ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029343
Parties:
| Complainant | Respondent |
Parties | Roisin Coakley | Audrey Cafolla t/a Jesters Hair Studio |
Representatives | A Personal Representative | Hugh Flaherty BL advised by Sherwin O'Riordan Solicitors |
Complaint(s):
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-00039230-001 | 18/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00041474-001 | 08/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00041558-001 | 15/12/2020 |
Date of Adjudication Hearing: 13/10/2021
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant alleged Unfair Dismissal. The discrimination on the basis of family status was withdrawn prior to the Hearing. The Redundancy Payment claim was not pursued at the Hearing. |
Summary of Complainants case:
The Complainant was employed as a Beauty Therapist/Hairdresser and alleged she was unfairly dismissed on July 16th, 2020, after 18 years’ service and relied heavily on her supporting documentation as evidence of her claim.
The Complainant was laid off work in March 2020 due to Covid and was requested by the Respondent to return (by telephone) on June 19th, 2020, to start on June 29th, 2020. The Complainant stated she could not return to work at that time as her son (due to a medical condition) needed personal care and she could not get anyone to look after him and he could not attend a creche due to his medical condition.
The Complainant engaged with the Respondent on a number of occasions regarding her inability to return to work but was told by email of Friday 10 July 2020 that her employment would cease on Thursday 16 July 2020.
During a phone call of 19 June 2020, the Respondent also stated that they would draft a new contract for the Complainant to sign on her return to work in Aug/Sept. This appeared to confirm that there was no risk to the Complainants employment status as it was portrayed to the Complainant that the Respondent would reinstate her employment. The Complainant stated that she found correspondence received from the Respondent from 3 July 2020, in reply to the email of Friday 10 July 2020 to be very threatening to her employment status. The Complainant confirmed the Complainants return to work in emails dated 24 June, 30 June and 8 July, despite the Respondent continuously stating that the Complainant was refusing to confirm or engage on her return to work.
As per the email received from the Respondent on Friday 10 July 2020, the Complainant alleges that she was unfairly dismissed. One of the grounds on which the complainant believes she was unfairly dismissed is that email. Another reason the Complainant advanced as just cause for her unfair dismissal is that she provided a medical certificate on 8 July 2020, on her GP’s instructions. This was the first time the Complainant have ever had to claim illness benefit in her eighteen years of service with the Respondent. The Respondent acknowledged receipt of this by return email on Friday 10 July 2020 and still terminated the Complainants employment, thereby contravening the Unfair Dismissals Act, 19772015, Employment Equality Acts, 1998-2015. In addition, as a result of same, this is caused the Complainant an amount of distress and upset which the Respondent has contravened the Safety, Health and Welfare at Work Act, 2005. (Note: This claim was not before the Adjudicator).
The Complainant offered on 30 June 2020, to provide the Respondent with a letter from the Complainants son’s GP stating that he was unsafe to attend a crèche due to being in the high-risk category, The Respondent did not acknowledge this in any correspondence.
In the email, Friday 10 July 2020, the Respondent states that she accommodates the Complainant with regard to “different start times etc, in order to facilitate school runs”. Over the last few years, the Complainant stated she had used her break and lunch time to do the school runs for her child, and this is her own time do what she did freely as the Complainant did not get paid for the break and lunch times taken every day as per her contract. The Complainant stated the Respondent was aware of this. In line with the foregoing, the Respondent has terminated the contract of employment without any objective justification or objective grounds. In addition, there is a clear breach of due process.
The Complainant didn't refuse to engage in alternative different work arrangements as she was in the same predicament regarding childcare. The Complainant stated her husband works full time as the Respondent was knows and her Husband has worked right through this whole pandemic and as a result, could not take care of their son on a daily basis to facilitate the Complainant returning to work.
The Respondent said the Complainant never confirmed her intention to return to work that the Complainant failed or refused to do so. The Complainant emails dated 24th June 30th June and 8th July outlined the Complainants situation as regards no childcare and confirmed the Complainant would be able to return to work in August/September when the schools were back open. So, the Complainant never refused to return to work and just needed extra leave due to the pandemic.
The Respondent also gave the Complainant a deadline, Thursday 9th July at 5pm to confirm that the Complainant would attend work and carry out her duties. The Complainant emailed on her sick certificate on 8th July to the Respondent in time of her deadline to tell the Respondent that the Complainants doctor had signed her off as unfit to work due to stress. So, at that stage the Complainant wasn't refusing nor that she ever did refuse but she couldn't return to work for the time been to carry out her duties as her doctor signed her off as unable to.
Also, the phone call the Complainant received on 19th June, the exact conversion was, that the Complainant told the Respondent that she was unavailable to return to work because her parents are in the high-risk category, and they have been her childcare the last 5 years and also her son was in the high-risk category because he has asthma. The Respondent replied that the Complainant breaking her contract and she had to send her a letter of resignation. The Complainant told the Respondent that she did didn't want to resign and the Complainant would be back in August/September when the schools are back. The Respondent stated that they would have to let the Government know the Complainant wasn't coming back to work. The Complainant said surely the Government would know she wasn't coming back because she would still be on the covid-19 payment, citizens advice had told the Complainant that she was still entitled to it until 10th August because the Complainant had no childcare due to the pandemic. The Respondent went on to tell the Complainant that people's jobs were at risk. This conversion led to the Complainants stress and anxiety intensifying and proceeded to worsen over the next few weeks due to the pressure the Respondent put her under.
In the email from 24th June the Complainants first sentence was "this is NOT a letter of resignation" because she wasn't resigning like the Respondent asked her too. The Respondent emailed on 7th July, "all that has been requested is that you confirm your agreement to carry out your duties in accordance with your contract of employment, if you are unwilling to do so, we will except this as evidence of your resignation ". It is clear from the contents of that email that the Complainant was once told to resign as it’s the Respondent that brought up again once on the phone and now in that email that she was told to resign which the Respondent is denying now.
The Complainants contract is from 2015 and she has never been issued with a new contract to state her new hours. Her contract was signed back in 2015 in different times. There is a global pandemic going on which puts the Complainant in a different/difficult situation. The Complainants priorities at that stage were to keep her child safe as he has a medical condition and is in the high-risk category and again going by doctors’ orders to keep him out of a creche as it was not safe for him.
Given all of the above, the Respondent ending the Complainants employment was unfair, given the Complainant had worked for the Respondent for 18 years and went above and beyond to accommodate their needs to the running and success of the salon. It was the Complainants first sick note in 18 years, never had a complaint made against her by a client or a member of staff and never had a written or verbal warning and her work record was unblemished.
The Complainant stated that the Respondent stated she only worked 2 days a week in her correspondence of Friday 26 June 2020 when the Complainant had been working 3 days a week for the last few years, alternating from every Monday, Thursday and Saturday to then every Monday, Friday and Saturday. The Complainants contract from 2015 states her working hours as 2 days a week. The Complainant was never issued with an updated contract stating her new working hours as agreed with the Respondent. The Complainants last signed contract of 2015 clearly states that “Either party may give two weeks’ notice in writing of termination of employment. A lesser period of notice may be acceptable if agreed by both you and the employer.” This was not in agreement on the Complainants behalf.
Summary of Respondents Case.
The Respondent, which is a sole proprietorship hair salon based in Trees Road Upper, Mount Merrion, Co. Dublin commenced trading in 1992. The Complainant commenced employment with the Respondent on the 12 August 2002 occupying the role of Hair Stylist and Colourist.
Following the Government announcement of the Level 5 lockdown in March 2020, all staff in Jesters Hair Studio were informed by way of text message from Ms Audrey Cafolla, Proprietor of Jesters Hair Studio, that the salon had to temporarily close due to government restrictions put in place as hairdressing services were deemed non-essential retail. The Complainant responded via text message ‘No probs Audrey hopefully it will all end soon, and we can get back to work and normal life’. On the 11 April and 3 May 2020, Ms Cafolla contacted the Complainant by way of text message notifying her that the salon would remain temporarily closed in line with government restrictions and she would keep her updated about possible reopening in line with Government announcements. The Complainant responded via text message on 3 May 2020 ‘No problem audrey take care see you soon hopefully’. The Complainant made no further contact with the Respondent and the Complainant did not communicate that there was any issue with her returning to work or any childcare concerns.
In June 2020, which was during the first Covid-19 lockdown, it was well documented in the news that the Government would be announcing the re-opening of parts of the economy and businesses. The reopening of hairdressing salons was especially a well anticipated service as there was hype at the time in relation to people getting their hair done. On the evening of 19 June 2020, the Government announced that hairdressing services would re-commence on the 29 June 2020. Ms Cafolla telephoned the Complainant, within two hours of the announcement, to inform her that following the government’s announcement that the hair salon would be re-opening on Monday, 29 June 2020, she was delighted to be welcoming back all staff including the Complainant to the salon from this date. The Complainant stated she would not be returning to work on this date and would in fact not be returning until September. This was the first time that Ms Cafolla became aware that the Complainant had decided not to return to the salon on re-opening. The Complainant stated that her parents, who were her usual care providers, were unable to care for her five-year-old son due to health concerns and the fact they were both “cocooning” as a result of the pandemic. Ms Cafolla explored possible childcare alternatives with the Complainant such as child minding by those not in the vulnerable category to help the Complainant with her return to work, however all suggestions were disregarded by the Complainant and the Complainant stated, “she was not going down that route”. The Complainant provided no suggestions, alternative arrangements, or solutions as to how she could facilitate a return to work and repeated that she was not returning at this time.
Ms Cafolla queried on the phone whether the Complainant was resigning from her position as she was not returning to work when required. The Complainant stated she was not resigning. Ms Cafolla said to the Complainant that as the business was reopening it sounded like the Complainant is breaching her contract by not attending for work on the week of 29 June 2020. The Complainant stated she was not returning to the salon in June as required and would only return in two months. Ms Cafolla mentioned that clients had been specifically asking for the Complainant to do their hair on re-opening. Ms Cafolla referred to the business being closed for three months due to government restrictions and the difficulties this presented to the business. Ms Cafolla mentioned that she would need to update the books for payroll if the Complainant was not returning to work and inform Revenue of the situation given that the Complainant’s job is available, but she is not returning to work when required. The Complainant stated that Audrey couldn’t do so as “otherwise she wouldn’t be able to claim the Covid Payment” (Pandemic Unemployment Payment). The Covid payment was €350 per week at this time. Ms Cafolla asked the Complainant to confirm her position in writing and suggested that she could drop a letter to the salon on Monday 22nd June when Ms Cafolla was at the premises. The Complainant said she had other things on and said she would send it by post on Saturday 20th June, so it would be at the salon on the Monday 22nd June. No letter was received at the salon. Furthermore, Ms Cafolla asked the Complainant, as well as all other employees, for their email address, so that Ms Cafolla could send out the new Covid-19 procedures and protocols in the salon.
On Monday 22 June 2020, Ms Cafolla sent a text message to the Complainant asking her to confirm her position by way of email and letter addressed to the salon. On the 24 June, the Complainant emailed Ms Cafolla stating, she was unavailable for work as her elderly parents could no longer assist in her childcare needs as they were in a high risk Covid-19 category. The Complainant stated she would not return to work until the end of August or early September.
Ms Cafolla emailed the Complainant on the 26 June 2020 acknowledging the difficulties that the Covid-19 pandemic had presented to everyone and that she endeavoured to work with the Complainant as much as practicable to accommodate her at this time and find a solution for her return to work. Ms Cafolla asked the Complainant to provide any suggestions or solutions in relation to working arrangements that would facilitate her return to work. Ms Cafolla suggested alternative working hours/days or one day per week on a temporary basis to accommodate the Complainants childcare needs. This would enable the Complainant to return to work when the salon reopened and could perhaps facilitate child minding from her husband or eldest son as the hair salon opened Monday until Saturday, six days per week. Ms Cafolla mentioned childcare facilities were reopening on the 29 June and suggested this could also be a possible solution to her childcare needs.
Ms Cafolla was very focussed on the safe return of both staff and customers to the salon and provided the Complainant, as well as all other employees, with a detailed 10-page document in relation to the health and safety procedures and protocols that had been implemented in the salon due to Covid-19. She requested the Complainant review this documentation (the Covid-19 Policy and Procedures) and sign a declaration form in respect of same.
On the 30 June 2020, the Complainant emailed Ms Cafolla. The Complainant offered no suggestions or solutions in relation to working arrangements to facilitate her return to work. She stated that Ms Cafolla was aware that her parents were her childcare providers for the preceding five years and that her son is asthmatic and in a vulnerable category when it comes to Covid-19. She stated that due to the age of her son creches would be unable to accommodate him and summer camps would also not be appropriate given camps only last one to two weeks in duration. She thanked Ms Cafolla for the suggestion of working mornings or afternoons and noted it would be of assistance when her son returns to school. As per the email on 26 June 2020 from Ms Cafolla, these arrangements had only been suggested as temporary arrangements for her return to work in June.
Ms Cafolla responded to the Complainant on the 3 July 2020, stating that the salon had re-opened, and her duties had resumed. Ms Cafolla acknowledged that despite best efforts to propose temporary solutions/suggestions to accommodate the Complainants return to work and seeking suggestions from the Complainant, the Complainant had not been forthcoming with any solutions nor agreement with any suggestion proposed by Ms Cafolla. Ms Cafolla wished for the Complainant to return to work. Ms Cafolla stated that it was not possible to decide unilaterally to not return to work. The Respondent stated that it appeared that the Complainant no longer wished to be bound by her contract of employment as she was refusing to return to work when required. Ms Cafolla asked the Complainant to confirm her return to work from Saturday, 11th July, by 5pm on Sunday 5th July, otherwise, it would be understood that the Complainant was repudiating her contract meaning her employment would be at an end. It was noted in the email that as the Complainant’s job was available, there should be no question of availing of the Covid-19 payment. The Complainant responded on the 3 July by saying she was taking legal advice.
Ms Cafolla responded to the Complainant on the 7 July 2020 reconfirming that she was only asking the Complainant to confirm her agreement with carrying out her duties under her contract and her return to work and was unsure why legal advice was required. All the same, Ms Cafolla provided additional days, until 5pm on Thursday 9th July, for the Complainant to confirm whether she would attend work in accordance with her contract. Ms Cafolla affirmed that the Complainant was currently absent from work without permission.
On the 8 July 2020, the Complainant informed Ms Cafolla that she had not refused to attend for work but required extra leave due to childcare needs and would return when schools reopened. She stated she would forward a letter from her son’s GP outlining his medical condition. The Complainant expressed that Ms Cafolla has a duty of care to her as an employee. Ms Cafolla had engaged with the Complainant on this basis to try and come to a solution for temporary working arrangements, however the Complainant did not provide or agree to any solutions. The Complainant stated that she attended a medical practitioner due to stress and her medical practitioner had placed her on certified sick leave.
On the 10 July 2020, Ms Cafolla responded to the Complainant by email and stated that she was sorry to hear that the Complainant was feeling unwell. Ms Cafolla for clarity, confirmed the details of the phone call on 19th June in which the Complainant stated she was not returning to work on re-opening of the salon. Ms Cafolla stated that she had formally asked on two occasions for the Complainants willingness to return to work but the Complainant had failed to do so. Ms Cafolla confirmed that she was not dismissing or ignoring any of the Complainant’s concerns and re-emphasised that she wished for the Complainant to be in work and had tried to engage with the Complainant in relation to different working arrangements/ any possible solutions to facilitate her return, however, the Complainant did not co-operate or propose any solutions. It was noted also that the Complainant made no reference to either her husband or eldest son supporting with childcare.
Ms Cafolla noted that by virtue of the Complainant not attending work, it appeared that she was not in a position to fulfil her duties. Unfortunately, the business was not in a position to grant two months leave due to the severe impact of Covid-19 on the business and requirement for resources to be in the salon to provide hairdressing services and in turn, sales. Clients had been requesting for the Complainant to do their hair but unfortunately, as the Complainant had not returned to work, this business was lost.
Ms Cafolla re-iterated that she was sorry that the Complainant felt under pressure but all she had requested is confirmation that the Complainant would fulfil her obligations under her contract. As the Complainant failed to do so, Ms Cafolla acknowledged that the Complainant no longer intended to be bound by her contract of employment meaning that her contract of employment was at an end from the 16th of July 2020.
The Complainant emailed Ms Cafolla on the 16 July alleging that she had wanted her to resign in their initial telephone conversation of the 19 June 2020 and that the actions thus far, constituted unfair dismissal which left the Complainant with no option but to take legal action.
On the 17 July 2020, Ms Cafolla informed the Complainant that she did not want her to resign, and it was quite the opposite, Ms Cafolla wanted the Complainant to return to work as per previous correspondence. The Complainant refused to attend for work and on that basis, it was clear she no longer intended to be bound by her contract of employment. Ms Cafolla stated the Complainant was not dismissed, and so unfair dismissal did not arise in her situation.
Ms Cafolla was notified by correspondence on the 21 July 2020 that the Complainant had engaged SIPTU as her representative. It was submitted that the Complainant’s employment had been unfairly terminated and she had been discriminatorily dismissed. It was her intention to refer a case to the Workplace Relations Commission unless an amicable resolution to the matter could be reached. A letter of response was sent by Sherwin O’ Riordan, Solicitors on behalf of the Respondent on the 23 July, stating that the Respondent had tried to accommodate the Complainant in terms of alternative working arrangements but unfortunately, the Complainant did not engage in this regard and did not return to work. It was noted unfair dismissal did not arise as the Complainant had not been dismissed rather the Complainant failed to confirm to be bound by the terms of her contract of employment. Without prejudice to the fact that the Complainant was not dismissed, there was no question that her refusal to return to work clearly constitutes ‘other substantial grounds justifying’ any dismissal, as provided by Section 6 of the Unfair Dismissals Act, 1977.
The Complainant lodged complaints to the Workplace Relations Commission (the “WRC”) on the 18 August 2020, the 8 December and the 15 December 2020. The complaints against the Respondent were referred pursuant to Section 8 of the Unfair Dismissals Act 1977, Section 39 of the Redundancy Payments Act, 1967 and Section 77 of the Employment Equality Act, 1998.
Section 6 of the Unfair Dismissals Act, 1977, as amended, states as follows:
(1)Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”
In addition to the generality of the above section, Section 6 (4) deems the dismissal of an employee not to constitute unfair dismissal if it results wholly or mainly from the “conduct of the employee” or the capability of the employee to perform their job.
In the case of JVC Europe Ltd v Panisi [2011] IEHC 279 the High Court set out the legal framework surrounding conduct-based dismissals under the Act as follows:
‘The issue for the tribunal deciding the matter will be the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal’.
In addressing whether or not the Respondent acted in a manner consistent with ‘a reasonable employer’ the tribunal ought to have regard to the public policy considerations that surround the difficulties facing employers arising from the COVID -19 pandemic which arise in this case, and will no doubt be present in other complaints that will come before the WRC. The position is that the Complainant refused to return to work although she was required by her employer to do so. If employees were permitted to unilaterally refuse to return to work and were then to successfully argue that their subsequent dismissal resulting from their refusal to return to work was unfair, the economy would come to a standstill. The Tribunal can take judicial notice of the fact that many sectors of the economy (particularly the service industry) are finding it difficult to retain and recruit staff following the opening up of businesses post lockdown and that the PUP is a material contributing factor to the problem.
The PUP payment was introduced for purposes of supporting people who either lost their job due to the Covid -19 pandemic or were temporarily laid off due to the Covid 19 pandemic. While the Complainant had been temporarily laid off as a result of the pandemic that came to an end on the 29th of June 2020, but the Complainant refused to come back to work.
As such, the Respondent herein contends that the Complainant’s conduct in refusing to work brought about the termination of her contract. The Complainant’s refusal to attend for work until schools reopened in early September meant she was in breach of her obligations under her contract of employment. The Complainant was due in work on the week of 29th June 2020, however, refused to return to work at this time. The Respondent tried to engage constructively with the Complainant to explore alternative working arrangements in order to meet her childcare concerns or different working days/hours however the Complainant disregarded any suggestion made by the Respondent and failed to provide any possible solutions/alternatives to accommodate her return to work when asked by the Respondent. The salon opened from Monday to Saturday, so the Respondent was open to re-arranging days for the Claimant in the case a different day suited her family arrangements better. The Respondent asked the Complainant on a number of occasions, as set out above, to confirm that she would be bound by the terms of her employment contract, but the Complainant failed to do so.
The Respondent followed government guidance on reopening to ensure a safe working environment for both staff members and customers. A 10-page policy and procedures document were circulated with all staff in advance of re-opening. The Respondent introduced the use of disposable gowns, protective screens, physical distancing between workstations, ventilation, and air conditioning measures together with client/visitor questionnaires to ensure a safe working environment.
The Respondent was operating in an industry where remote working was not a possibility. As such the finding of constructive dismissal in An Operations Coordinator v A Facilities Management Service Provider [ADJ-00028293] is not an appropriate precedent. However, unlike the employer in the above case, the Respondent in this case did attempt to facilitate different working arrangements albeit she couldn’t facilitate working from home which simply was not an option.
The Respondent submits that where an employee makes a unilateral decision to refuse to work without the agreement of their employer, that constitutes good grounds for dismissal and the Respondent relies on the WRC case of ADJ-00019540 A Driver v. A Freight Company in support of this submission.
At all material times, the Respondent wanted the Complainant to return to work, as did clients of the Complainant who were asking for her to do their hair on re-opening. When the Complainant refused to return to work, this had a significant adverse effect on the Respondent’s business, especially after being closed for three months, and resulted in lost business and certain clients not returning. Unfortunately, due to the severe impact of Covid 19 and resourcing, the business had to close after 28 years at the end of 2020.
The fact remained that the Respondent had work available for the Complainant and was surprised and disappointed at her refusal to attend for work in circumstances where the Respondent took reasonable measures to ensure that the workplace was safe for her return and was willing to put in place temporary working arrangements- reduced hours, different days etc for the Complainant. The Respondent was more than willing to accommodate the Complainant with any practical possible working arrangements which would accommodate her return to work, however, the Complainant made it clear that she had no interest in returning to work until it suited her to do so.
The Complainant has failed to show, for the reasons outlined above, that the Respondent breached the Complainant’s legislative rights as set out in her Complaint forms. It is submitted that the Complainant’s claim is without merit or proper legal basis and should fail.
Findings and Conclusions:
The Complainant pursued the claim for Unfair Dismissal as the main issue at the Hearing. The circumstances of this case relate to the Complainant being unable to return to work due to personal reasons and therefore she could not fulfil reason (a) the capability…..of the employee for performing work of a kind which he/she was employed by the Employer to do” and her employment terminated as a result. While the Parties made comprehensive written and oral submissions the core issue to be considered here by the Adjudicator is was there a dismissal at all or was the contract repudiated by the Complainant because she could not return to work. No letter of dismissal exists but the Respondents solicitors did confirm repudiation of the Complainants contract by letter dated July 23rd, 2020. The Complainant could not genuinely return to work when requested by the Respondent in June, as due to the global pandemic she could not get someone to mind her child or put her child in a creche. This must have been a difficult time for the Complainant. Equally, it was a difficult time for Employer whose cash flow dried up. It is clear the Employee was terminated on July 16th as she was not in a position to return to work due to medical issues with her son, she could not place him in a creche on medical advice and the inability to get a childminder. So, the core issue for consideration is whether it was reasonable and fair for the Respondent to suggest the Complainant terminated her employment in the circumstances outlined above. The Complainant stated she was willing to return to work in August/September but there was no certainty about this. The Complainant had asked for extra leave for two months or so, but this was refused by the Respondent, as was their right. The reality is the Complainant was receiving the PUP payment and therefore earning more than by being at work, so there was no financial incentive to return to work. A number of alternatives seem to have been explored to provide a way somehow for the Complainant to return to work (and the evidence was contradictory on this point). However, I deem it significant that the Complainant made no effort to meet personally with the Respondent to try and iron out a mutually agreeable solution, but instead engaged in written communications. The Unfair Dismissal Law. “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.
The Adjudicator, and im sure the Parties, finds it deeply regrettable that this case involving two decent people who worked together amicably for over 18 years was not resolved by more amicable means. The termination of the Complainant’s employment did not arise by mutual consent and the fact of termination of the contract is not in dispute. However, the fact of any dismissal taking place is in dispute.. The Respondent contends that the termination of the employment was initiated by the Complainant due to her inability to fulfil the contracted hours and therefore if a dismissal is deemed to have occurred the Respondent was justified on grounds of the Complainant’s capability to fulfil her contract. The Adjudicator is satisfied that the inability of the Complainant to fulfil her contract of employment could be regarded as of sufficiently grave to justify termination of her contract as it impacted on the business and business interests of the Respondent. However, while the Adjudicator accepts that such capability goes to the heart of the employment relationship and was sufficiently serious as to warrant termination, the question is whether or not it was reasonable to terminate the Complainant in such circumstances, especially in light of the Covid situation. This approach of whether a reasonable employer would have dismissed the employee in the these general circumstances was explained by Donaldson LJ inUnion of Construction Allied Trades and Technicians v Brane[1981] IRLR 224(Court of Appel for England and Wales) in the following terms: “It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances” In Derryquin Hotels Ltd v Savage [1981] IRLR 91, Lord Denning MR stated the position thus: -“It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even if other employers may not have dismissed him”. In this jurisdiction, in Bunyan v United Dominions Trust [1982] ILRM 404, The EAT adopted and applied the following principle enunciated by the UK EAT in NC Watling Co Ltd v Richardson[1978] IRLR 225:- [T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.” The Adjudicator has considered whether the Respondent gave due regard for the Complainant’s right to natural justice. However, this must be tainted by the issue of whether a dismissal took place at all and therefore the burden of natural justice is much lighter on the Respondent. While the Adjudicator has every sympathy for the Complainants personal circumstances at the time, the legal situation is they have nothing to do with the employment law contractual relationship between the Parties. In effect, the Complainant frustrated her employment contract by not returning to work when requested. Her request for additional leave was refused. While the Complainant did submit a medical certificate on June 9th, 2019, this has no material bearing on the evaluation or decision to terminate/dismiss, or its evaluation. as it was submitted in the days before the contract came to an end and with the Complainants knowledge it was coming to an end. It transpired at the Hearing that the Respondents business has since closed due to poor trading and financial circumstances arising from the Pandemic. This gives weight to the Respondents argument that she needed the Complainant back as quick as possible to ensure the business could continue as a going concern after the losses due to the Pandemic. This is also significant factor in evaluating this complaint because if the business had continued to survive and prosper after reopening one could take a much more lenient/sympathetic view of the Complainants situation and look more deeply at could the Respondent have facilitated her with time off, laid her off temporarily or other such temporary measure to assist the Complainant resolve her personal situation for the time involved till she could return to work, especially given the Complainants long unblemished service. So, in summary, the Complainant was not dismissed but repudiated her contract of employment by not being in a position to fulfil its terms of being available for work. |
Decision:
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. Having given great consideration to all the issues involved in this complaint, I do sympathise with the Complaints situation but unfortunately for her the legal analysis of the facts and events do not support her complaint. I find I have to concur with the Respondent that the contract of employment was frustrated /repudiated by the Complainants inability to fulfil her obligations under the employment contract, and she was not unfairly dismissed. (CA-00039230-001)
Section 39 of the Redundancy Payments Acts 1967 – 2020 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. The Complainant did not pursue this complaint at the Hearing and based on the evidence of the Parties I do not allow the Complainants appeal. (CA-00041474-001)
The complaint under the Section 79 of the Employment Equality Acts, 1998 – 2015 was withdrawn by the Complainant by email dated January 26th, 2021, and is deemed to be withdrawn. (CA-00041558-001)
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Dated: 13-12-2021
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Unfair Dismissal |