ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035283
Parties:
| Complainant | Respondent |
Parties | Yvonne Devlin | Woodies DIY Limited |
Representatives | Self-represented | Fergus Dwyer, IBEC |
Complaint:
Act | Complaint 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-00043904-002 | 05/05/2021 |
Date of Adjudication Hearing: 08/04/2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint under the Minimum Notice and Terms of Employment Act 1973 was submitted to the WRC on May 5th 2021. Four months previously, on January 12th 2021, the complainant submitted complaints under the Unfair Dismissals Act 1977, the Payment of Wages Act 1991, the Terms of Employment (Information) Act 1994 and the Redundancy Payments Act 1969. I conducted a hearing on April 8th 2022, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to all the complaints. The earlier complaints have been adjudicated on under ADJ-00034820.
The complainant, Ms Devlin, represented herself at the hearing. Woodies DIY Limited was represented by Mr Fergus Dwyer of IBEC. Four executives from the company attended the hearing, Mr Keith Byrne and Ms Tanya Rochford, who are HR advisors, the head of HR, Mr David Nally and the manager of the Tallaght store, Mr Gary Nolan.
While the parties are named in this decision, from here on, I will refer to Ms Devlin as “the complainant” and to Woodies DIY Limited as “the respondent.”
Background:
The complainant commenced working for the respondent on March 25th 2011. From December 2018, she worked in the Tallaght branch as an administrator in the online store, the “E-Store,” working 39 hours a week. In 2020, she earned €23,700. In February 2021, she was informed that the E-Store was relocating to Drogheda and she was given an option of working in Drogheda or taking a job as a sales assistant in the Tallaght store. The job in the E-Store was a Monday to Friday role, whereas the sales assistant job was rostered for 78 hours over a fortnight, comprising days, one late evening a week and every second weekend. In March 2021, when the complainant submitted a grievance about the roster, the respondent decided to phase in the evenings and weekends over a period of 12 months. The complainant refused to accept the phasing proposal and on June 3rd, she refused to work the 12.00pm – 9.00pm shift. The disciplinary procedure was invoked and, despite repeated warnings, at a disciplinary meeting on July 13th, the complainant told the Head of HR that she would not work the evening shift. On July 30th 2021, she was dismissed without notice. She claims that she is entitled to notice. |
Summary of Complainant’s Case:
On her complaint form, the complainant said that she only got one week’s notice of the transfer of her job as an E-Store administrator. She also complains that, as she had more than 10 years of service with the respondent, she was entitled to statutory minimum notice of six weeks when she was dismissed. |
Summary of Respondent’s Case:
It is the respondent’s case that, as the complainant was dismissed for gross misconduct, in accordance with its disciplinary procedure, there is no entitlement to notice. |
Findings and Conclusions:
The issue of the communication around the transfer of the E-Store to Drogheda was addressed in the decisions under ADJ-00034820. That matter is not appropriate to an enquiry into a complaint under the Minimum Notice and Terms of Employment Act 1973. Section 8 of that Act provides that, “Nothing in this Act shall affect the right of any employer or employee to terminate a contract without notice because of misconduct by the other party.” It is well established in many decisions of the former Employment Appeals Tribunal and the Labour Court[1] that, an employee who is dismissed for gross misconduct is not entitled to notice, regardless of their length of service. I heard the evidence of the complainant in this case, and I accept that she was disheartened by how she was treated by her former employer; however, I find that she could have avoided dismissal if she had taken up one of the options presented to her by her managers to resolve her concerns about having to work the flexible roster. I find that, in accordance with section 8 of the Minimum Notice and Terms of Employment Act, and in accordance with the respondent’s disciplinary procedure, at the termination of her employment, the complainant was not entitled to notice. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I decide that this complaint is not well founded. |
Dated: 15th August 2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Minimum notice, gross misconduct |
[1] See James Morris v Sig Trading Ireland Limited, MDN222