ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026840
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | An Employer |
Representatives | Husband | None |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034085-001 | 30/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00034085-002 | 30/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00034085-003 | 30/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00034085-004 | 30/01/2020 |
Date of Adjudication Hearing: 19/10/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
The evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
Also, an Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 30th of January 2020) issued within six months of her dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
In addition to the Complaint brought under the Unfair Dismissals legislation above, the Complainant has made further allegations that the Employer herein has contravened provisions and/or enactments of Acts (generally protective employment Acts) which have been specified in Schedule 5 of the Workplace Relations Act of 2015. As the Adjudicator assigned to deal with these matters, my obligation is to hear these further complaints in accordance with the mechanism set out in part 4 (and in particular, section 41) of the 2015 Act. Having heard the complaints in the manner so prescribed I am entitled to consider redress in accordance with the Redress Provisions outlined in Schedule 6 of the Workplace Relations Act of 2015.
These other complaints include;
A Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 wherein the Complainant seeks paid annual leave entitlements set out in the Act
A Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 wherein at Section 15 the Complainant should have been allowed to return to her work under the same Contract of employment as operated when she commenced her protected leave.
A Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Background:
Claim initiated by Workplace relations Complaint Form which issued on the 30th of January 2020 and involves an alleged dismissal of an employee out on maternity leave. |
Summary of Complainant’s Case:
The Complainant’s Husband read the submission he and his wife had prepared and this was shared with the Respondent. At the outset, the Complainant has withdrawn the claim under the Organisation of Working Time Act as having been ill founded. The Complainant states her employment was terminated, initially without her knowledge or acquiescence, and at a time when she was navigating a difficult pregnancy. She says when she found out, that the decision was not reversed leaving her at a loss. I heard directly from the Complainant. |
Summary of Respondent’s Case:
The Respondent is adamant that the Complainant formed an intention to terminate her employment in the course of her pregnancy to avoid the long journeys and to have some balance after the baby was born. The Respondent says she acted on this decision and does not accept that there was an involuntary dismissal. The Respondent outlined her case in a pre-prepared submission. The Respondent also gave her own account of the events. The Respondent was given every opportunity to challenge the Complainant’s evidence. |
Findings and Conclusions:
The Respondent operates a community based preschool facility which caters specifically for children with Autism. The preschool is funded by the Department of Education and skills and subject to a strict ratio and other best practise criteria. The Respondent described how she has to apply annually to the Department for funding. The Complainant came to work for the Respondent in and around November/December 2017. The Complainant was trained up in the detail of how the facility operates, and her name was forwarded to the Department for funding sanction before she started. A Contract of Employment outlining the terms and conditions of employment was not drawn up at this time. It is understood by me, on foot of evidence adduced, that employees are paid by the hour and at a higher rate than might exist in the private sector (this reflects the nature of the work and the particular nature of the children with whom the employees work). Holiday pay is also factored in on the basis of 8% of the hours worked. The facility is open from 9am to 1pm each week day in term time. In June of 2018 all staff were sent the annual email seeking confirmation of whether they wanted to be included for the next academic year from September 2018 to July 2019. The Complainant was amongst those staff who confirmed a willingness to stay on. On or about the 9th of November 2018, the Complainant indicated to her Employer that she was pregnant with her baby due to be born in July 2019. Maternity leave is not specifically covered in the standard Contract of Employment (seen by the Complainant after her employment ended) or in the policies and procedures booklet and must therefore be assumed to be Statutory based. The Respondent says that she had discussed this with the Complainant on the 14th of March 2019, at which time the parties discussed accessing maternity benefit through the Social Welfare system. The appropriate paperwork was prepared by the Respondent so that the Complainant could receive maternity benefit from June 2019 to December 2019. There is a significant conflict of evidence as to what else was discussed between the parties on the 14th of March 2019. The Respondent says that the Complainant indicated that she would definitely not be returning to the workplace once her baby was born. The Complainant denies this was ever said. I have to note that nothing was put in writing at this time, though there was some text messaging concerning Maternity leave start date and holiday pay in the days following the meeting. This communication offers no clues as to what the intent of the parties was. It certainly does not disclose a positive intention, on the part of the Complainant, to leave the workplace on a permanent basis. The Respondent says that she set about finding a permanent replacement for the Complainant so that she would be DES complaint within a timely manner. This was openly advertised. The Respondent also says that she did not include the Complainant in her annual email to all staff (sent around July 2019) inquiring as to their availability for the next academic year from September 2019 through to July 2020. The Respondent asserts that the fact that the Complainant did not make enquiries about this failure to be included, is evidence of the fact that the Complainant was not looking to be included as a staff member in the next year. It is an unfortunate fact that the Complainant seemed to have a difficult pregnancy and was obliged to stay out of the workplace from the end of April to the end of June (when her maternity leave started) on unpaid sick leave which was medically certified by the Complainant’s General Practitioner. I note that the Complainant even qualified for disability benefit in the run up to her Maternity leave. The Complainant was issued with what was to become her last payment at the end of May 2019 which included her outstanding holiday pay. The Respondent had notified her Accountant that the Complainant had terminated her employment and the end date was recorded as a matter of expediency as the 31st of May 2019. The Complainant’s permanent replacement started in May of 2019. The Complainant had her baby and there was no communication between the parties until September 2019 at which time the Complainant was making enquiries as to outstanding holiday pay accruing in the course of Maternity Leave. Then on the 12th of November 2019 the Complainant wrote to the Respondent indicating that she intended taking her unpaid leave entitlements of 16 weeks from the start of January 2020. It is clear to me that such an email can only be sent by a person who believes herself to be in the continued employment of the employer or who has changed her mind as to her employment status and is now seeking to brush over the said change of mind. In any event, this communication should have sent alarm bells ringing for the Respondent who has, it seems, acted on the conviction that the employment has ended. It is surprising therefore, to me, that the parties do not talk for nearly another month, by phone on the 9th of December 2019, and at the prompting of the Complainant. In the course of the conversation on the 9th of December the Respondent indicates that the Contract of Employment has already been terminated and was done so at the Complainant’s request. The Complainant says that she was very surprised to learn that her employment had been terminated at the end of May, one month before her maternity leave. This was not notified to her by her employer or by the Accountant who put the instruction in train. She says that she had no knowledge of the fact that the Respondent had terminated her employment. Having heard the parties, I cannot find malice on the part of either one. I must therefore conclude that the parties simply misunderstood one another at the meeting in March of 2019. Each acted in accordance with what she understood the outcome of that meeting to have been. Surprisingly, the possibility of reversing the actions taken (mistakenly or otherwise) was not discussed by the parties in December 2019 and the fact of termination appears to have been taken for granted and affirmed and this time with the Complainant’s clear knowledge. This was, to my mind, a lost opportunity which the Employer should have exploited. In the circumstances, it should be noted, that I am finding that the date of termination was the 9th of December 2019 as this was the date on which the Complainant was told that her employment had been terminated. It makes no sense to find that the Complainant’s employment was terminated in May of 2019 if the fact was not known to her, and was not made known to her (by letter or other confirmation with the purported last payslip). I am, on balance, accepting that she did not know of the purported May-date termination. The workplace relations complaint form issued in January 2020. The Complainant referred to the standard Contract of Employment which requires written Notice be given by either party in the event that a termination is sought. This was not done. The Complainant also refers to the inconsistencies of the Respondent who at different times describes the Complainant as wanting to leave after maternity leave and then wanting to leave before maternity leave. To her accountant, the Respondent has described the Complainant as being on maternity leave and not due back before September 2019. The Complainant has noted her disappointment at what she perceives to be the attempts, post-employment, to portray the Complainant as an unsatisfactory employee prone to tardiness and using her pregnancy to obtain sick leave. I have not taken these allegations into account. Having regard to all the evidence, and the fact that the Respondent did not attempt to rectify the situation once the mistake had come to light, I am satisfied that the Complainant was Unfairly Dismissed when the Employer sought to affirm without exploration a previous decision to terminate whether prompted by misunderstanding or otherwise. The Complainant’s claim succeeds under the Unfair Dismissals legislation. In terms of mitigation it is noted that the Complainant should have gone out on unpaid parental leave from the end of December 2019 to the middle of April 2020. This was after the start of the national lockdown and made mitigating losses difficult. However, I have also seen no evidence of job applications having been made. I have made a finding that the Complainant’s employment was knowingly terminated by the Employer on the 9th of December 2019 and knowingly understood by the Employee to have happened on that date. The 9th of December is some time before the Complainant’s protected maternity leave was due to terminate. It is also well before any unpaid parental leave entitlements might have operated. In the circumstances, the Complainant did not seek to exercise her right to come back to the workplace at the end of her Maternity/Parental Leave. In the circumstances I am finding claim under Section 18 of the Parental Leave Act 1998 to be not well founded. I accept that the Complainant was denied her entitlement to Minimum Notice and her claim under this Act is well-founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00034085-001 – This claim was withdrawn by the complainant as having been not well-founded Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 CA-00034085-002 - This claim was not well founded Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00034085-003 - the Complainant is entitled to be paid her Minimum Notice based on a start date of 12th December 2017 and an end date of 9th December 2019 at a rate of €440.00 Gross per week. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00034085-004 - The Complainant was Unfairly Dismissed, and I award her € 10,120.00 |
Dated: December 10th 2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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