ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00019714

Parties:

	Complainant	Respondent
Anonymised Parties	Catering Assistant	Restaurant Chain

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00026143-003	07/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026143-004	07/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026143-005	07/02/2019

Date of Adjudication Hearing: 10/02/2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed from 20th December 2017. The end date is in dispute as the dismissal is in dispute. She was paid €435.96 per week. She has claimed that she was not compensated for annual leave in 2018 and the October 2018 Public Holiday and she did not receive minimum notice.

The Respondent has rejected these complaints and stated that she was not dismissed from her employment.

1)Organisation of Working Time Act

Summary of Complainant’s Case:

CA 26143-004

She stated that she only received two weeks paid holidays in this employment. She is owed two week’s holiday pay.

CA 26143-005

She has stated that she did not get compensated for the October Public Holiday 2018.

Summary of Respondent’s Case:

CA 26143-004

They stated that she received ten days holidays in 2018. They accepted that she has accrued another two week’s holidays. Any additional annual leave accrued cannot be paid in lieu until the Complainant resigns her position, or alternatively if she returns to work, which she has not, she would then be entitled to take any outstanding annual leave that has accrued.

CA 26143-005

They stated that they accept that she has not been compensated for the October Public Holiday and this can be addressed if she were to leave the employment or return to work.

Findings and Conclusions:

CA 26143-004

I refer to the decision under the Minimum Notice and Terms of Employment Act set out below in CA 26143-003. I have found that there was no dismissal. Therefore, holiday pay may only be paid in lieu at cessation of employment as per Sec 23 of the Organisation of Working Time Act. Otherwise the Complainant returns to work and avails of any accrued entitlements.

I have found that no breach of the Act has taken place.

CA 26143-005

I find that as per Sec 21 of this Act an employee has four options on how to be compensated for the Public Holiday.

I find that it’s the employer who determines which of these four options should apply. It is accepted that she has an entitlement to be compensated for the one day. As I have found that there was no dismissal it remains open how she should be compensated for the Public holiday, either by the termination of her employment or upon her return to work to agree how it is taken.

I have found that no breach of the Act has taken place.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA 26143-004

For the above stated reasons, I have decided that there was no dismissal, holiday pay may not be paid in lieu except at cessation of employment.

I have decided that this complaint is not well founded and so it fails.

CA 26143-005

For the above stated reasons, I have decided that there was no dismissal. She retains an entitlement to the Public Holiday.

I have decided that this complaint is not well founded and so it fails.

2)Minimum Notice & Terms of Employment Act CA 26143-003

Summary of Complainant’s Case:

The Complainant stated that she was dismissed when the Respondent issued a P45 dated 13th September 2018 but not received by her until 18th November 2018. She did not receive minimum notice. She has claimed one week’s pay in minimum notice.

Summary of Respondent’s Case:

The Respondent stated that the Complainant informed the management that she was pregnant around July 2018. She went on certified sick leave from 30th July to 28th August 2018. She went out sick again 6th September 2018 and continued to send in certificates until 29th November 2018. On 18th November the Complainant met her manager in the shopping centre. The manager told her that there was an envelope for her at work. She went and picked up the envelope. They heard nothing from her until they received correspondence from the Workplace Relations Commission (WRC) advising of a number of complaints including unfair dismissal and discriminatory dismissal. They wrote to the WRC to advise that she had not been dismissed and that they were expecting her to return to work after her maternity leave. On 15th February 2019 they wrote to her solicitor setting out that this was a misunderstanding and they sought to resolve it. They stated that the Complainant was not dismissed.

A P45 was issued in error, dated 13th September 2018. The issuing of a P45 is not a definitive communication of dismissal. They cited the EAT case UD2/2001 in support. P45s are no longer used and so cannot be relied upon as a communication of dismissal.

The Complainant was not dismissed and this claim is rejected.

Findings and Conclusions:

I note that it was accepted by the Respondent that they issued a P45, albeit in error.

I note that they did not become aware of this until they were notified by the WRC of a number of complaints.

I note that the Complainant had advised her employer that she was pregnant in July 2018.

I note that she was out sick when she was told that there was an envelope at work for her.

I note that she collected the envelope and saw that it was a P45. She asked a manager what’s it about and the manager replied that they didn’t know anything about it. Her manager’s manager was on maternity leave so she couldn’t speak to her. She did not raise this with anyone else and then went to a solicitor.

A number of complaints was lodged with the WRC covering unfair dismissal, discriminatory dismissal, annual leave, Public Holiday payment and minimum notice.

I note that the Respondent only become aware of it when advised by the WRC communication.

I note that the P45 was issued on 13th September 2018 and the Complainant continued to send in medical certificates until the end of November.

I note that the Respondent didn’t query why a person who had allegedly been dismissed continued to send in certificates.

This supports the Respondent’s position that there was no intention to dismiss and that this was a most unfortunate administrative error.

I note that the Complainant only asker her manager what the P45 was about and they didn’t know.

This again supports the Respondent’s position that no decision to dismiss had been taken otherwise her manager would surely have been informed or may have been part of such an alleged decision.

I note that the Respondent did not contact the Complainant directly when they were advised of the WRC referrals of complaints but chose to respond to her solicitor.

I find that the Respondent should have contacted the Complainant directly at that point in time to explain their position on the P45.

I note that they admitted to her solicitor to an error, pointed out that no dismissal had taken place, and that they wanted to engage to resolve the matter.

I note that the Respondent was anxious that the Complainant would return to work and that she was a very good employee and they wanted to retain her services.

I note that her solicitor did not engage with the Respondent with a view to resolving the matter.

I am surprised at this. This mater could have been resolved very quickly if there was a willingness for the Complainant to accept the error and return to work.

I find that there was no such willingness to return to work and she was insistent on seeking compensation, not employment.

This is the Workplace Relations Commission and this is a workplace dispute. This matter could have been easily resolved if there was a willingness on the Complainant’s part to accept the error of their ways and she would today be in employment where she was cherished as an employee.

Therefore, I must conclude that there was no dismissal. It was an administrative error that could have been resolved.

I find that the Complainant was not dismissal and so she has no entitlement to minimum notice.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that there was no dismissal and so there is no entitlement to minimum notice.

I have decided that this claim is not well founded and so it fails.

Dated: 15th April 2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Dismissal in dispute.