Complainant

Respondent

Anonymised Parties

A school cleaner

A contract cleaning company

Representatives

Marius Marosan

Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

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

CA-00024928-001

10/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024928-002

10/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024928-003

10/01/2019

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

CA-00024928-004

10/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00024928-005

10/01/2019

The complainant worked for the respondent as a cleaner. She was paid €10.40 per hour. She was assigned to work at a school and an adjoining community facility. She worked in the role from the 6th August 2013 to the 29th October 2018. The circumstances around the end of the complainant’s employment are disputed. She asserts that there were contraventions of the Terms of Employment (Information) Act, her hours of work and annual leave and that she was unfairly dismissed. The respondent accepts it did not provide the complainant with a statement of terms of employment but denies the other claims.

At the outset of the hearing, the respondent accepted that the relevant date of dismissal was the one stated in the complaint form, the 29th October 2018

In submissions, the respondent outlined that the complainant was employed as a cleaner, working a 40-hour week, Monday to Friday, at a named school. In October 2017, the complainant began a course and worked Monday to Wednesday, 33 hours per week. The complainant took leave in April 2018 and the respondent only became aware of this when the school requested cover. It submitted that the complainant should have asked the respondent to authorise the leave before taking it. The respondent submitted that the complainant’s employment came to an end when she sought to return to full-time hours but declined the alternatives offered to her.

The respondent outlined that on the 13th August 2018 it offered the complainant work for two days per week in the school and a Community House. On the 31st August 2018, the complainant was advised of a position in an alternative school. On the 3rd September 2018, the school asked that the complainant no longer work at the school as an admin building had not been cleaned. This was confirmed in the meeting with the school on this day. The complainant was advised of this on the 4th September 2018. She was later supplied with further correspondence from the school, where they asked that someone else work the complainant’s hours.

The respondent outlined that the complainant was suspended on the 10th September 2018 to allow for the investigation of the allegation that she falsified time sheets. She refused to sign the minutes of the investigation meeting. The matter was referred to a disciplinary hearing on the 3rd October 2018, where they discussed overlapping time sheets. There was discussion of another alternative position, which the complainant declined as it was for 20 hours per week. The respondent offered additional work, totalling 33 hours per week, similar to what she had worked on average in the preceding six months. The respondent stated that it was not possible to offer the complainant full time work from one location.

By email of the 17th October 2018, the respondent explained that the position at the school was no longer available. It outlined that should the complainant not attend a meeting, she would be deemed to have confirmed her resignation. This was reiterated in the email of the 25th October 2018 and a P45 issued on the 8th November 2018.

The respondent outlined that through an oversight, the complainant was not provided with a statement of the terms of her employment. It refuted that the complainant did not get rest breaks, referring to food available on site for when the complainant took breaks. The respondent submitted that the complainant was able to avail of annual leave in full.

Evidence of the manager

The manager outlined that the complainant initially worked 45 hours per week. The complainant was assigned to work at a school, who informed the respondent in October 2017 that it required cover for the complainant for two days. The complainant reduced her hours to 33 hours per week between October 2017 and July 2018 as she was going to college.

The manager outlined that once the complainant finished her course, she sought the return of her full-time hours. The school, however, only offered two days of cleaning per week. The respondent offered the complainant additional work at another school, to bring up her weekly hours to 40.5 hours.

The manager outlined that the complainant did not reply to this email. The manager referred to the school’s emails of the 3rd September 2018 regarding the complainant’s non-attendance on the 3rd September and that they wished that the cleaner no longer work at the school.

The manager outlined that she had met with the school about the complainant’s attendance, referring to the minute of the meeting. She met the complainant on the 6th September to discuss the school’s CCTV evidence that she left the school grounds earlier than the times stated in her time sheets (i.e. before 6.30pm).

The manager outlined that the respondent discovered that the complainant was duplicating time sheets so that she signed out from the school at 9am and recorded as starting in the community house at 8.30am. The complainant had said that the school agreed to her working reduced hours while she was studying. The respondent then suspended the complainant in order to investigate the matter, including the August 2018 dates identified by the school’s CCTV.

The respondent exhibits the time sheets. They compile the date, day of week, start and finish times and require the signature of both the employee and the school administrator. The time sheets from October 2017 record the complainant working three days per week. Her typical working day starts at 7am and finishes at 6.30, with specific hours allocated over the two sites.

In the minutes of the 6th September 2018, the respondent offers the complainant the alternative role of working from 3pm to 7pm in a named school. It stated that the original school no longer wanted the complainant to work there; the complainant stated that this was discrimination.

The complainant wrote on the 11th September to raise issues regarding work and concluded by stating “Please close my work contract”. The respondent stated that there was an issue with getting time sheets from the complainant. It outlined that it did not produce an investigation report.

Evidence of the disciplinary manager

The disciplinary manager gave evidence. He is the respondent’s accountant. In the letter of the 3rd October 2018, the disciplinary manager invited the complainant to the disciplinary meeting. She is asked to address four matters of concerns (falsifying time sheets; four occasions in August 2018 when she was viewed on CCTV leaving school before the time marked on the time sheet; failing to notify the respondent of time sheets and breach of trust). The letter set out that they will discuss alternative sites for the complainant to work. It cited that attending the meeting is a reasonable management instruction and not attending could constitute gross misconduct.

The disciplinary manager referred to the minutes of the disciplinary meeting where the complainant accepted that she was signed in to work at the two locations at the same time. She had explained that this was with the agreement of the school. He outlined that the complainant was offered 20 hours per week at one location and fuel expenses and additional hours at another location. He referred to the emails offering the complainant hours, asking that she confirm her return or to resign. He said that the complainant never attended the meeting.

The disciplinary manager referred to the email offering the complainant the alternative position and the ultimatum of the 22nd October 2018. This stated ‘At this point we have attempted to keep you in employment but it clear that you wish to resign. This is my final letter as I cannot keep the job open for much longer as it needs to be filled. Please meet with me or resign from your position by Thursday 25th October. If I do not hear from you I will forward over your P45 and any monies owed.’

The complainant outlined that her gross weekly wage was around €450 per week as she worked a 45-hour week, Monday to Friday. While attending the course, she worked and was paid for 36 hours. The complainant stated that her employment commenced on the 6th August 2013 and the problems started in August 2018 when she asked for a contract of employment to say that she was full-time. She had asked this from a manager and then wrote to him. In her email of the 31st August 2018, the complainant asked that her full-time hours at the school be restored.

In respect of the investigation meeting, the complainant said that she had not been notified of the meeting and was not afforded the right to representation. She refused to sign the minutes as she did not agree with them.

The complainant outlined that she had not refused or omitted to clean rooms or the admin building. This cleaning was done on days other than the Monday or Tuesday she then worked, so the admin building was cleaned on a Thursday and would be done by that cleaner. The complainant outlined that she did the same tasks every Monday and Tuesday.

The complainant outlined that there had not been a problem with her hours at the school for over five years. She had an agreement with the school and acted on their instructions. She said that two named administrators in the school submitted her hours.

The complainant outlined that the respondent owed her an additional 1.5 hours of leave for each day of leave taken, as her working day was nine hours. The respondent had also counted in periods the school was closed in adding up the leave she took. The complainant submitted that she could not avail of breaks during the working day and could not avail of the free lunch provided. She said that this was because of her poor English. She said that the overlap of the 30 minutes between the two sites was because she had to leave one site when the caretaker left. The school had agreed to this overlap.

The complainant outlined that the respondent’s offer was not reasonable as it was for two hours work, followed by a 2-hour unpaid period followed by the additional 2.5 hours. In her email of the 19th October 2018, the complainant states that she cannot accept the alternatives offered because of their distance from her home and because of the reduced hours. In previous emails, the complainant stated that the alternatives are at different locations when she had previously worked from one location. She stated that she worked 45 hours per week and not 33 hours stated by the respondent.

In cross-examination, it was put to the complainant that the respondent had to chase her for time sheets; she did not accept that this was the case and that the school administrators had the time sheets. The complainant said that the respondent’s emails looking for time sheets were sent in the period she was suspended. The school always had her time sheets. The complainant was referred to the email of the 3rd September as the first looking for a time sheet and that this was a period she had taken annual leave without informing the respondent; the complainant replied that she had informed the school office. She said that she had no contract so did not know what to do. The complainant acknowledged receiving the email of the 24th April 2018 regarding arranging leave with the respondent and said that she did so for later periods of annual leave.

It was put to the complainant that in August 2018, she was offered two days per week and then a role in a different school; she replied that she wanted to go back to her role on full-time basis. It was put to the complainant that at the meetings of the 6th and 19th September, she had said that she wanted to ‘close my contract’; she replied that this was not what she meant and that she wanted a contract. The complainant said that she did not accept that the time sheets were falsified. She worked all the hours claimed and there was an understanding as to how to fill in the time sheets as the caretaker closed the school at 6.30pm.

The complainant said that she did not accept one alternative as it was work for only 20 hours. The other alternative was too far and only for a few hours per week. She said that she attended the meetings but was only given short notice of the meetings. She had tasks to do all day and was not able to take breaks. The complainant said that she did not know why she had not raised complaints about breaks during her employment.

The complainant said that she started new employment in February 2019 as a care assistant. This is a part-time role in the area which she had studied. She had looked for alternative employment after her employment with the respondent ended; she referred to the application to a supermarket on the 9th September 2018 and a school cleaning role on the 12th October 2018. She applied for these two roles, but also did some beautician work. She had handed back her key to the respondent on the 4th September.

In respect of the Organisation of Working Time claim, the complainant outlined that annual leave should be paid at 8% of annual income. She earned €10,839.51 in 2018 but only paid €820.31 in annual leave (referring to three pay slips). In respect of hours of work, the complainant was referred to the email of the 11th September 2018 where she stated that breaks were taken but not paid. She submitted that there was no record of breaks being taken, just this correspondence from the school.

The complainant worked as a contract cleaner for the respondent. Her employment commenced on the 6th August 2013. This was subject to a transfer of undertaking, when the respondent took over as her employer on the 28th November 2016. The complainant’s employment ended in or around the 29th October 2018, although the circumstances of the ending of her employment are disputed (I make the relevant findings on date of dismissal and the claim of unfair dismissal below).

Throughout this time, the complainant worked at one location, which consisted of a school and the adjoining community house. She was assigned cleaning hours for each centre, which were recorded on a single, weekly time sheet, signed by the complainant and a school administrator.

The complainant initially worked a 45-hour week, spread over Monday to Friday. The complainant attended college and her hours reduced to working Monday to Wednesday, with the agreement of the school. In August 2018, the complainant sought to return to full-time hours. By email of the 20th August 2018, the respondent offered the complainant two nine-hour days, on Monday and Tuesday. It then offered the complainant work at different locations, following the school indicating it no longer wanted the complainant on site.

Having reviewed the evidence, I accept that the respondent’s calculation that the complainant worked on average a 33-hour week in the last year of her employment. This takes account of the complainant’s initial 45-hour week and then the reduced hours while she studied. The pay slips for the early part of 2018 show a variability in the hours from 54 hours some fortnights to 68 hours in others. The prevailing rate of pay is €10.40 per hour, as set by the Contract Cleaning Employment Regulation Order. The complainant’s weekly rate of pay is, therefore, €343.20.

CA-00024928-001

This is a complaint pursuant to the Terms of Employment (Information) Act. The complainant asserts that she was not provided with a statement of the terms of her employment. The respondent asserted that no statement was provided due to an oversight. The minutes of the September 2018 meeting refer to a contracts being provided in the near future.

As in force during the course of this employment, section 3 requires an employer to provide to an employee a statement of her terms of employment within two months of the start of this employment. The purpose of the statement is to provide the employee with information regarding the basic terms of their employment. It transposes EU law: Directive 91/533/EC and see also, Directive 2019/1152. Specific obligations arise from the contract cleaning ERO.

The respondent accepts that a statement of the terms of the complainant’s employment was not provided to her. In assessing redress, I note that the information required to be provided is of particular importance to employees on relatively low rates of pay, i.e. close to the national minimum wage, or those on variable hours. The requirement includes information regarding hours of work and any applicable Employment Regulation Order, both of which arise in this case. Applying Beechfield Private Homecare v Hayes Kelly TED1919, redress is to be assessed according the complainant’s circumstances. In this case, I find that redress of €1,200 should be awarded.

CA-00024928-002

This is a complaint pursuant to the Organisation of Working Time Act regarding hours of work. The complainant asserts that she did not get daily rest breaks; the respondent asserts that meal facilities were provided, and she was seen taking breaks.

Section 12 of the Act provides: 

“(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).”

Section 25 provides that an employer shall keep records of an employee’s working time. The format of records is set out in S.I. No. 473 of 2001: Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001.

Applying Stablefield v Manciu DWT 1924, section 25(4) of the Organisation of Working Time Act provides, in effect, that where records are not kept in the prescribed form, the onus of proving, in proceedings before the WRC or the Labour Court, that the provisions of the Act have been complied with, rests on the employer.

There was conflict in evidence between the parties whether the complainant was able to avail of breaks during the working day. She states that she was not but accepted that some of this could be associated with her command of English. The respondent points to the correspondence from the school which says that she could avail of breaks in the canteen, where food was provided.            

The record of working time is the attendance form completed by the complainant and the school. It sets out start and finish times, with no provision to record breaks. Separate sheets were compiled for the school and the community house.

Reviewing the time sheets for June 2018, they record that the complainant worked 12 days at the school/community house. On each day, the complainant ought to have obtained either a 45-minute (10 days) or a 15-minute break (2 days). There is no record of any such break being afforded to the complainant. There is no document stating when the complainant could avail of a break, for example the statement required by the Employment Regulation Order.

Where breaks are not formally recorded, the onus lies with the employer to show that the employee could avail of breaks. The respondent relied on what was reported it by the school, i.e. that there was food offered and the complainant was seen having breaks. It pointed to the fact that the complainant never raised this issue during her employment.

Given the absence of scheduled or recorded breaks afforded to the complainant, the onus falls on the respondent to establish that the complainant took breaks. While it relied on what the school told it, this does not meet the obligation of being able to show that the employee was not required to work in excess of the hours stipulated in section 12 without being allowed a break. I accept that the complainant stated in the email of the 11th September 2018 that she was not paid for her 15-minute break (i.e. an acknowledgement that she took a break). I note, however, that this was in the context of a nine-hour day, where she was entitled to a 45-minute break.

It follows from the above that the claim is well-founded. In assessing redress, I note the importance of the complainant being able to rest during the working day, in particular in the 11-hour days often worked by the complainant. I also note that the complainant did not specifically raise this issue during her employment, and the respondent relied on what was communicated to it by the school. The complaint was also made in a general sense. Taking these factors together, I award redress of €800.

CA-00024928-003

This is a complaint pursuant to the Organisation of Working Time Act. The complainant asserts that she was underpaid for untaken annual leave at the end of her employment. According to the pay slips, the respondent paid the complainant holiday of €186.79 at the end of her employment as well as two payments of €316.16 (16th April and 9th July 2018). In 2016 and 2017, the respondent set out a chart that estimated her annual leave according to her working day of 7.5 hours.

The Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 (SI 475/1997) provide that an employee shall be paid the average ‘normal weekly rate of pay’ or their ‘daily rate of pay’. If the rate of pay does not vary, this is the applicable rate; if it varies, the rate is determined by the rate of pay over previous 13 weeks of employment.

Section 19 of the Act provides that the amount of annual leave accrued by the employee can be calculated in one of three ways, albeit to a maximum of 20 days per year (an employee may be entitled to additional annual leave per their contract or collective agreement). The three ways provided in section 19 accommodate different work patterns. A full-time employee, employed throughout the year, is entitled to four weeks of statutory annual leave. Annual leave may be calculated using the other mechanisms set out in section 19, where the employee works less than 1,365 hours/year or is a seasonal employee.

The respondent calculated the complainant’s rate of holiday pay by applying 8% to the hours she worked (she worked less than 1,365 hours in 2018). If annual leave is calculated as 8% of hours worked, it does not matter whether the employer considers the working day to be 7.5 hours or 9 hours. This is because entitlement is calculated by the total hours actually worked in the reference period. I appreciate the complainant’s concern; this arises because the employer used the 7.5 hour working day in the table setting out annual leave for 2016 and 2017. The employer, however, did not provide, or rely on, such a table for the 2018 leave year.

The statutory leave year commences on the 1st April and ends the 31st March the following year. While the respondent has provided pay slips, there is no document stating what the payment of holiday pay was for. This is because the pay slips state the amount paid in holiday pay, without setting out explicitly the period annual leave was calculated from. There is no other document that conveys this information.

The cognisable period for an annual leave complaint per the Organisation of Working Time Act is the statutory leave year. The employee has six months from the end of the leave year to bring their complaint regarding unpaid leave arising in that year. This complaint was referred in January 2019, so leave that could have been due to the complainant prior to the 31st March 2018 is outside of the six-month limitation period.

I calculate the complainant’s entitlement to annual leave according to the time sheets for April, May and June signed off by the school and the complainant. As noted elsewhere, this is the record of working time. While the respondent raised a 30-minute overlap, no formal finding was ever made on this issue. Given that this is the record signed off on by the school and the only document of hours worked, this is the record I use to calculate working hours.

On the 16th April and the 9th July 2018, the complainant was paid two amounts of €316.16 in annual leave. The respondent paid the complainant €186.79 as cesser pay. I have gone through the time sheets for April, May and June 2018, I agree that the complainant was paid the annual leave due in this cognisable period. The complaint is, therefore, not well-founded.

CA-00024928-004

This is a complaint pursuant to the Terms of Employment (Information) Act regarding the failure to notify her in advance of a change to her working hours.

Section 5 of the Act requires an employer to notify the employee of a change to the terms of their employment ‘in writing of the nature and date of the change as soon as may be thereafter, but not later than … 1 month after the change takes effect.’

The Act, therefore, requires notification after and not in advance of any change. In this case, the complainant initially negotiated a reduction in her hours to three days per week with the school. Later, she requested a return to full-time hours, but lost all her hours at the school. The respondent proposed part-time alternatives at different locations to make up the hours the complainant lost at the school.

I accept that the complainant reached an agreement with the school that she would return to full-time hours after she completed her course of study. The school did not follow through on this agreement. I find that the school was the respondent’s client and this agreement did not bind the respondent.

It is fair to say that things were in a state of flux in late August and early September. The complainant wanted full-time hours at the school but lost these hours altogether. There was discussion about alternatives roles, which the complainant did not agree to. The respondent wrote to the complainant about all these developments. She was notified of the changes, for example the decision of the school to no longer allow the complainant to attend the site. This occurred in writing after the event and therefore complied with section 5 of the Act.

It follows from the above that the complaint pursuant to the Terms of Employment (Information) Act is not well-founded.

CA-00024928-005

This is a complaint pursuant to the Unfair Dismissals Act. The complainant asserts that she was unfairly dismissed when her hours were withdrawn and was told to write her letter of resignation. The respondent submitted that the complainant effectively resigned in not meeting the respondent or taking up the alternatives offered to her. I find as fact that the date of dismissal was the 29th October 2018.

Section 1 of the Unfair Dismissals Act defines ‘dismissal’, including the employer terminating the employment with or without notice. It also encapsulates situations where the complainant resigns (although she bears the onus of proof to show that this was a constructive dismissal).

In respect of ‘resignation’, the Labour Court held in Shinkwin v Millett EED044: “A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.”

The Unfair Dismissals Act does not provide for ‘self-dismissal’, i.e. where the employee is deemed to have resigned, rather than the employee stating verbally or in writing or by electronic means or through communication on social media of their intention to terminate the employment relationship.

I note Meenan “Employment law”, 2014, at 20.68 where the author states “It should be noted that there is no provision for “self-dismissal”. In other words, an employer cannot state to an employee that if that employee does not do something or does not come in to work, it is deemed to be a “self-dismissal”. There is no such thing; either the employer or the employee must actually terminate the contract of employment.” The Unfair Dismissals Act provides at section 6(1) that a dismissal is deemed unfair unless there are substantial grounds to justify the dismissal. There is no self-dismissal, so if an employee is found not to have resigned, the onus falls on the respondent to show substantial grounds to justify the dismissal.

Did the complainant resign?

It is certainly true that the complainant stated ‘please close my contract … that actually does not exist. and never existed’ and ‘Please close my contract … which never actually existed’ in two emails of the 11th September 2018. This was in the context of her request to be restored to full-time hours and the pending investigation. The statements were made on the 11th September 2018 and there followed a great deal of correspondence and meetings between the parties, culminating in the communication of the 22nd October 2018. The above case law indicates that a resignation must be unambiguous and unconditional. Assessing the evidence, I find that the complainant did not resign, i.e. did not unilaterally act to end the employment relationship. I do not find that the statements made by the complainant in the two emails are unambiguous and unconditional. First, the statements are made in the context of the plethora of issues raised by the complainant and the manager. Second, it is clear that these statements are made in the context of the complainant’s ongoing demands for a contract (something the manager said would be forthcoming). Third, reviewing the evidence, matters came to a head in this relationship in late August/early September. The 11th of September was relatively early in the process, which later included the investigation, the disciplinary meeting and toing and froing about alternatives. All this followed the purported resignation; these actions signal someone who wishes to continue in employment, rather than someone who has resigned. The respondent also substantially engaged with the complainant, indicating that it did not consider the complainant to have resigned. Lastly, I take account that English is not the complainant’s first language and caution is, therefore, required in reading in ‘resignation’ into the ‘please close’ statements.

Dismissal / self-dismissal

In full, the respondent’s letter of the 22nd October states ‘At this point we have attempted to meet and engage with you on numerous occasions. You have failed to cooperate with the process. We have offered you an alternative position to the best of our ability which you have refused. We have also offered for you to attend a meeting to outline any suggestions you may have, you have failed to attend this meeting. At this point we have attempted to keep you in employment but it is clear that you wish to resign. This is my final letter as I cannot keep the job open for much longer as it needs to be filled. Please meet with me or resign from your position by Thursday, 25th October. If I do not hear from you I will forward over your p45 and any monies owed. Regards [disciplinary manager]’

As outlined above, there is no such thing as ‘self-dismissal’; there is dismissal or there is resignation/constructive dismissal. I have found that the complainant did not resign. The question is, therefore, whether the respondent can show that there were substantial grounds to justify the complainant’s dismissal.

The complainant participated in a disciplinary investigation, followed by a disciplinary process. There was no formal investigation report and no outcome to the disciplinary process. The investigation considered the ‘falsification’ of time documents. It is difficult to see a disciplinary breach in the overlapping time sheets (leaving the school at 9am but signed in to clean the community facility at 8.30am). This working pattern is recorded almost every day the complainant worked, and all these time sheets are signed off on by the school. The other issue was the complainant leaving early; there is reference to CCTV footage, but none were put to the complainant.

In any event, there was no outcome to the disciplinary process and no formal finding made against the complainant. While the disciplinary process tailed off, there was a great deal of discussion about alternative roles. All told, the dismissal of the complainant cannot be justified on misconduct grounds, as the respondent did not formally find any disciplinary breach and did not dismiss her on these grounds.

The respondent offered the complainant alternative roles, which it said were reasonable. The complainant did not agree. It would have been open for the respondent to dismiss the complainant for not attending these alternative roles and the question of whether they were reasonable would have to be adjudicated upon.

The letter of the 22nd October 2018 reads like a letter one would see in redundancy process. The employee’s old role is not possible, and the employer suggests alternatives. The question is whether they are reasonable alternatives in the light of the case law and the statutory context of the Redundancy Payments Act. The respondent, however, did not make the complainant redundant.

It follows from the above that the complainant was dismissed and not self-dismissed. She did not resign. Given the onus on the employer to show substantial grounds to justify the dismissal, I find that the dismissal was unfair. The respondent has not shown that the dismissal was justified on misconduct, non-attendance or redundancy grounds.

Applying the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977 (SI 287/1977) I calculate the complainant’s economic loss according to the 33-hour week as this was her average hours at the time her employment ended. Her average weekly wage for the purposes of calculating redress was €343.20.

I agree with the respondent that the complainant could have done more to mitigate her loss. She did, however, apply for roles and obtained a job as a carer, the role she had studied for. I note that this was initially a part-time role, but it is likely that she will progress to full-time hours in this facility or another, given the demand for such skills. Taking these aspects into account, I award redress of €4,500.

CA-00024928-001

I find that this complaint pursuant to the Terms of Employment (Information) Act is well-founded and I award redress of €1,200.

CA-00024928-002

I find that this complaint pursuant to the Organisation of Working Time Act is well-founded and I award redress of €800.

CA-00024928-003

I find that this complaint pursuant to the Organisation of Working Time Act is not well-founded.

CA-00024928-004

I decide that this complaint pursuant to the Terms of Employment (Information) Act is not well-founded.

CA-00024928-005

In this complaint pursuant to the Unfair Dismissals Act and for the reasons set out above, I decide that the complainant was unfairly dismissed by the respondent. I decide that the respondent shall pay redress of €4,500 to the complainant.

Unfair Dismissals Act / resignation / self-dismissal

Terms of Employment (Information Act) / statement / notification

Organisation of Working Time Act / records / legal onus / hours / annual leave