Complainant

Respondent

Anonymised Parties

A School Cleaner

A Second Level School

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-00030445-001

21/08/2019

The issue in contention concerns the alleged Unfair Dismissal of a School Cleaner by a Secondary School.

The Cleaner concerned commenced employment in January 2010.

It was important to note he felt that he had never, during this period, received a Written Contract of Employment.

Every Summer he would be, effectively laid off, by the School and would receive correspondence to present to the Department of Social Welfare to support a claim for payment over the Holiday period.

This correspondence, a Social Welfare form, stated an expected Return to Work date. In this case the date was the 29th August 2019. The correspondence was presented in evidence. The Complainant accepted this as his Return Date and organised his affairs accordingly.

On the 11th August 2019 the Complainant received a letter from the School Principal which referred to “efforts to contact him” and as these had allegedly been unsuccessful, removing him from his employment. The correspondence was, in effect, a Dismissal letter.

His name was removed from the School Website.

Following the receipt of Employment Law advice, the Complainant lodged his claim at the WRC on the 21st August 2019.

The Complainant had over 9 years unblemished service, had an excellent written reference from a former School Principal and was entitled to rely on the written confirmation of his return date of the 29th August 2019. He was under no obligation to respond to contacts or make himself available prior to this date

Any previous arrangements, made in prior years, regarding coming back to do a “Clean” in August were completely informal matters, made at those times and could not be seen as some sort of “Formal Promise” that was a part of his Employment “Contract”.

His Dismissal letter of the 11th August was “high handed and over the top.” He was denied any opportunity to give his side of the story and the Dismissal on the 11th August 2019 was completely Unfair by any standards.

The Employment dates were agreed. The Respondent Employer contested that any Dismissal had taken place. The Complainant had effectively “surrendered” his employment.

It was well known, to all concerned, that the job involved participating in a “Deep Clean” of the School in early August prior to the reopening for Students in September. This had been the case for the entire period of the employee’s time with the School. This Deep Clean was normally organised by the School Caretaker, Mr. Xa, who would contact the Cleaning Staff in early August to make the necessary arrangements. In August 2019 numerous efforts to contact the Complainant were made by the Caretaker, the School Secretary and the Principal herself. Phone calls were not returned despite an assurance from the Complainant’s wife, who answered the phone on one occasion, that the Complainant would call the Principal back. Detailed evidence of failed Phone calls was given in evidence.

By the 11th August 2019 the Principal made the legitimate assumption that the Complainant was not interested in returning to the School and wrote the letter. She stated that the School would be  

   “employing another cleaner to carry out those duties for the academic year”.

The first communication from the Complainant came via the WRC correspondence. The Principal wrote a lengthy letter to the Complainant on the 17th September expressing her surprise that the Complainant had not contacted her in late August to clear matters up and reassured him that

“Your part time cleaning position is indeed still available to you here in School XX and we look forward to seeing you on Monday next the 23Rd September”.

The Complainant did not attend for work on the 23rd September and no reply was received from the Complainant other than a request that no further direct contact be made to him by the Principal and that all additional correspondence now goes via the WRC Offices.

The Respondent summarised their position as that the Complainant had , despite over 8 years clear custom and practice not accepted any contact from the School regarding organising the August clean , had chosen to take a very narrow view of the Social Welfare correspondence despite the dates issue always being sorted out in September and had not accepted the offer of his position on the 23rd September. The Respondent was at a complete loss as to why the Complainant had not made any contact with the School in August, either before or after the letter of the 11th and had furthermore not made contact with the Caretaker or Principal to discuss the letter of the 11th.

In Oral discussions with the Adjudication Officer the Legal Representatives of the School accepted that SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures may not have been absolutely applied (particularly in regard to the 11th August letter) but that any deficiencies in the Employer’s case were more than balanced by the Complainant’s refusal to communicate both Prior to and Post the letter. His job was still open to him on the 23rd September, but he had absolutely declined to engage. He had effectively walked away from his position and no case of Unfair Dismissal could arise.

3:1       The Relevant Law

The relevant Law is the Unfair Dismissals Act ,1997 supported by the provisions of S.I. 146 of 2000 -Statutory code of Practice on Grievance and Disciplinary Procedures. There is also a most extensive body of Legal precedents. The overriding Legal Principles are those of Natural Justice which have to be seen to be followed at all times.

Section 1 of the UD Act, 1977 under Definitions defines Dismissal as

“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,

Section 6 of the UD Act,1977 provides

Unfair dismissal.

6

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Legal precedents as set out in Redmond on Dismissal Law, Bloomsbury, 2017 and Meenan, Employment Law, Round Hall, 2015 make the following points.

In a Dismissal situation the first point that must be considered is whether or not a Dismissal actually took palce and then, if it was at the instigation of the Employer or if the Employee resigned – a Constructive Dismissal.

In all procedures that follow the Employee has to be given the full benefits of Natural Justice – he or she has to have a full impartial investigation, to be made aware of all charges or complaints against him, have a full opportunity to answer these charges, to have a decision made that is not tainted by other non-related issues and that is “reasonable”. The maker of the Dismissal decision has to be as independent as possible and not an actor or participant in the scenario leading to the Dismissal. An Appeal to an Independent Body has then to be offered. The Employee is expected to participate fully in all Employment Procedures involved unless there are particular and good reasons for not doing so.

All cases rest on their own facts and particular local circumstances and I will now look at these.

3:2         Review of the Evidence.

The Letter of the 11th August stated that the School would be  

   “employing another cleaner to carry out those duties for the academic year”.

It would be reasonable to conclude that this was a Dismissal letter. The employee was not forewarned that Dismissal was an issue and considerations of offering an Appeal etc did not seems to arise. Procedurally the Employer was at fault.

In mitigation the Employee clearly had refused to engage in all Contacts re the Annual clean, a Custom and Practice of some 8 years standing and had latter completely refused to engage when the main cleaning job was re-offered to him on the 23rd September. The complete reliance on the Social Welfare correspondence and the date of the 29th August as the resumption date was unnecessarily rigid by the Complainant in view of the long established Custom and Practice regarding the annual August school clean.

In Oral evidence the Parties alluded to a difference that may have arisen with the new School Principal in January 2019 regarding a School Gym and the allocation of hours to the Complainant. It was unclear how this had impacted on his relationship with the New Principal, but the Complainant seemed to have a very high regard for her Predecessor.

3:3         Summary Conclusion

In summary, having heard and read all the Oral and Written evidence, I came to the conclusions that

·         An Unfair Dismissal had taken place by letter of the 11th August 2019

·         The actions of the employee prior to the 11th August and subsequently had contributed some 100% to his Dismissal. The complete absence of any contact with the Employer was most unusual and does not sit well with any Legal or Employment Tribunal precedents. Adjudicator questioning at the Oral Hearing failed to establish a good reason for this Employee approach.