Complainant

Respondent

Anonymised Parties

An Administrator

A Fuel Manufacturing Company

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-00021205-001

17/08/2018

The complainant was employed by the respondent as an Office Administrator from December 2016 until 30th May 2018. The respondent is based in Belgium and the complainant was employed in the Irish Office which closed in August 2018. The complaint was submitted to the Workplace Relations Commission (WRC) on 17th August 2018 and relates to alleged unfair dismissal.

The respondent stated that the complainant was not dismissed unfairly or at all. The respondent stated that the complainant was on Maternity Leave from 1st December 2017 and submitted an email on 25th May 2018 indicating her intention to return to work at the end of June 2018. The respondent further outlined that it had already made a business decision in March 2018 that it would close the office where the complainant worked. The respondent confirmed that the office finally closed in August 2018 and that its entire Irish operation ceased on that date.

The respondent stated that, despite its decision relating to the office closure, it responded to the complainant’s email on 30th May 2018 stating that the position had been terminated due to discrepancies that had come to light in relation to tasks involving the complainant prior to the commencement of her Maternity Leave. The respondent stated that it gave the complainant the opportunity to discuss the matter further and the issue of her continued employment which she did not do. A Principal of the respondent stated that he was subsequently informed by the Accountant that it was his understanding that the complainant was resigning and had sought her P45 and other documents relating to the cessation of her employment. The respondent Principal confirmed that he spoke with the complainant and that she confirmed to him that she was leaving the Company. In conclusion, the respondent contends that the complaint is without merit and should be dismissed.

Legal Submissions

The respondent’s Solicitor outlined that the complainant was not informed of the respondent’s decision to close the business while she was on Maternity Leave as it was inappropriate to contact her during her absence. The respondent confirmed that it was aware of its obligations under the Maternity Protection Acts and that the complainant remained in its employment although discussions were required in relation to the alternative roles that the complainant could be offered on her return. These discussions did not take place as the complainant had not meaningfully engaged with the respondent in relation to her return and had subsequently indicated her intention to resign.

Notwithstanding it’s position that the complainant resigned from the employment, the respondent Solicitor further outlined that the complainant’s role actually ended by reason of redundancy when the respondent made the decision to close its Irish operation in March 2018, although the complainant did not have the requisite two years’ service under the Redundancy Payments Acts. The respondent representative stated that in accordance with Section 6(4)(c) of the Unfair Dismissals Acts, the complainant’s dismissal was not unfair as it occurred by reason of redundancy.

The complainant stated that when she received the respondent’s email of 30th May 2018, she sought the advice of the Citizens Information Service and subsequently wrote to the respondent outlining her entitlements under the Maternity Protection Acts and indicating that she intended returning to work a number of weeks later.

The complainant stated that when she spoke to the Accountant it was in the context of having received the email of 30th May 2018 from the Principal of the respondent and that any conversation relating to receiving her P45 and other entitlements was because in her view she had been dismissed from her employment. The complainant refutes the suggestion that she indicated at any time to either the Accountant or to the employer that she would not be returning from Maternity Leave and was in fact resigning from her employment.

The complainant further stated that the alleged discrepancies which the respondent referred to in its email of 30th May 2018 were never specified to her and she was never given the opportunity to respond or to partake in any investigative process in relation to the circumstances leading to her dismissal. The complainant contends that she was unfairly dismissed as a result.

The complainant received the following email from the respondent on 30th May 2018 having indicated her intention to return to work at the end of June 2018;

“Hi [Claimant’s first name]

Thanks for your email. When are you planning on finishing your Maternity Leave? We have terminated the position you were on hence we have discovered great discrepancies in the books, invoices and some other tasks you were working on and are still trying to reconcile last year to this date.

You can give me a call on my new number: [Respondent’s mobile phone number] at your convenience today or tomorrow afternoon (after 3pm our time) to discuss further.

Best

[Respondent Principal’s first name]

The complainant wrote to the respondent on the same date outlining her entitlements under the Maternity Protection Acts stating that she was entitled to return to her role or to a suitable alternative role within the organisation.

Having received the complainant’s letter of 30th May 2018, the respondent replied as follows:

“[Claimant’s first name]

Not sure why you’ve sent me the attached. I’ve tried calling you back as we agreed but not have [sic] heard back from you. If you’d like to come back as I have mentioned, we need to operationally agree on the next steps and definition of what you would be doing as your position does not exist.

I will be available Thursday from 10am to 2pm Berlin time.

Best

[Respondent Principal’s initials]

The Applicable Law

The Unfair Dismissals Act, 1977.

Sections 6(1) and 6(4) of the Unfair Dismissal Act provide as follows:

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.

6.(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

I note the respondent’s assertion that the complainant’s role ended by reason of redundancy, although it is unclear, if that was the case, why this was not conveyed to the complainant in the email of 30th May 2018. If it was the case that the position was made redundant, why inform the complainant that the role was terminated due to “great discrepancies in the books, invoices and some other tasks you were working on.”

Having considered the matter, I conclude that the respondent terminated the complainant’s employment for the reasons stated in its email to her on 30th May 2018 and that while the role may well have ended by reason of redundancy in August 2018, this was not the reason for the dismissal as of 30th May 2018. I also note that when the respondent received the complainant’s response of the same date, it then offered the complainant the opportunity to discuss remaining in its employment in an alternative role although in circumstances where the entire Irish operation was closing down, the respondent would have been well aware that there were no real alternatives open to the complainant.

In conclusion, I accept the complainant’s position that the dismissal as conveyed to her on 30th May 2018 was on the basis of the alleged discrepancies which had not been investigated and there was no opportunity for the complainant to address these allegations that led to the termination of her employment.

Band of reasonable responses.

As to whether there were substantial grounds for the Complainant’s dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In all of the circumstances of this complaint, I do not find that the employer behaved reasonably and that’s its decision to terminate the complainant’s position for the reasons stated in its email of 30th May 2018 was not within the range of reasonable responses of a reasonable employer.

Mitigation of Loss

Following the dismissal, the complainant was unemployed for approximately seven weeks before commencing employment elsewhere. I am satisfied that the complainant made efforts to mitigate her losses which resulted in her finding new employment within a relatively short period of time.

Having considered the submissions of both parties, I find that the complaint of Unfair Dismissal is well founded. The respondent is directed to pay the complainant €3,500 (7 weeks gross pay) in compensation.

Unfair Dismissal