Complainant

Respondent

Parties

Sally  McCormack

Marie Conneely, t/a No 58

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00038625-001

06/07/2020

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

CA-00038625-002

06/07/2020

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

CA-00038625-003

06/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038625-004

06/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00038625-005

06/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00038625-006

06/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00038625-007

06/07/2020

The complainant was employed as a sales assistant in a ladies’ fashion outlet operated by the respondent.  The complainant commenced employment on a part-time basis on 28 December 2018.  The complainant’s employment with the respondent terminated on 16 June 2020.  The complaints are in relation to this termination and to other issues regarding employment contracts, alleged discrimination and Health and Safety issues.

 These matters were heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI No. 359 / 2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant was dismissed without notice by the respondent who stated that this was due to the fall in business occasioned by the Covid 19 pandemic.

The complainant was the only member of staff to be dismissed and there had been no discussion regarding this decision.

The complainant was assigned stockroom duties which included heavy lifting that were not given to other staff.

The complaint raised issues with regard to Health and Safety with the respondent and felt that this was a factor in the decision to terminate her employment.

The complainant never received a contract of employment.

The retail sector closed in March 2020 due to Covid 19 and the respondent started an on-line operation on Facebook.

When the re-opening of the sector was announced in June the respondent had to make decisions about staffing and as the complainant mainly worked Sundays it was decided that her employment should be terminated.

All monies due to the complainant were paid to her.

The respondent accepted that the complainant had not received a written contract.

The respondent could not recall the complainant making representations regarding Health and Safety.

The respondent was not discriminated against during employment.

At the commencement of the hearing it was accepted that the correct title of the respondent was Marie Conneely, t/a No. 59.

Both the complainant and the respondent opted to give evidence under affirmation and this was administered prior to their respective evidence.

Complaint No. CA-00038625-001:

This is a complaint under the Terms of Employment (Information) Act, 1994, to the effect that the complainant had not received a statement in writing of her terms of employment.

Section 3(1) of the Act states:

An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following terms of the employee’s employment……

The section then lists the required terms.

The complainant in evidence stated that she had never received a written contract regarding her employment.  The respondent accepted that this was true stating that this matter had now been rectified and contracts had been issued to existing staff.

On the basis of the evidence before me I find this complaint to be well founded.

Complaint No. CA-00038625-002:

This is a complaint under the Unfair Dismissals Act, 1977, to the effect that the complainant was unfairly dismissed by the respondent. 

Section 6(1) of the Act states:

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 of the circumstances, there were substantial grounds justifying the dismissal.

The respondent in evidence said that she was the owner of a retail outlet which employed three members of staff.  The respondent herself also worked in the shop.  In March 2020 all non-essential retail outlets had to close and there was no work for the staff.  During the period of closure the respondent initiated some on-line business on Facebook and a member of staff volunteered to come into the store to assist the respondent in this regard.  The member of staff was not paid for doing this.  The business turnover had been severely affected by these events.  Consequently, when the retail trade was advised that shops could re-open in June the respondent looked at staffing levels.  A decision was made to terminate the complainant’s employment.  The complainant mostly worked Sundays and there had been issues when the complainant had not been available to work required hours.  The complainant was on Disability Benefit and was restricted in the number of hours that she could work.  Other staff were more flexible in this regard according to the respondent.  Sundays were quite and could be covered by one member of staff or by the respondent herself. 

The respondent wrote to the complainant on 16 June 2020.  In this letter the respondent stated:

“I have no alternative but to reduce staff levels and unfortunately this means I no longer have the option to utilise you in a part time capacity – I will take on this role myself.”

The letter went on to say that the termination of employment was effective on 16 June.

The respondent further said in evidence that the complainant was the only member of staff to receive such a letter.  Another member of staff subsequently chose not to return to work for their own personal reasons.

The complainant in her evidence said that she was quite happy working 15 hours per week and that she liked working Sundays.  The complainant had been employed prior to either of the other two staff members who were in employment at the period in question.  The complainant was often sent to work in the stockroom and had on occasion made complaints in relation to Health and Safety issues in that area.  In February 2020 the respondent asked her to hand back the keys to the shop on a temporary basis but they were not returned to the complainant.  About this time the complainant noted that the other staff members were getting rostered for more hours than she was and spoke to the respondent about it.  Shortly after, the store has to close because of the Covid 19 pandemic.  The complainant became aware that one member of staff was working behind closed doors with the respondent.  The complainant was never contacted about such work.

In June, when it became known that the retail trade could re-open, the complainant called into the store and spoke to the respondent.  According to the complainant the respondent told her that she was unsure as to what her plans were regarding re-opening.  No mention was made to her regarding her employment being terminated.  A few days later the complainant was very surprised when she received the letter of 16 June terminating her employment.

Section 6(4) of the Act states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee and

(d)    n/a.

Redundancy is defined in Section 7(2) of the Redundancy Payments Act, 1967, as follows:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

(a)    the fact that his employer has ceased, or intends to cease, to carry on the business for the purpose of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)    the fact that the requirements of that business for the employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c)     the fact that the employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)    n/a,

(e)    n/a.

In the case before me the respondent has stated that in response to a significant reduction in turnover a decision was made to reduce staffing levels resulting in the termination of the complainant’s contract.  The respondent employed three staff in the same grade as Sales Assistants.  According to the complainant and not contradicted by the respondent, the complainant was the longest serving of these staff.  It is essential in circumstances where one member of staff is being made redundant and others of the same grade are being retained that a selection process be put in place which consists of a range of objective criteria in order to ensure a fair selection for redundancy.  Redundancy, by its nature, is impersonal and the selection process must reflect that.  An employer is also expected to consult and inform all employees in the grade in which the redundancy is contemplated and these employees should be advised of the criteria to be used in the selection.  

In the case of Mulligan v J2 Global (Ireland) Limited, UD993/2009, the Employment Appeals Tribunal stated:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy.  While in some cases there may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissal Act as such lack of procedure may lead to the conclusion that an unfair selection for redundancy has taken place.”

Mr. Justice Charlton in the High Court case of JBC Europe v Panassi, IEHC279, 2011, stated as follows:

“It may be prudent as a mark of genuine redundancy that alternatives to letting the employee go should be examined.”

In the case before me it is clear that there the respondent did not adopt any transparent procedure in coming to the decision to make the complainant redundant.  The respondent said in evidence that she did not recall having a conversation with the complainant in June 2020 about the re-opening of the shop.  However, in the letter of 16 June the respondent began the letter as follows:

“Thank you for visiting the shop last week and your recent enquiry as to the status of your ongoing employment.”

I therefore accept the complainant’s evidence that she spoke to the respondent but that no mention was made about her employment being terminated.  There was no consultation prior to the decision, the complainant was not advised that she was being considered for redundancy and no objective selection criteria were implemented in this regard.  The respondent made the decision and conveyed that decision to the complainant by letter post.  There was no provision for an appeal of that decision.

Having regard to all of these circumstances I must decide that the complainant was unfairly selected for redundancy.  Consequently, I find that the complainant was unfairly dismissed under the provisions of the Unfair Dismissals Act.

Complaint No. CA-00038625-003:

This is also a complaint under the Unfair Dismissals Act, 1977.  It duplicates the previous complaint and was therefore withdrawn at hearing by the complainant.

Complaint No. CA-00038625-004:

This is a complaint under the Employment Equality Act,1998, to the effect that the complainant was discriminated against by her employer.  The complainant did not state in her application / submission which of the specific grounds of discrimination she felt had been infringed.  The complainant withdrew this complaint during the hearing.

Complaint No. CA-00038625-005:

This is a complaint under the Safety, Health and Welfare at Work Act, 2005, to the effect that the complainant was penalised by her employer for making complaints in relation to Health and Safety.  In particular, the complainant believes that the decision to terminate her employment was linked to these complaints.

The complainant stated in her submission that she was asked to undertake tasks in the stockroom such as lifting heavy boxes and ironing even though the respondent was aware that the complainant was on disability allowance.  The complainant had also expressed concerns to the respondent about having to use what she regarded as an unsafe step-ladder in the stockroom. The complainant stated that she suffered from a hiatus hernia.  The complainant said that she had also spoken to visitors to the premises about these matters.  The complainant also referenced the fact that there was no accident book on the premises.  The respondent for her part stated that she could not recall any specific complaints of this type being made to her by the complainant.

Section 27(3) of the Act states:

An employer shall not penalise or threaten penalisation against an employee for

(a)    acting in compliance with the relevant statutory provisions,

(b)    performing any duty or exercising any right under the relevant statutory provisions,

(c)     making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to health and safety at work,

(d)    n/a

(e)    n/a

The definition of penalisation in Section 27(2)(a) of the Act includes:

suspension, lay-off or dismissal (including a dismissal within the meanings of the Unfair Dismissal Acts 1977 – 2001) or the threat of suspension lay-off or dismissal.

The operation of this section was considered by the Labour Court in the case of Tony & Guy Blackrock Limited v Paul O’Neill, (HSD095), in which it statedthat a causal connection must be established between the employee exercising their rights under Section 27(3) and the employer’s subsequent ‘penalisation’ actions under Section 27(2), if any.  The Court, in relation to that case, said:

“This matter is before the Court by way of a complaint of penalisation within the meaning ascribed to that term by s.27 of the Act of 2005.  Hence the Court is not concerned with the fairness of the dismissal per se.  Its sole function is to establish whether or not the dismissal was caused by the Claimant having committed an act protected by s.27(3) of the Act.”

In the case of Citizens Information Board v John Curtis, (HSD101), the Court stated:

“It is clear that redress under the Act is only available where (a) an employee commits an act protected by subsection (3) of s.27 and (b) the employer imposes a detriment on the employee because of, or in retaliation for, having committed the protected act.”

It is clear from the above that the complainant can only be successful in bringing a complaint of penalisation if it is established that the detriment which she suffered (in this case dismissal) was imposed because of, or in retaliation for, having committed a protected act (in this case making complaints about safety issues in the workplace).

Having regard to the evidence before me it appears to me that the complainant has not established that her dismissal would not have occurred but for the fact that she raised issues in relation to health and safety.  Indeed, the complainant in her submission stated that she felt that it was a factor in the employer’s decision to dismiss her and therefore accepted that it was not the only reason or indeed not the main reason.  The respondent, as noted, stated that she could not recall the complainant making the complaints.  Given the background to the actual dismissal decision I find that the complainant was dismissed because of the conclusion of the respondent to reduce staffing levels and that consequently I find that this complaint is not well founded.  

Complaint No. CA-00038625-006:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973, to the effect that the complainant did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu thereof.

Section 4(1) of the Act states:

An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection 2 of this section.

Subsection (2) states:

The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(a)    if the employee has been in the continuous service of his employer for less than two years, one week

As noted, the complainant in this case commenced employment with the respondent on 28 December 2018 and the employment was terminated on 16 June 2020.  The continuous service therefore amounted to less than two years.

As detailed above, the complainant was advised by letter dated 16 June 2020 that her employment was being terminated effective of that same date.  The letter went on to state that “you will receive any final payments in relation to notice and any accrued annual leave shortly”.

According to payslips provided by the respondent the complainant was paid the sum of €136.50 on 19 June 2020.  A further payslip was issued on 19 October 2020 for the sum of €89.04.  No detail was provided as to what this sum represented.  According to the respondent the payment of wages was dealt with by her accountant whom she had instructed to pay the complainant what was due to her.  The complainant had not been working since the March closure.

Having regard to the evidence before me I find this complaint not to be well founded.

Complaint No. CA-00038625-007:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973, to the effect that the respondent had not received minimum notice from the complainant.  This complaint was obviously ticked in error by the complainant and was not pursued at hearing.

Complaint No. CA-00038625-001:

As set out above I find this complaint under the Terms of Employment (Information) Act to be well founded.  I note that the complainant has advised that her annual income from the employment amounted to €5,343.24 gross.  The law regarding the issuing of statements of terms of employment to employees is a basic, fundamental requirement and is well established.  I cannot accept that any employer would be unaware of this matter.  I order the respondent to pay to the complainant the sum of €400.00 as compensation in this regard.

Complaint No. CA-00038625-002:

For the reasons outlined above I find that the termination of the complainant’s employment amounted to an unfair dismissal under the provisions of the Unfair Dismissals Acts, 1977 – 2005.  I note that the complainant has stated that she has not worked since her dismissal but has sought employment locally in retail establishments.  No documentary evidence was provided in this regard.  Taking all factors into consideration I order the respondent to pay to the complainant the sum of €4,000.00 as compensation in this regard.

Complaint No. CA-00038625-003:

This complaint under the Unfair Dismissals Acts was withdrawn at hearing.

Complaint No. CA-00038625-004:

This complaint under the Employment Equality Act, 1998, was withdrawn at hearing.

Complaint No. CA-00038625-005:

For the reasons outlined above I find that this complaint of penalisation under the Safety, Health and Welfare at Work Act, 2005, is not well founded.

Complaint No. CA-00038625-006:

For the reasons outlined above I find that this complaint under the Minimum Notice and Terms of Employment Act, 1973, is not well founded.

Complaint No. CA-00038625-007:

For the reasons outlined above this complaint was not pursued at hearing as it was an error.

Statement of Employment     Unfair Selection for Redundancy     Unfair Dismissal     Minimum Notice    

Penalisation     Safety, Health and Welfare at Work Act, 2005