Complainant

Respondent

Anonymised Parties

A Credit Controller

A Sports Company

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00036574-001

08/06/2020

The complainant had been employed as the respondent's Credit Controller from December 2nd, 2019. She was paid approximately €3,000.00 monthly.

Her employment was terminated on May 11th, 2020.

This was because she could not return to the workplace on an eight-hour day basis following Covid-19 related closure of the creche on which she relied for childcare.

The respondent was aware that the complainant had no alternative childcare and when the creche closed she proposed other options such as additional after hours work, parental leave, lay off so they could advertise the position on a temporary basis.

None of these was acceptable to the respondent.

On the May 11th she received an email stating "your employment should be terminated due to the fact that you cannot fulfil the duties and responsibilities required for the role of Credit Controller, in line with the needs of our business".

Had Covid-19 not happened, and she had still been able to work, she would still be employed by the company.

She says that they dismissed her unfairly as she could not return to the office due to her difficulties with childcare, of which the respondent was very much made aware.

They pressurised her to consider resigning but it was pointed out to her that she would lose the Covid-19 payment and in any event the work was there to be done. She made every effort to fulfill the role during the time she was unable to return to the office, but they chose to be difficult and dismissed her.

They offered her work for a further four weeks but given what had happened she did not feel able to and requested that the termination be made immediate.

The respondent did not attend the hearing.

As noted the respondent did not attend the hearing.

It corresponded with the WRC on May 5th stating that to did ‘not wish to engage’ with the process. When given the option to do so, the respondent did not avail of the opportunity to object to a hearing under this Act, which it is entitled to do.

The author of this communication from the respondent holds the position of ‘Head of People and Development’.

Such alternative descriptions of the HR function may be intended to soften any edge that may be attached to perceptions of its role, specifically the implication that workers are not just ‘resources’.

The alternative softer focus emphasis is entirely laudable and to be welcomed.

It reinforces the idea that people at work, formerly seen as ‘human resources’ are more than this and have human needs that fall within a more holistic concept that is well captured in the phrase; ‘people and development’.

Regrettably, in this case the respondent seems to have lost something in translation in the move from the old to the new nomenclature in terms of its understanding of its corporate obligations to its employees.  

The complainant has two children aged two and six. She set out in detail the efforts she made to persuade the respondent to accommodate her with home working.

She is the company’s Credit Controller and it is in the nature of such work that it is not ‘time critical’ in that it does not have to be performed the very instant it is commissioned. The complainant placed 90% of her work in this category.

In the absence of the respondent engaging with the hearing it is difficult to understand the urgent necessity to have the complainant attend physically in the work place. Working from home is now commonplace in a very large range of employments.

In April this year, the Government signalled its intention to ensure that remote working becomes a permanent feature in the post-pandemic Irish workforce, including outlining plans to have twenty per cent of public sector employees working remotely.

It is not confined to the public sector either.

While it has become a cliché to hail this as the ‘new normal’, whether it can work for individual enterprises is a matter that must remain a decision within those businesses.

However, there are some broad principles that should apply.

Looking at it from the business point of view, the first is whether the work to be done can be completed, delivered and satisfactorily managed to at least the standard of the ‘old normal’. It may be that it can actually achieve even better outcomes.

There are important social considerations also; promotion of family-friendly workplaces and communities, improving labour market access for those historically excluded by the rigidities of traditional workplaces, reducing carbon footprint through less frequent commuting, and others etc.

These are no longer ‘fringe’ or discretionary considerations; they may be at the heart of the future structure of our social organisation and business life.

In this case, the evidence of the complainant was that she made extensive efforts to persuade her employer to accommodate her. Despite initially doing so, this did not last long. She faced continuing attitudes that lay somewhere between unhelpful and hostile.

Again, while only her evidence was heard she was a very credible witness and she could not relate a single substantive explanation given to her by the respondent for its insistence on her return to the workplace.

Had it stopped at that it would have been bad enough, but the respondent engaged in relentless pressure on the complainant to force her to return to work. Again, the hearing did not have the benefit of the respondent’s explanation for its necessity to do so.

In the end she could not return and the respondent terminated her employment.

A ‘people focussed’ organisation has, at the very least, an obligation to properly and sympathetically explore the options sought by one of its employees in these circumstances, and she says that at one stage she did get a sympathetic hearing from HR.

If there was an exploration of options, she was not told about it. This obligation to do so arises at any time, but especially so as the terrible reality of the pandemic unfolded.

Having explored the options, and preferably in consultation with the complainant it might be entirely valid to conclude that a continuation of remote working would not be compatible with the needs of the business, if this was borne out by a proper evaluation of the issues.

Fairness in relation to workplace matters turns normally on procedural issues. In this case, the respondent’s refusal to ‘engage’ with the WRC appears as a continuation of its refusal to engage with its own employee, as she then was; the complainant.

It is possible to lawfully terminate a contract of employment if, for a variety of reasons the employee is no longer able to discharge the contract, due to incapacity, long term illness or disability for example.

However, the case law is clear on the obligations falling on an employer to examine all possibilities for accommodating the employee before doing so. While this requirement of fairness has well-established roots in legal concepts related to natural justice it is also little more than elementary courtesy.

It was the failure to undertake such processes that makes the termination of her employment, and especially having regard to all the circumstances grossly unfair.

If anything could make this worse, it was the letter the complainant received terminating her employment which had the temerity to refer to the termination taking place ‘as per disciplinary rules’.

Such rules also carry the obligations of procedural fairness and may not be cherry picked to suit the selective interests of one party only.  

The complaint succeeds.

Complaint CA-00036754-001 is well founded. For the reasons set out above I recommend the respondent pay the complainant €10,000.00. This is compensation for the breach of her rights and, as provided for in Revenue Guidelines, is not subject to taxation.

I also recommend that the respondent take steps to establish a transparent and effective Remote Working policy to address future applications for such options.

Remote working, Obligation to consider options