Complainant

Respondent

Anonymised Parties

A florist

A floral shop

Representatives

Sheila Neary

North Leinster Citizens Information service

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-00027851-001

18/04/2019

The Complainant is a florist and the Respondent is a flower shop.

The Complainant’s case is that she was employed by the Respondent on the 12th of May 2015. She was employed as a fully qualified florist.

When the Respondent was out of the workplace on sick leave, the Complainant experienced a change in the Respondent’s attitude towards her. The Complainant was paid her wages some weeks and other weeks she wasn’t. She had no communication with the Respondent.  

The Complainant herself went on sick leave due to work related stress.

On the 9th of February 2019 the Complainant emailed her employer that she was now fit to return to work on the 19th of February 2019.   She received no reply.

There was no attendance by or for the Respondent at the two scheduled WRC hearings.

The Citizens Information Centre wrote to the Respondent on the 27th of March 2019 at the address where the company traded from. It referred to the email of the Complainant of the start of February 2019 and enclosed a copy. It gave the Respondent a further ten working days to respond to the letter.   It received no response to this correspondence.

The Complainant considered herself to be dismissed by the Respondent. She went about seeking new employment. Her new employment began on the 29th of August 2019.

The Respondent was not in attendance.

I have reviewed the correspondence between the Citizens Information centre and the Respondent. The correspondence went to an address where the Respondent traded from. The Complainant confirmed that the Respondent was still trading at this address.

I am satisfied that the Respondent was on notice of the Complainant’s complaint in terms of the email from herself, the correspondence from Citizen’s Information centre and the correspondence from the WRC. The correspondence from the WRC to the Respondent was to the Respondents trading address and the registered office of the Respondent which is a separate address.

The Complainant treated the failure of the Respondent to allow her to return to work following her sick leave as a termination of her employment. She chose the 19th of February 2019 as the termination date. The Complainant submitted an extensive list of her efforts to find alternative employment.

The purpose of the Unfair Dismissal Act is to provide redress for employees unfairly dismissed from their employment. Dismissal in Section 1 of the Unfair Dismissal Act is defined as follows:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

The lack of response by the Respondent to the Complainant’s email and her representative’s correspondence can only be taken as a repudiation of the contract by the Respondent. The actions of the Respondent can only indicate that it treated the contract as at an end. While the Respondent had not issued a letter or verbally terminated the Complainant’s contract of employment, its lack of action was unequivocal.

Therefore, I find that there was a dismissal of the Complainant. The burden of proof is on the Respondent to justify the dismissal. It did not attend the hearing and I have not been provided with any justification for the termination of the Complainant’s employment.

As regards redress, the Complainant’s loss of earnings was for twenty-six weeks.   I accept her efforts to find alternative employment. She submitted substantial proof of these efforts at the hearing. She sought employment outside of her area of expertise and eventually found work as a bus escort on a school bus. Between the hearing dates she found further alternative employment.

The case is well founded. I award the Complainant the sum of €11,772.28 which is a gross payment taxable in accordance with Revenue rules on termination of employment.

Dismissal