FULL RECOMMENDATION
PARTIES : FIT 4 LIFE GYM LTD DIVISION :
1.Appeal of Adjudication Officer Decision No(s). ADJ-00030571 CA-00039411-001. Background The Complainant commenced employment with the Respondent as a gym manager on the 25thFebruary 2019. She worked a 32-hour week, and her salary was €416 per week. On the 29thFebruary 2020 she was dismissed from that employment. Dismissal is not in dispute therefore, it is for the Respondent to show that the dismissal was fair. Summary of Respondent’s submission and evidence Mr Sugrue BL on behalf of the Respondent submitted that in all the circumstances of this case the decision to dismiss was fair. He accepted that there may have been some procedural shortcomings but submitted that the actions of the Complainant amounted to gross misconduct and justified the dismissal. Mr Sugrue BL submitted that applying the test of ‘the reasonable employer’, it is clear that a reasonable employer would have come to the same conclusion. The Complainant was employed as a gym manager and there were on going issues which the Respondent had raised with her. On the 29thFebruary she had applied not to be rostered for work on that day, but her application had been turned down as the Respondent needed her to work. The Complainant failed to turn up for work on the day and the Employer only became aware of this when clients started to ring stating that the gym was not open. Ms Myers one of the owners of the gym in her sworn evidence to the Court stated that she had interviewed the Complainant for the job, and they had agreed she would work 32 hours or more if cover was required. There was no agreement that the Complainant would not work Saturday or Sunday and during her time in employment she had worked five Saturdays. A few weeks after she started work the Complainant raised the issue of not working Saturdays but while they discussed it no agreement was made. Ms Myers stated that prior to the dismissal there had been other issues with the Complainant and gave the following examples, on Saturday the 7thFebruary she had not turned up for work, issues around her carrying out physical therapy in a personal capacity on the company premises and issuing invoices on the company paper. Ms Myers stated that the Complainant was not hired to do physical therapy and that she had a disciplinary meeting with the Complainant about this and other issues. Ms Myers stated that her husband got a phone call on the 29thFebruary to say the gym was not open. The Complainant was scheduled on the roster to open that day. She tried to contact the Complainant and got a text message from her saying that she was on a course in Dublin. She then had to make alternative arrangements to open the gm, this was bad for business and very unprofessional. Ms Myers stated that she sent the letter of dismissal to the Complainant on the 29thFebruary advising that her employment had been terminated because she had not opened the gym on her scheduled day of work and that the decision was not reversible. The letter went on to say she would be paid two weeks’ notice and requesting that she return her keys and uniform. Ms Myers stated that following the issuing of the dismissal letter she received some HR advise and on foot of that advice she issued a further letter on the 11thMarch 2020 (dated 7thFebruary 2020) listing other issues that had concerned her. The letter went on to say that the Complainants actions had constituted gross misconduct, that she had the right of appeal and that the appeal could be made to Ms Myers. Under cross examination Ms Myers accepted that she had made the decision to dismiss and that any appeal was to be made to her. She stated that someone else would be appointed to hear the appeal but accepted that this was not stated in the letter that issued to the Complainant. She accepted that the Complainant had not been invited to a meeting or given an opportunity to put her case until two weeks after she had been dismissed. Ms Myer stated that there had been previous disciplinary meetings but accepted that she was unable to provide any supporting documentation in terms of that contention other than her own typed notes which had not been given to the Complainant at the time or after the alleged disciplinary meetings. Ms Myers accepted that incoming to the decision to the dismiss she had not followed the Respondents disciplinary procedure or any procedure at all. It was put to Ms Myers that the Complainant was unable to book the 29thoff as she was not down to work that day. Ms Myers disputed that and referenced emails where she had advised the Complainant that she had to work that Saturday and the Complainant would have clearly seen on the roster that she was down to work. Mr Sugrue BL submitted that the procedure followed may not have been perfect but the failure by the Complainant to turn up for work on the 29thFebruary 2020 was from the Respondent’s perspective, the last straw. Mr Sugrue BL opened to the Court Redmond on Dismissal para 13.20 “[P]rocedural defects will not make a dismissal automatically unfair. The legitimacy of the processes adopted by an employer may be subordinated to the substantive merits of a particular case. An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission it acted reasonably in the circumstances in deciding to dismiss the employee”. Mr Sugrue BL submitted that the Complainant’s dismissal was justified by her repeated infractions and noted that in the later letter of the 11thMarch 2020 she was offered the opportunity of an appeal which she did not avail off. The Complainant in this case was a manager and not turning up to work knowing that it would impact on the Respondent’s clients was inexcusable.In March 2020, the Respondents business closed for long periods arising from government restrictions due to Covid. If the Court should decide that the dismissal was unfair, then the Respondent submits that the Complainant by her own actions was responsible for her own dismissal. Summary of Complainant’s submission and evidence Mr O Connor submitted that the Complainant was dismissed without any procedure being followed. She received a letter from the Respondent advising that she had been dismissed and that the decision to dismiss was irreversible. Contrary to the evidence of Ms Myers there were no previous disciplinary hearings or warnings, verbal or otherwise. There was no documentary proof that she had ever been invited to any disciplinary process nor was she ever provided with any minutes of such a process. The Complainant in her sworn evidence to the Court stated that she had advised the Respondent that she could work the odd Saturday but that she could not open up as she had a pre-existing commitment on Saturday mornings. She was offered the job of gym manager and it was agreed she would work eight hours a day for four days. The Complainant state that she was never invited to or attended any disciplinary meetings and that she had never been given an appraisal. She stated she only saw the minutes of the meetings that were alleged to have occurred when she made a Freedom of Information request. The Complainant stated that she was not originally rostered to work on the 29thand therefore did not need to book leave. When she realised, she was, she contacted the Respondent to advise that she could not work that day. The Complainant accepted that there was an exchange of emails with the Respondent but submitted that the last email in the chain was from her where she stated she would not be able to work. On the 29thFebruary she had no missed calls from the Respondent on her phone only one text from the Respondent stating that the gym was closed and that she was disappointed. Later that day she got the letter by email stating that she was dismissed, and that the decision was not reversable. The Complainant submitted that she applied for jobs but with Covid most places were closed. She stated that she applied for about seven jobs and successfully got a job in January 2021. The Complainant confirmed that her current earnings are higher that they were when she worked for the Respondent. It was put to the Complainant under cross examination that she was aware that she had not been given permission to take the day off in that she had asked for the day of, and it had not been granted. The Complainant accepted that to an extent, in that she felt she was not obliged to work Saturdays. The Complainant did accept that not turning up to open the premises was not appropriate behaviour for a manager. Mr O Connor opened a number of cases includingMcAvoy v Mc Ardle Transport Limited UD 1356/2008to the Court in support of his contention that the Complainant was entitled to fair procedure. He also opened to the Court theCode of Practise on Grievance and Disciplinary ProceduresS.I. no 146 /2000 which sets out at section 6 the basic procedures that should be followed. The Code requires that the Respondent inform the Complainant of the issues, give the Complainant an opportunity to respond to the issues, allow the Complainant the opportunity to be represented during the procedure and ensuring that the Complainant has a fair and impartial determination. None of the above happened in this case. The Respondent dismissed the Complainant without any process or procedure contrary to natural justice and fair procedure and therefore the dismissal must be unfair. The Complainant had made attempts to mitigate her loss, but her attempts were hampered by Covid and Government restrictions. The Law Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows: 6.— (1) Subject to the provisions of this section, 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. (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 qualifications 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 which 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. Issue for the Court Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. Discussion A number of facts were not in dispute in particular the fact that the Complainant was not at work on the 29thFebruary 2020, the fact that the Respondent issued a letter on that date dismissing her with immediate effect and advising that the decision to dismiss was irreversible. The fact that on the 11thMarch the Respondent issued a letter setting out additional basis for the dismissal and advising the Complainant that she could appeal the decision to Ms Myers who was the person who had made the decision to dismiss her and had told her two weeks earlier the decision was irreversible. It is clear to the Court from the submissions and the evidence given in Court that in coming to the decision to dismiss the Respondent did not utilise the Company disciplinary procedure or any procedure at all. The Court finds that the failure to follow any procedure or to afford the Complainant an opportunity to be heard prior to making the decision to dismiss, deprived the Complainant of a fair procedure. On that basis, the Court finds that the decision to dismiss was unfair. However, the Court also finds that the Complainant by her action of not turning up for work in circumstances where her application for leave had not been granted contributed to her own dismissal. Taking all of the above into consideration, the Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €13,800. The Court so determines. Determination The Court determines that the appeal is not well-founded. The Decision of the Adjudication Officer is varied as set out above. The Court so determines.
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