Complainant

Respondent

Anonymised Parties

A Care Assistant

A Health Facility

Representatives

Declan Harmon B.L. instructed by McKeever Rowan Solicitors

IBEC

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-00038362-001

24/06/2020

The complainant’s commenced employment with the respondent on November 27, 2018 and terminated on March 3, 2020. Brackets although this termination date is disputed by the respondent.

Her hours were variable and she was paid €22.17 per hour.

There was an incident involving the complainant’s daughter who had been due to undertake work experience with the respondent.

On Monday 24 February 2020, the complainant was told that her daughter would have to leave the premises as she did not have Garda Clearance. There was an exchange about why this clearance had been delayed as it had some implications for a course being undertaken by her daughter.

The complainant went home with her daughter.

Some days later on February 27th there was a work-related event off site to which the complainant and her daughter were invited.  The complainant suggested that her daughter meet her in the respondent workplace so they could travel to it together.

When her daughter’s presence in the workplace was detected the complainant she was summoned to a meeting with HR. The HR official stated, in reference to the complainant’s daughter ‘I told you on Monday she was not to be here’.

The complainant tried to explain that her daughter was not there in a work capacity and that she was simply waiting for her before going to the event. There was an exchange about the failure by the respondent to process the Garda vetting form which did not end well.

After leaving the workplace with her daughter she received a call from a HR official asking where she was as he had been looking for her. She told him she had left and he told her not to come to work the following day.

This was followed by a text message from HR saying:

“Dear [complainant]

I am contacting you to advise that you will not now be required for cover on Monday and Tuesday of next week both the 2nd and 3rd March 2020.

[HR Manager]

On March 3rd the complainant got a phone call from her Manager, also a personal friend, that she would no longer be required to provide cover for the respondent.

Though her employment status was as a member of relief staff, she regularly worked thirty-seven hours a week.

In dismissing her, the respondent followed no procedures and has confirmed this in correspondence by claiming that she ‘walked out’ of her job, which she denies.

For this reason they say that they were not obliged to give her any further hours.

In fact, she had been receiving 37 hours work for over a year which clearly formed part of her contract.

Furthermore, she has emails confirming that she had been made permanent.

She says she was unfairly dismissed.

The respondent raises a preliminary point that the complainant has not been dismissed and that she remains on its books as an employee.

The phone call to the complainant on February 27th was simply to the effect that she would not be needed for the specific shifts referred to and at no point was she told that her employment was being terminated.

The complainant then referred the matter to her solicitor and made no attempt to contact the respondent to clarify the position.

Detail was supplied of the variation in the complainant’s hours of work which showed a number of weeks when she did not work and others when she worked less that the thirty-seven hours claimed.

Her employment was on an ‘as and when required’ basis as was others who would be advised of when they were needed by text message. Staff have the right to decline the work.

Specifically, she was not required because a consultant was on annual leave.

In fact, the complainant was not dismissed but rather she walked out of her place of employment.

This case turns on a very simple point.

While the background context regarding the complainant’s daughter and whether she had been cleared to work with the respondent (or more specifically why she had not been cleared to work) forms part of the narrative it is not material to a decision on this complaint.

The dispute over the hours worked by the complainant is relevant but not decisive.

The respondent sought to argue that the complainant did not have any fixed hours and that therefore, the call advising her that she might not be needed was simply a routine notification of a variation in the pattern of her employment.

In fact, even looking at the  figures submitted by the respondent, of the twenty-two weeks submitted for consideration the complainant worked between 35 and 37 hours in thirteen of the weeks and was on leave for several of them.

So, in fact, the number of weeks in which she was eligible to, but did not work the 37 hours is a small number; approximately six out of the twenty-two.

In any event this is not the issue. It is not central to the complainant’s complaint of unfair dismissal that she was entitled to a fixed number of hours, it is that her contract of employment (i.e and entitlement to any hours) was terminated.

The respondent insists that it was not and denies that she was told this, and asserts that she engaged a solicitor prematurely, and before clarifying the true position.

The complainant gave critical evidence in this regard.

She stated that in the course of the phone call on March 2nd from her manager (and friend) she was told that she (the caller) had been instructed by HR to tell her (the complainant) that she was no longer needed.

She went on, according to the complainant’s evidence to the hearing to tell her that she should get legal advice.

The possibility that the manager in question would take it upon herself to effectively terminate the employment of someone with whom she was on good personal terms without an instruction to do so seems so unlikely as to be implausible.

The respondent HR representative at the hearing could not confirm whether such an instruction had been given, but on balance the complainant’s evidence was credible.

There was the further evidence of an email from the complainant’s manager confirming that this call had been made to the HR manager and to another manager on March 2nd saying;

 ‘I contacted her [the complainant] to let her know that we would not be booking her for any further relief hours. The complainant questioned why and I said she should refer the matter to HR. I did not get into any conversation with her and I have not discussed the matter with any staff.

This also robs the respondent’s submission that it was in some way waiting for the complainant to make contact of all credibility. The respondent knew from the very day it happened that the complainant’s contract had been terminated.

There is the further coincident timing of the dispute about the incident involving the complainant’s daughter, the summons to the HR office and the phone call which lends further, if circumstantial credibility to the complainant’s position that the termination was an act of retaliation for various aspects of her conduct.

The evidence of the HR manager that the complainant was not required because a consultant was on annual leave is not credible. If this had been the case, why was she not told this at the time, including in the call from her manager who was, according to the complainant’s account, acting on the instructions of the HR office.

The burden of proof in an Unfair Dismissals complaint falls on the respondent.

In this case, I find without any difficulty on the basis of the evidence that a dismissal took place, in that regardless of the complainant’s specific eligibility for a certain number of hours, she was eligible for hours and the message transmitted to her left no room for doubt that her eligibility to work for the respondent had been terminated.

Accordingly, I find that there is no doubt whatsoever that the complainant’s employment was terminated and, in the absence of any fair process that it was unfair.

Submissions were received from both parties following the hearing on the complainant’s losses.

The complainant based her claim on hourly earnings of €22.17 for thirty-seven hours per week to the date of the hearing.

She did succeed in getting employment in November 2020 and has earned €5643, from that employment giving rise to a net claim of €40,292.55. The complainant submitted that efforts to mitigate her losses were affected by the Covid-19 pandemic.

I do consider the dismissal to lie at the more serious level of gravity in that it was arbitrary, retaliation for something in respect of which no fault can be attributed to the complainant and was entirely devoid of any fair procedure.

It is not relevant to an assessment of the act of dismissal but the defence for its actions offered by the respondent in the course of the hearing fell short of the standards of transparency and truthfulness one would expect.

In assessing loss some account must be taken of the fact that the complainant was not guaranteed the hours claimed (although in general she worked close to the number claimed).

I also note the fact that the sector in which she works was not adversely affected by the pandemic as, for example segments of the commercial, private sector were. Indeed, the respondent submitted that it was growing and that she should have been able to find employment fairly easily.

The Unfair Dismissals Act (section 7 (2) (c) ) requires an adjudicator to take account of

‘the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid’.

The case law on this latter point in both the Labour Court and the Adjudication service is explicit on the obligation that falls on a complainant to actively seek employment. Compensation arises for loss of wages attributable to the termination; it is not in any sense a form of ‘damages’ for the termination itself; hence the significance of the requirement to mitigate the loss.

In this case the delay of six months in finding work suggests some considerable lack of the necessary application to the task on her part. The evidence submitted of her efforts to gain employment confirmed this as only a handful of applications were made and came nowhere close to meeting the requirement to mitigate.

The respondent noted that in respect of the five documents submitted in support of the complainant’s efforts to mitigate her loss, one was not an application, one was in March, two in April and one in July and that this did not constitute every effort to find work. The resp submitted that four applications in nine months is not a reasonable attempt to find alternative work given the complainant’s skillset.

I agree with this.

Taking all of those factors into account, while the circumstances of the case justify a substantial award for the reasons set out above, the statute and the jurisprudence is clear and I am reducing what I would otherwise have awarded by 50% to take account of the failure to mitigate and I award the complainant €15.000.  

Complaint CA-0003862-001 is well founded and I award the complainant €15,000.

Unfair Dismissal. Mitigation.