Complainant

Respondent

Anonymised Parties

A Worker

Manufacturing Company

Representatives

Donnery & Co solicitors

Kenny Stephenson Chapman Solicitors

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-00028591-001

22/05/2019

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

CA-00028591-002

22/05/2019

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

CA-00028591-003

22/05/2019

The Complainant claims she was unfairly dismissed after she had taken some leave for personal reasons. She claims she received her termination of employment letter in the post without any valid investigation or any other procedures taking place. She is also claiming that she never received her terms and conditions of employment from the Respondent nor did she receive her statutory minimum notice. Her gross pay was stated as €208 per week for 20 hours work. The Respondent denies these claims. The Respondent’s position is that the taking of leave without prior permission was the final straw in a series of unacceptable incidents involving the Complainant at work. The Respondent also asserts that that it gave the Complainant her terms and conditions of employment as per the legislation. An interpreter was provided for the Complainant.

Unfair Dismissal

The Respondent contested the start date for employment of the Complainant as September 2005 saying that the present Company had not even been formed then and instead asserts that the date for commencement for the most recent period of employment should read August 10th, 2016. The Respondent had a different named company in 2005 but gave no evidence of transfer of undertakings having occurred.

The Respondent submitted that there was a culture of trust at the enterprise. The Respondent submitted that they had given the Complainant every chance in her employment, but her performance and attitude left a lot to be desired, even though the Respondent was more than fair with her over the years. A final written warning had been issued as far back as 2010 in the previous company. The Respondent argues that verbal warnings were issued for various infringements in 2018. Not showing up for work without prior notification was the main issue. In addition, the Complainant was brought home from work on several occasions as she was unable to perform her duties. The Complainant was informed that this could not continue. On April 9th and May 8th, the Complainant did not turn up for work and verbal warnings were issued. In addition to these dates, there were several other dates, but warnings were not given on these dates as the opportunity did not arise due to the Respondent’s personal circumstances at the time. On the 17th of May 2018 the Respondent expressed the opinion that she decided her own hours.

On November 24th the 2018 the Complainant contacted the Respondent stating that she was going to her country of origin. Again, no notice was given of her actual departure on what was the busiest time of year for the Respondent. As the Complainant did not return to work on the 3rd of December 2018, after her absence   without leave, her employment was terminated on December 9th, 2018.

Minimum Notice

The Respondent did not believe that minimum notice was required in a case of gross misconduct.

Terms of Employment

The Respondent asserted that they had left copies of Terms of Employment for employees to sign in the canteen and all employees had signed and returned them, but they had no record of the Complainant returning hers.

Cross examination of Respondent

In cross examination of the Respondent, it was accepted by the Respondent that the Complainant had originally worked from 2005 in a previous manifestation of the company but that she was not employed from 2012 to August 2016. The respondent also admitted that there was no investigation or procedures followed regarding the incident of absence without leave that had resulted in the termination of employment.

Unfair Dismissal

The Complainant said she had worked for the Respondent from September 2005 but that she did not work in the period between 2012 and 2016. She did not forward a reason as to why she did not work for the Respondent during this period. She said she rang the Respondent on December 1st, 2018 and did not wish to give a reason as to the purpose of her visit as it was a highly personal matter. She received a letter dated December 9th, 2018 of termination of employment after her return from the trip abroad. She was not subject to any disciplinary procedures nor was there any investigation carried out by the Respondent of the situation surrounding her dismissal. She said the only warning she received in the past was with regards to taking a smoke break outside the premises instead of staying in the canteen area as was required by the Respondent.

She submits she was unfairly dismissed because she was not allowed the opportunity to avail of properly constituted procedures or an investigation as demanded by the law.

On the issue of mitigation of loss, she said that she was available for work but had no evidence of applying for work. She said that there were problems preparing her CV, that this was now resolved and that she is commencing the procedure of seeking employment.

Terms of Employment:

The Complainant denies that she ever received a statement of the terms and conditions of employment under the Terms of Employment (Information) Act, 1994.

Minimum Notice

The Complainant submits that as the dismissal was unfair, the right to minimum notice kicks in automatically as per the Minimum Notice and Terms of Employment Act, 1973.

Cross Examination of the Complainant

In cross examination the Complainant said the reason for not giving adequate notice to the Respondent regarding her trip abroad was that she found a ticket online on a Friday for travel on the following Saturday. She denied that she had an opportunity to sign the Terms of Employment document in the canteen stating that documents should be left in a relatively public place like the canteen. She denied that she had received verbal warnings except for smoking outside, in 2018.

Unfair Dismissal – Relevant Law.

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, there were substantial grounds for justifying the dismissal”.

Section 6(4) of the Act states “…the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.”

In addition Section 6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.”

Two relevant fundamental facts have been established here. It is common case that (1) There was a dismissal and (2) The Respondent did not have an investigation or any type of disciplinary hearing allowing the Complaint the right to have her case surrounding the dismissal heard and considered by the Respondent. It leads me to no other conclusion but that the employer acted unreasonably and therefore I must find that the dismissal was unfair due to a lack of due process. However, I also conclude from the evidence set before me that the Complainant herself contributed in a significant way to her own dismissal. She stated in evidence that there was a compelling personal reason for her visit to another country, which was not divulged at the hearing, as is her right, but there was a compelling obligation also on her also to seek permission for absence on specific days from the Respondent before departure.

When assessing the compensation due in this case under the Unfair Dismissal case, I take cognisance of the degree of mitigation of loss as is required by a Complainant under the Act as well as the degree of contribution of the Complainant to her own dismissal. On the evidence produced by the Complainant, I am satisfied that there were only minimal efforts, if any, made by the Complainant to seek further work. No documentary evidence of job applications was furnished. The evidence is also clear on the fact that the actions of the Complainant contributed to her own dismissal.

I find there was an Unfair Dismissal due to an absence of due process by the Respondent and having regard to all the circumstances of the case I award the Complainant compensation of €900.    

Minimum Notice

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

(1) 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.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

(3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.

(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.

(5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have the effect as if that contract provided for a period of notice in accordance with this section.

(6) The Minister may by order amend or revoke an order under this section including this subsection.

As this was an unfair dismissal without notice then it follows that the above Act applies. The Complainant argues that her commencement date was September 2005, but she did acknowledge that she did not work from 2012 to 2016. No evidence was given as to why she didn’t work in those intervening years, and when pressed was reticent to answer. The Respondent set the date of “re-employment” as and from August 2016. No cogent evidence to rebut this was given and I am guided by the Act where it reads “continuous employment”. I therefore conclude that section 4(b) applies and I therefore uphold the complaint and award the equivalent sum of  two weeks wages which is €416.

Terms of Employment

The Minimum Notice and Terms of Employment (Information) Act 1994 require that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment.

Furthermore, redress in the Act is described as follows at Section 7(2):

A recommendation of an adjudication officer under subsection (1) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b)(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations undersection 17 of the Unfair Dismissals Act 1977,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after a contravention to which the complaint relates, as references to the person who, by virtue of the change, becomes entitled to such ownership.

In this case the only redress sought by the Complainant is an award of compensation. Such an award can only arise where the complaints made are well founded. Moreover, it should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances.

The Respondent said that it left Statements of Terms and Conditions of Employment in the canteen to be collected and signed for by employees. Samples of signed forms were exhibited by the Respondent who stated that the Complainants form is unaccounted for. The Complainant said she never got or signed such a form. Any reasonable reading of the requirements of the Act would suggest that any furnishing of a form must be done so directly to an employee. I cannot accept that the required collection of such forms from a bundle by an employee signifies proper delivery of such terms by an employer. Having taking account of all the circumstances and evidence as outlined above I find that the complaint is upheld, and I award the Complainant €200.  

CA-00028591–001: I find that this complaint made pursuant to the Unfair Dismissals Act is well founded for the reasons outlined above and I award compensation of €900.

CA-0028591-002: I find that this complaintmade pursuant to the Terms of Employment (Information) Act, 1994 is well founded and I award compensation of €200

CA-0028591-003: I find thatthis complaint made pursuant to the Minimum Notice and Terms of Employment Act 1973 is well founded and I award compensation of €416.

Unfair Dismissal, Minimum Notice, Terms of Employment