Complainant

Respondent

Anonymised Parties

Complainant

Respondent A; Respondent B

Representatives

Trevor Collins Kilfeather & Company

No attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031158-007

26/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00031158-008

26/09/2019

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

CA-00031158-009

26/09/2019

The Complainant was employed as a waitress/server in the employment from 2011 until August 4th, 2019. During her period of employment there was a change of ownership and her terms of employment were unaffected by the change. The end of the employment followed a meeting with Respondent A at the company on August 4th. The case involves interactions over a two-day period commencing on August 2nd when the claimant describes a serious incident with the same Respondent A. Later that day the complainant was engaged in texts with Respondents A and B and at one point on that day she said she would leave and asked for her outstanding payments including holiday pay. She later changed her mind and decided to go to work on August 3rd and worked normally. The first Respondent A saw her at work on the 3rd but did not speak to her. On August 4th she again went to work but felt unwell and contacted Respondent A asking for some time off. Instead she received her outstanding pay and holiday pay. This she contends was a summary dismissal without notice. In addition, she claimed that she had not received any statement of terms of employment following the transfer of ownership of the business in 2016.

There are sensitive, personal issues involved in this case. In respect of those pertinent to the claim of alleged unfair dismissal, the complainant states that she became concerned about the welfare of another employee. She decided to speak to Respondent A about her concerns. On Friday August 2nd she asked to speak to him and they went to his office. There she confronted him with her concerns about her co-worker. The complainant described the reaction of Respondent A as becoming angry with her. She in turn told him she had personal information he had sent to her. At this point she described him hitting her and walking out of the office. After the incident she went to the bathroom and left because she was upset and traumatised. She describes trying unsuccessfully to contact Respondent B on the telephone.

On the afternoon of the 2nd there were phone calls from Respondent A during which was at first angry , but later apologised. The complainant contacted Respondent B and there are texts of their exchanges about what had happened. In one of the texts-at15:12 ‘I just want my money for this week and my 300e holiday money.’ And ‘I left the job already’. These were followed by other texts where the complainant referred to coming back but not working with another named person on her shift and later that she could not work in the employment again due to what had happened, on the advice of others.

On August 3rd she decided to go to work and she worked normally. Respondent A saw her there but did not approach her at any stage or speak to her.

On August 4th when she was on the way into work on the bus she told her friend she was unwell. Her friend advised her to contact Respondent A and tell him she was unwell. When the complainant arrived at work she did not change into her uniform but rang Respondent A and asked him to come to the shop and that she was unwell. He told her to come to the office. When she went to the office he told her to change for work. She said she was unwell and wanted one day off to recover from what had happened. Respondent A said no, ‘enough is enough or I will lose control again’ and ‘you are not working here anymore’. He then gave her €300 and holiday pay.

The complainant left and went to the Garda station where she reported the incident on August 2nd . They took a note of her report and the matter is now the subject of a prosecution. The complainant then went to a solicitor about her case.

Following these events, the complainant stated that she was in shock. She provided details of texts up to the end of August and referred to phone calls from Respondent A. Some of the texts disputed the events of August 2nd to 4th on both sides. There were texts with Respondent B about meeting, but no meeting took place after Respondent B was unable to meet on the first arranged day.

Compensation was sought by way of redress. Following the events described, the complainant was unwell and unable to work or to look for work. After a while she was invited by someone who knew her through her work to go to work for her and she did , in October 2019.

The complainant’s rate of pay with the respondent was given as €400 per week. Payslips for the new employment were presented at the hearing. The claim is for the initial financial loss and an ongoing loss of €40 per week when the rate of pay and the hours are compared.

Complaint under the Terms of Employment Information Act,1994 as amended.

The complaint is that there was no written statement of terms of employment provided to the complainant by the respondent. At the hearing she stated that she had not received any written statement from the previous employer. Asked how she knew of the transfer of employer in 2016 she said she was told at the time when it was happening.

The submission was that she was prejudiced by the failure to provide her with a statement of her terms of employment. Mr Collins referred to correspondence from a solicitor then acting on behalf of the respondent on September 9th, 2019,where it was stated ’Our client understood that her written terms of employment were given to him by (previous employer) and out client continued with those terms and conditions.’

In the absence of the respondent, the material which falls to be considered is in written form which, because it was not open to questioning as the complainant was at the hearing cannot be taken at face value but rather is considered not as evidence as such, but in circumstances where the complainant seeks to rely on the same written material as evidence. The texts presented by the complainant show the respondent accepting the complainant’s resignation, agreeing to pay her wages and holiday pay and provide her with a reference. A later text agreed to her condition that if she returned to work she would not work alongside a named employee and then changing her mind and saying that she had been advised she should not return to work because of the actions of Respondent A on August 2nd. It is on the basis of these texts that the respondents then solicitor’s correspondence of September 9th, 2019 appears to be relying as resignation rather than a dismissal. Hence the statement ‘Our Client is emphatic that your client left the Company of her own free will and gave a text message to confirm so.’ The same letter from the respondents then solicitor also refers to the understanding that a written statement of terms of employment were provided by the previous employer and transferred to the new employment.

Complaint Unfair Dismissals Act 1977 as amended.

Having the benefit of the submission and oral and documented evidence of the Complainant together with the then respondents’ solicitor’s rebuttal of some of the same evidence and having examined the situation fully, I am satisfied that she was dismissed from the employment on August 4th, 2019. The texts between her and respondents do indicate that they may well have thought she had left the employment on Friday 2nd following the incident with a named respondent based on texts exchanged on that day. However, it is accepted as a matter of fact that the complainant attended for and worked a full shift on Saturday August 3rd. During that day she says that she saw the respondent with whom she had the incident on the Friday while she was at work on the Saturday and while he avoided her, he did not approach her to discuss her reasons for being at work that day. As he did not object to the complainant being at work it is reasonable to conclude that he was prepared to allow her resume work. And so, it can be accepted that the employment relationship resumed without a break on Saturday August 3rd with the agreement of both sides and was terminated by the respondent on Sunday August 4th only after the complainant reported that she was unwell and asked for some time off, refusing to change into her uniform when instructed to do so. The complainant in this case was dismissed and the circumstances of the case are such that the conclusion is that she was dealing with a person who was totally unreasonable, whose conduct on August 2nd and again on August 4th was so outrageous that it led directly to the termination of this employment relationship by way of dismissal. If the complainant made any contribution to the situation, it was her decision to stand up to the respondent and call out his conduct on Friday August 2nd and in her subsequent texts. Nothing in her conduct justifies the treatment she received as a consequence. In setting out conclusions, the legal term to describe the conduct of the named respondent has been avoided, due to legal proceedings pending at the time of the hearing, which have no bearing on this decision or the application of the legislation in this case.

The complaint of   unfair dismissal on Sunday August 4th is well founded.

Complaint under the Terms of Employment Information Act 1994,as amended.

In correspondence from the then solicitor of the respondent, it was stated that the complainant would have received such terms from the previous employer. At the hearing, the complainant stated that she had never received any statement of her terms from either employer before or after the transfer of undertakings which she believed occurred in January 2016. Asked at the hearing, she said she received no written notice of the transfer of ownership and no statement from the respondent regarding her terms of employment following the transfer.

Section 3(k) of the Terms of Employment Information Act, as amended, requires that a written statement of terms of employment contain any terms or conditions relating to-

(i)incapacity for work due to sickness or injury and paid sick leave,

In the absence of any evidence to the contrary, accepting that the complainant had no written statement of terms of employment, she had no information regarding her entitlements to leave due to incapacity which in her case occurred on August 4th when she was denied time off at a time when she was feeling unwell.

Section 3(1(l) of the Terms of Employment Act provides that a statement of terms of employment shall contain the period of notice which the employee is required to give and entitled to receive (whether by or under     statute or under the terms of the employees contract of employment) to determine the employees contract of employment or, where this cannot be indicated when the information is given ,the method for determining such periods of notice,

In the absence of a written statement she had no knowledge of the terms of notice of termination of her employment which she was either obliged to give, or to which she was entitled to in the event of a dismissal. The complainant never received payslips and her wages(gross and nett) were paid in cash. When the totality of the employment relationship is examined, it almost as though she did not exist as an employee. As contended by her representative, the absence of any written statement of her terms and conditions containing terms which she could have relied on the situation in which she found herself, did prejudice her in the circumstances of this case. She was materially disadvantaged in the relationship with this employer when she experienced serious difficulties between August 2nd and 4th 2019. The complaint is well-founded, and complainant is entitled to receive the maximum possible compensation for the failure to provided her with a statement of her terms of employment.

Section 8 Unfair Dismissals Act 1977 as amended.

I find the complainant was unfairly dismissed. In terms of redress, since the events of August 2nd to 4th the complainant has moved on with her life and compensation is the appropriate remedy in the circumstances . In any event, the relationship in this case was irretrievably broken by the conduct of Respondent A and the degree of indifference displayed by Respondent B.

The first part of her loss is calculated at four weeks pay given the complainant was unavailable for work for two months and there is a small ongoing loss which will be rectified by the increase in the minimum wage. Given that her unavailability for work can be directly attributed to the conduct of Respondent A, an additional loss of four weeks’ pay is awarded on the basis that the complainant has lost all of her previous entitlement to notice under the Minimum notice and Terms of Employment Act 1973,as amended based on eight years’ service in the Respondent employment, and commenced in new employment on a day 1 basis in terms of service solely because of the conduct of the Respondent. In her evidence the complaint spoke about being on a higher rate of pay than others in the employment. This may have been the case at one stage. However, at the time of termination the rate for the minimum wage and her rate were almost the same. From February 2020 the rate of the minimum wage and therefore her rate in the replacement employment would surpass her rate in the previous employment. Allowing that her hours were set at 40 in the respondent’s employment and vary in the current employment I have allowed a figure of €28 per week as a loss for a period of sixteen weeks as an additional loss. This brings the complainant to the point at which her rate of pay under the minimum wage would exceed the rate of pay in her previous employment.

The respondent is to pay the complainant €3648 compensation for her unfair dismissal.

Terms of Employment Information Act,1994 to 2019.

The complaint of a failure to provide a statement of terms of employment to the complainant is well founded. In accordance with the provisions of   Section 7 of the Act, the respondent is to pay the complainant €1600 compensation in respect of her complaint under the Terms of Employment Act.

Resignation vs dismissal; Disputed written statement