - Unfair / Constructive Dismissal - Continuity of Service - Fact of Dismissal in issue – Minimum Notice & Terms of Employment Act 1973 - Minimum Notice