UDD2131

1.Appeal of an Adjudication Officer's Decision No. ADJ-00025226 CA-00032061-001.

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 21 June 2020 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 10 March 2021. The following is the Determination of the Court:-


DETERMINATION:

This matter comes before the Court as an appeal by the Respondent at first instance (Windzor Pharma Ireland Limited) against a decision of an Adjudication Officer in the complaint made by Mary Twohill under the Unfair Dismissals Act, 1977 (the Act). The Adjudication Officer decided that the complaint was well founded and made an award of €14,000 in compensation.

For ease of reference the parties will be referred to in this decision as they were at first instance. Hence, the former employer will be referred to as the Respondent and the worker as the Complainant.

The case

The Complainant’s employment with the Respondent commenced on 2^ndApril 2018 and her contract of employment specified that she would work 20 hours per week and that her salary would amount to €2,334 per month.

On 23^rdMay 2019 she received a letter from the Respondent dated 21^stMay 2019 to the effect that it required a full-time role rather than the part-time role she held and that, as a result of her inability to take up that role, she would be dismissed on the expiry of notice on 30^thJune 2019.

Summary position of the Respondent.

The Respondent submitted that the award of the Adjudication Officer was not reasonable. The Respondent made every possible attempt to retain the Complainant once the role had become a full-time position. She was offered the full-time role or an alternative of a commission-based role.

The contract of employment of the Complainant clearly anticipates that the role might change to a full-time role as the company developed and the Complainant signed that contract.

At a meeting on 7^thMay 2019, the Respondent advised the Complainant of the need for a full-time role and she confirmed that she would be unable to take up such a role. At that meeting also the prospect of a commission based role was discussed and the Complainant said that she would consider that.

Summary position of the Complainant

The Complainant submitted that her contract of employment specified that she was employed in a part-time role for 20 hours per week. At the annual review of her work meeting with her manager held on 7^thMay 2019 the Respondent discussed the expanding market of the business and in that context the Respondent asked her if she would consider working full time.

The question surprised her and she reacted by saying that she would not be interested in a full time position. She did however indicate that she would consider increasing her hours on a short-term basis to facilitate the launch of a product which was imminent. Her manager indicated that he would discuss her future role with other shareholders and would come back to her two weeks later.

She met again with her manager on 22^ndMay 2019. At no point in that meeting was she told that her employment would be terminated. On 23^rdMay 2019 she received a letter dated 21^stMay which gave her notice of her dismissal with effect from 30^thJune 2019. She had not been advised at the meeting of the 22^ndMay that this letter had issued and neither did her manager discuss possible alternatives to dismissal with her.

The Respondent has offered no objective reason which would justify the dismissal. The Respondent wanted a full-time person and was not prepared to consider alternatives such a job sharing or increasing her hours during busy periods. The Respondent did indicate that a wholly commission based role could be made available to her but such a role would result in severely reduced earning potential.

Similarly, the Respondent did ultimately clarify the detail of the full-time role which she could have taken up. This role would have involved a 39 hours week with a significantly reduced hourly rate of pay versus the rate of pay specified in her part-time contract of employment.

Her contract of employment specified that she would work 20 hours per week and whereas it did provide that

‘The Company may require you to vary the pattern of you (sic) working hours if required on a temporary or permanent basis should the needs of this post require this’,

The Respondent gave no advance indication that the employment was to be terminated and offered no avenue of appeal of the decision to dismiss.

The Complainant gave testimony that she had no understanding that her part-time contract could be altered to a full-time contract. She said that she was open to engagement in relation to the matter but when she realised that the full-time role carried a significantly lesser hourly salary than her part-time role and that the commission role mentioned by the Respondent offered a very significantly reduced earning capacity, she could not consider either proposition as reasonable.

At the annual review meeting of the 7^thMay she had never been told that her part-time role could be terminated. She met her manager by chance on 22^ndMay and he asserted at that point that he would revert to her in a week. He never mentioned that a letter of termination had already issued to her.

She was not offered a commission based role prior to her receipt of the letter terminating her employment and which indicated a potential to explore such a role. When she indicated on 7^thMay that she would be unable to take up a full-time role she had no understanding that her part-time role was at risk of termination.

She received the terms and conditions associated with a full-time role on 9^thJune and those terms clarified that the role involved a much reduced hourly rate of pay.

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,

Section 6 of the Act, in relevant part, 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.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(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)

It is clear to the Court that no substantial engagement with the Complainant occurred prior to the issuance to her of a letter dated 21^stMay 2019 terminating her employment. The Respondent has contended that her contract of employment permitted the employer to alter the contract to one of full-time employment. The Respondent submitted Clause 4 of the contract in support of that contention. Clause 4 of the contract make provision as follows

‘Your working hours will be 20 hours per week. The company may require you to vary the pattern of your working hours if required on a temporary or permanent basis should the needs of the post require this’

It is clear that, by May 2019, the needs of the Respondent had changed in that a full time rather than a part-time position was required. The Respondent however failed to engage comprehensively with the Complainant in relation to the matter. The Court accepts the testimony of the Complainant that the matter of a commission based role was not discussed at the meeting of the 7^th.

It is the uncontested testimony of the Complainant that, at the conclusion of the meeting of the 7^thMay which was an annual review meeting, the Respondent undertook to reflect with shareholders on the position. Evidence tendered by the Complainant was to the effect that no further contact was made in relation to the matter until after she had received a letter terminating her employment. That failure to engage with the Complainant comprehended a chance meeting with her manager on the 22^ndMay when no mention of a decision to dismiss was made.

The Court notes that the Respondent at no time contended that the part-time position was redundant.

In all of the circumstances, the Court concludes that the Respondent followed no discernible procedure in arriving at the decision to dismiss and offered the Complainant no avenue of appeal of that decision. In those circumstances, the Court concludes that the conduct of the Respondent in relation to the dismissal was unreasonable.

The Court concludes that the absence of procedural fairness and the unreasonable nature of the conduct of the Respondent must be taken to mean that the dismissal of the Complainant was unfair.

The Court notes the salary of the Respondent amounted to €28,000 per annum and that the Complainant was unavailable for work for a three month period following her dismissal. The Court is satisfied from her submission that the Complainant actively sought alternative employment and ultimately secured such employment in December 2020. In all of the circumstances, the Court concludes that compensation is the appropriate form of redress in the instant matter.

Decision

The Court decides that the Complainant was unfairly dismissed. The appropriate form of redress is compensation. Having regard to her earnings before her dismissal and noting her efforts to mitigate the loss she suffered as a result of her dismissal, the Court orders the Respondent to pay the sum of €14,000 to the Complainant in compensation.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
4 May 2021	Chairman