Complainant

Respondent

Anonymised Parties

A Former Employee

A Takeaway

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-00031119-001

25/09/2019

The Complainant commenced employment with the Respondent takeaway business on the 11th August, 2016. Her employment ceased on the 9th September, 2019. She submitted a complaint of unfair dismissal to the WRC on the 25th September, 2019 within the six months time limit.

In accordance with Section 6(1) of the Unfair Dismissals Act [1977-2017], the Respondent outlined its position that it had not unfairly dismissed the Complainant.

The Respondent outlined that it arranged the work for the employees on the basis of 7 four hour shifts over a two week rota basis – consisting of four/four hour shifts on week 1 and three/four hour shifts on week 2. The Respondent stated that when the Complainant commenced employment in August 2016 she agreed to these shifts and that she worked these shifts until she went on maternity leave on the 18th January, 2018. The Manager of the Respondent stated that when the Complainant returned from maternity leave on the 1st August 2018, she herself was undergoing chemotherapy and so her family assisted in the running of the business – including her son. The Manager stated that she was not made aware of any issues or staff difficulties during this time.

The Respondent stated that up until May/June 2019, the Complainant worked her rostered shifts. The Respondent furnished copy of the Complainant’s shift record between May and September, 2019 covering a period of thirteen weeks which included two weeks of planned leave. In this regard, the Respondent outlined that out of the remaining eleven weeks, the Complainant had worked all rostered shifts for four weeks, that she had worked three rostered shifts for one week, worked two rostered shifts for one week, worked one rostered shift for one week and that there were four weeks where the Complainant had worked no shifts at all.

The Respondent stated that the Complainant had started a second job elsewhere during the Summer of 2019 and from that time, she had immediately started reducing her shifts with the Respondent. The Respondent advised that it had been informed by the Complainant that she was dismissed from that second job as she would not work week-ends but that since, she had secured another second job. The Respondent stated that the Complainant continued reducing her shifts down from her original 7 shifts. The Respondent stated that the Complainant managed this by asking other staff members to cover for her.

It is the Respondent’s position that it has always treated staff fairly. The Respondent stated that because the Complainant was asking other staff members to cover her shifts, that it did not know who was coming into work. The Respondent stated that it spoke to the Complainant about this on several occasions and advised that the situation could not continue, that it was not fair on other staff members and that as the shop is open seven days per week, weekends and night shifts are synonymous with the business. The Respondent maintained that this discussion constituted a verbal warning to the Complainant and that the Complainant understood the situation could not continue.

The Respondent stated that staff used Facebook messenger to communicate about work. The Respondent stated that because the Complainant could not get cover for the night of the 4th September 2019 she simply did not turn up for work that night. The Respondent stated that the Complainant did not make contact to explain or apologise for not turning up for work on the 4th September, 2019. The Manager of the Respondent stated that she had to work this shift herself and that what was occurring was unfair. The Manager stated that the situation was playing on her mind and that because of this, she told her son to ring the Complainant and tell her not to come in on the 9th September, 2019. The Respondent confirmed that its position was that the Complainant was not to come back. At the adjudication hearing, the Manager of the Respondent stated “Hands up…. shouldn’t have done it…..”.

It is the Respondent’s position that the Complainant’s attendance at work was erratic, that it could not let the situation continue and that the Complainant should have expected matters to come to this. In the circumstances, the Respondent maintained that the Complainant was not unfairly dismissed.

The Complainant outlined that her work pattern consisted of three or four, four hour shifts each alternative week. The Complainant disputed the record of shifts which had been furnished by the Respondent. The Complainant stated that she told the Manager of the Respondent business at the beginning of June 2019 that after she came back from her holidays on the 23rd June that she would no longer be able to work the Saturday and Sunday shift on week 2 due to staff relations difficulties. She stated that another staff member took over these shifts from the 28th June, 2019. The Complainant stated that this was not a problem.

The Complainant stated that in or around July/August 2019, she gave the Manger of the Respondent notice that she had to give up her Wednesday night shifts due to child rearing responsibilities. Notwithstanding that the Complainant managed to get cover for the Wednesday night shifts, she advised that “In my eyes it is the managers responsibility to get another staff member to work the hours that I gave up but I was the one that told her I would ask other staff members to work the Wednesday nights for a couple of weeks as to not add extra stress to her, it wasn’t my job but I did it anyway”.

On the morning of Wednesday, 4th September 2019, the Complainant stated that she unsuccessfully tried to ring the Respondent’s house phone to advise that she did not have cover for that night. In this regard, the Complainant stated “…..I rang the house twice, I put a message in the work group chat asking could someone pass on the message and in the end [the Manager’s son] told her [Manager of the Respondent], but that shift was the Wednesday night shift I had given up weeks previous. As I stated I got other staff members to cover them each week as to not add more stress to [Manager of Respondent] but no one could do that night so I was trying to ring and explain to her that nobody else was able to work it and it was no longer my shift to work, as she already knew but clearly states otherwise”.

I was furnished with copy of various text messages from the staff group chat. It is the Complainant’s position that staff continually used this forum to swop shifts and that members of staff continually swopped shifts with each other. In this regard, I note various texts from the Complainant seeking to establish if staff were available to cover various shifts for her or to swop shifts and there were replies to these texts. In particular, I note a text from the Complainant at 11.18 on 4/9/19 which stated “Can someone please do the late tonight I won’t be able to make it in”. There is a further text from the Complainant at 11.54 on 4/9/19 which stated “No problem….can someone let [Manager] know please as I’ve no way of contacting her”. There are some staff replies to this text to the effect that it was the Complainant’s responsibility to let the Manager know if she was unavailable to cover the Wednesday 4th September shift.

The Complainant’s next shift was due to commence at 9pm on Monday, 9th September 2019. The Complainant stated that at 19.14pm, she missed a telephone call from the Manager’s son – who also worked in the business. The Complainant returned the call. The Complainant advised that the following was stated in the course of her telephone call with the Manager’s son:

·       Manager’s son: “…..the boss told me to ring you to tell you that there is no need for you to come back here, we are depending on for shifts and we don’t know if you are going to show up or not”

·       Complainant: “…..I told [Respondent] weeks ago that I could no longer do my Wednesday night shifts due to having no childminder for my kids and if I could do an odd one to help her out I would let her know in advance. As for my Monday and Thursday night shifts every second week, I have been there and I am coming in tonight to work my shift”

·       Manager’s son: “Well she told me to tell you that there is no need for you to come back to work again”

·       Complainant: “Well ok then…., I don’t really know what to say but thanks and take care”.

In the course of her submissions, the Complainant raised other matters concerning her work including in relation to staff relations difficulties, the reason she felt she had to give up week-end shifts, issues with acceptance of her medical certification during her pregnancy and that she was treated unfairly in work and by the Respondent.

It is the Complainant’s position that she has been unfairly dismissed. She stated that she was given no advance warning or indication that her work was incompetent or could lead to dismissal and that she was given no notice of dismissal. The Complainant maintained that she did not receive a verbal warning from the Manager of the Respondent, that whilst she was aware the Manager was not happy about her reducing her shifts the Manager “never gave me a verbal warning”. The Complainant stated that she never received a written warning or final written warning either and that she was unfairly dismissed because she wasn’t doing enough shifts for the Respondent and   they couldn’t get more staff to work for them. The Complainant stated that she was treated unfairly and that her “…..own boss couldn’t even sit down and talk to me about shifts, she got her son to ring me and tell me not to come back. After giving 3 years working for them that’s how they let me go”.

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” - ie there is a statutory presumption of unfairness unless the Respondent employer can show there were substantial grounds justifying the dismissal.

Section 6 (4) of the Unfair Dismissals Act [1977-2017] sets out specific circumstances where the dismissal of an employee “shall be deemed…..not to be an unfair dismissal” – where for example, the dismissal results wholly or mainly from issues related to the capability, competence, qualifications or conduct of the employee.

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6(7) of the Unfair Dismissals Act [1977-2017] provides that in determining whether a dismissal is unfair, regard may be had:

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…..with the procedure….or with the provisions of any code of practice….”

In the present case, the parties have outlined their respective and conflicting positions in relation to the reducing number of shifts worked by the Complainant. From the Respondent’s perspective, the evidence suggests in my view, that the failure of the Complainant to show up for her shift on the 4th September, 2019 was the last straw and precipitated the telephone call from the Manager’s son to the Complainant on the 9th September, 2019 terminating her employment. From the Complainant’s perspective, she had advised the Respondent in advance that due to her child rearing responsibilities she could no longer work the Wednesday night shifts. The Complainant also maintained that it should not have been her job to secure replacement staff for the shifts she was no longer working.

In considering the facts presented, I am satisfied that it was frustrating for the Respondent trying to run a small business in circumstances where it was unsure as to whether the Complainant would cover all of her allocated shifts and when she could not do so, who would cover them. I am also satisfied that the covering of the Complainant’s shifts was the subject of prior discussion between the parties. The Respondent has outlined that it advised the Complainant that the situation could not continue and the Complainant has outlined that she notified the Respondent in advance that she could no longer do the Wednesday night shifts. I have also noted the various texts from the Complainant to staff members seeking cover for her shifts. However, having considered the evidence, I do not accept that any of these discussions constituted a verbal warning to the Complainant and in this matter I accept the Complainant’s version of events. In the circumstances, I find that no prior verbal warning was issued to the Complainant.

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out concerns he/she may have about the poor performance or conduct of an employee and at the same time, to afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures is at the root of Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters. I have summarised the requirements of SI 146/2000 as follows:

·       To comply with the general principles of natural justice and fair procedures;

·       That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·       That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·       That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

In the case of Iarnród Éireann/Irish Rail V McKelvey [2018] IECA 346, the Court of Appeal commented as follows on SI 146/2000: “That code of practice is stated to promote best practice and outlines the principles of fair procedures for employers and employees generally …... It is well understood that the code, promulgated so many years ago, was developed so that disciplinary issues could be handled in accordance with the principles of natural justice and fair procedures and in order that good industrial relations might be maintained in the workplace.”

In Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137, the High Court determined that the essential requirements that must be established to support a decision to dismiss for misconduct are as follow:

1.       “The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.       Where the Complainant is a person or body of intermediate authority, it should state the complaint factually, clearly and fairly without innuendo or hidden inference or conclusion.

3.       The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.       The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in light of the explanation offered.

5.       The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

……Put very simply, principles of natural justice must be unequivocally applied.”

The Respondent has outlined its difficulties with the Complainant in terms of her alleged lack of availability for shifts, her alleged erratic attendance, the impact of this on its business and its view that the situation could not continue. In my view, these are matters which could have resulted in a formal review of arrangements by the Respondent and consideration of putting in place a more formal system for changing or swopping shifts, or alternatively, these matters could have resulted in an investigation and/or the initiation of a disciplinary process. In the present case however, I find that the Complainant’s employment was terminated in circumstances where no disciplinary procedure was invoked, no advance notice was given to the Complainant that her employment was in jeopardy, nor was there any prior communication or meeting with the Complainant about the termination of her employment. Furthermore, the Complainant was not afforded any opportunity to answer any allegation of misconduct or make representations with regard to her dismissal. I believe the Respondent acknowledged this at the adjudication hearing when the Manager stated “Hands up….. shouldn’t have done it…..”.

As outlined above at Section 6(7) of the Unfair Dismissals Act [1977-2017], I must consider whether the Respondent has acted reasonably or unreasonably. In this regard I agree with the judgement of the Labour Court in Philip Smith V Mark Leddy [UDD 1974] wherein the Court stated: “It is a wellestablished principle of this Court that where an employer adheres to correct procedures and where an employee is afforded their rights in an investigation of alleged wrongdoing and any subsequent disciplinary process, the Court will not substitute its views for those of an employer unless it judges that such views are outside the band of reasonableness. It follows, therefore, in the circumstances of the instant case where there were no meaningful procedures, it is not for the Court to make a judgement regarding allegations that were never investigated properly and, therefore, have no status other than that of allegations. The breach of the rights of the Complainant render as unreasonable both the conclusion of the Respondent…….. and the consequential dismissal”.

Having considered all the submissions and evidence, I find that the termination of the Complainant’s employment contravened the principles of fair procedures, was absent the application of any disciplinary procedure and was unreasonable in all the circumstances.

The Respondent has not rebutted the presumption of unfair dismissal and therefore I decide this complaint is well founded.

Section 7 of the Unfair Dismissals Act [1977-2017] states:

“7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances……

a)      re-instatement……, or

b)      re-engagement……., or

c)       (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances…….”

Having regard to all the circumstances, I decide that compensation is the appropriate remedy and I note the Complainant has selected this redress option. The Complainant is also required to mitigate her losses and to adopt a proactive approach in obtaining replacement employment. In the present situation I note that the Complainant has been working elsewhere in a second job.

Lastly, in the interests of completeness, I do not consider it necessary to make findings or conclusions on the various other work related matters raised by the Complainant.

The complaint is well founded. On her complaint form, the Complainant stated that she was earning €100 gross/week. At the adjudication hearing, the Complainant stated that she was working 3 shifts/fortnight and was paid €50/shift. On the basis of the latter earnings outlined at the adjudication hearing, I award the Complainant a gross payment of €3,000 for the financial loss she has incurred which I consider to be just and equitable having regard to all the circumstances. This amount is subject to the usual statutory deductions and taxable in the normal manner taking into account such Revenue Rules as apply on termination of employment.

A Former Employee   V A Takeaway