ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031210
Parties:
| Complainant | Respondent |
Parties | Noelle Gorman | Mullingar Electrical Wholesale Limited T/a The Lighting Showroom |
Representatives | Kevin Bell BL Mary Tunney Solicitor | Dónal Carroll & Co. 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-00041536-001 | 14/12/2020 |
Date of Adjudication Hearing: 19/04/2021 and 07/10/2021
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The parties were very capably represented on both sides and the witnesses were all courteous to me and the process.
I allowed the right to test the oral evidence presented by cross examination.
Much of this evidence was in conflict between the parties. I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected. I have adopted the direction provided in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 at p.113 where O'Flaherty J. in the Supreme Court noted that minute analysis or reasons are not required to be given by administrative tribunals, but that the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given:
“I would reiterate, what has been said on a number of occasions, that when reasons are required from administrative tribunals they should be required only to give the broad gist of the basis for their decisions. We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.”
Background:
The Complainant worked as a retail sales assistant and later assistant manager for the Respondent in its lighting showroom. She commenced working in September 2014. The date of her dismissal was in dispute. Her gross monthly salary was €1,348.66. The Complainant submitted that she was dismissed on 5 June 2020 but that she was not provided for statutory notice that she was entitled to. The Respondent submitted that the Complainant resigned her employment on 23 March 2020. The Complainant had previously brought a complaint to the WRC seeking her notice entitlement. This predated the Zalewski High Court decision of the 6 April 2021. |
Summary of Complainant’s Case:
The Complainant's case was that she attended work on the 23 March 2020 and began to feel unwell with symptoms of Coronavirus. She telephoned her GP to apply for a Coronavirus test. The Complainant's doctor advised her to leave work immediately and to self-isolate as the Complainant's partner had been diagnosed as a positive case. The Complainant informed her manager immediately upon his arrival to the workplace of the conversation she had with her GP. The Complainant's manager advised her to comply with her doctor's advice and to self-isolate. He also told the Complainant to apply for the relevant social welfare payment while she was self-isolating. The Manager informed the Complainant on 24 March 2020 the shop was closing on the 25 March 2020. The Complainant sent a text message to the Manager to enquire how things were going in May 2020 he told her that the lighting showroom was still closed. On 5 June 2020 the Complainant contacted her Manager by telephone to determine if the lighting showroom with the reopen on 8 June 2020 in line with the relaxation of the pandemic restrictions. The Manager telephoned her back to say that her services would no longer be required even though the lighting showroom was reopening. He stated that he was going to run the shop on his own. The Complainant rejected the Respondent's contention that she had resigned on the 23 March 2020. |
Summary of Respondent’s Case:
The Respondent's case was that the WRC did not have jurisdiction to hear this case. It submitted that the Complainant lodged her claim nine months after her employment ceased and no reasonable excuse was provided to ground an application for an extension of time. The Respondent submitted that the Complainant was not dismissed from her employment. It submitted that the Complainant resigned on the 23 March 2020. The Respondent explained that the Complainant was on annual leave from 16 March 2020 to the 21 March 2020 and was due to return to work on the 23 March 2020. The Complainant informed the Manager upon her return from holidays on the 23 March 2020 that she wished to cease her employment. The Manager met the Complainant on the 23 March 2020. She was not at her workstation and was instead in the canteen with her coat and scarf on. When the Manager spoke to her, she informed him that she did not wish to work anymore, and she wished to leave her employment. She did not provide any notice and she left the Respondent in a situation where it was under- staffed. The Complainant made no reference to her Manager regarding a conversation with her doctor or her requirement to self-isolate due to a risk of Coronavirus infection. The Respondent gave evidence of how the Complainant had embarked upon a course to secure an alternative career path and had indicated to her Manager on several occasions that she would be leaving her employment. The Complainant started a healthcare course in October 2019 and had requested reduced hours. The Respondent accommodated her in this regard. A further request for additional reduced hours was made by the Complainant, however this could not be accommodated. Following this the Complainant indicated that she would "have to find something else" and that her brother could possibly give her a job. Taking the above into account, the Complainant's resignation on the 23 March 2020 was not unexpected. The Respondent maintained that the Complainant at no stage informed her Manager that her partner had tested positive and that she was advised to self-isolate. The Manager confirmed that he did send the Complainant to link to the www.gov.ie webpage but this was in the context of the Complainant's enquiry if she was entitled to any social welfare payments arising from her resignation. |
Findings and Conclusions:
Dismissal is defined in the Unfair Dismissals Act 1977 (as amended) as: –
“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 employer……
At the hearing, I was presented with two very different accounts of what took place on the 23 March 2020. The Respondent submitted that the Complainant resigned on that date. The Complainant explained that she had to go for a Covid test and was advised to self-isolate on that date. As there was nothing in writing between the parties, I must decide on the oral evidence and supplementary documentary evidence provided to me at the hearing. The Complainant submitted her medical records from her GP which confirmed that she was referred for a Covid test on the 23 March 2020. The Complainant the provided list of the telephone calls she had with her manager on the 23/24/25 and 26 March 2020. I am influenced by the 26-minute telephone call which took place between the Complainant and her Manager on the 24 March 2020 and a 33-minute telephone call on the 25 March 2020 and subsequent text messages. On the 25 March 2020, the Complainant's Manager sent a link to the Complainant’s work colleague for the www.gov.ie / Covid 19 pandemic payment information. The Complainant’s Manager sent the same link to the Complainant on that date. The Labour Court has stated the “general rule” as follows:
“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end….” Best practice recommends that in the event of a resignation, an employee should be allowed a cooling off period and asked to set his or her resignation in writing to avoid any doubt of what had taken place. Having considered the evidence of both witnesses at the hearing, I prefer the evidence of the Complainant. Had the Complainant resigned in the manner the Respondent submitted, I do not accept that she would have had the extensive phone contact with her Manager or contacted her Manager on 5 June 2020 enquiring about her return to the workplace following the ending of the lockdown. The link sent to her and her colleague regarding the social welfare Covid-19 pandemic payment is also indicative of a continuing employment relationship. Based on the above, I accept that the Complainant's employment ended not on the 23 March 2020 but on the 5 June 2020 when her Manager advised her that she was no longer needed in the lighting showroom. Section 6 of the Unfair Dismissals Act 1977 as amended sets out: - 6. Unfair dismissal (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 Respondent offered no justification to the decision to dismiss the Complainant on 5 June 2020. There was no procedure leading to the decision to dismiss her and she was not given a right of appeal to this decision. Because of same, I find that she was unfairly dismissed on 5 June 2020 and she was entitled to notice of the termination of her employment. As the Complainant did not have a written contract of employment, she is entitled to the minimum period of notice set out by the Minimum Notice and Terms of Employment Act 1973 (as amended) namely 4 weeks’ notice. Date of dismissal is defined in the Unfair Dismissals Act 1977 (as amended) as: –
“date of dismissal” means—
(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment [Acts 1973 to 2005], the date on which that notice expires, (b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment [Acts 1973 to 2005], the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates— (i) the earliest date that would be in compliance with the provisions of the contract of employment, (ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment [Acts 1973 to 2005].
Based on the above, the date of the Complainant's dismissal is 3 July 2020. The complaint to the WRC was lodged within six months of the date of the Complainant's dismissal. As regards the Complainant's efforts to mitigate her loss arising from the termination of her employment on 5 June 2020, I am conscious of the circumstances that prevailed at the time namely the lockdowns and closure of non-essential retail for significant periods during 2020. By background information, I note that the Complainant was in receipt of a PUP payment until 16 August 2021. This payment exceeded her gross weekly wage with the Respondent.
Section 7 of the Unfair Dismissals Act 1977 (as amended) sets out: –
7. Redress for unfair dismissal (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following [the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or [(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.] [(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.] (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, [(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.] [(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee— (a) under the [Social Welfare (Consolidation) Act 2005] in respect of any period following the dismissal concerned, or (b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.]
In Sheehan v Continental Administration Co Ltd UD 858/1999 the Employment Appeals Tribunal found the onus of proof lay upon the Respondent to show that the Complainant did not act reasonably in all the circumstances. The Tribunal ruled that it was not reasonable to merely place oneself upon a list with various recruitment agencies. A more “pro-active” approach was required. The Tribunal continued:
“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work… The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”
Similar views were expressed by the Labour Court in Smith v Leddy UDD 74/2019 where it was said that the Court expected to see “evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”. The Respondent's representative submitted that the Complainant's efforts to minimise her loss following the termination of her employment were not sufficient. I accept this submission in the main and find that I have not been provided with the level of evidence expected as set out in the above cases from the Complainant to cover all of the period between June 2020 and August 2021. I appreciate that the Complainant was not qualified to work in healthcare until March 2021 and following her qualification she took up employment in August 2021, but this was some 14 months after the termination of her employment in June 2020. I also note the Complainants submission on the difficulties in retail recruitment during the Covid-19 pandemic. The Complainant did submit some evidence of efforts to seek employment in a healthcare setting before her qualification. In these circumstances of the above, I award the Complainant compensation amounting to just under 6 months gross salary. This comes to €8,000.00. |
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.
I find that this complaint is well founded. I award the Complainant €8,000.00. |
Dated: 18/11/2021
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Unfair Dismissal. Resignation. Section 7 Unfair Dismissal Act 1977. Redress for unfair dismissal. Duty to mitigate loss. |