Complainant

Respondent

Parties

Kathryn  O'Boyle

Temperature Controlled Pharmaceuticals Limited

Representatives

 Self 

Brendan McCarthy Stratis

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-00043354-001

01/04/2021

This case is concerned with a complaint of unfair dismissal where the fact of a dismissal is not in dispute.

The Complainant gave a detailed account of her circumstances in the complaint form. She gave evidence at the summarising the written statement and contesting aspects of the Respondents defence as factually incorrect.

The background to her complaint may be summarised as follows.

Ms O Boyle commenced employment with TCP Ltd as a Client Relationship Manager on commencing employment on 10/04/2019. The position was part time at a rate of pay of €30000 per annum plus a car allowance of €8000 per annum. She was engaged on successive written fixed term contracts between 10 April 2019 and 29 August 2020. The final written contract from 1 June 2020 to 29 August 2020 was for a full-time position where her salary increased to €60000. There was no further written contract issued for the period 30 August 2020 to the date of her dismissal. On 2 October she received an email from a Mr Duff whom she dealt with throughout her employment stating that she would revert to part time working with effect from 2 November 2020. On October 13th, 2020 she was informed on a teleconference that her employment would be ended on October 30th, 2020. On October 14th she received an email confirming the decision and informing her that the decision was made on the basis that her role would be performed in future by a person with a nursing qualification. That email also referred to her fixed term work status meaning that she would not be covered by the Unfair Dismissals Act.

In her evidence to the hearing, the Complainant stated that she agreed to cover the work of another person who had left the Company while they recruited a replacement. This was how she came to be working full time for some months on an increased salary. Mr Duff did ask her would she be interested in the full-time post, but she had indicated that she wanted to give time to her studies, but she was happy to work full time while they employed a new person. At all times she had an understanding with Mr Duff that she could revert to a part time role on a three-day week and she confirmed this with him when he asked her would she consider the full-time position on a permanent basis. She did understand that the position would be reviewed the following June-2021. The email of October 2nd confirmed her understanding when Mr Duff confirmed that she would be continuing in the employment on a three-day week and copying that email to HR and Finance to make the necessary arrangements regarding the contract and payroll.

At the hearing she heard the Respondent representative state that hers was a redundancy to which she relied that this (at the hearing) was the first she had heard of her being made redundant. At the time she asked for a copy of the job description and was refused-and was informed that she was not being made redundant. She pointed out that she had not received any written fixed term contract after August and was therefore working out of contract. If she were being made redundant then she was entitled to know how her work was to be done, to be consulted and to put forward an argument for her retention.

The Complainant spoke about the way in which she was treated by the then HR Manager at the time-a person she met for the first time at the meeting where she dismissed.

Redress by way of compensation was sought on the basis that Ms O Boyle secured full time employment in December 2021.

Regarding efforts to mitigate losses, the Complainant stated that she signed on as a job seeker and worked with a case officer to find alternative work as she was required to do. She undertook some training as a job seeker. She applied for positions of a customer client facing type as this was her entire training and working background. She wanted it noted that at the time she was dismissed Ireland was in a level 5 lockdown and customer facing roles were in short supply. She felt entitled to seek employment in her area of experience and training. In June 2021 having completed her studies she opened a business as an acupuncturist but that too was a difficult time due to Covid. She ran the business at a loss sometimes taking home €25. She started in full time employment in a customer client services role on 29 December 2021 at a salary of €55k.

The Respondent case as presented was very straightforward. Mr McCarthy contended that this was a redundancy. He acknowledged that the reason given for the dismissal at the time in relying on a fixed term contract was incorrect suggesting that the Company was badly advised at the time. The various sections of the Redundancy Payments Act were set out and he relied on Section 2(e) as follows:

The fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Mr Duff gave evidence that the Complainant was replaced by a qualified nurse and confirmed that the decision to terminate the Complainants contract on the basis of her fixed term status was based on their understanding that they were entitled to do so on that basis. He assumed that the Complainant had a written fixed term contract in October 2020, but he relied on others to complete the paperwork. He could not recall any discussion with the Complainant where he had repeatedly assured her that her part time role would continue after the full-time post was filled but that may have happened.

Mr McCarthy put it to the Complainant that she had in effect applied for only two positions prior to June 2021and confined herself to only one type of employment when looking for work apparat from setting up her business in June 2021. Case law under mitigation of losses were cited with reference to Section 7(2) of the UD Act and citing case law as precedents in support of the contention that a person who is dismissed must be able to demonstrate to high degree their efforts to secure alternative employment so as to mitigate their losses.

Given that dismissal as a fact is not in dispute-the decision to be made is whether that dismissal was or was not unfair. Rarely is making such a decision so simple as in this case. The Complaint was dismissed on one set of grounds i.e. that the Respondent did so because she was a fixed term employee and they believed they were entitled to do so by virtue of the fact that they concluded that her fixed term contract was due to expire. And now at the hearing they seek to rely on grounds which were never put to the Complainant at any stage prior the hearing.  As a matter of fact, that the Complainant was made redundant was expressly denied by the HR Manager at the time.

While the shift of the grounds to the redundancy ground could require an examination only under that ground, for the record it is necessary to address the grounds under which the Respondent relied on at the time, given that the Respondent also tried to include that ground in their submission. Withdrawing it as a ground on the one hand and leaving it hanging there on the other.

It could be said that the Complainant had a contract of employment to continue in the employment after October 30th, 2020 based on her conversations with Mr Duff when he asked her if she would apply for the full-time post. Having listened to the evidence of the Complainant and observed her demeanour allied with the careful and detailed inquiries she made to Mr Duff concerning her conditions as a full-time person, I am satisfied that this is a person who is careful in her dealings around detail in terms of contracts-perhaps she used to such detail in her client services role. The conclusion is therefore that this is a Complainant who would have carefully checked the implications of not applying for a role on a full-time basis, that is to say would she still have a job if she did not apply. In accepting the Complainants evidence in this regard, she had an verbal contract of employment after the full-time post was filled. This conclusion is supported by the email of October 2nd from Mr Duff where he confirmed to the Complainant that she would be continuing in the employment resuming her part time role from November 2nd. This is a new contract. One which has no end date or any other reason for termination nor is it described as a fixed term contract. The finding is that this was not a fixed term contract at all. The Complainant was confirmed as a part time employee with no end date or other specified reason providing for an end to that contract. References to the fixed term work act and related case law are therefore irrelevant.

The Respondent seeks to rely on a ground never put the Complainant and specifically denied to her at the time i.e. redundancy. In the circumstances it is not for the Adjudication Officer to revisit the dismissal and now determine whether or not this was a true redundancy. What has been presented is a dismissal without any procedures being followed of any kind. Called to a meeting and told she was dismissed and then informed the following day that she had no legal standing to bring a case for unfair dismissal. Hopefully the experience brought by  the current representative engaged by the Respondent and the outcome of this complaint will encourage the Respondent to inform themselves little better about an employee’s rights and an employer’s obligations under statute.

Kathryn O Boyle was unfairly dismissed by Temperature Controlled Pharmaceuticals Ltd.

Turning to the matter of redress, compensation is the form of redress sought by both parties. Given that the Complainant has secured new and better terms since December 2021in full time employment, the redress of compensation is the most appropriate one.

In calculating the loss to the Complainant, that loss is based on a rate of pay of €30000 and BIK of €8000 which was not her rate of pay at the time of dismissal but is the rate of pay she would have received if she were not dismissed and therefore represents the basis of her losses.  Given she received full pay on notice until November 10th that is the date on which her losses commenced. She also received an agreed payment of €2500 in BIK on termination. Much was made of the obligation on the Complainant to mitigate her losses as set out in Section 7(2)(c) of the Unfair Dismissals Act and that is part of the consideration in any case when deciding on compnesation- but it is worth noting that the obligation of the employee in section 7(2)(c) is one of six tests in that section and it is no more primary than any other.

Those other tests are set out below with a note related to the application of the subsection in this case:

(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,

Does not apply in the case of the Complainant

(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,

Does not apply in the case of the Complainant

(c)   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,

No procedure for dismissal including selection for redundancy followed by the Respondent contrary to S.I. 146 and fair procedures generally.

(d)   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

No copy of a procedure provided to the hearing – no evidence of compliance with Section 14.

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Does not apply in the case of the Complainant

It follows from the forgoing extract that in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) the right to fair procedures and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f)

It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent. It is easy to understand why the Complainant would feel that she was entitled to confine herself to areas of her proven expertise in searching for alternative work, but that is matter of choice for which the Respondent cannot be held wholly accountable by way of compensation. And it can be concluded that she decided to concentrate on her new business for around six months before seeking a role which could have mitigated her losses.  That said clearly Covid was a factor when searching for a senior role in a customer facing environment which involved widespread travel and indeed an acupuncturist business would have experienced the same difficulties

In all of the circumstances of the case I find that a sum of €15000 compensation is an appropriate amount.

CA-00043354 The complaint of unfair dismissal brought by the Complainant Kathleen O Boyle against the Respondent Temperature Controlled Pharmaceuticals Ltd is well founded. The Respondent is to pay the Complainant €15000 in compensation.

Dismissal/Redundancy /Fixed Term Contract