Complainant

Respondent

Parties

Sarah-Louise  Grattan

Westend Music Ltd

Representatives

Shonagh Byrne SIPTU

Ruairi Guckian GHR Consulting

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-00032828-001

10/12/2019

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

CA-00032828-002

10/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032828-003

10/12/2019

The complainant was employed as a waitress with the respondent.  She worked on average a 30-hour week and was paid €10.50 per hour.  The complainant believes that she was dismissed without notice or pay in lieu of notice and that she did not receive a statement in writing of her terms and conditions of employment.  The respondent denies that the complainant was dismissed but that as a request for three weeks of annual leave was refused she did not turn up for her rostered shifts and she was deemed to have resigned.  The complainant submitted her complaints to the Workplace Relations Commission on 12/10/2019.

The complainant commenced employment with the respondent on 27/07/2018.  She was employed as a waitress.  She took some time off to work in the USA in June 2019 and returned to work with the respondent in August 2019.  She did not resign or leave and was not issued with a P45.  Her manager (Mr B) agreed to her request and he contacted her on her return to see what shifts she was available for.  In November 2019 she spoke to her manager about the inconsistencies in the hours she was been given.  She advised that the General Manager (Mr M) was now doing the rosters at that time.  Mr B advised her that she could not be guaranteed hours.  The complainant in evidence said that the company she worked for in the USA in June/July 2019 had offered her some weeks work at Christmas and also offered to pay her flights.  She asked her manager, on an informal basis, if she would be facilitated with time off as this USA offer would be worthwhile in comparison to the hours the respondent was offering.

On 23/11/2019 two supervisors became aware that she was to be dismissed.  One of these was a friend of hers and told her what they had learned.  The following day her manager (Mr B) asked her to meet him in another bar and told her that she was to be dismissed.  The complainant said that this was an instruction given to Mr B by Mr M and it “was point 5 of a 13-point message” to the manager.  On 25/11/2019 the complainant sent an e mail to the payroll administrator seeking details in relation to her dismissal.  She became aware that details of this e mail were made known to some members of staff following a meeting on 25/11/2019.  Her manager (Mr B) met her in a local hotel to have an “off record” conversation with her.  He informed her that she would be allowed work a notice period, but she clarified that she had not given the respondent any notice.  There were a number of text and e mails exchanged after this.  On 03/12/2019 she received a message from Mr M to say that there was a miscommunication and she was not dismissed.  The complainant found this at odds with the fact that her manager had told her that her shifts were covered for the week-ending 01/12/2019 and she was not on the roster for the following week.  In addition to this she was removed from the group chat sharing platform which was used to distribute the roster.

The complainant confirmed that when her employment was terminated she was only paid for the hours she worked and did not receive any pay in lieu of notice.  The complainant also confirmed that she never received a contract of employment or any written details in relation to her terms and conditions of employment.

Following her dismissal, the complainant got some shifts in another bar before moving to the USA to take up the offer she received.  On her return she made a number of attempts to obtain work but did not do so until August 2020.  The complainant confirmed that she is still a student and attends some lectures remotely and also attends college two days per week.

During cross examination the complainant confirmed that she was on friendly terms with her Manager, Mr B.  She denied that she resigned on the 02/06/2019 and turned up on 19/08/2019 looking for work. Mr B was in contact with her on 13/08/2019 and confirmed that she would have shifts from 19/08/2019.  She confirmed that she requested and was granted a pay increase when she resumed work.  The complainant confirmed that she had requested three weeks off at Christmas, but this was “not set in stone”.  The complainant confirmed that she was told about the decision to dismiss her by the two supervisors who confirmed to her that they saw the content of the text message send to Mr B by Mr M.

The respondent operates a long-established bar and restaurant. The complainant commenced working with them on 27/07/2018.  She was employed as a waitress and was paid €10.50 per hour and worked an average of 30 hours per week.  The complainant resigned from her position on 02/06/2019 as she was moving to the USA to work in a bar there for the summer period.  She was processed as a leaver and received a final payment on 02/06/2019.  On her return to Ireland she requested to work again with the respondent.  This request was granted, and she commenced employment on 19/08/2019.  On 21/11/2019 the complainant asked to take four weeks leave during the month of December.  This was refused as this was one of the busiest times of the year in the business.  She was told of this decision on 24/11/2019 and it was explained that this was in line with the respondent’s Time Off Policy.  The respondent sent a e mail to the respondent’s payroll administrator which had a title of “Termination of Employment” and stating that her employment was terminated “as of Sunday 24th November”.  The Office Manager made a number of attempts to contact the complainant as she was still on the roster to work that week and they needed to organise alternative cover if she was not returning.  The Office Manager concluded that she was not returning to work and asked the payroll administrator to process the complainant as a leaver and pay any outstanding leave owed.  This was done on 28/11/2019.

It was submitted on behalf of the respondent that the complainant did not have the continuity of service at the date of the alleged unfair dismissal to bring a claim for unfair dismissal as she had been working for just three months.  The Unfair Dismissals Act, Section 2(1) states that the Act shall not apply in relation to any of the following persons: “(a) an employee (other than a person referred to in Section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in Section 6(2) (f) of this Act”.

In relation to the complainant’s request for annual leave the respondent’s annual leave policy states “Notice will be deemed to be given when your manager confirms the request in writing.  All annual leave requests are at the discretion of management”.

The respondent submits that if the complainant was offended by the refusal to grant annual leave at one of the busiest times of the year she had the option to lodge a grievance.  This would allow the respondent to review the decision in line with its grievance policy.

It is the respondent’s position that no dismissal took place and therefore the claim under Section 12 of Minimum Notice and Terms of Employment Act, 1977 is also invalid.  The respondent submits that the complainant decided that she was dismissed because her request for annual leave was declined.  The complainant was still rostered to work the following week and no dismissal took place. The complainant did not turn up for work.

The respondent accepts that the complaint under Section 7 of the Terms of Employment (Information) Act, 1994 is valid and not contested.

The respondent also confirmed that the Manager, Mr B, also left his employment shortly after the complainant at the end of 2019. 

CA-00032828-001:  Unfair Dismissal:

I have considered the evidence of the parties at the hearing and also reviewed the written submissions.  The respondent submits that the complainant does not have the requisite service to bring a claim for unfair dismissal.  This position is based on the respondent’s view that the complainant commenced working with them on 27/07/2018 and resigned on 02/06/2019 [10 months and 6 days].  She was subsequently employed on her return from the USA with effect from 19/08/2019 until her employment ended on 24/11/2019 [3 months and 5 days]. At the hearing the respondent did not have any evidence that the complainant having submitted a letter of resignation or any evidence of having issued the complainant with any documentation in relation to a resignation at that time.  The complainant confirmed that she did not resign, did not receive any P45 or any documentation.  Her understanding was that she took leave to take up an opportunity in the USA and resume work with the respondent when she returned.  The facts of this case confirm that understanding and I therefore find that the complainant was continuously employed by the respondent from 27/07/2018 until 24/11/2019 [1 year, 3 months and 28 days].  Given this finding I find that the complainant had the required service to bring a claim under the Unfair Dismissals Act, 1977.

The Unfair Dismissals Act, 1977 provides that ““dismissal”, in relation to an employee means (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee”.  As submitted by the respondent there is a doubt as to dismissal.  An objective test has been applied by the various employment fora, and particularly as set out in Devaney v DNT Distribution Company Ltd UD412/1993, being “… what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention”.

The background to this case is important.  The complainant felt that her hours were reduced and when her allocated shifts over the Christmas period were considered she explored the possibility of taking some time off to take up the better offer of work in the USA.  When this was refused she was informed by supervisory colleagues that they became aware of the instruction of the General Manager, Mr M, to the complainant’s manager that she was to be dismissed.  Events proved that this information was correct.

Based on the evidence presented I am satisfied that a reasonable employee in the complainant’s position would have understood himself/herself to have been dismissed in all the circumstances.  Specifically, I accept that the former manager, who the complainant confirmed was on friendly terms with her, would not have told her that she was dismissed without having the required authorisation to do so.  It is significant that this manager subsequently met the complainant on 26/11/2019 to express his regret at having to tell her she was dismissed and to confirm that she could “work her notice” despite the fact that the complainant was clear that she did not give any notice.  The communication from the General Manager, Mr M, to the complainant on 03/12/2019 is very significant.  He confirmed that she was not dismissed but made a reference to the fact that there was “miscommunication”.  The complainant in her evidence was clear that there was no miscommunication in relation to what she was told by Mr C and when he was asked by her to formally tell her he did so.  It is also relevant that the complainant was told by Mr C that her shifts for the week-ending 03/12/2019 were covered.  However, she was removed from the messaging platform which provided roster details.  She became aware from former colleagues that she was not subsequently rostered.  Whatever words were exchanged between the complainant’s manager, Mr B, and the complainant, there is no doubt that the complainant believed that she was dismissed.  Her prior awareness of the contents of the text message from the General Manager, Mr M and her Manager, Mr C, were confirmed by Mr C at the meeting on 24/11/2019. The meeting between the complainant and Mr C on 24/11/2019 could never be construed as being anything other than a clear and unequivocal declaration of dismissal.

In view of these findings I find that the complainant was unfairly dismissed within the meaning of the 1977 Act.   

I must now look at the matter of redress and mitigation of loss by the complainant

Section 7 (2) of the Act deals with compensation and mitigation of loss.

(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,

(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,

(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,

(d) 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 by the Minister,

(e) the extent any) of the compliance or failure to comply by the employer, relation to the employee, with the said section 14, and

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

(3) In this Section –

“financial loss” in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu or in addition to pay.”

The complainant submitted that she is seeking compensation for unfair dismissal. It is incumbent upon the complainant to give plausible evidence on mitigation of loss. She confirmed that she left her CV with some potential employers and had limited interviews.  While she made some efforts to mitigate his loss I am not satisfied that she approached this with the resolve that is set out in the case of the Employment Appeals Tribunal v Continental Administration Co Ltd (UD858/199) where it stated: “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.  The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”  I accept that the Covid-19 pandemic creates difficulties in seeking employment in the hospitality sector, but I do not accept that it is not a barrier to a complainant seeking to mitigate her loss.

The complainant has not provided documentary evidence which would provide details of the part time work obtained or other employment which was obtained.  I am satisfied, on the balance of probabilities, that the complainant has made limited efforts to mitigate her loss as she was also a full-time student.   

Having taken all matters into account I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts.  Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Act is well founded and I award her compensation of €1,260.

CA-00032828-002: Terms and Conditions of Employment:

In view of my finding that the complainant was unfairly dismissed it follows that she was entitled to pay in lieu of notice.  The respondent confirmed that there was no issue in relation to misconduct on the part of the complainant.  I find that the complainant is entitled to a payment of one week’s pay in lieu of notice and I find that this complaint is well founded.  I award her the sum of €315.00

CA-00032828-003: Terms and Conditions of Employment: This is a complaint pursuant to the Terms of Employment (Information) Act, 1994.   The complainant submits that she did not receive a document which complies with Section 3 of the Act.  Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

“(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’ s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’ s employment, that is to say: 

(a) the full names of the employer and the employee; 

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014); 

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; 

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000; 

(e) the number of hours which the employer reasonably expects the employee to work — 

(i) per normal working day, and 

(ii) per normal working week”.

Section 3 of the Terms of Employment (Information) Act 1994 provides for further details to be given to an employee not later than two months after the commencement of the employee’s employment.  These are not relevant to this case.

The Terms of Employment (information) Act, 1994 implements an EU directive and applies to all persons working under a contract of employment or apprenticeship (whether on a fulltime or part time basis).  It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said statement of terms.  The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the statement of terms.

The respondent’s representative confirmed at the hearing that they accepted that they did not provide the required information to the complainant. As there is an onus on the respondent to provide a signed and dated copy of such a document and to retain such a document for at least a year after the employment ends I find that there was a contravention of the Act during the relevant period.  In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.  I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.2 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should be applied.  I therefore order that the respondent pay the complainant the sum of €630.00 representing two week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00032828-001: I find that this complaint is well founded, and I award the complainant the sum of €1,260.

CA-00032828-002: I find that this complaint is well founded, and I award the complainant the sum of €315.00

CA-00032828-003: I find that this complaint is well founded, and I award the complainant the sum of €630.00.

Unfair dismissal. Terms and conditions of employment. Minimum notice.