Complainant

Respondent

Parties

Megan  Healy

Fit 4 Life Gym Ltd

Representatives

Dan O'Connor , Solicitor, James Lucey and Sons LLP

 No Appearance by or on behalf of the Respondent

Act

Complaint Reference No.

Date of Receipt

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

CA-00039411-001

28/08/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 28 August 2020, the Complainant through her Solicitor submitted a claim for Unfair Dismissal to the WRC.

On 19 November 2020, the Respondent received copies of both, followed information on Mediation and a request for a written response if the case was destined for Mediation. The Complainant had signalled an interest in Mediation on her complaint form.

On 15 December 2020, the Respondent was reminded to set out the facts of the events leading to dismissal.

Nothing further followed until on 8 June 2021, when the Respondent sought a postponement of the hearing scheduled for June 16, 2021. This was refused on 10 June 2021.

On 14 June 2021, I wrote to the Respondent seeking an outline submission to accompany the submission received from the Complainants Solicitor. Nothing followed.

On the day of hearing, June 16, there was no appearance by or on behalf of the Respondent. The hearing proceeded having waited a reasonable length of time to allow for potential for delays on the Respondent side.

I addressed the Complainant and her Representative on the impact of Zalewski Adjudication Officer and WRC [2021]IESC24 .The Complainant wished to press forward with the hearing of her case .

The Respondent was invited to make a response to the claim. The Respondent was also invited to a hearing to allow for a ventilation of the facts of the case.

The Respondent made application for a postponement of hearing, which was refused. On 10 June 2021, the Respondent was informed that the hearing would proceed as planned on 16 June 2021.

There was no appearance by or on behalf of the Respondent at hearing. On the day of hearing, the WRC rang the Business number to ascertain whether the Respondent intended to make an appearance. I was informed that the Gym was being managed by a new person and the owner was involved in a new business. There was no response when the WRC rang the Respondent mobile number.

I have not received any written response to the claim or any response to the documentation submitted by the complainant, all of which was copied to the Respondent.

The Complainant’s Solicitor gave an outline to the background of the case. The Complainant was claiming Unfair Dismissal in respect of her dismissal dated 29 February 2020.

The Complainant commenced work as a Gym Manager on 25 February 2019. She worked a 32-hour week in return for a weekly salary of €416.00.

The Complainant had made a prior commitment to working with a child with special needs and volunteered art interview that she would not generally be available to work on Saturdays. During her employment, she worked one Saturday.

On 11 February 2020, the Complainant booked a course for later that month on 29 February. at that time, she did not have recourse to a completed roster. As she attempted to isolate the day off through the Human Resource App system, she found that the system would not isolate the day off. Instead the day was marked as a “non-work day “for her.

The Complainant sought to resolve the matter through email communication, but the respondent re-affirmed the roster and said that it could not be changed. The Complainant offered flexibility through a swop or by offering to work the following day, but she did not receive a response.

The Complainant attended the course and learned of her dismissal on the same day, which was marked as irreversible.

She later received a communication with a latter-day application of an appeal.

The Complainant was at a disadvantage as she was not working at the time of the evolution of the Government Pandemic supports. Therefore, she was unable to claim the PUP payment. She received job seekers benefit and found new work on 18 January 2021.

Evidence of the Complainant:

The Complainant submitted that she had joined the respondent employment via an advertisement on Social Media. She had previously worked in a Hotel. She attended an interview, following which the respondent emailed her asking her to “start straight away “. It was her evidence that she commenced work on February 25, 2019 and worked until February 29, 2020, when she was dismissed.

She worked a 32-hr week over 4 days, comprising of 2 early and 2 late shifts. She declared that Saturday work was not possible as she supported a person with special needs between 10 am and 11am on that day.

The Gym was run by the Owner, her husband and 4 staff. After 5 months, the Owner became pregnant. The Gym was staffed by one person at the weekends.

The Complainant was informed of the charging system which applied to customers in their Assessment and Treatments.

In February 2020. she applied to undertake a course on February 29. The Roster was completed weekly by the Owner and the complainant was informed that she would have to work on that day. She sought to work the following day but had not received a response.

The Complainant attended the course in Dublin. At 3.12 pm. She received an email from the Respondent which told her that her employment was over. She went in and left her keys and uniform back.

11 days later, she received another email from the respondent mentioning an appeal.

She found new work on 18 January 2021 which required a 2-hr travel commitment. She now earns €600 nett fortnightly and submitted evidence of mitigation.

The Complainant clarified that the date of March 1, 2019 listed on the contract was erroneous and she had refused to sign it due to that error. She re-affirmed that she commenced work on 25 February 2019.which she said was fell on a Monday.

The Complainant denied attendance at any Disciplinary meeting. She confirmed that she had not actioned a grievance regarding the requested day off on 29 February.

She had not participated in any probationary meetings. The Complainant recalled that an external Human Resource Company commenced advising the Respondent in September 2019 and a staff handbook, while anticipated had not materialised.

The Complainant contended that she had been treated unfairly and had lost her confidence because of the dismissal. She maintained that the course would have benefited the company.

The Complainant submitted that in 13 years of employment, she was aware that the treatment she received in terms of dismissal was not right.

The Complainant recalled that the Owner was not present in the business in the week immediately preceding February 29, 2020. The Complainant had explained that she could not work that day. When she did not get a response, she proceeded onto the course as Saturday was not a normal day of work for her. She had offered to swop.

The Complainants Solicitor proceeded to make several oral arguments in the case, which he supported by way of a requested written submission. I will now summarise.

In seeking to identify the correct start date, he argued that the Complainant had been paid on March 4, 2019, which reflected a start date of February 25, 2019.He submitted a copy of an email to a previous employer dated 27 February 2019, which referred to information sought by the new employer, the respondent. He also submitted that 2020 had been a leap year which provided the continuous employment needed to attract jurisdiction in the case.

He submitted that the complainant had received a letter dated 29 February 2020, which dismissed her summarily from her employment based on not opening the Gym.

“You have been terminated for the following reason(s). Not opening the Gym on your scheduled day of work, leaving it closed for business. This decision is not reversible ……

A termination meeting will be arranged within your two weeks’ notice “

He pointed to a subsequent communique sent from the respondent to the complainant dated February 7, 2020.

This expanded on the respondent matters of concern as

1.       Not coming to work on a scheduled work day on 29 February, where annual leave had been denied and the business closed

2.       No appearance at work on February 1, 2020

3.       Unexplained receipts for Physical Therapy

This was followed by a finding of gross misconduct and summary dismissal, with payment in lieu of notice

The letter ended with a right of appeal to Ms A, the Owner, within 7 days.

These were augmented groundless complaints which he submitted were “clearly designed to cause irreparable damage to the Applicants reputation and to dissuade her from enforcing her employment rights “

The Complainants representative contended that he complainant was not a participant in her dismissal when the respondent did not consult here prior to the decision to dismiss. She was not allowed to respond to any of the allegations and was not an active participant in the company disciplinary procedure.

The Complainants representative presented the difficulty experienced in seeking the complainant’s employment record and the recourse necessary to the Data Protection Commission to release the file, received on 18 March 2021. He contended that that I should draw inferences from the respondent’s reluctance to release the documentation and the omission to reflect these documents in the declaration of dismissal on 29 February 29, 2020. He concluded that these documents were misshaped as disciplinary in nature but were not in turn cross matched by any letters to attend disciplinary meetings.

He submitted that the complainant had been denied fair procedures or natural justice and the respondent had not satisfied the burden of proof of substantial or reasonable grounds for dismissal, necessary in the case.

Case Law relied on:

G4S secure Solutions (Ireland) Ltd v Eric Onourah[2012] UD 279/2011

Vitalij Pacikin v Shay Muratgh(Pre cast ) ltd UD 554/2014

Cathal Crilly v Vinmoe Traders ltd [2014] UD 759/2013  

In conclusion, the Complainants Solicitor submitted that the complainant merely booked a course on a day where she did not normally work. When approached by the respondent, she sought to swop or roster for a different day.

She was summarily dismissed without any engagement of procedural formation. The offer of appeal was contained in a letter which predated the dismissal and was linked to Ms A, who had already made the unilateral decision to dismiss the complainant. The complainant sought the remedy of compensation as it had taken her almost a year to find new work, during which time, she experienced significant economic loss. She had made efforts to mitigate her loss.

I have been requested to decide on whether the Complainant has been unfairly dismissed on 29 February 2020.

My jurisdiction is contained in the Unfair Dismissals Act 1977.

Section 6(1) provides that:

Unfair dismissal.

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.

Section 6(4) provides:

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.

Section 6(6) places the burden of proof squarely on the Respondent in this case. The Employer is expected to show that dismissal resulted wholly or mainly from one or more of the matters outlined in S. 6(4) or that there were other substantial grounds justifying dismissal.

Section 6(7) provides a discretion to consider the employers reasonableness in relation to the dismissal in addition to employer adherence to Section 14 (1) or certain Codes of Practice.

7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

I am satisfied that the Respondent was on full notice of this case and the date of hearing. The Respondent requested a postponement, which was refused and qualified with details of the Hearing set for June 16 last.

I was disappointed not to meet with the Respondent in this case but am satisfied that every reasonable effort was made to accommodate a response and attendance in the case. As a result, I have found the failure to attend the hearing unreasonable.

The WRC is a Statutory Tribunal directed by the Oireachtas to inquire into the facts of this claim and I find that the notable lack of response, engagement and attendance by the Respondent in the case to be disrespectful.

Preliminary Issue:

The Act places a service pre-requisite of one year’s continuous service on the Complainant in the case.

2.— (1) Except in so far as any provision of this Act otherwise provides, This Act shall not apply in relation to any of the following persons:

( a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him

On the complaint form dated 28 August 28, 2020. The Complainant submitted that her commencement date was February 25, 2019. she stated that her employment ended on 29 February 2020. At first glance, this complied with the pre-requisite service requirement of “one year’s continuous service “.

However, the Statement of Main Terms submitted placed the commencement date at March 1, 2019. The Complainant stated that she had disagreed with this recorded start date as it had not coincided with her actual start date of February 25, which she identified as a Monday.

I found a copy of the Statement on file which had two recorded signatures for March 1, 2019 commencement, one purported to be the respondent and that of the Complainant. I inquired further and could not establish material evidence of a commencement date of February 25, 2019.

I noted that the Complainant was recorded first on a diary attributed to the respondent on March 1, 2019 as” Induction”. I noted that she sent in bank details of her first pay received as March 4, 2019 €234.30, which seemed to be a partial week pay, recorded as March 1 pay run. It was regrettable that the respondent was not available for this clarification.

I asked the complainant if she had retained the email exchange she attributed to   the respondent prior her commencement? In her evidence, she had recalled being requested to start very soon post interview. I received this documentation, emails of February 1, 2019 and February 27, none of which conclusively placed the complainant in the respondent employment on February 25, 2019. I found it difficult to be certain of this important start date.

I then considered the provisions of Section 2(4) of the Act.

(4) The First Schedule to the Minimum Notice and Terms of Employment Act, 1973, as amended by section 20 of this Act, shall apply for the purpose of ascertaining for the purposes of this Act the period of service of an employee and whether that service has been continuous.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 covers a minimum period of notice necessary to terminate the contract of employment.

Minimum period of notice.

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( a) if the employee has been in the continuous service of his employer for less than two years, one week,

………

The Statement of Terms submitted by the Complainant reflected a 2 week notice of termination to be given by employer/employee.

On the letter of dismissal relied on by the Complainant, the date of dismissal was given as February 29, 2020.  

In a recent Labour Court Case of Action Health Enterprises ltd v Michael Darcy UDD2019, the Labour considered submissions from the parties on an identifiable date of dismissal.

The facts of the case are interesting in that the complainant in the case had been subject to dismissal on a “no fault basis “with a commitment to receive payment in lieu of his contractual notice period of 3 months. The Complainants Solicitor followed this up and payment was received on 17 December 2017.

The Labour Court found that the request to action contractual terms approbated or approved the contract pursuant to terms and thus extinguished the complainant’s capacity to rely on the terms of Section 4 above to determine the date of dismissal in accordance with Section 1 of the Unfair Dismissals Act 1977

“the effects of this subsection is that where an employee waives her entitlement to notice or accepts payment in lieu of notice their right to notice under Section 4 is extinguished.

Section 7(1) provides that nothing in the 1973 Act operates to prevent an employee or employer from waiving his or her right to notice, on any occasion, or from accepting payment in lieu of notice. The term in the complainant’s contract of employment upon which reliance is placed, provides, in effect, that the Respondent has the right to pay the complainant in lieu of notice. That provision reserves to the Respondent the right to terminate the contract without notice ad to make payment in lieu thereof. However, for the Complainant to “accept payment in lieu “there must have been an offer and a free acceptance of that offer. It follows that where the Respondent relies on this provision by simply paying wages ion lieu of notice there is no offer, in any meaningful sense and there can be no acceptance.

…..

Nevertheless, the facts of this case show that at the time the complainant’s employment was terminated he did not in fact receive payment in lieu of notice. Subsequently his Solicitor, acting on his behalf and instructions, sought payment in lieu of notice and did so in reliance on the relevant provision of the contract …”

The Complainant was found to have approved the contract, in seeking the 3-month payment in lieu of notice and could not now reprobate or denounce it. He was ultimately found to have insufficient service on which to ground his claim for Unfair Dismissal.

In the instant case, I have a copy of a Statement of Terms which the Complainant has disputed as signing as it did not correspond to her actual start date, which she submitted was February 25, 2019.

This Statement provides for a contractual right to give pay in lieu of all or any part of the above notice by either party

The Complainant was not offered payment in lieu of notice, she did not seek or formally accept this   payment. Therefore, I believe the facts are distinguished from Action Health on that basis. The Complainant was simply paid wages in lieu of notice and not permitted the opportunity to work that notice.

 “date of dismissal” means—

( a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

( b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973

In applying Section 1(b) of the Act to the facts as presented, I find that the complainant was not given prior notice of the termination of her employment. She did not follow Darcy in seeking to access the payment in lieu clause in the Statement of Terms, yet it was unilaterally applied by payment of two weeks payment in lieu of notice. I find that the date of dismissal must be regarded as falling two weeks post the notification of dismissal on March 14, 2020. Action Health distinguished.

Based on the information before me and in the absence of a Respondent submission, I find that the employment in this case commenced on March 1, 2019 and concluded on expiration of the notice period incorporated in the Statement of terms on March 14, 2020.

This brings the complainant within the pre-requisite service requirement of section 2 and the I can now proceed to the substantive case.

Substantive Case:

I have considered oral and written submissions in this case. I have also had regard for the uncontested evidence adduced.

I did not have the benefit of the Respondent attendance or any supporting response documents to assess the burden of proof. I note that the Respondent has received all documents in the case inclusive of post hearing documentation requested. Yet, this has not prompted a response.

I did take some time to peruse the documents presented as the employee file secured following the intervention of the Data Protection Commissioners office. Unfortunately, these had little if any probative value in terms of records of meetings, all of which were rejected by the complainant. For my own part, I found an inconsistency on datelines, where March 1, 2018 was mentioned, which was a year before the Complainants employment.

I did observe that I was not asked to consider a Probation record as would be typical in a fledgling employment. I found that the meeting notes read as some sort of aide memoire rather than a sequential chronology of employment. I accept the Complainants point that these notes were not logged with records of invitation to meet or action plan outcomes. The reference to a verbal warning was not accompanied by any mention of appeal.

This brings me to explain that my role in this case as Decision maker is not to decide if the actions of the complainant deserved dismissal. That decision had already been made, my role, instead is to consider the procedural framework surrounding the dismissal and assess whether the test for substantial grounds accompanying dismissal has been met and whether the decision to dismiss the complainant fell within the “band of reasonableness “in such an employment.

The Respondent has not entered a defence in the case.

I note that the Complainant submitted that while meetings had taken place in preparation for a release of a staff handbook, no handbook was in being. This stood in variance to the mention of a staff handbook in the statement of Terms of Employment. I was unsure what systems of management were in place in the absence of these key foundation stone documents.

I listened carefully to the Complainants evidence adduced in the case. I accept that she was summarily dismissed arising from her attendance at a Course in Dublin. I found that the Respondent had not honoured the stated commitment to meet within 2 weeks of February 29, 2020.

I was confused regarding the Respondent letter, which mentioned an appeal, as this was framed at 7 February 2020, some three weeks prior to the date where the email of dismissal was mentioned and sought to augment the issues at hand contrary to the jurisprudence of the Labour Court in Kilsaran Concrete ltd v Vitali Vet [2016] ELR 237. I found the mid-March delivery of this document to be wholly illogical and fundamentally short of best practice. I say this as the Statement of Terms provided for a verbal or written appeal to Management or a nominated independent person within 5 working days. This was not incorporated in the February 7, 2020 letter.

I noted that the Complainant had not activated the mentioned grievance procedure to address the conflict that arose about the clash in the scheduling of the study day and her rostered shift. A careful examination of the roster that week showed that Saturday 29 February, 10 am to 6pm was the 5th rostered day for the Complainant. She told the hearing that she was contracted for 32 hrs and a 4-day week.

I have not been provided with a Disciplinary procedure in this case, just a mention of same in the statement of terms. This is an important omission in the case. SI 146/2000, the WRC Code of Practice on Grievance and Disciplinary procedures remarks:

Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed.

What I found in this case was a rushed communication of dismissal by template during the afternoon of February 29. It listed one reason and communicated that the decision was not reversible. What followed some 11 days later was referred to as a “following up” and mentioned the events of February 29 and added two other allegations which were inflated to a pronouncement of gross misconduct without any collateral pathway of fact-finding investigation /disciplinary process for that pronouncement.

The Appeal was designated to the Decision Maker for dismissal and veered outside the 5 days mentioned in the Statement of Terms.

Based on the uncontested evidence and my own clarifications sought from the c complainant, I have found a complete void in natural justice and fair procedures in this case. The dismissal was conducted in haste and the cardinal rule that the complainant be heard was broken. I found the offer of appeal was moot in terms of the date on the email and the extension of the complaints without rationale, investigation or allowing the complainant an opportunity to counter these allegations. I found no evidence of gross misconduct. Bank of Ireland v Reilly [2015] 12 IELJ 72

There was no apparent follow up on the pro-offered meeting mentioned on the letter of dismissal.

I find that the Respondent was obliged to meet with the Complainant prior to her dismissal. She should have been provided with the option for representation and recognised as the individual she was. Some consideration should have been given to considering her responses prior to the nuclear option of dismissal in this case.

A job is a livelihood linked to reputation, financial security and self-respect. I understand that the foundation stone of trust and confidence that solidifies all employment relationships can sometimes rock a little and become fragile. If and when that happens, there is an onus on all parties to work together to save the employment rather than sacrifice it.

I fully accept that the Complainants dismissal had a strong and lingering negative impact on her and it has taken her some time to relaunch.

I have not identified any substantial grounds which justified the complainant’s dismissal in this case. I conclude that the event at the centre of the case could have and should have been addressed through company procedures by both parties.

 However, I found the respondents omissions to follow the procedural pathway of natural justice and fair procedures to be so pronounced as to be injurious to the complainant. These omissions fell totally outside the actions of a reasonable employer. I note from the Complainants evidence that the Respondent had the benefit of Human Resource support. I would have expected a much more nuanced interaction with the respondents own Gym Manager as a result.

In conclusion, while there may have been a moment of crisis in this case regarding the cover of the Gym on February 29, 2020, the action of dismissal was totally disproportionate in response. Furthermore, the void in a safe procedural pathway to resolve this issue rather than rush to dismissal, placed the respondent’s actions completely outside any band of reasonableness. In addition, the Respondent showed no regard for the comprehensive advice and direction provided for in the Code of Practice on Disciplinary Procedures SI 146/2000.

I find that the Complainant was unfairly dismissed.

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.

I have found that the Complainant was unfairly dismissed. I find that Compensation is the only practical remedy open to me. The employment relationship in this case is not retrievable.

I order the Respondent to pay the Complainant €21,736 in compensation for the unfair dismissal. This is comprised of 46 weeks of economic loss and 26 weeks of prospective loss based on a €100 weekly differential in the new work obtained.

Unfair Dismissal, No Appearance by the Respondent