Complainant

Respondent

Parties

Danielle  Wolfe

Retro Clothing Limited

Representatives

Self-Represented

Mr. Andrew Whelan B.L. instructed by Ms. Kerrie Dunne, Collins Crowley Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00042079-001

20/01/2021

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

CA-00042079-002

20/01/2021

The Complainant commenced employment with the Respondent on 1st May 2018. The Complainant role was described as “sales assistant”, the Complainant was a permanent, part time employee. At the outset of the hearing the parties agreed that her average weekly wage was €374.00. The Complainant’s employment was terminated by the Respondent on 8th October 2020.    

On 20th January 2021, the Complainant referred two separate complaints under the Unfair Dismissals Acts to the Commission. Herein, she alleged that she was dismissed without cause and without adherence to any form of procedure. At the hearing of the matter, the representative for the Respondent submitted that much of the factual matrix presented by the Complainant was correct, however when consideration was given to the size and resources of the Respondent, the dismissal was fair for the purposes of the Act.

A hearing in relation to this matter was convened and finalised for 29th September 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

At the outset, the Complainant accepted that one of these complaints was the duplicate of the other, and the complaint bearing the reference number CA-00040279-002 was withdrawn. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

As the fact of dismissal was not in dispute, the Respondent presented their case first.

The managing director of the Respondent set out that she was engaged in the retail trade. She stated that she engaged two to three part-time employees at any one time. She advised that the restrictions arising from the Covid-19 pandemic were devasting to her business as it was based in the city centre and footfall had reduced significantly as a consequence of the same.

The manging director stated that she discovered that the Complainant intended to travel to Turkey about one week prior to the proposed journey. The managing director had concerns in relation to the same, but did not voice these with the Complainant as she did not feel that it was appropriate to do so. Whilst the Complainant was away, one of her colleagues approached her to express her concern regarding the Complainant travel and the possibility that she was in breach of the regulations in place at the time. The Complainant’s colleague also stated that she felt the Complainant was acting inappropriately in her messages with her regarding the issue.

Following the Complainant’s return the Managing Director spoke with her. She advised that as a consequence of the reduction of business on foot of the restrictions arising from the Covid-19 pandemic, she would unfortunately have to let her go. In correspondence following this conversation, the Complainant’s line manager informed the Complainant of the other issues that informed the decision, such as her international travel, issues regarding compliance with health and safety and the complaint raised by her colleague.

By submission the Respondent’s representative stated that the Respondent was a small employer with limited resources. He submitted that this should be taken in to account in assessing the Respondent’s actions at the time. While he accepted that the dismissal may not be procedurally sound, he submitted that the managing director was attempting to deal with the issue that had arisen as best she could. In particular, it should be noted that the managing director was at all times seeking to protect the health and safety of her employees during a challenging time.

The Complainant commenced employment on 1st May 2018, as a retail assistant. The Complainant stated that she got on well with management and other members of staff during her employment. In mid-2020, the Complainant began the process of arranging a trip abroad to facilitate a dental procedure. This trip was duly booked for the 15th to 22nd September. In advance of the same, the Complainant communicated with her colleagues to arrange cover for this period of annual leave. The Complainant stated that this was how annual leave had been arranged in the past.

Prior to this trip, one of the Complainant’s colleagues informed her of the international travel restrictions that were in place at the time. The Complainant stated that she was aware of the same and would have been fully compliant on her return pending a negative PCR test.

The Complainant advised that prior to her trip, she spoke with her line manger regarding the same. During this conversation, it was agreed that the Complainant’s line manager would state that she was traveling elsewhere on this trip in order to “keep the peace” with her colleague.

On the second day of the Complainant’s trip, her colleague messaged her to advise that the country she believed her to be in was now designated a “red zone”. The Complainant believed that her colleague was attempting to act as her manager and blocked all further communications with her for the remainder of her journey. On the Complainant’s return, she arranged a Covid-19 test to comply with her understanding of the rules regarding persons returning from international travel.  On 29th September, the Complainant’s line manager contacted her regarding her roster on her return.

On 7th October, the day prior to the Complainant’s return to work, her line manager requested a “clear the air” meeting the following morning. On that date the Complainant’s line manager stated the meeting would take place on Monday 12th October. On that date, the Complainant called her line manager to confirm the meeting was still going ahead. When her line manager confirmed that it was, the Complainant enquired as to why she hadn’t returned to work at that point. The Complainant’s line manger stated that the shop had become quiet and there were no hours for her. The Complainant asked if she was being dismissed, to which her line manager advised that she was. The Complainant requested that this dismissal be confirmed in writing.

When the Complainant received the correspondence, she was surprised to discover the she was dismissed as she failed to inform management of her trip abroad and that she refused to work in the shop without a face mask. This correspondence went on to state that she had engaged with bullying behaviour with her colleague, without particularising the same.

In summary, the Complainant submitted that she was dismissed without any form of procedure. She was not given an opportunity to defend herself against the serious issues set out in the letter of dismissal. She strongly contested the allegations set out in the correspondence and wished to clear her name of wrongdoing in relation to the same. In particular, the Complainant was adamant that her line manager was aware of, and approved, her international travel prior to the same. Finally, the Complainant submitted that the reason given for her dismissal during her call with her line manager was different to those set out in the letter of dismissal.

Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed….not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

a) “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…with the procedure…or with the provisions of any code of practice….”.

S.I. No. 146/2000, commonly referred to as the “Code of Practice on Grievance and Disciplinary Procedures”, sets out a basic procedure which a Respondent should follow prior to dismissing an employee. These include; putting the allegations to the Complainant in writing in advance of a hearing, allowing the Complainant the opportunity to properly defend herself at the hearing, permitting the appropriate right of representation, and allowing an internal appeal of any determination.

An employee’s right to such procedures, amongst others, was recently confirmed by the Supreme Court in the matter of McKelvey v Iarnród Éireann / Irish Rail [2019] IESC 79.

In the present case, it is clear that such procedures were not followed. While the letter of dismissal appears to confirm that the Complainant was dismissed on the grounds of misconduct, no formal investigation took place in relation to the same, the Complainant was not permitted the right of response to the allegations and no appeal was permitted.

Notwithstanding the same, the representative for the Respondent submitted that I should consider the size and resources of the Respondent prior to making any decision in relation to this matter. In this regard, I note the Respondent is a small organisation, with no formal management structure. I further note that the Respondent is organised quite casually, with staff arranging shifts between themselves. Nonetheless, the fact remains that the Respondent has responsibilities and obligations to its employees. All employees, regardless of the size and resources of their employer have a right to fair procedures prior to their dismissal. The rights and protections set out in S.I. No. 146/2000 and McKelvey apply to all employees and must be adhered to for a dismissal to be considered fair for the purposes of the present Act.

Having regard to the accumulation of the foregoing points, I find that the Complainant was unfairly dismissed and consequently her application succeeds.

CA-00040279-001

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses following her dismissal. In this regard, I note that the Complainant stated that she had difficulty finding work following her dismissal. She stated that her experience in this employment made seeking alterative employment difficult. I note that the Complainant did not provide any proof of applications for other roles or evidence of any description of her efforts to seek alternative employment.

In the circumstances, while I find that the Complainant was unfairly dismissed, I further find that she did not make sufficient efforts to mitigate her losses. In such circumstances I award the Complainant the sum of €3,700 in compensation.

Dismissal, Fair Procedures