ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00032084
Parties:
| Worker | Employer |
Anonymised Parties | An Office Administrator | A Property Developer |
Representatives |
| Paul Gough, Beauchamps |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00042607-001 | 19/02/2021 |
Date of Adjudication Hearing: 22/07/2021
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 13 of the Industrial Relations Acts, 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.
Background:
The Worker commenced her employment with the Employer on 8th September 2020 as an Office/Accounts Administrator. She was paid €315 gross weekly and worked 21 hours a week. Her employment was terminated on 15th February 2021. The Worker referred her dispute to the Director General of the WRC on 19th February 2021 alleging that she was unfairly dismissed. |
Summary of Worker’s Case:
The Worker submits as follows: She started working for the Employer on 8th September 2010. On 14th December 2020 the Managing Director (MD) of the Employer conducted a performance review and told her he was happy with her work. She claims that her pay was increased from €13 to €15 per hour and she was made permanent at the time. The Worker submits that over a number of months the MD told the employees on numerous occasions that he had a compromised immune system and that if any of the two employees had even a cold they were not to come into work because it would put him at risk. On 6th January 2021, the Worker, the other employee (MS A) and the MD discussed what they would have to do if Level 5 lockdown was announced that evening. The Worker claims that she asked a couple of times if they could work remotely, and the MD told her that they could not. The Worker claims that she and the other employee told the MD that if lockdown was announced they would not feel comfortable coming to work due to the level of outbreak. The Worker says that the MD suggested that he understood that Ms A (the other employee) would have to stay at home due to her having school age children. He then said to the Worker that she should be ok and asked who lived with her and if any of them are school age. The Worker replied that her son who has a disability lives with her, and she would not be comfortable coming to work with the pandemic getting out of control in January. The MD replied a few times that they will wait and see but that the company was so busy it had to stay open at all times. That evening the announcement was made and the MD emailed both the Worker and Ms A explaining that the office would not close down during lockdown. On 7th January 2021 the Worker replied to the MD’s email informing him that she did not feel safe to return to the office and that she decided to avail of the PUP for a few weeks until the numbers came down a lot. The Worker says that she spoke to the MD on the phone, and he reluctantly agreed but again said that the company was so busy that he could not close it. The MD then emailed the Worker on the next day and told her that he had arranged for her duties to be covered which would allow the Employer “keep the show on the road”. The Worker submits that on 25th January 2021 she missed a call from the office at 11:34am and she tried several times to ring the office and the MD’s mobile. At 12:32pm the MD called the Worker back from his mobile. He told her that he was unable to answer her call because the phones were ringing off the walls in the office and he was busy keeping the office and the workload going. The Worker told the MD that due to the COVID-19 numbers going down and the R number down she would be happy to return to work on Monday 1st February 2021, if the Employer was busy. The Worker told the MD that she had spoken to Ms A, and they agreed that only one person should be present in the office at a time. The Worker would work her usual Monday to Wednesday and Ms A would work Thursday and Friday. The MD said that it was great and that it’s so busy he needs them back. The Worker returned to work on Tuesday 2nd February 2021. The MD said that he had loads of work for her. The Worker submits that due to a request from Ms A she was due to work Thursday 11th. On Wednesday evening 10th February at around 4pm the Worker started sneezing a bit and when she got up to go to work on Thursday, she had a bad head cold and was sneezing a lot. As the MD informed the Worker previously that he had a compromised immune system and requested her not to come to work if she had a cold, the Worker contacted the MD and notified him that she was not going to be able to come into work as she wasn’t feeling well. The MD replied that it was terrible and that he hoped she was ok. He said that he would arrange for someone to stand in for her. He said that he was travelling towards the area the Worker lived in for business and could collect the office keys for the stand-in person from outside her door. The Worker agreed and said that it was only a cold and that she would be fine in a couple of days. She said that she would be in on Monday, but she would contact her doctor to get the all clear or be told to self-isolate. On Friday 12th February 2021 the Worker rang the MD at 5pm and informed him that she had spoken with her doctor who thought it was only a cold. She was instructed to ring the doctor again on Friday and if she was still sneezing or had sore throat, she would be asking her to self-isolate. The Worker rang the doctor on Friday morning, the doctor rang her back just before 5pm and the Worker told her that she was feeling fine. The MD replied that it was great news and the Worker said she would see him on Monday. The MD replied not to come on Monday as he was having a company meeting all day and she wouldn’t be needed. Later that evening the Worker checked her email and noticed an email from the MD. She thought it was odd that he never mentioned that he sent her an email an hour before they spoke on the phone. The email informed her that the Employer would hold a company meeting to discuss the impact of COVID on the business and that the MD would be in contact with her on Monday. On Monday 15th February 2021 the Worker received another email from the MD which informed her that due to downturn in business the Employer would have to let her go. The Worker submits that she was dumbfounded. She emailed the MD asking how could the Employer say the above when for months and only two weeks earlier the MD stated that he had loads of work for her to do. The Worker argues that the Employer unfairly dismissed her and the reason given for the dismissal is not valid. The Worker argues that she was dismissed a couple of days after ringing in sick. The Worker noted that if the Employer was affected by the downturn, it would not insist on her return to work on 2nd February and could have offered her to go back on the PUP until a later date. In response to the Employer’s assertion that the reference received from her previous employer was falsified, the Worker clarified that she had received the reference in mid-2019 when the relevant employment ceased and when the referee was still in employment with the relevant employer. |
Summary of Employer’s Case:
The Employer submits as follows: The Employer operates as a property developer and currently employs one person in accounts by way of part time contract of employment (Ms A). The Worker was employed as an Office Administrator from 8th September 2020 until her termination on 15th February 2021. This was a standalone role within the Employer. A copy of the Worker's contract of employment, signed and accepted and 10th September 2020, was exhibited at the hearing. The Worker was, at all times throughout her employment with the Employer, operating under the probationary period contained at clause iv) of her contract of employment, which provided that: "Probationary period: a probationary period of 6 months will apply..." In early January 2021, and in anticipation of further Covid-19 national containment measures, the option of remote working was considered by the Employer. Verbal discussions were held with the Employer as to this possibility and the Employer explained that the nature of its business did not facilitate this option. This was decided upon the basis that the Worker's role involved significant amounts of data in paper format which, if the Worker worked remotely, could lead to serious security exposure. The Worker was also informed of the requirement of her attendance on site to operate as skeleton staff, meeting couriers and accepting incoming post. On 6th January 2021, the Employer emailed the Worker in relation to the Government's Covid-19 lockdown announcement. The Employer advised that administrative and support activities were classified as essential services and that the Worker was permitted to travel to work to maintain the business operation. On 7th January 2021, the Worker informed the Employer that she had made a unilateral decision to "go on PUP for a couple of weeks". The Employer acknowledged the Worker's decision by email and advised her that their aim was to "keep the show on the road". It was agreed that the Worker would contact the Employer "in a couple of weeks" regarding her return to work. On 2nd February 2021, the Worker returned to work as an Office Administrator following her period of PUP absence. The Employer submits that the Worker returned to the workplace in an agitated state which impacted her work. On 3rd February 2021, the Employer met with the Worker to raise its concerns on an informal basis. A copy of the points raised during this informal meeting was exhibited at the hearing. On 11th February 2021, the Worker informed the Employer that she would not be attending the office due to a sudden illness. The Employer was suspicious of this absence as he had been contacted the day before by a delivery driver whom the Worker had notified of her intended absence. The Employer did not raise his suspicious with the Worker. On 12th February 2021, the Employer emailed the Worker enquiring as to her status of health. The Employer also informed the Worker that an internal meeting was scheduled for 15th February 2021 and that the agenda of which was to discuss the impact of the pandemic on its business. The Worker was advised that she would receive an update from the Employer following this meeting. On 15th February 2021, the Employer convened an internal meeting of its Directors and Advisors to assess the future viability of its business. During this meeting it was decided that immediate costs cutting measures were necessary in order to ensure its long-term survival. The Worker's stand-alone role was identified for redundancy by reason of last in first out selection. In circumstances where the statutory protections of the Unfair Dismissals Acts 1977 – 2015 did not apply to the Worker, a commercial decision was taken by the Employer to terminate her employment on this date and the Worker was notified of her termination by way of email. The Worker replied to this notice by way of email on the same date informing the Employer that she intended to file a complaint for unfair dismissal before the Workplace Relations Commission. The Worker also requested a copy of her contract of employment and an employment reference from the Employer on 15th February 2021. These were provided to the Worker in a timely manner, yet it is noted that the Worker took issue with the Employer's statement of employment. Noting the Worker's objections to the statement of employment furnished, the Employer referred to the original reference furnished by the Worker in her application for employment with the Employer. The Employer intended to use this former reference as a template and to comply with the Worker's request for a revised reference. However, upon further reflection the Employer noted that the original reference furnished by the Worker appeared to have been falsified. Acting on this suspicion, the Employer contacted the Worker's former employers who confirmed that the purported referee was not in fact employed by them at the time the reference was submitted on behalf the Worker. The Employer was shocked with this development but elected not to engage the Worker on this point as she was no longer in its employment. The Employer vehemently denies any allegation that the Worker was unfairly dismissed and that the reason for her termination was invalid or in any way associated with her period of uncertified medical absence. The Worker was at all times employed on probation and the protection of the Unfair Dismissals Acts 1977 – 2015 does not apply to the dismissal of an employee on probation. Section 3 of the Unfair Dismissals Acts: This Act shall not apply in relation to the dismissal of an employee during a period starting with the commencement of the employment when he is on probation or undergoing training.. ( a) if his contract of employment is in writing, the duration of the probation or training is 1 year or less and is specified in the contract. Upon this basis it is submitted that the Worker is not entitled to avail of the implied consultation obligations enjoyed by employees who meet the service requirements of the Unfair Dismissals Acts 1977 – 2015. The Employer submits that the Covid-19 lockdown measures implemented in January 2021 had a major and unintended impact on the viability of its business. Up until this date, the Employer had been unsuccessful in a number of tendered portfolios for distressed properties and all staff members were aware of the tentative nature of its business by way of regular business development meetings. The Employer was unable to acquire stock for its development company meaning its enterprise has ground to a complete stand still since January 2021. The Employer accepts it might be a prudent mark of a genuine redundancy that alternatives should be examined. However, the Employer was greatly influenced by the unprecedented lockdown measures introduced in January 2021 coupled with its diminishing business prospects. Since the Worker's termination, the Employer has continued to experience shortcomings and has not been successful in securing any new tenders or property stock for its business. The Worker's role has not been replaced and the Employer has not engaged any new staff members following her termination. Conclusion The Employer does not accept the Worker’s allegation of Unfair Dismissal as there is no such protections afforded under the Industrial Relations Act. In any event, the right to fair procedures cannot be implied during an employee's probationary period (O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37). The Worker has received all notice and outstanding annual leave payments due and owing to the Worker from her time in employment with the Employer. |
Findings and Conclusions:
I have carefully considered the submissions of the parties and I find as follows. While the parties spent considerable amount of time outlining the matters related to the Complainant’s illness in February 2021 and the allegedly false reference, it does not, in my view, have material bearing on the within recommendation. The Workers alleges that she was unfairly dismissed. The Employer argues that the dismissal was fair. While the Employer indicated in its submission some performance and trust issues, the Employer informed the hearing that the Worker’s dismissal was due to redundancy necessitated by the impact of Covid-19 on its business. The Respondent argued that the Worker was on probation and that there was no obligation on the Employer to adhere to fair procedures. In that regard, the Employer relied on O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37. I note that the Court of Appeal held in the cited case that if an employer has a contractual right to dismiss an employee on notice without giving any reason, the Court could not imply a term that the dismissal may only take place if fair procedures have been afforded to the employee. The Court pointed out that one exception to this is where the employee is dismissed for misconduct (in which case the principles of natural justice apply and fair procedures must be followed). In the within case, the contract of employment at point iv stipulates that: “Probationary period: a probationary period of 6 month will apply, with a review at the end of every two months during the probationary period.” The document further in point (xii) addresses a dismissal for “certain breaches of Company Rules”. I note that the Court of Appeal’s decision clearly establishes the right of an employer to dismiss an employee during their probation period without affording fair procedures, as long as an employer has a contractual right to terminate the employment during a probationary period on notice without giving any reason, it can do so. It appears that in the within case there was no such provision in the contract. In the absence of such provision and given the Employer’s submission that the dismissal was a redundancy situation, I find that the Employer was obliged to adhere to fair procedures in the redundancy process. I note that the Worker had less than 104 week’s service. While she was not entitled to statutory redundancy payment, in my view the Worker was still entitled to a fair process in respect of the selection for redundancy. I note that the Worker does not have the required 104 weeks of service required by Section 17 of the Redundancy Payments Acts. The Employer outlined to the hearing the financial difficulties it faced due to Covid-19. The Worker did not contest the Employer’s submission in that regard. The Employer as of the date of the hearing has not replaced the Worker. However, the Employer noted that the difficulties it’s facing are a direct result of the pandemic, which would suggest that they are of a temporary nature and perhaps will diminish with the country returning to some level of normality. I find that the manner in which the Complainant was dismissed fell short of best practice. While the Employer argued that the last in first out method was applied, it is clear that no advance consultation regarding the selection criteria were held. The Worker was unrepresented and there was no avenue of appeal available to her. There was no engagement with the Worker as regards alternatives which might exist. The Worker was not given the opportunity to consider and discuss whether there are any means of avoiding the redundancy. The Employer did not make any submission in respect of any possible alternatives considered. There was no submission made that either lay off or short-term working arrangements were considered. It was apparent that the Employer did not consider any of the government’s initiatives such as the PUP, the objective of which was to avoid redundancies and to maintain employer-employee relationship, and subsequently to allow employees return to work when the country opened up again. Having carefully considered the submissions of the parties I find that the decision to dismiss the Worker was rushed and lacking any resemblance of fair procedures. |
Recommendation (strictly pertaining only to the facts of this Dispute):
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the Employer pays the Worker compensation of €1,500. |
Dated: 08/09/2021
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Dismissal-redundancy- Industrial Relations Act |