Complainant

Respondent

Anonymised Parties

A Childcare Worker

A Childcare Facility

Representatives

Andrew McCann North Dublin Citizens Information Service

John O’Neill, CB & Associates

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-00031710-001

21/10/2019

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

CA-00031710-002

21/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031710-003

21/10/2019

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

CA-00031710-004

21/10/2019

The complainant was employed as an afterschool assistant with the respondent from 9th September 2015. She states that she was unfairly dismissed following a heated discussion which took place on 19th June 2019. The respondent disputes this and claims that she resigned.

The complainant stated that she attended for work as normal on 19th June 2019.   On her return she had a discussion with her line manager, Ms A, regarding a particular children’s club.   Further to this discussion Ms A went up to see the owner of the school, while around the same time the complainant received a telephone call from the hospital requesting that she attend immediately for tests. She claimed that she was very shaken by the nature of this phone call and alleged that it affected her ability to think straight at the time. Some time after this Ms A returned to the area along with the owner and a heated argument ensued about what the complainant and Ms A had discussed surrounding the children’s club. As a result, Ms A again left the area and the complainant asked the owner why Ms A had failed to bring any issues that she had to her attention. She also felt that the owner was supporting Ms A and not her. As a result of this lack of support as well as the verbal abuse from Ms A and the call from the hospital, she felt extremely unwell and called her friend who also worked there and who returned in her car to collect her. The complainant then left her place of employment.

That evening she called the owner to apologise but she failed to either answer or return her call. She subsequently called over to the owner’s house in Monday 24th June but was told by her daughter that her mother would call her the following day. When the owner called her back on 26th June the complainant apologised for walking off site but highlighted that Ms A had verbally abused her that day. She also asked for a meeting with both the owner and Ms A, which the owner initially agreed to. The owner subsequently telephoned her again later that day and informed the complainant that Ms A was unwilling to attend any meeting with her. She also added that the complainant had resigned from her position as she had walked off site.

On 19th June 2019, there was a verbal altercation between the complainant and Ms A which resulted in the complainant leaving her employment while letting the respondent without proper childcare cover for 24 children. This altercation involved the use of bad language by the complainant in front of very young children. The respondent also stated that another colleague telephoned the complainant later that evening to see if she was going into work the following day to assist with the breakfast club but was informed that she would not be “setting foot” on the premises again.

The respondent stated that the first attempt at an apology by the complainant was by text message on 5th July more than 2 weeks after the event when she also asked if she could have her job back at the start of the new term in September. The owner informed her that she was unwilling to re-engage her as a result of her misbehaviour surrounding the incident on 19th June when she also resigned from her employment.

In order for the complainant to succeed in her unfair dismissal claim, I must be satisfied that she:

(i)                  resigned in the heat of the moment;

(ii)                attempted to rescind her resignation reasonably quickly;

(iii)               was not allowed to resume employment by the respondent

While I recognise that the foul language used by the complainant on 19th June was unacceptable, I believe that she was very stressed on the day as a result of the phone call from the hospital as well as the verbal altercation with Ms A and that she resigned her position in the heat of the moment.

I also note that she made a number of attempts to contact the respondent following the incident both to apologise and attempt to rescind her resignation. Specifically, she telephoned her on the evening of the incident in order to discuss the matter but did not get a response until the following day when she received a text message. I further note that the complainant was aware that the respondent would be away from home from 20th until 23rd June which meant that the first realistic opportunity for both parties to meet was on 24th June when the complainant called over to the respondent’s house in order to discuss the matter and rescind her resignation.

While I recognise that the respondent was unavailable to meet with the complainant when she called on that day, she contacted the complainant on 26th June and informed her that she would attempt to arrange a meeting with Ms A in an attempt to resolve the matters between them.

Accordingly, I am satisfied that the complainant attempted to rescind her resignation at the earliest possible opportunity after 19th June and that the respondent only prevented her from returning to work when she learned that Ms A refused to meet with her, thereby effectively dismissing her on 26th June. While I recognise that it may not have been easy to restore the working relationship between the complainant and Ms A, such difficulties arise on an ongoing basis in every workplace and would have had to be managed if the complainant had not resigned following the verbal altercation of June 19th.

Given that the complainant resigned in the heat of the moment, that she quickly attempted to rescind her resignation but was not allowed return to work, I therefore find that the complaint is well founded.

CA-00031710-001:

In making my decision on the appropriate form of redress, I note that the complainant had both an unblemished employment record as well as an excellent relationship with her colleagues until the verbal altercation of 19th June when she resigned her position in the heat of the moment. Had she not acted so precipitously, I am satisfied that she would still be employed by the respondent and believe that, on the basis of her credible evidence as well as her willingness to apologise for her misbehaviour, she should be allowed to resume her employment.

While the complainant’s preferred redress is re-instatement, I note that she has not worked since her dismissal and indicated that she was not actively seeking work. I have also taken into account the four-month period in which it took her to submit the unfair dismissal claim to the WRC and do not therefore consider that re-instatement without any loss of pay from the date of termination is appropriate in this instance.

Instead, I find that the complainant should be re-engaged by the Respondent in the same role, from the date of this decision.

CA-00031710-002: As I found on balance that the complainant did not receive a copy of her terms and conditions of employment, I find that the complaint is well founded and decide that the respondent should pay the complainant €1,000, namely four weeks’ wages.

CA-00031710-003: As I have found that the complainant should be re-engaged, I find that the complaint for minimum notice is not well founded.

CA-00031710-004: This complaint was withdrawn