ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00020131
Parties:
| Complainant | Respondent |
Anonymised Parties | A Child Care Worker | A Creche |
Representatives | Self-Represented | Self-Represented |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00026632-001 | 27/02/2019 |
Date of Adjudication Hearing: 09/07/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
As much oral evidence was presented full cross examination was allowed between the Parties.
Background:
The issues in contention concern the alleged Constructive Dismissal of a child care worker from a Creche. |
1: Summary of Complainant’s Case:
The Complainant had commenced employment in October 2018. Initially all went well. On the 18th February 2019 an incident arose over the use of bleach on a toilet floor and a conversation followed with the Creche Owner. Ms.Xa. In this conversation Ms. Xa, the owner, told the Complainant that her probation would not be extended. The Owner told her that she was not suited to childcare work and that she was to immediately stop answering the door to parents. The Owner asked her to hand in her notice This was to avoid having to be formally let go. In the Creche world a formal ending of employment is a very black mark and renders future employment in the area most difficult. The Complainant had scheduled Job Interviews for the morning of the 20th and took time out of the Creche to attend these. They were very local, and she could very easily have returned to the Creche. She had Texted/Attempted to voice call the Owner regarding the time out on the Wednesday but had received no reply. In view of the earlier conversation the Complainant felt that she had no option but to go to the job Interviews. Later in the day the Owner. Ms. Xa called her back and told her not to come back to the Creche at all. Her employment was finished. A disputed phone call followed. The Complainant returned to collect her personal belongings on the Thursday night of that week. The following week she received a pay slip that showed she had been paid for only 14 hours in the week of the 18th February and her Holiday pay was outstanding. She did not receive any Notice pay. The actions of the Owner, Ms Xa were totally unfair, and she, the Complainant, had been effectively run out of her job with no come back allowed. The Oral evidence was supported by a written Statement. |
2: Summary of Respondent’s Case:
The Respondent Principal, Ms. Xa, gave evidence also supported by a written statement. It was true that the meeting had taken place on the 18th with the Complainant. The Respondent had been experiencing issues with the Complainant for some time. She felt that the Bleach incident was a further example. She had decided to end the Complainant’s employment. However, she was aware of challenges in the Complainants personal life and felt that no good would be served by a formal ending of employment. In the Creche world references are very important. A formal dismissal, on public record, would be very damaging to the Complainant’s job prospects. It was in this context that she had suggested the Complainant should hand in her notice – voluntarily resign and no question of explanations of a dismissal would arise. The Complainant had not taken the situation very well. On the Wednesday the Complainant had effectively walked out of the Creche to attend Interviews. This had serious consequences for the Creche statutory child/adult ratios. When the Respondent became aware of this situation later in the morning, she had gone to cover the ratio herself. It was clear that the Complainant had lost interest in the Creche. This was confirmed when the Respondent learned from the Complainant, later in the day, that she had secured another job and would be starting there on the following Monday. All things considered the Complainant had been treated very fairly. At the meeting on the 18th the Respondent had given the Complainant a lot of good career advice and much positive feedback as to her skills. However, she was not suitable to the Creche concerned. Her leaving to go to Interviews, leaving the ratios exposed, was confirmation that she was moving on. In this context the Respondent told her not to come back for the rest of the week. It had not been a pleasant situation, but no suggestion of an Unfair Dismissal could be made of the case. Notice Pay did not arise in this situation and the Holiday pay records were explained to the Hearing. |
3: Findings and Conclusions:
The claim for Dismissal is taken under the Industrial Relations Act,1969. The Complainant refences in her claim form that she was “Constructively” Dismissed. As the case is under the Industrial Relations Act, I do not feel that a lengthy legal discussion is warranted as might be the case in an Unfair Dismissals Act,1977 case. The provisions of SI 146 -Code of Practice on Grievance and Disciplinary Procedures are quite sufficient. Effectively these require that fair procedures are followed. In the case in hand the Respondent, for what she thought were the best possible motives, effectively forced the Complainant out by the “Hand in your notice or else” approach. In balance, the actions of the Complainant in leaving the creche without proper cover on the Wednesday morning did not reflect well on her. Good procedure requires that the employee, even in a very small employment, is given a proper chance to consider the issues being put to her, to take appropriate advice, seek representation if she wishes to and to have any employment ending decision open to an Independent appeal. The meeting on the 18th February was far too informal for an employment ending situation. The question of the “Do not come back” suggestion on the Wednesday was also open to a lot of questions from a good procedures point of view. All things considered this was a case of an Unfair Dismissal and I Recommend in the Complainant’s favour. In considering what Redress can be Recommended I note that the Complainant was out of work for only three days. As it was a Dismissal, she is entitled to Minimum Notice of one week’s pay although she has not formally claimed this under the Minimum Notice and Terms of Employment Act of 1973 My Recommendation, having considered all the evidence, is as follows The Complainant to receive · Three days’ pay -21 hours at her appropriate rate · One week’s notice pay -35 hours · A Lump sum of €100 as compensation for distress suffered by the Unfair Dismissal. |
4: Recommendation
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
As set out above in Section Three
The Complainant to receive
- Three days’ pay -21 hours at her appropriate rate
- One week’s notice pay - 35 hours pay
- A Lump sum of €100 as compensation for distress suffered by the Unfair Dismissal.
Dated: 19/09/19
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
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