Complainant

Respondent

Parties

Celine  McDonnell

Neylons Facility Management Limited

Representatives

Mackay Solicitors. Mr. Kevin D’Arcy, B.L

 Alastair Purdy & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041311-001

30/11/2020

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

CA-00041311-002

30/11/2020

The complainant submits that she was unfairly dismissed and was denied her statutory notice payments.

The complainant was employed with the respondent agency in the client’s nursing home since the 1 June 2014, initially to the position of chef and thereafter in October 2018, as head chef in the same client’s nursing home. She was dismissed on the 05/06/2020. 

She worked 40 hours a week. Her monthly salary was €2401.

She submitted her complaint to the WRC on 30 November 2020.

CA-00041311-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The respondent’s solicitor requested that the hearing would be adjourned until a face-to-face hearing was possible. The adjudicator decided to proceed as no prejudice arises for either party in a remote hearing.

The complainant submits that she was unfairly dismissed on the 5 June 2020.

The background to her dismissal is her demotion from her position as head chef on 16 January 2019. 

The complainant submitted a complaint concerning her demotion to the WRC in November 2019 under the Industrial Relations Acts, and LCR 22188 issued in February 2020.The complainant’s barrister states that the complainant was excluded from the benefit of LCR 22188 which stated that she was to be given the next available head chef ‘s position in a location within her geographical area and that she was to be reassigned to the Management Academy in April 2020 which offered  training  courses to employees of a certain grade and promise. These opportunities were withheld from her. The recommendation also stated that the mobility clause in her contract was exercised improperly and without fair procedures which led to the Court recommending a payment of €10,000 which was not implemented.

 Witness 1: Evidence of Complainant.

The witness gave evidence under affirmation.

The complainant commenced as a temporary chef in January 2014. She was very happy to be promoted to a permanent head chef’s position on 1 October 2018 and happier still to be enrolled in the Academy-training programme. She was responsible for the whole kitchen area.

Disciplinary proceedings were taken against the complainant because of an incident in the kitchen on Christmas Day 2018 when she witnessed a colleague take a drink from a bottle of cooking wine. There was no problem with the colleague, Ms. X, before the complainant left work. Nor did anybody mention anything untoward to her about the colleague’s behaviour before she left the premises on 25 December.

She was called to a disciplinary meeting on 6 January. It was not conducted in accordance with the staff handbook in that the required advance notice of the allegation was not given to her. Neither did the respondent inform her in advance of any possible sanctions or of the right of representation.

She was never told to whom she should report if the manager was absent. She never got that type of training. The witness stated that the respondent did not believe her when she told the HR manager that she did not notice that colleague X was intoxicated.

She was called to a further meeting on the 16 January 2019 where she was demoted from a head chef role and offered a more junior option in a neighbouring hospital at a reduced salary. Again, she received no notice of content, allegation, consequences of proven allegations, nor of her impending demotion prior to this meeting. The alternative job offered to her at that meeting would not have seen her in charge of any staff. Nor would she have had staff assisting her. She states she was punished for something which she did not do.

She received copies of witnesses’ statements but not CCTV footage of the Christmas Day incident.

She was taken out of the Academy training programme.

She was very stressed and hurt about the whole episode and had to take sick leave on 18 January 2019.

The respondent’s letter of 20 June 2019 stated that they would accept her request to activate the grievance procedure but only upon receipt of medical evidence attesting to her fitness to engage in such an exercise.

The offer of 22 November 2019 concerned a chef’s role, not a head chef role.

The offer of March 2020 was for the same chef roles as a result of the LC recommendation. This letter was sent directly to the witness and not to the solicitor who was representing her.

In order to make ends meet, the complainant worked in a job-sharing role from Feb 2020 in another nursing home in a temporary vacancy.

 The letter of 5 June 2020 was the last contact from the respondent.  It stated that she had abandoned her employment in the context of her failure to respond to their offer of 3 March 2020 setting out two assignments and a return to the Academy.

She had advised her solicitor that she would accept a head chef role. The respondent never contacted her to tell her that they had a head chef role. She advised the respondent on a number of occasions that she was unhappy at the prospect of being demoted to a chef.  The complainant stated that she would have returned had they offered her the role of head Chef. She had loved her job.

She confirmed that the respondent engaged with her concerning her workplace stress.

Cross examination of Witness.

The complainant confirmed that following a period of sick leave she was confirmed fit to resume work on 5 March 2019.The complainant understood the client’s instructions to the respondent not to return her to the Head Chef role. She accepted that where these circumstances obtain, the only options were redundancy or reassignment. The role to which she was to be reassigned was not on the same terms, she wasn’t going to be a head chef. The respondent did not offer her redundancy.

The witness confirmed that she met the respondent CEO on 13 August 2019. The complainant stated that she could not confirm if her earlier complaint to the WRC (subject of the February 2020 Labour Court recommendation) was submitted the day prior to this meeting and, therefore, before a decision could issue on the grievance. She stated that the matter had been going on for ages.

Concerning the offer of 22 November 2019 to take up either of two positions in other nursing homes, the role offered entailed shift work and 30 hours per week as opposed to the 40 hours in the client’s nursing home. She replied on 22 December by email to say that she would be happy to return to a head chef position in Institution 1 as an interim measure.

The complainant stated that it was not unreasonable to remain on sick leave given that she had been demoted as a punishment.

Concerning the offer of the 3 March 2020 to place her in the next available head chef position as per LCR 22188, she received that letter after she had taken up employment on 14 February. She did not tell the respondent that she had taken up employment elsewhere. She was struggling financially. Also, she did not respond to that offer of 3 March because she believed that they were being very dismissive of her.

The complainant states she cannot explain why she took a role elsewhere at lesser pay but declined the respondent’s offer of a chef’s position in either Institution 1 or 2 at a head chef’s rate of pay. The witness accepts that had the respondent a head chef’s role to offer her, they would have given it to her. She expected the respondent to retain her in employment. She stated that she did not think it was reasonable for the respondent to assume that she was not coming back; she had   loved her job.

She did not object to the termination letter of 5 June 2020 as she believed that the solicitors were in discussion about the issues.

The witness confirmed that she had agreed to the job description of 15 August 2015, on appointment which included the obligation to maintain a safe environment for residents.

The witness stated that she is aware of the respondent’s policy which strictly bans consumption of alcohol at work. She accepts that she was Ms. X’s line manager.

The witness states that she does not know if the head chef in another institution whom she believed planned to take maternity leave and into whose vacancy she wished to slot, actually had had a child.

The witness understood that she was being disciplined. She did not consume alcohol. The kitchen assistant reported to the witness.

Loss

The complainant’s total loss is €48,454 since 18 January 2019 and is continuing. Her loss since she took up the part time position on 14 February 2020 is €184 per week to date.

Mitigation

She did not apply for jobs as due to Covid -19, nursing homes were not recruiting at that time. She had been out of work for over a year. She is now in a part time position since 14 February 2020.

Conclusion.

The complainant’s barrister stated that contrary to the respondent’s statement, she did not abandon her employment. The respondent terminated her contract. She was dismissed. It was very unfair of the respondent not to inform the Labour Court or the solicitors that there were no head chef positions and that it was likely to remain so. The possibility of bringing the head chef from Institution 3 to the complainant’s nursing home and transferring the complainant to that resultant vacancy should have been considered

CA-00041311-001. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant is seeking her statutory notice.

CA-00041311-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The dismissal is contested. Therefore, the onus is on the complainant to demonstrate that she was unfairly dismissed.

The complainant refused to return to work as requested, failed and/or neglected to engage entirely and abandoned her employment. The complainant should be treated as having dismissed herself as she no longer intended to be bound by the contract itself.

The complainant was appointed to the role of head chef in the client’s nursing home on 1 October 2018.

On the 25 December 2018, whilst preparing to serve dinner at 11.30am, the kitchen assistant, Ms X, poured herself and the complainant a glass of wine.  The complainant toasted Ms. X. Her shift over, the complainant went home about 1pm, leaving Ms. X behind to finish the day’s tasks. Later that day at approximately 14.30pm, the complainant was informed that Ms. X could not be found anywhere though the afternoon tea was due to be served to the residents. It was later confirmed by a number of witness statements that Ms. X was apparently visibly drunk, unable to keep her eyes open and slurring her words.

Witness 2:  HR Manager’s evidence.

The witness gave evidence under oath.

The respondent provides a range of services to companies and in the instant case supplied staff to the client’s nursing home..

The complainant was assigned to work in the client’s nursing home. The respondent has no say if the client states that they do not require the complainant or an employee anymore. When that situation arises, the respondent attempts to get the employee assigned to another client on the same terms and condition. The respondent cannot create a role in a company; the client dictates their needs.

December 25 Incident.

The client advised the witness that a member of staff working alongside the complainant had been drunk at work. Consumption of alcohol is forbidden on the premises. The complainant was responsible for Ms X whom she had permitted to take alcohol. The complainant’s job description tasks her with responsibility for staff in the kitchen and when the manager is not present, she is responsible for the catering staff also.

Ms X was dismissed.

The client informed the respondent on the 7 January that they did not want the complainant to continue in the head chef role in the nursing home. The complainant did not admit that the kitchen assistant was intoxicated. She did not apologise for the incident.

Moving her out of the head chef’s role was not disciplinary action as the client is permitted to decide on such matters.  The respondent often moves employees around from one institution to another.

An investigation into the December 25th incident was conducted in January 2019. The complainant went on sick leave on 18 January 2019. The respondent organised an occupational health report on 6 February. She was offered the EAP. The respondent wanted her to be able to return to work.

The respondent offered her another relocation on 22 November 2019 with no loss of pay. The complainant responded on 22 December 2019 but by then the position had been filled.

She had wanted to cover a maternity leave vacancy in a head chef role in another institution. No such role existed. Had they had a head chef role, they would have offered her one. They intended to offer her the next available head chef role in Dublin. She rejected all their offers of a chef’s role. She failed to contact the witness and did not provide sick certs after July 2019.

The respondent complied with two of the LCR 22188 recommendations: on 3 March they offered her the next Academy option in April 2020 on her to return to work; they committed to offer her the next available head chef role in Dublin, but they received no response from the complainant, nor any contact since 22 December 2019.  They did not pay her the €10,000 as the complainant had not tried to stop Ms. X from drinking wine and had not apologised for the incident.  They were unaware that complainant had obtained another job in February 2020.

The witness stated that the respondent decided to terminate the complainant’s employment because she had abandoned her employment. The respondent gave her 2 months’ notice within which the complainant failed to respond to their letter. The respondent heard nothing further until they received the WRC complaint form in November 2020.

Cross examination of witness 2.

The client told the respondent verbally on the 7 January that they did not wish the complainant to return to the Head Chef role. She had not advised her manager in the nursing home of the inebriated state of her colleague, Ms. X. This eroded trust in the complainant.

The respondent did not activate the disciplinary procedure as it was the client who no longer wished to retain her in the head chef’s position. While the witness denies that the complainant was disciplined, she acknowledged that the complainant’s removal from the head chef’s role could be perceived as a disciplinary sanction by her colleagues.

As to why the complainant could not be offered the role of head chef in the Dublin area, there are only 2 such roles in the Dublin area.

The witness did not advise the catering manager before or after his email of 24 January informing the complainant that though she had taken a sip of wine on 25 December, and the respondent operated a zero-alcohol system, he would not dismiss her but would reassign her elsewhere.

In referring the complainant to occupational health in February, the respondent was trying to reduce the complainant’s stress and hesitated to send her back to the nursing home.

The witness stated that she cannot confirm if the complainant’s work-related stress was due to her movement out of the head chef’s role.

The witness stated that she could not disclose who actually made the decision to move the complainant until after the 6 February as they did not have the client’s permission to disclose this matter.

The witness sent CCTV   footage and the four witness statements to the complainant on the 5 March 2019.

In relation to assigning the complainant to the Academy, the witness received nothing from the complainant or her solicitor concerning the offer of March 2020. They offered her no further roles because of the absence of contact from the complainant after March 2020 until she lodged her complaint with the WRC in November 2020.

Not one head chef’s role arose in the period February 2019- November 2020.

The roles put to her offered the same terms and conditions. The complainant was replaced by a chef not a head chef.

The complainant’s contract allows for her reassignment to another venue.

The witness stated their company lost some contracts further reducing the possibility of the complainant being transferred into a head chef position.

Witness 3. Chief Executive Officer.

The witness gave evidence under oath.

The witness had asked the client to put their position concerning the complainant in writing to her.

The CEO is responsible for the training that is offered in the Academy. It is a training programme for employees who are performing well and have been with the respondent for several years. The complainant was removed from the Academy programme as the client believed that her work was not at the requisite high standard. Her removal was not seen as disciplinary action. Employees who have not attended the Academy have progressed in their careers with the respondent.

The witness held a meeting with the complainant on 13 August 2019 to decide on the next steps. It was a constructive positive meeting.  The following day they received a complaint form from the WRC about the removal of the complainant from the head chef’s position and submitted under the Industrial Relations Acts. She did not have an opportunity, therefore, to deal with her grievance.

Cross examination of the witness.

The witness stated that she could not identify the contractual provision which stated that the complainant’s continued assignment in the nursing home was dependant on the good will of the client. The witness was unable to show what contractual provision or what agreement existed between the respondent and the client which permits the client to decide on the dismissal of an employee of the respondent assigned to their nursing home. The witness also stated that she believes whatever agreement exists between them is confidential.

The witness stated that the contract between them and the client is often a difficult one. She tried to maintain the complainant in employment. The witness pleaded verbally with the client to retain the complainant. She did not write to them.

The witness stated that she had not read the Labour Court recommendation. The witness did not see her removal from the head chef’s role to be a sanction or a penalty.

The HR manager is entitled to move a complainant from one role to another. The client wrote in February 2019 to state that they did not wish the complainant to return at all.

The witness stated that the complainant did not make herself available to take on a chef’s role and her loss is her own responsibility. Her role of head chef no longer exists in the nursing home. Very few head chef positions exist– perhaps two in Dublin. It is not possible to predict the number of head chef positions that might come on stream as the respondent is not able to quantify the number of contracts which they will secure.

The respondent’s solicitor stated that had the respondent allowed the complainant to return on site they could have endangered their contract with the client.

The complainant in evidence stated that the respondent adopted a reasonable approach in its efforts to retain her in employment.

The complainant failed to return to work.

The onus is on both parties to engage.  The respondent’s solicitor did not receive the letter which the complainant’s solicitor states he sent on the 13 March 2020. The complainant did not explain why she would not accept a temporary chef position at the same rate of pay until a head chef position materialised. She failed to respond to the offer of the 13 March 2020.

It is the respondent’s position that she had no intention of returning to her employment with the respondent. She failed to meet the positive obligation to engage. She repudiated her contract.  Had she planned to return she would have so advised the respondent. The respondent’s solicitor relies on A dispatch and delivery supervisor v A specialist food company, ADJ 00005463, where the adjudicator held that that complainant had no intention of returning to work and was waiting for the respondent to dismiss him, a decision, he states, which is on all fours with the instant complaint.

Mitigation

The complainant presented no written evidence of efforts to mitigate her loss. She stated that there were no jobs available during Covid -19. The respondent refers to Dermot Lynch V  Murnev Limited Pita Pit Ireland, ADJ 31433 where the adjudicator did not accept that the existence of covid – 19 prevented that complainant from seeking alternative positions. The loss suffered is down to the complainant.

The respondent’s solicitor states that should the adjudicator decide that her absence without reason for twelve months, her  failure to engage with the respondent and her commencement in  alternative employment in February 2020, does not amount to  repudiation of the contract, but rather dismissal, her redress should be limited to four weeks salary as she took up a job at a lower rate of pay and thus did not mitigate the gap between the head chef’s salary and her current role.

CA-00041311-001. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant was not available to work her notice, did not work her notice and is therefore ineligible for statutory payments under the Act of 1973.

CA-00041311-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The dismissal is contested.

The complainant maintains that she was unfairly dismissed on the 5 June 2020 while the respondent maintains that she abandoned her employment, repudiated her contract and automatically dismissed herself.

It is necessary to consider the background as to how this complaint came to be framed in the manner which it has.

The complainant was removed from her head chef role in January 2019, was offered and rejected the more junior position of chef in another of two nursing homes on the same salary. The respondent maintains that this reassignment was not a disciplinary sanction as their client – the nursing home in which the complainant was employed -did not want her to return after what they claimed was her failure to prevent a colleague from   drinking alcohol on 25 December 2018. I accept that this unilateral removal from the position of head chef was a disciplinary sanction, carried out with absolute disregard for fair procedures. It was the respondent’s client who suggested it, but the respondent assumed responsibility for putting the client’s wishes into effect.  To characterise it as a mere reassignment is not accurate- witness the statements of the catering manager’s email of 24 January 2019 referring to how her conduct on 25 December 2018 was in breach of the respondent’s policy on alcohol consumption, amounted to a breach which warranted the activation of the disciplinary policy and while dismissal was not to be considered, the catering manager decided that she could not resume the role of head chef in the client’s nursing home. The complainant, understandably aggrieved, referred the conduct of the respondent to the Labour Court in November 2020. A Labour Court recommendation, (LCR 22188) issued in February 2020 which recommended a payment of €10,000, a transfer back to the next available head chef’s position in Dublin and a return to the training Academy in April 2020. On 3 March 2020 the respondent committed to implement the second and third recommendation. This letter crossed with a letter which the complainant’s solicitor states was sent on the 13 March, seeking implementation details, and which the respondent’s solicitor states was not received and there the matter ran aground. But these incidents while the almost exclusive focus of the complainant did not constitute a dismissal more especially as the complaint is one of unfair dismissal and not one of constructive dismissal.

The respondent’s position crystallised on the 5 June 2020 when they sent a letter advising the complainant that she had abandoned her employment. Both parties submit that this is the date of dismissal.

Repudiation or dismissal?

Repudiation can be viewed as is an unwillingness or inability to fulfil one’s contractual duties.

The terms of the complainant’s contract contained a mobility clause. As stated, I accept that its activation was a disciplinary sanction, conducted without regard to fair procedure.

In making the case that the complainant repudiated her contract, the respondent relies on A Dispatch and Delivery Supervisor v A Specialist Food Company, ADJ 00005463, where the adjudicator held that that complainant, having no intention of returning to work, had, thus, repudiated his contract and was waiting for the respondent to dismiss him. The respondent asks that I accept that the circumstances of the instant case match exactly those found in the decision. In coming to her decision, the adjudicator considered the authorities underpinning the concept of repudiation. She was guided by the decision of the UK Court of Appeal in Eminence Property Development Limited v Heany [2010] EWCA Civ 1168, where Lord Justice Etherton set out the legal test in respect of repudiatory conduct:

“1. Whether looking at the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.

2. Whether or not there has been a repudiatory breach is highly fact sensitive. That is why comparison with other cases is of limited value.

3. All the circumstances must be taken into account insofar as they bear on an objective assessment of the intention of the contract breaker. This means that motive, whilst irrelevant if relied upon solely to show the subjective intention of the contract breaker, may be relevant if it is something or it reflects something of which the innocent party was, or a reasonable person in his or her position would have been aware and throws light on the way the alleged repudiatory act would be viewed by such a reasonable person.

4. Although the test for repudiatory act is simply stated, its application to the facts of a particular case may not always be easy to apply.”

The adjudicator found that the complainant’s absence for over a year on sick leave, with no indication of a return, despite an occupational health report attesting to his fitness, with no suggestions as to how his return could be facilitated and with scant engagement with the respondent’s notification to him of the precariousness of his position met the first limb of the test set out in the Eminence decision and that the complainant had no intention of resuming his employment. She found that he had repudiated his contract.

Applying these elements of the test to the instant case and given the acknowledgement that “Whether or not there has been a repudiatory breach is highly fact-sensitive”, I find that the circumstances of the instant case differ somewhat from the Eminence decision. The evidence does not suggest that the complainant in the instant case was waiting for the respondent to dismiss her. The complainant’s almost entire focus was on challenging the demotion and securing a return to the head chef’s role and a return to the Academy. Hence her referral of her complaint in November 2019 to the Labour Court. Until December 2019, she made her requirements clear, unlike the complainant in A Dispatch and Delivery Supervisor.

I must decide if she repudiated the contract, and if so, was the respondent therefore entitled to bring the contract to an end.

I do not accept that her protracted holding out for a reinstatement to a head chef’s position, punctuated by sporadic exchanges, as opposed to accepting an interim assignment to a chef’s role while awaiting the arrival of a head chef’s position was a resignation.

However, the unavoidable fact is that the complainant chose not to return to work and take up the offer of a chef’s role at the same rate of pay after the respondent initiated medical examination declared her fit to resume work at the end of July 2019.The complainant  rejected the offers of alternative employment on four occasions: in January 2019 when she was offered a move to another facility as chef on 16 January, or to her existing nursing home as kitchen assistant or dining room assistant, on lesser pay, but not as head chef; in February to another facility as a chef ; on 22 November 2019 to another facility with no loss of pay; she  ignored the offer of March 2020, and chose to remain absent from work without any medical certification from the end of July 2019 until May  2020. Her evidence was that she thought that it was legitimate to engage in a stand-off where the respondent had failed to assign her to a head chef’s role and return her to the Academy. But I do not consider that the absence of agreement on these points was a sufficient justification to refuse to return to work after the offer of a position in November 2019 and March 2020. Her complaint to the WRC could have proceeded with her being in work until the delivery of the Labour Court recommendation, even in the context of spasmodic attempts by the respondent to engage with the complainant.

The delay in the activation of the grievance procedure was down to shadow boxing on the part of the respondent, failing to set up a meeting for weeks with the respondent looking for medical confirmation that she was fit to engage in a grievance process.

While returning to work may have been difficult given that her demotion lay unresolved, that is not sufficient justification to disengage or withdraw from your obligation to fulfil the term of your contract which did allow the respondent to reassign you. Her failure to fulfil her contractual duties by accepting as an interim measure employment on a chef’s role on a head chef’s salary was the repudiatory act. The next step is to consider whether this act means the complainant dismissed herself.

Automatic or Elective dismissal

The respondent asks me to accept that the repudiatory act means that the complainant should be treated as having dismissed herself and that the respondent, therefore, is discharged of any obligation to meet a complaint of an unfair dismissal. In making this argument, the respondent refers to the analysis of Desmond Ryan in Redmond on Employment Law, 3rd Edition by Desmond Ryan [6.01-03], where the question is posed as to whether a repudiatory act such as walking away by an employee automatically severs the employment relationship or whether some further act or ‘election’ is required of the employer ( the injured party) to  terminate the relationship. The respondent’s solicitor maintains that it is not possible to conclude that the dismissal in the instant case was other than automatic as unlike in the A Dispatch and Delivery Supervisor, where the adjudicator found that the employer elected to dismiss that complainant who, on notice that dismissal was probable, resisted the efforts to dismiss him and continued to engage. However, as the complainant in the instant case was not on notice of a likely dismissal, the absence of a parallel level of engagement is of little significance. The letter of 3 March told her of the respondent’s commitment to implement two of the Labour Court recommendations and until that was possible renewed their offer of a chef’s role in another nursing home. They asked the complainant to provide a response.

The next communication from the respondent was the 5 June letter stating that she had abandoned her employment. There is a conflict about the sending and receipt of a letter of 13 March from the complainant’s solicitor where the solicitor, unaware of the offer of 3 March, sent to the complainant, but not to him, sought details as to when the Labour Court recommendations would be implemented.

While the respondent’s solicitor disputes the dismissal, the HR manager in evidence stated, the respondent decided to terminate the complainant’s employment because she had failed to engage and had abandoned her employment. The respondent’s claim of having given her 2 months’ notice is not evident in any of the letters submitted.  The respondent heard nothing further until they received the WRC complaint form in November 2020.

Notwithstanding the ambivalent nature of the letter of 5 June 2020 which invited her to submit queries if she had any, the respondent HR Manager was clear in her direct evidence that the respondent was terminating the complainant’s employment.

I therefore do not find that the complainant automatically dismissed herself. I find that the respondent elected to dismiss the complainant in response to her continued decision to absent herself from the workplace. Therefore, the onus rests with the respondent to prove that the dismissal was not unfair.

Was the dismissal unfair?

Conduct of the respondent in effecting the dismissal.

Relevant Law.

Section 6(7) of the 1977 Act as amended states

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to 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 section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

The respondent did not engage in repeated attempts to clarify the complainant’s position, warn her of a possible dismissal, give her an opportunity to disabuse them of any misconceptions which they may have been harbouring about her intentions, or give her an opportunity to change her mind in contrast to the circumstances prevailing in A Dispatch and Delivery Supervisor which found that the dismissal was not unfair. That respondent clearly indicated to the complainant that his continued unjustified absence could lead to his dismissal.  He was on notice of the consequences of his disengagement. This complainant was not. In the instant case, the letter of 5 June constituted a simultaneous acknowledgement of the repudiation and notification of dismissal. There was no prior acknowledgement of a repudiation, no warning that failure to take up the offer of a chef’s position could lead to her dismissal. There was no meeting convened at which she could have challenged this consequence with the benefit of assistance.  I find the respondent’s own disciplinary procedure was ignored. A general statement that she could contact the respondent HR Manager should she have any enquiries is not a notification of an appeal. I find that the obligation to observe the principles of natural justice as set out in S1 146/2000 was ignored.

Having regard to Section 6(7) of the 1977 Act as amended, I therefore find the dismissal of the complainant was unfair.

Redress.

The complainant’s preferred remedy is compensation.

Section 7 (2)(C) of the Unfair Dismissals Acts states

‘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—

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”.

The complainant secured a part time position in another nursing home on 14 February 2020 earning a gross weekly income of €405 which represents a gross, weekly difference of €184 with her salary as a head chef. Her gross loss from her dismissal on the 5 June 2020 to December 2021 amounted to €13,947. The complainant produced no written evidence of applications for full time jobs or head chef positions from the date of her dismissal on 5 June 2020 until December 2021.

The respondent argues that section 7(ii) of the Acts should apply (an amount not exceeding four weeks remuneration) as the complainant failed to mitigate the gap between her current earnings and her head chef’s salary – an option offered to her by the respondent. I do not find that this provision applies as following her dismissal on the 5 June, the head chef’s role was no longer available to her.

 The Labour Court set out the test for proof of efforts to mitigate one’s loss in the decision of Philip Smyth V Mark Leddy, UDD1974 as follows:

“The Court expects 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. In the instant case no such evidence was produced, and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

While it is the case that the pandemic restricted the number of available positions, the complaint has not met the test set out in the decision of Philip Smyth V Mark Leddy.

I do not find that the complainant made sufficient efforts to mitigate her loss, and this must be reflected in the redress to be awarded to the complainant.

 I decide that the respondent should pay the complainant the sum of €4652 in redress, a sum which I believe to be just and equitable in all of the circumstances.

CA-00041311-001. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The second schedule to the Minimum Notice and Terms of Employment Act, 4 states

 “An employer shall not be liable to pay to his employee any sum under paragraph 3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3.

The complainant took up employment with another employer on 14 February 2020 and was therefore unable to work her notice.

I do not find this complaint to be well founded.

CA-00041311-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I find this complaint to be well founded. I decide that the respondent should pay the complainant the sum of €4652 in redress.

CA-00041311-001. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

I do not find this complaint to be well founded.

Repudiation of contract; unfair dismissal; absence of fair procedures.