Complainant

Respondent

Parties

Edyta  Zborowska

Magic Moments Creche And Montessori

Representatives

  Self-Represented

Mr Barry O’Mahony BL instructed by Mr Aidan McGrath, ARAG Legal Protection

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041723-001

28/12/2020

The Complainant commenced employment with the Respondent on 27th August 2018. During the currency of her employment, the Complainant worked for 32 hours per week, receiving a payment of €325.00 in respect of the same.

The Complainant initially submitted that her employment was terminated on 29th June 2020. She lodged the present complaint with the commission on 28th December 2020, five months and thirty days after her alleged dismissal.  By submission, the Complainant stated that the Respondent had terminated her employment in the course of a phone call, without cause or adherence to due process. By response, the Respondent denied that the Complainant was dismissed during that call or at all.

A hearing in relation to this complaint was convened for and finalised on 23rd June 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

At the outset of the hearing, the parties confirmed that the factual matrix regarding the dismissal was not in dispute, rather both parties had conflicting interpretations of the agreed set of events that supported their respective cases.

As the fact of dismissal was in dispute, the Complainant presented her case first. No other issues as to my jurisdiction were raised in the course of the proceedings.

The Complainant was employed as a child minder by the Respondent. In March 2020, the Respondent’s premises closed as a result of the restrictions arising from the Covid-19 pandemic. As childcare was an issue for the Complainant herself during this period of lockdown, she elected to return to her home country for a period of time. On 15th June 2020, the Complainant received a letter setting out the Respondent’s plans to re-open the premises from 29th June 2020. On 16th June, the Complainant responded stating that she could not return to work on that date due to childcare issues. By response dated 19th June 2020, the Respondent offered the Complainant flexible hours on her return. By further response dated 22nd June 2020, the Complainant confirmed that she wished to return to work in at the end of August 2020 and requested an amendment to her working hours thereafter.

On 29th June, the Respondent stated that as the Complainant was not available for work she could take parental leave or annual leave until such a time as she was available. On 30th June 2020, the Complainant asked if she could avail of the wage subsidy scheme that was in place at the time. On 1st July 2020, the Complainant stated that she was available to work at any stage, even prior to the proposed return date at the end of August, pending the standard two week self-isolation period imposed on all persons returning to the state.

At this point a call was arranged between the Complainant and the managing director of the Respondent. In this course of this call, it was agreed that the Complainant should avail of the pandemic unemployment payment until such a time as she was prepared to return to work. On 3rd July 2020, the Complainant confirmed the same by email, advising of her intention to switch to the PUP scheme for payment.

By email dated 4th July 2020, the Respondent asked the Complainant to “send me a more formal letter / email regarding leaving an employment” and “as per our phone call…you wish to leave the employment”. This email took the Complainant completely by surprise as did not resign her employment during the previous phone call. It was the Complainant’s submission that the wording of this email indicated that the Respondent had dismissed her at this point. The Complainant asked the Respondent to confirm her this dismissal by correspondence dated 24th August 2020.

On 4th September 2020, the Respondent emailed the Complainant stating that the Complainant had not been dismissed and that the Respondent understood her intention to apply for the PUP payment to be a resignation from her employment.   

The Complainant submitted that she had been getting mixed signals from the Respondent following her dismissal on 4th July 2020. Given the confusion that had arisen regarding the same, she lodged the present complaint in order to provide some clarity. She submitted that she never intended to resign her employment and in fact had undertaken significant training in order to improve her performance in employment. Finally the Complainant stated that she did not seek material compensation for the unfair dismissal, but simply wished to receive a acknowledgement that she had been dismissed wrongly and unfairly.

From the outset, the Respondent stated that they agreed with the factual matrix presented by the Complainant. However, they submitted that the during the call in early July 2020, when the Complainant stated that she wished to avail of the Pandemic Unemployment Benefit, they understood that she wished to resign her employment and return at a later date. On foot of the same, they corresponded with the Complainant on 4th July 2020, asking her to formalise this resignation. When no response was received to this communication, a follow up communication was issued on 21st August 2020. On 24th August, the Complainant responded, seeking confirmation of her dismissal. By email dated 4th September 2020, the Respondent categorically stated that the Complainant had not been dismissed from her employment and that her job was still for her should she wish to return. By response dated 11th September the Complainant responded stating that the matter had become confusing for her and that she was seeking legal advice in relation to the same. No further correspondence was received until such a time as time as the present complaint was lodged with the Commission and forwarded to the Respondent.

In summary, the Respondent submitted that as no dismissal occurred, the complaint under the Unfair Dismissals Acts is misconceived. They further submitted that they took all reasonable steps to ensure that the confusion arising from the phone call in early July 2020 was resolved.

Section One of the Unfair Dismissals Act defines “dismissal” as,

“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”.

In the matter of Longford Co Co v Joseph McManus, UDD1753, the Labour Court held,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined”

Regarding statements that may amount to a termination of employment, in the matter of Devaney -v- DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal held that,

“…what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

Regarding the current matter, it is clear that the parties enjoyed a mutually beneficial and serene working relationship until the phone call in early July 2020. During this call, an agreement was reached whereby the Complainant would avail of the Pandemic Unemployment Payment scheme for a period of time. It appears that this agreement led a significant degree of confusion and misunderstanding between the parties thereafter. On foot of this agreement, the Respondent believed that the Complainant had intended to resign her employment and return at a later date, while the Complainant believed that she would enter a form of lay-off for a period of time.

Following this conversation, the parties entered into a series of email correspondence regarding the issue, with the Respondent requesting that the Complainant formalise her resignation and the Complainant expressing surprise that her employment had been terminated at all. Having regard to the same, I find that the Respondent took the correct course of action in seeking to confirm the Complainant supposed resignation in writing. I further find that, at this point, it was entirely within the Complainant’s gift to simply state that she did not seek to resign and that she wished to return to her role. I note that the Respondent sent a number of emails to the Complainant in this regard, each clearly stating that her employment had not been terminated and she was welcome to return at any point.

Having regard to the totality of the foregoing, I find that the Respondent did not intend to dismiss the Complainant during the phone call of early July 2020.  What occurred during that conversation was a misunderstanding, and nothing more. I find that the Respondent’s actions after the call were reasonable in their attempt to provide clarity in the situation and seeking to resolve the issue with the Complainant.  As a consequence of the same I find that the Complainant was not unfairly dismissed and her application fails.

CA-00041723-001

I find that the Complainant was not unfairly dismissed and consequently her application does not succeed.

Fact of Dismissal, Words of Dismissal