Complainant

Respondent

Parties

Andzelika  Ali

Mark Jones t/a Spar Carpenterstown

Representatives

 Mandate Trade Union

 Peninsula

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-00040597-001

23/10/2020

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

CA-00040597-002

23/10/2020

The Complainant was employed by the Respondent 1st August 2006 and her employment ceased on the 11th August 2020. She worked as a supervisor and was paid €661 gross and €550 net and worked a 40 per week until October 2019when she reduced her hours to 25 per week.  She is claiming that she was unfairly dismissed.

Submission

The Complainant went on annual leave in March 2020 and due to Covid restrictions her flights were cancelled, and she had to stay at home. On Saturday 25th March 2020, she went into the Respondent’s store to do some shopping, the Store Manager approached her and advised her that she could avail of the Covid Payment as she had a young child. He went on to explain that another member of staff in a similar situation to her was availing of this as he understood children might be vulnerable and advised her to check it out.

On 26th March 2020, the Manager sent a link to the Complainant for the Citizens Information website detailing information relating to Basic Supplementary Welfare Allowance. The text message attached from the Store Manager read "Cause you've a small baby and you could stay home".  The Complainant replied that she had enquired and was waiting for an answer from Social Welfare. The Complainant qualified for Social Welfare Covid payment for April, May, June and July 2020.

On 11th July 2020, The Manager wrote a letter on behalf of the Complainant for Social Welfare confirming that the Complainant was returning to work. He stated that she was a full time employee with the Respondent and was temporarily out with Covid, but he expected her back in August.

On 3rd August the Complainant sent a text to the Manager stating she was back to work on Sunday the 9th of August. The Manager responded requesting her to fill out a Covid return to work form. The Manager sent her another copy of the form as she had mislaid one sent to her earlier.

The Complainant received a copy of the roster by the WhatsApp, the group the manager set up a number of years ago for that purpose. She was rostered to work on Sunday 9th August 2020, 7am-1pm, Monday 5pm-10pm, Tuesday 5pm-10pm and Wednesday 5pm-10pm.

The Complainant was employed to work 39 hours per week and with the consent of her employer in October 2019 she temporally reduced her hours to 25 hour per week. She advised the Manager that upon returning to work it was her intention to return to full time contracted hours of 39 hours per week.

On 7th August 2020, the Manger informed the Complainant that she was not to start until Monday 10th as the Proprietor Mr. Mark Jones wanted to see her regarding legal Covid forms she had to sign before commencing work.

On Monday 10th August 2020, the Complainant met with the Respondent. At the meeting he informed her that she would have to sign a new contract of employment. This contract changed her position from a Supervisor to a Sales Assistant, her hours from full-time to part-time and her service since 2006 was not carried forward.

The Complainant told him that she could not sign the contract as it altered her terms and conditions of employment. She informed him that she was a Supervisor and that it has was her intention to return to full-time hours. The Respondent advised her that because he had changed another member of staffs contract and he had to do the same with her contract.

The Complainant emailed the Respondent the following day stating that she would not be accepting the new contract as she wished to continue working on her current contract of employment and there was no expiry of that contract.

On 11th August 2020, the Respondent wrote to the Complainant stating that she had refused to accept the offer of employment and he was now withdrawing the offer immediately. He went onto state that she had voluntarily resigned from the employment in March 2020. He went on to thank her for her interest in re-joining the team.

On 12th August 2020 Mandate Trade Union wrote to the Respondent appealing the decision to terminate the Complainant’s employment. Mandate requested in advance of the appeal hearing, copies of the company's termination policy, disciplinary policy together with a copy of the Complainant’s resignation that the company alleged they received on 20th March 2020.

The Union submitted that Companies Hand Book states the following about resignations:

"RESIGNATIONS

All resignations by employees must be supplied in writing and stating their reason for resigning. We will then issue you with your P45 to the address you have supplied us with."

It was submitted that the Complainant did not resign or submit anything in writing in March 2020 to say she was resigning.

The Respondent replied on 13th August 2020, stating that the Complainant left the employment of her own volition on 20th March and she was not dismissed, nor laid off. She refused to accept the offer of reemployment after she approached them seeking work and the offer was withdrawn. No appeal hearing was offered, and the Respondent failed to forward the information requested by Mandate.

The union submitted that the Complainant did not resign from the employment as alleged on 20th March 2020 and the documentation submitted in evidence clearly shows this.

On the 11th July 2020 the Manager wrote a letter for the Social Welfare stating that the complainant has been working full time since 2006, was out with Covid and that they expect her back to work in August 2020.

It was submitted that this is clear evidence that she did not resign her position and furthermore, that her position was full time and that it was clear that she was coming back to work in August 2020 as she had not left the business.

The union submitted that there was an exchange of text messages on 3rd August in relation to the Complainant’s return to work dates and references from the Manager to the Covid form that employees had to fill out. This was sent to the Complainant by the Company as an employee in May.

The Complainant received her roster from the Company on the employee WhatsApp group clearly showing that she was rostered for 25 hours. The Company cannot claim that this was an error as the Complainant’s name is on the roster together with the hours which she was rostered to work. It should be noted that the Complainant was removed from the WhatsApp group after the 10th August 2020 when the company terminated her employment.

The union questioned the reason for leaving an ex member of staff on a social network platform that provides company information such as the roster, if they were not an employee of the Company. If she had resigned she would have been removed from WhatsApp group.

It was submitted that the burden of proof lies with the employer to show clearly that the Complainant terminated her employment and that she was not an employee up to the date of 11th August 2020. To date the employer has failed to provide any evidence of resignation, this evidence was requested on 12th August 2020 and again on 18th September. The request for an appeal meeting with the Company would have given the employer every opportunity to put their argument forward with supportive evidence. The Company declined to meet the Union or provide the evidence requested.

It was submitted that the Complainant was unfairly dismissed without notice on the 1th of August 2020. Under the Minimum Notice and Terms of Employment Act, 1973-2001 the Complainant was entitled to 6 weeks' notice.

Complainant’s Evidence

The Complainant said that she was employed by the Respondent since 2006 and she worked as a supervisor. She worked 40 hours per week but reduced her hours to 25 after her maternity leave in July 2019.  She went on annual leave on the 12th March 2020 and was due back on the 30th March 2020. She had to cancel her holiday plans and remained at home due to Covid-19.  She went into the shop on the 21st of March 2020 to do some shopping. She said that she met the Manager and told him she could not leave the country, as she had planned, for her holidays, that she understood the shop was very busy and if he needed her he could call her any time and cancel her holidays. She said that the Manager told her that she could get the Covid payment as she had a year old child. He told her that other members of staff who had young children at home had got the Covid payment.  She said that she contacted Social Welfare and she was advised that she was eligible for the payment.  She said that her Manager sent her the form to apply and he also gave her a letter for Social Welfare stating that she was an employee.  She sent it into Social Welfare and she received PUP payments from April.

On the 3rd of August 2020 the Complainant said that she informed the Manager that she was coming back to work. He told her she would have to fill in Covid forms. She went into the office 7th August and filled it in with her Manager. She got the roster from the Manager by the WhatsApp and returned to work on the 9th August.  She was told she could not start as the owner Mr. Mark Jones wanted to see her about Covid forms. 

The Complainant said that she met Mr. Jones on the 10th August.  He gave her some papers and asked to sign them. He said it had nothing to do with Covid. He did not tell her it was a new contract he was asking her to sign. He told her that if she signed the paper she could go back to work, and she told him she would be happy to go back at 5pm that day. She said that she took the paper she was asked to sign home and when her husband read them, he told her it was a new contract. She sent Mr. Jones an email telling him that she was not going to accept a new contract and that she wished to continue working. The respondent wrote to the Complainant the following day withdrawing the offer of employment in the new contract.  He went on to say that she had resigned from the employment in March 2020 and the new contract was an offer to take her back to work in a sales assistant job which she had refused.

The Complainant denied that she resigned in March 2020 and it was at the suggestion of the Manager that she went on Covid leave.

Respondent’s Submission

The Complainant commenced employment on the 1st of August 2006 as a sales assistant in the Respondent’s service station. She was promoted and at the time of the termination of her employment she was a store supervisor. She commenced annual leave on the 12th March 2020 and she was due to return to work on the 30th March 2020. However, due to concerns about Covid-19 pandemic she telephoned her Manager during her annual to say she would not be returning to work and was leaving to care for her child.

The Complainant did indicate that she would be willing to re-join the team if her circumstances changed. The Respondent whilst acknowledging the Complainant had voluntarily left her employment it was agreed that they would remain in touch should she wish to come back to work in the near future.

The Complainant rarely contacted the Respondent until July 2020 she enquired if there was a position available for her to re-commence work in August. The Respondent had filled the role of Supervisor and could not offer her this role but were pleased to offer her a position of sales assistant with the same hours and rate of pay.

The Complainant was provided with a contract of employment on the 10th of August 2020. The Complainant refused to accept the new offer of employment and this offer was retracted by the Respondent in a letter of the 11th August 2020.

Evidence of Mr Mark Jones

The Respondent stated in evidence that his Manager told him that the Complainant had childcare issues and would stay off work. He said it was an accepted fact that the Complainant left the job in late March 2020.  He said that when Covid 19 started it was a very busy period in grocery sales and they needed everyone on the team. He said that footfall in the shop trebled and he gave the staff a 10% pay increase.

In October 2019 the Complainant requested shorter working hours on return from maternity leave and she was granted 20 hours per week.  She was rostered from Monday to Thursday from 5pm to 10pm. After she left he had to employ a person to cover the evening shift after she left.  He said that he had no contact with her until August when she looked for her job back. He accepted that the Manager did not tell him that the Complainant resigned. He said that he was not aware that the Manager was in touch with the Complainant after March 2020.  He said that he was not aware that the Manager wrote the letter of 11th July 2020 to Social Welfare stating that he expected the Complainant back to work in August.

The Respondent stated that he arranged to meet the Complainant on 10th August after he learned that she was rostered to return to work. He said that he arranged the meeting to offer the Complainant a new job as she had left the employment in March. He said that the Complainant refused to sign the contract and he withdrew the offer of a new contract. He accepted that the Manager may have made an agreement with the Complainant about taking time out of work in March 2020. He said that if he did the Manager should have brought it to his attention.

Legal Submission

It was submitted that the Complainant resigned on the 20th of March 2020 and this complaint was referred to the Director of the WRC on the 23rd October 2020and was therefore submitted outside the 6 month statutory time in Section 8(2) of the Unfair Dismissals Act 1977 and is statute barred.

It was submitted that the Complainant was not an employee or in a legally binding contract with the Respondent on the 11th of August 2020. The Complainant was not dismissed on the 11th of August 2020. She resigned on the 20th of March 2020.

The Complainant’s break in service is as a result of her resignation to avail of the Pandemic Unemployment Payment.

The Respondent referred to the definition of dismissal at section 22.13 of “Redmond on Dismissal Law” by Dr Desmond Ryan (Bloomsbury 2017) where he refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

The definition of a resignation is set out in Millett v Shinkin DEE 4/2004 which states: “A resignation is an unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end.” 

It was submitted that no dismissal took place in line with the above case law. It was submitted that if a dismissal took place on the 11 August the complainant does not have a year’s service as she had resigned in March 2020.

It was submitted that should there be a finding of unfair dismissal the complainant has not adduced any evidence that she attempted to secure employment since the end of her contract with the Respondent. It was submitted that since August 2020 the requirement for staff in the retail sector has increased significantly and the Complainant should have been able to mitigate her loss.  I was referred to the case of Synergy Security Solutions -v- Dusa UD1911 which stated the following in relation to mitigation of loss:

“The Court finds the evidence tendered by the Complainant to the effect that he has been unable to find alternative work in the period since 11 April 2017 to date to be lacking in credibility and cogency. The Complainant is well educated and experienced. He holds a Private Security Authority licence and has a bachelor’s degree in international business. He has good language and communications skills. The Court is aware from its own knowledge that there are many current vacancies in the jobs market, in the security industry and elsewhere, that offer remuneration in or around the level that the Complainant was in receipt of while he was in the Respondent’s employment. In short, the Court is not satisfied that the Complainant has made reasonable efforts to mitigate his loss. For that reason, the Court marks the compensation payable to the Complainant at nil.”

In Sheehan v Continental Administration Co Ltd (UD 858/1999) the EAT held as follows: -

"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."  

The first matter I must decide is whether the Complainant resigned from the employment in March 2020 or if she was on leave and availing of PUP with the permission of the store Manager. The Complainant said in evidence that she was advised by the Manger that she could avail of the Covid payment because she had a young child. The Complainant produced in evidence text messages which she had with the Manager in which the Manager provided a link to the Citizen Information relating to Supplementary Welfare Allowance and telling her because she had a small baby she could stay at home. The Complainant was paid Social Welfare Covid payments from April to July 2020. I note in a letter of the 11th of July 2020 that the Manager wrote a letter on behalf of the Complainant for Social Welfare in which he confirmed she was a fulltime employee and was temporarily out of work due to Covid but that he expected the Complainant would be back to work in August 2020. The Complainant texted the Manager on the 3rd of August saying that she would be back to work the following Sunday and the Manager texted back to say he needed her to fill out a Covid return to work form. I note the Complainant received her work roster and was due to commence work on the 9th of August.  

I am satisfied from the evidence submitted that the Manager advised the Complainant that she could take leave because she had a young child and that she may be entitled to Covid payments. It is clear that if the Complainant had resigned in March 2020 and the Manager had accepted that resignation there would have been no necessity for him to communicate with her about returning to work or have her fill out a Covid return to work form. These communications give no indication whatsoever that the Manager was corresponding with an employee who had resigned. While the Manager did not give evidence, I am satisfied from the Complainant’s evidence and the documentary evidence submitted that the Complainant did not resign in March 2020. I note that the Respondent accepted at the hearing that the Manager did not tell him that the Complainant resigned. I am satisfied from the evidence submitted that the Complainant went on leave of absence because of the Covid pandemic with the permission and on the suggestion of her Manager. 

The next matter I must decide is whether the Complainant was unfairly dismissed. The Complainant had arranged with her Manager to return to work on the 9th August 2020. The Respondent had a meeting with her on the 10th of August 2020 and offered her a new contract of employment as a shop assistant on the same hours and pay which the Complainant did not sign. The Respondent then withdrew this contract and did not allow her to return to work. I am satisfied that the Complainant’s employment came to an end because the Respondent believed that she had resigned in March.   I have found above that the Complainant did not resign in March 2020. I am satisfied therefore that she was dismissed when the Respondent refused to allow her to return to work

Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia as follows:

“(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.”

 Subsection (4)(b) provides that: “the dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the conduct of the employee”.

Section 6(7) provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(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 by the employer,

in relation to the employee, with the procedure referred to in section 14 (1)

of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section7 (2) of this Act.”

Therefore, the burden of proof rests with the Respondent to demonstrate that the dismissal was neither substantially nor procedurally unfair. The Respondent has provided no evidence to justify the dismissal and consequently I find the Complainant was unfairly dismissed pursuant to section 6 of the UD Act cited above. Where there is a finding of unfair dismissal redress which can be awarded. Section 7(a) of the Unfair Dismissals Act, 1977 as amended provides:

 Redress for unfair dismissal.

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

 (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

 (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17   of this Act) as is just and equitable having regard to all the circumstances, or

(ii)   if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

The Complainant is seeking compensation from the date of the dismissal to April 2021 as she was unavailable for work after April 2021. She said that from the date of her dismissal she applied for 5 positions and was unsuccessful. The grocery stores were not subject to restrictions during the Covid -19 period and it was widely reported that there was a high demand for staff for retail stores.  Therefore, I am not satisfied that the Complainant made sufficient efforts to mitigate her financial loss.  Applying the jurisprudence in the cases of Synergy Security Solutions -v- Dusa UD1911 and Sheehan v Continental Administration Co Ltd (UD 858/1999) cited above, and therefore 5 weeks compensation in the amount in the amount of €2,100 is appropriate in the circumstances.

Minimum Notice CA-0040597-02

The Complainant is claiming that she is entitled to minimum notice.

I find that the Respondent was in contravention of Section 4(2) of the Act by the failure to give notice.  I award the complainant 6 weeks’ pay in the amount of €2,529.36 pursuant to Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

I find that the Complainant was unfairly dismissed, and I order the Respondent to pay her compensation in the amount of €2,100

I find that the Complainant was dismissed without the statutory notice entitlement and in contravention of Section 4 of the Minimum Notice and Terms of Employment Act, 1973.  I order the Respondent to pay the Complainant 6 weeks compensation in the amount of €2,529.36

Unfair Dismissals Act, 1977 Section 8, Dismissal, Resignation. Minimum Notice & Terms of Employment Act, 1973 Entitled to Notice, Section 4 and Section 12.