Complainant

Respondent

Parties

Tatiana  Kobzeva

Athlunkard Nursing Home Limited

Representatives

Mr. Frankie McDonnell, Limerick Council of Trade Unions

Mr. Raymond Mulcahy, Human Resource Consultant

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-00039359-001

25/08/2020

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

CA-00040067-001

24/09/2020

The Complainant commenced employment with the Respondent on 08th October 2018. At all relevant times her role was described as that of “healthcare assistant”. The Complainant was a permanent member of staff, in receipt of an average weekly payment of €315.00. The parties are in dispute as to the nature and date of the alleged termination of employment.

The Complainant referred the present complaints on 25th August 2020 & 24th September 2020. A hearing in relation to the same was convened for, and finalised on, 4th March 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party throughout the hearing.

At the outset of the hearing, the representative for the Complainant confirmed that the second complaint was a duplicate of the first, and the same was not pursued. At the outset, the Respondent raised a preliminary point as to jurisdiction. They submitted that they Complainant was never in fact dismissed by the Respondent, and as such she enjoyed no jurisdiction under the impleaded Act.

As the fact of dismissal was in dispute, the Complainant presented her case prior to the Respondent.

The Complainant commenced employment with the Respondent on 15th October 2018. Initially, the Complainant had an excellent working relationship with the Respondent.

On 31st March 2020 the Complainant began to feel unwell and was advised by the GP to remain home and undergo a Covid-19 test. On 6th April 2020, the Complainant emailed the Respondent advising that she was not in position to return to work as she continued to feel unwell and could not organise childcare in circumstances where all crèches were closed. On 5th June, she advised that the creche was due to open on 29th June 2020 and that she would return to work on that date.

On 8th June 2020, the Respondent replied advising that they were not in position to offer the Complainant her previous position. Following a period of inactivity on the Respondent’s part, the Complainant observed an advertisement for her role published by the Respondent.

On 10th August 2020, the Complainant secured employment with another organisation. On the same day the Complainant received an email from the Respondent advising that a role was available for her but that she would now be required to work weekends and undergo a probationary period.

The Complainant submitted that the Respondent terminated her original position by way of the correspondence dated 8th June 2020. She submitted that the fact the new hours were subject to a probationary period evidences the fact that the role offered on 10th August 202 was a new role offered after the termination of her employment.

In summary, the Complainant submitted that she was summarily dismissed in contravention of the impleaded Act.

In defending the complaint, the Respondent submitted that they did not, at any stage, dismiss the Complainant. Rather, they submitted that the Complainant resigned her own employment and that the dismissal was consequently not unfair for the purposes of the Act.

On 13th March, the first wave of the Covid-19 pandemic resulted in a series of national lockdowns. The care industry endured a historic amount of strain at this point and, on foot of the same, it was essential that the Respondent maintained enough staff to ensure the needs of their residents were being met. In this regard, the Respondent permanently advertised for staff during this period.

The Respondent agreed with the Complainant’s sequence of events regarding her leaving employment on 23rd March 2020, and thereafter seeking to return on 29th June 2020. However, they submitted that on 8th June 2020 the Complainant was not informed that her employment had terminated. Rather they submitted that given the necessary changes implemented during the Complainant’s absence, some work-related matters had been amended. In this regard, they submitted that this correspondence stated that the Complainant’s employment was temporarily unavailable. This position was re-affirmed offered on 9th June. At no point in this course of these correspondences did the Respondent seek or intend to dismiss the Complainant. They further submitted that the relevant correspondence affords no such interpretation.

On 10th August, the Respondent emailed the Complainant requesting that she return to her original role under the new roster that provided her with more hours on a weekly basis. By response, the Complainant stated that she could not accept this offer and requested that the employment be “closed off”.

By submission, the Respondent stated that they did not dismiss the Complainant. They submitted that the Complainant was absent from work for a period of time due to the personal challenges she experienced as a result of the Covid-19 pandemic. During this period of absence, the Respondent was obliged to fill her role and make the necessary changes to ensure their resident’s needs were being met. They submitted that they had no intention of dismissing the Complainant at any stage, particularly during a period of a national shortage of healthcare workers.

In the present case, the Complainant has alleged that she was summarily dismissed by the Respondent by correspondence dated 8th June 2020. By response, the Respondent submitted that this correspondence did not serve to dismiss the Complainant but sought to inform her of an amendment to her contract.

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v Joseph McManus, UDD1753, the Labour Court held that,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined”.

Regarding statements that may amount to a termination of employment, in the matter of Devaney -v- DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal held that,

“…what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

By correspondence dated 5th June 2020, the Complainant informs the Respondent that she will be in a position to return to work from 29th June 2020. She follows this request with the question, “if you are still interested in me as a worker”. From a reading of the same, it is apparent that the Complainant is enquiring as to whether her employment with the Respondent is ongoing or whether the same is terminated.

By response dated 8th June the Respondent states that,

“Unfortunately due to reduced occupancy I am not in a position to offer you your previous position.

However if you wish to apply for a kitchen assistant position, 10am to 3pm, this would be available. The rate of pay is €10.30 per hour and you would have to complete a trial period”.

On 9th June 2020 that Complainant makes the following enquiry,

“…is it that I no longer have a job to return to on the 29th June when creches will be able to take my kids for working hours”.

By response of the same date, the Respondent states that “Your previous job is no longer available. There is a job in the kitchen if you wish to apply for it”.

Having regard to the foregoing, it is apparent that the Complainant’s employment was not available to her from 8th June 2020 onwards. In this regard, the Respondent had the option of placing the Complainant on lay-off until such a time as her same becomes available.  However, having examined the correspondence of 8th June, that is not what occurred. The statement by the Respondent that they cannot “offer you your previous position” indicates a finality to employment. This statement contians no mention of reviewing the position in a period of time or any other such time related caveat.

While the statement may be considered to be somewhat ambiguous, the Complainant does query the same at the relevant time. By response she received an unambiguous answer in, “your previous job is no longer available.” While this correspondence does indicate that an alternative role is available, this is was dependent on the Complainant interviewing for the same and completing a probationary period.

Having regard to the accumulation of the foregoing points, I find that any reasonable employee would have understood the Employer’s intention to be the termination of her employment from 8th June onwards. In such circumstances, and having regard to the case-law cited above, I find that the Respondent dismissed the Complainant on 8th June 2020. As such amounts to a summary dismissal in the absence of procedure, I find that the same is unfair within the meaning of the present Act and consequently the complaint is well-founded.

CA-00039359

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

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

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses following her dismissal.

In this regard, I note that the Complainant skill set was in high demand during the period of the Covid-19 pandemic. As such, it is unsurprising that she secured alternative employment approximately eight weeks following her dismissal. Having regard to the foregoing, I award the Complainant the sum of €2,520, or the equivalent of eight weeks remuneration, in compensation for the contravention of the Act.

CA-00040067

This matter is duplicate of the matter listed above. In such circumstances, I find that the same is not well-founded.

Fact of Dismissal, Covid-19, Alternative Employment