FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DOMESTIC CLEANING SERVICES LIMITED - AND - PAMELA MAHER (REPRESENTED BY JASON MEAGHER B.L., INSTRUCTED BY BLAKE HORRIGAN SOLICITORS) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00025600 CA-00032520-001 Clarification of complaint The Complainant in this case initially submitted that her complaint was based on an allegation that a constructive dismissal had taken place on or about the 15thOctober 2019 and at the same time comprehended a complaint that the Appellant had been dismissed by the Respondent by letter dated 7thOctober 2020. The Court sought clarity from the Complainant’s legal representative as to how the contention that the Complainant had dismissed herself within the meaning of Section 1(b) of the Act could be sustained in tandem with an allegation that the Appellant, by letter dated 7thOctober 2019, had unfairly dismissed her within the meaning of the Act at Section 1(a). The Court invited the representative to address the Court on the matter and to put before the Court any case law he might identify in support of his position. The representative confirmed to the Court that he was not aware of case law or legal precedent which supported the proposition that the Complainant could contend that she was dismissed by the Appellant on 7thOctober 2019 in tandem with her contending that she dismissed herself on or about 15thOctober 2019. The representative then clarified to the Court that the matter before the Court related only to a contention that the Complainant was dismissed by the Appellant and that the act of dismissal was a letter issued to her dated 7thOctober 2019. The Court invited the representative to confirm that a matter of an alleged constructive dismissal was not before the Court and he confirmed that it was not. Background to the matter before the Court. The Complainant was employed by the Appellant as a cleaner on a client site from November 2017 until the termination of her employment on or about the 14thor 15thOctober 2019. On the 7thOctober 2019 the Appellant wrote to the Complainant in a letter which was not presented or submitted to the Court by either party. That letter is agreed by both parties to have communicated a disciplinary sanction of a final written warning. The Appellant and the Complainant met on the 14thOctober at which meeting the Appellant offered the Complainant continuing employment. That offer of continuing employment was refused by the Complainant on or about the 15thOctober 2019. The Complainant’s legal representative wrote to the Appellant on 17thOctober in a letter which was not put before the Court but which was asserted by the Complainant to have outlined various matters and to have sought “re-instatement”. The fact of dismissal is in dispute. Summary position of the Complainant in respect of the matter before the Court The Complainant initially submitted that the within appeal is out of time having regard to the statutory time limit of 42 days for the making of an appeal of a decision of an Adjudication Officer under the Act. At the outset of the hearing of the Court the Complainant withdrew that submission. The Complainant submitted that she had received a final warning from the Appellant which made allegations as regards timekeeping and other matters. That warning had issued in a letter dated 7thOctober 2019. That same letter invited the Complainant to make contact with the Appellant within seven days. The Complainant submitted that the Appellant had followed no fair procedure in issuing a final warning to her in respect of performance and other issues which had not been brought to her attention at all prior to the issuance of the warning. She was in contact with the Appellant after her receipt of the letter of 7thOctober and met the Appellant on the 14thOctober. She did not consider a proposal of the Appellant that she move to another site and continue in employment with a lesser number of hours being afforded to her to be acceptable. Summary evidence of the Complainant The Complainant gave evidence to the effect that she had not been made aware of any issues with her performance by the Appellant. She said that she had met the director of the Appellant on very few occasions. She had been shocked to receive a final warning and to have been removed from the customer site where she worked. She could not accept an offer of continuing employment from the Appellant for a number of reasons including because she would have suffered a consequent loss of certain income supports from the state. She agreed that she did meet the Appellant’s director on 14thOctober 2019. Summary position of the Appellant with regard to the matter before the Court The Appellant submitted that the client on the site where the Complainant worked had contacted a director of the Appellant on 25thSeptember 2019. He was informed that in the preceding two month period the Complainant had often worked less than the agreed six hours per day and that on a number of occasions she had not attended at all at the client’s second site. On 27thSeptember the director met with the Client company. At that meeting the client provided the director with a copy of their security records which showed that the Complainant was regularly not fulfilling her hours and had not attended on some occasions. The client advised the director that the client was not prepared to have the Complainant on their premises and that they wanted her to be replaced. The director was told bluntly that if she was not removed then the client would cancel the arrangement and seek another company for their cleaning requirements. Following that meeting the director telephoned the Complainant and informed her of the client’s allegations. She did not deny the allegations as regards her attendance. The director advised her that the situation was regarded with the utmost seriousness and that he would issue her with a final written warning. In that phone call the director made it clear to the Complainant that she was not being dismissed and that the Appellant proposed to relocate her to a nearby location of another client and that she should take the following few days off with pay while necessary arrangements were made. The Appellant wrote to the Complainant on 7thOctober 2019 advising her of the written warning and also made clear to her that she was not being dismissed but that she would move to another location. On 14thOctober 2019 the director of the Appellant met with the Complainant and at that meeting the Complainant was advised that the Appellant had identified a new location for her and that four hours work per day would be made available to her. She was advised that the Appellant would seek, over time, to increase the hours of work which would be made available to her. The Complainant sought a payment from the Appellant in return for which she said she would leave the employment. The Appellant advised her that no payment would be made and that her job was there for her and that she was expected to resume work at the earliest opportunity. Relevant law The Act at Section 1 in relevant part defines dismissal as follows: “ dismissal”, in relation to an employee, means— (a)the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, ( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employ Section 6(1) of the Act makes provision 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. Discussion and conclusions The Complainant in this case made extensive submissions setting out the law in relation to the termination by an employee of his or her employment in circumstances comprehended by the Act at Section 1(b). However, it was made clear to the Court at its hearing that the contention of the Complainant was that she had been dismissed unfairly by the Appellant by letter dated 7thOctober 2019. The Court therefore can consider only the contention that the Appellant, in the letter of 7thOctober, terminated the Complainant’s contract of employment and if so whether there were substantial grounds justifying the dismissal. The fact of dismissal is in dispute. The Appellant contends that the Complainant’s contract of employment was not at any time terminated by the Appellant. The Complainant contends that the letter of 7thOctober 2019 amounted to a dismissal within the meaning of the Act. Neither party before the Court made a copy of the letter of 7thOctober available to the Court and, consequently, the Court was deprived of an opportunity to consider the totality of the content of the letter. It was common case however that the letter contained a final warning in respect of alleged performance issues. There is no contention before the Court that the Appellant advised the Complainant in the letter of 7thOctober that her contract of employment had been terminated. It is common case also that the parties did meet on the 14thOctober 2019 and that the Appellant did outline an offer of continuing employment to the Complainant albeit the Complainant was not satisfied with that offer. In all of the circumstances the Court can find no basis to conclude that the Appellant, by letter dated 7thOctober 2019, terminated the contract of employment of the Complainant. Decision The Court, having concluded that the Appellant did not terminate the contract of employment of the Complainant, must uphold the appeal. The decision of the Adjudication Officer is set aside. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
