Complainant

Respondent

Parties

Joanna  Hibner

Jolanta Jankausiene t/a Joelle's Dressmaking

Representatives

Aidan Leahy John M Joy Solicitors

Sinead Ivory  Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039060-001

06/08/2020

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

CA-00039060-002

06/08/2020

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

CA-00039060-003

06/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00039060-004

06/08/2020

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

CA-00039060-005

06/08/2020

The complainant was employed as a tailor with the respondent.  She commenced working for the respondent in June 2014 and the employment relationship was put on a formal footing on 11/07/2016.  She was paid €792.00 gross per fortnight and worked 36 hours per week.  On 14/03/2020 she was informed by the respondent that the shop was closing and that her P45 was with Revenue.  There was no further contact between the parties and the complainant submitted her complaints to the Workplace Relations Commission on 06/08/2020.

The complainant is a qualified tailor, and she began working for the respondent in June 2014.  She worked 30 weeks during that year.  Her working day commenced at 9.30am and continued until 5.30pm.  She worked alone in the shop. She did not get any breaks and could only take a lunch break on the premises as the shop did not close.  She did not receive any details of her terms and conditions of employment.  On 27/03/2020 she was sent her payslip and told by text message that her P45 was with Revenue and that the shop was now closed.  There was no further contact from the respondent since that time.

The complainant gave evidence in relation to her hours of work.  She was not aware that she could take breaks when she wanted as the respondent had installed CCTV and used this to pay her for the hours she was in the shop.  She was the only person working in the shop in 2020.  Under cross examination the complainant confirmed that she was allowed attend appointments or attend to personal matters.  However, this was only possible if she phoned the respondent in advance to advise her of these.  These occasions were very rate.  It was put to the complainant that she was allowed to have lunch or other breaks and she confirmed that she had.  She also agreed that she had a choice in relation to the taking of breaks.  The complainant confirmed that she was paid for every hour she worked.

It was submitted on behalf of the respondent that there were no issues with the complainant and that she was paid for all her hours and also paid holiday pay.  The respondent operated a very flexible approach with the complainant and her hours of work were aligned to enable her to take on another part time position.

The respondent is a sole trader and operated two clothing alteration shops.  The complainant was employed in one of those shops.  There were initially two employees and in later years only the complainant employed there.   She was responsible for all matters relating to the opening and closing and was trusted by the respondent to manage the cash sales.  The respondent operated a very flexible approach with the complainant.  She was facilitated to take time off for any personal appointments or other matters and was also facilitated to do some private work for family and friends while on the premises.  The complainant was issued with a contract of employment dated 11/07/2016 and this was signed by the complainant.

The respondent submits that the complainant could take her breaks at any time she wished during the working day.  It was up to her and if she wanted to close the shop while on lunch there was no difficulty with this. 

The business was not doing well and when the COVID-19 restrictions came into force she had no option but to close the shop.  As she had no visibility in relation to when the restrictions would be eased or removed, she could not offer any reassurance to the complainant about reopening, so she ended the employment. 

It was submitted on behalf of the respondent that the complainant was given two weeks’ notice by phone.  She was informed that the reason for the closure was due to COVID-19.  The business was struggling from day one.  The complainant’s pay and P45 were prepared by a chartered accountant on behalf of the respondent. 

The respondent did not provide any evidence but was happy to respond to any questions from the complaint or her representative.  The respondent agreed that the complainant worked between the hours of 9.30am to 5.30pm.  She also confirmed that the complainant was free to take breaks when she wished, and it was her expectation that she would do this when the shop was not busy.  If the complainant wished to take a bathroom break, she could use a sign for the door saying that it was closed for 10 mins.  She could also have used a sign to say that she was on lunch break.

In relation to the closure of the business the respondent confirmed that she was left with no choice due to the restrictions imposed by the Government as a result of COVID-19.  She closed both her shops.  The respondent confirmed that the complainant was notified of the closure by text message which was sent by her.  The respondent confirmed that the landlord agreed to freeze the rent in the premised where the complainant worked.  The respondent said that she intended to reopen the shop when the crisis is over and work there herself.

The respondent confirmed that the chartered accountant paid the complainant for any holidays due.  The respondent also confirmed that she maintained records in relation to the complainant’s hours and holidays and undertook to provide a copy of those to the WRC and the complainant’s representative along with a copy of the contract of employment after the hearing.

There was a total of five complaints submitted by the complainant to the WRC on 06/08/2020.

CA-00039050-001:  This is a complaint in relation to the hours of work and seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1977. This act outlines the breaks which an employee is entitled to.  These can be easily summarised as follows: 

·       A daily rest period of 11 consecutive hours per 24-hour period

·       A weekly rest period of 24 consecutive hours per seven days, following a daily rest period

·       A 15-minute break where more than 41.5 hours have been worked

·       A 30-minute break where more than 6 hours have been worked, which may include the first break.

In this case the complainant was working from 9.30am at 5.30pm.  She worked for 36 hours per week.  The evidence adduced clearly confirms that the complainant was working alone and had total control over the times at which she could take her breaks.  The respondent also provided the complainant with a lot of flexibility in relation to taking time to attend to non-work-related matters.  There was no evidence that the complainant had ever raised a grievance from 2016 to 2020 in relation to the time and manner in which she could take breaks.  I find that the complainant was responsible for organising her own breaks and did not provide any evidence that she could not do so or was instructed not to take breaks.   In that context this complaint is not well founded.

CA-00039050-002:  This is a complaint in relation to the terms and conditions of employment and seeking adjudication by the WRC under section 7 of the Terms of Employment (Information) Act, 1994.  At the hearing the respondent’s representative displayed a contract of employment which he confirmed was signed by the complainant and dated 11/07/2016.  The complainant denied having received a contract of employment and her representative sought a copy so that the signature could be verified.  The respondent did not provide a copy of this contract to the WRC and in a follow up from the WRC the respondent’s representative confirmed “I have reviewed the file and it appears that the contract is only a sample contract that our client provided us with and therefore there is no contract to be lodged with yourselves.  This was an error on our behalf.”

In these circumstances it is not disputed that the complainant was not issued with a contract 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.

Neither party provided any evidence of a document which was signed and dated by the respondent.  The respondent accepts that no such document exists. There is an onus on the respondent to provide a signed and dated copy 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 of employment.  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 €1,584 representing four week’s gross remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00039050-003:  This is a complaint in relation to unfair dismissal and seeking adjudication by the WRC under section 8 of the Unfair Dismissals Act, 1977.  It is not disputed that the complainant was dismissed by the respondent.  It is also not disputed that this dismissal took place using a text message. It was submitted on behalf of the respondent that there was a devasting impact on the respondent’s business due to COVID-19.  This situation continues and also has a wider impact on the community.  What has not changed, however, is the applicability of the core principles of the employment laws and primarily the underlying and essential obligation to exercise fair procedures in matters which affect a person’s rights.

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes 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) of the Unfair Dismissals Act, 1977 provides as follows:

4)      Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act requires me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances. 

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

The respondent did not provide any submission to the hearing.  The respondent’s representative noted that they had only recently come on record and did not have an opportunity to take comprehensive instructions from the respondent.

The WRC and Labour Court have consistently emphasised that an employer is required to follow fair procedures before it decides to dismiss an employee.  The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

It is clear that the complainant was not dismissed for any of the reasons outlined in Section 6(4) (a) to (d) above.  It is also not disputed that the manner in which the dismissal was carried out was by means of a text message sent by the respondent to the complainant.  The following is not disputed:

a)       The complainant was dismissed by means of a text message sent by the respondent

b)      There was no discussion with the complainant in relation to this matter either before or after she was informed of her dismissal.

c)       There was no consideration of alternatives to dismissal

d)      There was no appeal process afforded to the complainant.

In these circumstances I find that the dismissal was unfair.  I note that a recent UK case, (Wallace v AFS Security [2019] FWC 4292), which describes the undesirable nature of a dismissal buy text message.  The Commissioner observed that dismissal by text was “unnecessarily callous” and that notice of dismissal “is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation”.  The Commissioner in that case concludes that a dismissal by way of text message was “plainly unjust, unreasonable, harsh, and, unconscionably undignified” and displaying “such perfunctory disregard for basic human dignity [reflecting] very poorly on the individual or individuals responsible.”

Redress:

Mitigation of Loss:  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.”

In this case it is clear that compensation is the appropriate redress.  The Complainant provided details of the additional part time work obtained. I am satisfied, on the balance of probabilities, that the Complainant has sought to mitigate her loss and continues working in a part time role. 

The reference figure for the period is €396 per week gross. Having taken all matters into account I find that the Complainant’s dismissal was substantially and 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 €30,676.

CA-00039050-004:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.  In view of my finding of unfair dismissal in CA-00039050-002, above, I find that this complaint is not well founded.

CA-00039050-005:  The complainant is seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act, 1973. Under the terms of this act an employee is entitled to a specified minimum notice if an employer intends to terminate a contract of employment.  In this case the complainant worked for 5.82 years and was therefore entitled to four weeks’ notice.  At the hearing the respondent’s representative accepted that the complainant was entitled to four weeks’ notice.  She was given two and paid for two weeks.  On reviewing the pay slips the complainant received her last payslip was dated 27/03/2020.  She was paid €408.00 gross.  I accept the complainant’s submission that this was payment for hours worked and does not equate to two weeks’ pay.  In these circumstances I order the respondent to pay the complainant the sum of €1,584 representing four week’s gross remuneration.  I also order that this sum be paid within six weeks of the date of this decision.

CA-00039050-001:  This is a complaint in relation to the hours of work and seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1977.  I find that this complaint is not well founded.

CA-00039050-002: This is a complaint in relation to the terms and conditions of employment and seeking adjudication by the WRC under section 7 of the Terms of Employment (Information) Act, 1994.   I find that this complaint is well founded.  I therefore order that the respondent pay the complainant the sum of €1,584 representing four week’s gross remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.  I also order that this amount should be paid within six weeks of the date of this decision.

CA-00039050-003: I have determined that the complainant’s claim is well founded and that she was unfairly dismissed.  Section 8 of the 1977 Act requires that I made a decision in relation to the claim consisting of an award of redress in accordance with Section 7.  I therefore award redress of €30,676 in respect of the financial loss attributable to her unfair dismissal. I order that this sum is paid within six weeks from the date of this decision.

CA-00039050-004: This is a complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.  In view of my finding of unfair dismissal in CA-00039050-002, above, I find that this complaint is not well founded.

 CA-00039050-005: The complainant is seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act, 1973. I find that this complaint is well founded, and I order the respondent to pay the complainant the sum of €1,584 representing four week’s gross remuneration.  I also order that this sum be paid within six weeks of the date of this decision.

Minimum notice.  Unfair Dismissal.  Dismissal by text. 

Complainant

Respondent

Parties

Joanna  Hibner

Joelle's Dressmaking

Representatives

Aidan Leahy John M Joy Solicitors

Sinead Ivory  Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039060-001

06/08/2020

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

CA-00039060-002

06/08/2020

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

CA-00039060-003

06/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00039060-004

06/08/2020

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

CA-00039060-005

06/08/2020

The complainant was employed as a tailor with the respondent.  She commenced working for the respondent in June 2014 and the employment relationship was put on a formal footing on 11/07/2016.  She was paid €792.00 gross per fortnight and worked 36 hours per week.  On 14/03/2020 she was informed by the respondent that the shop was closing and that her P45 was with Revenue.  There was no further contact between the parties and the complainant submitted her complaints to the Workplace Relations Commission on 06/08/2020.

The complainant is a qualified tailor, and she began working for the respondent in June 2014.  She worked 30 weeks during that year.  Her working day commenced at 9.30am and continued until 5.30pm.  She worked alone in the shop. She did not get any breaks and could only take a lunch break on the premises as the shop did not close.  She did not receive any details of her terms and conditions of employment.  On 27/03/2020 she was sent her payslip and told by text message that her P45 was with Revenue and that the shop was now closed.  There was no further contact from the respondent since that time.

The complainant gave evidence in relation to her hours of work.  She was not aware that she could take breaks when she wanted as the respondent had installed CCTV and used this to pay her for the hours she was in the shop.  She was the only person working in the shop in 2020.  Under cross examination the complainant confirmed that she was allowed attend appointments or attend to personal matters.  However, this was only possible if she phoned the respondent in advance to advise her of these.  These occasions were very rate.  It was put to the complainant that she was allowed to have lunch or other breaks and she confirmed that she had.  She also agreed that she had a choice in relation to the taking of breaks.  The complainant confirmed that she was paid for every hour she worked.

It was submitted on behalf of the respondent that there were no issues with the complainant and that she was paid for all her hours and also paid holiday pay.  The respondent operated a very flexible approach with the complainant and her hours of work were aligned to enable her to take on another part time position.

The respondent is a sole trader and operated two clothing alteration shops.  The complainant was employed in one of those shops.  There were initially two employees and in later years only the complainant employed there.   She was responsible for all matters relating to the opening and closing and was trusted by the respondent to manage the cash sales.  The respondent operated a very flexible approach with the complainant.  She was facilitated to take time off for any personal appointments or other matters and was also facilitated to do some private work for family and friends while on the premises.  The complainant was issued with a contract of employment dated 11/07/2016 and this was signed by the complainant.

The respondent submits that the complainant could take her breaks at any time she wished during the working day.  It was up to her and if she wanted to close the shop while on lunch there was no difficulty with this. 

The business was not doing well and when the COVID-19 restrictions came into force she had no option but to close the shop.  As she had no visibility in relation to when the restrictions would be eased or removed, she could not offer any reassurance to the complainant about reopening, so she ended the employment. 

It was submitted on behalf of the respondent that the complainant was given two weeks’ notice by phone.  She was informed that the reason for the closure was due to COVID-19.  The business was struggling from day one.  The complainant’s pay and P45 were prepared by a chartered accountant on behalf of the respondent. 

The respondent did not provide any evidence but was happy to respond to any questions from the complaint or her representative.  The respondent agreed that the complainant worked between the hours of 9.30am to 5.30pm.  She also confirmed that the complainant was free to take breaks when she wished, and it was her expectation that she would do this when the shop was not busy.  If the complainant wished to take a bathroom break, she could use a sign for the door saying that it was closed for 10 mins.  She could also have used a sign to say that she was on lunch break.

In relation to the closure of the business the respondent confirmed that she was left with no choice due to the restrictions imposed by the Government as a result of COVID-19.  She closed both her shops.  The respondent confirmed that the complainant was notified of the closure by text message which was sent by her.  The respondent confirmed that the landlord agreed to freeze the rent in the premised where the complainant worked.  The respondent said that she intended to reopen the shop when the crisis is over and work there herself.

The respondent confirmed that the chartered accountant paid the complainant for any holidays due.  The respondent also confirmed that she maintained records in relation to the complainant’s hours and holidays and undertook to provide a copy of those to the WRC and the complainant’s representative along with a copy of the contract of employment after the hearing.

There was a total of five complaints submitted by the complainant to the WRC on 06/08/2020.

CA-00039050-001:  This is a complaint in relation to the hours of work and seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1977. This act outlines the breaks which an employee is entitled to.  These can be easily summarised as follows: 

·       A daily rest period of 11 consecutive hours per 24-hour period

·       A weekly rest period of 24 consecutive hours per seven days, following a daily rest period

·       A 15-minute break where more than 41.5 hours have been worked

·       A 30-minute break where more than 6 hours have been worked, which may include the first break.

In this case the complainant was working from 9.30am at 5.30pm.  She worked for 36 hours per week.  The evidence adduced clearly confirms that the complainant was working alone and had total control over the times at which she could take her breaks.  The respondent also provided the complainant with a lot of flexibility in relation to taking time to attend to non-work-related matters.  There was no evidence that the complainant had ever raised a grievance from 2016 to 2020 in relation to the time and manner in which she could take breaks.  I find that the complainant was responsible for organising her own breaks and did not provide any evidence that she could not do so or was instructed not to take breaks.   In that context this complaint is not well founded.

CA-00039050-002:  This is a complaint in relation to the terms and conditions of employment and seeking adjudication by the WRC under section 7 of the Terms of Employment (Information) Act, 1994.  At the hearing the respondent’s representative displayed a contract of employment which he confirmed was signed by the complainant and dated 11/07/2016.  The complainant denied having received a contract of employment and her representative sought a copy so that the signature could be verified.  The respondent did not provide a copy of this contract to the WRC and in a follow up from the WRC the respondent’s representative confirmed “I have reviewed the file and it appears that the contract is only a sample contract that our client provided us with and therefore there is no contract to be lodged with yourselves.  This was an error on our behalf.”

In these circumstances it is not disputed that the complainant was not issued with a contract 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.

Neither party provided any evidence of a document which was signed and dated by the respondent.  The respondent accepts that no such document exists. There is an onus on the respondent to provide a signed and dated copy 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 of employment.  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 €1,584 representing four week’s gross remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00039050-003:  This is a complaint in relation to unfair dismissal and seeking adjudication by the WRC under section 8 of the Unfair Dismissals Act, 1977.  It is not disputed that the complainant was dismissed by the respondent.  It is also not disputed that this dismissal took place using a text message. It was submitted on behalf of the respondent that there was a devasting impact on the respondent’s business due to COVID-19.  This situation continues and also has a wider impact on the community.  What has not changed, however, is the applicability of the core principles of the employment laws and primarily the underlying and essential obligation to exercise fair procedures in matters which affect a person’s rights.

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes 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) of the Unfair Dismissals Act, 1977 provides as follows:

4)      Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act requires me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances. 

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

The respondent did not provide any submission to the hearing.  The respondent’s representative noted that they had only recently come on record and did not have an opportunity to take comprehensive instructions from the respondent.

The WRC and Labour Court have consistently emphasised that an employer is required to follow fair procedures before it decides to dismiss an employee.  The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

It is clear that the complainant was not dismissed for any of the reasons outlined in Section 6(4) (a) to (d) above.  It is also not disputed that the manner in which the dismissal was carried out was by means of a text message sent by the respondent to the complainant.  The following is not disputed:

a)       The complainant was dismissed by means of a text message sent by the respondent

b)      There was no discussion with the complainant in relation to this matter either before or after she was informed of her dismissal.

c)       There was no consideration of alternatives to dismissal

d)      There was no appeal process afforded to the complainant.

In these circumstances I find that the dismissal was unfair.  I note that a recent UK case, (Wallace v AFS Security [2019] FWC 4292), which describes the undesirable nature of a dismissal buy text message.  The Commissioner observed that dismissal by text was “unnecessarily callous” and that notice of dismissal “is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation”.  The Commissioner in that case concludes that a dismissal by way of text message was “plainly unjust, unreasonable, harsh, and, unconscionably undignified” and displaying “such perfunctory disregard for basic human dignity [reflecting] very poorly on the individual or individuals responsible.”

Redress:

Mitigation of Loss:  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.”

In this case it is clear that compensation is the appropriate redress.  The Complainant provided details of the additional part time work obtained. I am satisfied, on the balance of probabilities, that the Complainant has sought to mitigate her loss and continues working in a part time role. 

The reference figure for the period is €396 per week gross. Having taken all matters into account I find that the Complainant’s dismissal was substantially and 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 €30,676.

CA-00039050-004:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.  In view of my finding of unfair dismissal in CA-00039050-002, above, I find that this complaint is not well founded.

CA-00039050-005:  The complainant is seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act, 1973. Under the terms of this act an employee is entitled to a specified minimum notice if an employer intends to terminate a contract of employment.  In this case the complainant worked for 5.82 years and was therefore entitled to four weeks’ notice.  At the hearing the respondent’s representative accepted that the complainant was entitled to four weeks’ notice.  She was given two and paid for two weeks.  On reviewing the pay slips the complainant received her last payslip was dated 27/03/2020.  She was paid €408.00 gross.  I accept the complainant’s submission that this was payment for hours worked and does not equate to two weeks’ pay.  In these circumstances I order the respondent to pay the complainant the sum of €1,584 representing four week’s gross remuneration.  I also order that this sum be paid within six weeks of the date of this decision.

CA-00039050-001:  This is a complaint in relation to the hours of work and seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1977.  I find that this complaint is not well founded.

CA-00039050-002: This is a complaint in relation to the terms and conditions of employment and seeking adjudication by the WRC under section 7 of the Terms of Employment (Information) Act, 1994.   I find that this complaint is well founded.  I therefore order that the respondent pay the complainant the sum of €1,584 representing four week’s gross remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.  I also order that this amount should be paid within six weeks of the date of this decision.

CA-00039050-003: I have determined that the complainant’s claim is well founded and that she was unfairly dismissed.  Section 8 of the 1977 Act requires that I made a decision in relation to the claim consisting of an award of redress in accordance with Section 7.  I therefore award redress of €30,676 in respect of the financial loss attributable to her unfair dismissal. I order that this sum is paid within six weeks from the date of this decision.

CA-00039050-004: This is a complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.  In view of my finding of unfair dismissal in CA-00039050-002, above, I find that this complaint is not well founded.

 CA-00039050-005: The complainant is seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act, 1973. I find that this complaint is well founded, and I order the respondent to pay the complainant the sum of €1,584 representing four week’s gross remuneration.  I also order that this sum be paid within six weeks of the date of this decision.

Minimum notice.  Unfair Dismissal.  Dismissal by text.