Complainant

Respondent

Parties

Rosemarie  Quinlan

Spencer Family Holdings Limited

Representatives

Tom Kelly BL instructed by  David Burke & Company

 No Appearance on or on behalf of the Respondent

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-00042964-001

09/03/2021

-+On March 9, 2021, the Complainant, a secretary in an extended family firm submitted a complaint of unfair dismissal to the WRC. The submitted date of dismissal was November 2, 2020.

On 21, April 2021, the Respondent disputed both the salary relied on and the dismissal. The Respondent submitted that the Complainant had resigned her employment in December 2019

The case was scheduled initially for a Remote hearing on July 5, 2021. On 24 June 2021, the Respondent was granted a postponement.

On May 10, 2022, both Parties were invited to attend a face-to-face hearing in Cork on July 11, 2022, at 12 noon

On 6 July, in preparation for the hearing, I sought “outline chronological submissions” from both Parties in line with WRC operational guidelines.

On July 7, 2022, the WRC received the Complainant submission, which was promptly shared with the Respondent. The Complainant in the case is represented by Tom Kelly BL instructed by David Burke Solicitors.

On 6 July 2022, the Respondent sought a postponement in the case. This was refused   by email early on 8 July 2022.

The hearing date of July 11 at 12noon was reaffirmed.

I refer to your application dated 06/07/2022 for a postponement of the hearing scheduled for the above case.

I confirm that your application has been refused. The hearing will proceed as scheduled in accordance with the following arrangements:

Nothing further was heard from the Respondent. The Hearing proceeded as planned, allowing time for a late or delayed appearance from the Respondent. There was no appearance by or on behalf of the Respondent at hearing.

After the hearing had concluded, I was provided with an email from the Respondent business which outlined that Mr. Spencer, a Director in the Company had return to Ireland on July 8, 2022, as the business had not been notified of the outcome of their application for an adjournment in the case. The email went on to state that the Director had developed a Medical Condition and would not attend hearing.

I copied this communication for the attention of the Complainant in the case.

The Respondent has not made any further contact with the WRC, nor have submissions or pleadings been submitted within the 5-day period post hearing.

There was no appearance by or on behalf of the Respondent at hearing. The Respondent was notified of a claim for unfair dismissal on 29 March 2021. On that day the procedural pathway for processing the complaint was set down. A written statement of response was requested, and mention made that an adjudication hearing would follow in due course.

The Respondent updated the file with a new office address and email address for contact purposes.

I thought it fair to outline a chronology of the defence lodged by the Respondent since first notification of claim on March 29, 2021.

 On 21 April 2021, the Respondent submitted a statement which disputed dismissal and outlined that the complainant had resigned her part time employment in December 2019. The Respondent outlined that the Complainant continued to be paid until September 2020. The salary relied on by the complainant was disputed.

This letter was signed by the Company Director

On June 16, 2021, the Respondent wrote again to the WRC in the context of the complainant’s application to postpone the Remote hearing set for July 5, 2021.

On this occasion, the Company Director outlined that the complainant had been absent from work for 10 months and as other members of staff had covered for her “It was felt in essence that Rose had quit the job of her own accord “

He referred that his daughter, as author of the letter, should have clarified the “reasons for ending her employment” when she wrote to her at the “end of August “

He went on to outline a background of personal difficulties, where the Complainant, who had been in a relationship with his son was party to a formal end of the relationship, with input from the Courts on custody issues.

Of interest in this letter was a declaration incorporated at the end of the letter which outlined an intention to “fully abide by any order you make in Adjudication “The Company Director qualified this by recording the following:

“I do not want to argue with Rose (in any setting) and definitely not in open court “

The first hearing scheduled was postponed for July 5, 2021. On July 9, 2021, the Respondent sought an update in the case. The Complainant formally sought an in person hearing on July 12, 2021.

On May 10,2022, both Parties were invited to an In Person hearing.

On 6 July 2022, in accordance with the guidelines for Adjudication hearings, I wrote to both Parties seeking outline submissions.

I did not receive a response from the Respondent, who went on to receive the Complainant outline submission on July 7, 2022, at 08.21 hrs.

 In my preparation for hearing, I did note that a letter confirming an application for postponement of hearing made on July 6 had been refused was added to the electronic file. This letter was sent by email early on July 8, 2022 @7.59 hrs to the respondent approved email address  

I have already referred to the documentation received post hearing by the Respondent, complete with a photo of a test attributed to a certain medical condition and a boarding pass for June 8.

The Respondent did not make an appearance in person or by representation at hearing. The Respondent did not seek further updates and has been recorded as a “no show “at hearing.

The Complainant worked in the role of Secretary from 2010 to the date of her dismissal on 2 November 2020. She was a full-time employee and received a monthly salary of €1,570.00. The Complainant is a former Partner of one of the Directors.

The Complainant has claimed unfair dismissal and has found new work in October 2021.

The Complaint form received in March 2021was clarified at hearing to reflect the sole redress sought, in case of a successful claim to that of compensation.

By means of written and oral submission at hearing, Counsel for the Complainant outlined that she had worked on a full-time basis, without incident under a contract of employment with the Respondent business from 2010.

He contended that implicit in the contract were obligations on the Respondent to abide with notice prior to termination in addition to disciplinary procedures.

He outlined that the complainant had unexpectedly received a letter by email from the Respondent which purported to convey a completed decision to terminate her employment “as and from 25 September, due to the downtown in our business due to covid 19 “

This decision did not arise from any disciplinary or performance issues in the workplace and was short of procedural fairness or natural justice. Counsel argued that the complainant was not a participant in the process.

At this time, he contended that it was open to the Respondent to consider alternatives to dismissal through the Employment Wage subsidy scheme.

Counsel discredited the reason given for dismissal. He argued that Abernethy v Mott Hay and Anderson [1974] ICR 323 applied when Lord Justice Cairns held

“a reason for dismissal on an employee is a set of facts known to the employer, or it may be a set of beliefs held by him, which cause him to dismiss the employee “

Counsel submitted that the Complainant has been involved in a relationship break up with a director of the respondent business. He submitted that this matter formed a sub plot in the dismissal

He argued that there were no substantial grounds on which to justify dismissal and that as a result in accordance with Section 6(1) of the Act, the dismissal must be deemed unfair.

He went on to argue that the Respondent had not acted reasonably in dismissing the complainant as provided for in Section 6(7) of the Act as they had not followed any procedure in coming to the decision to dismiss the complainant or provide her with notice. she had not been equipped with any procedures which the respondent was to observe before and for the purpose of her dismissal.

In applying British Leyland UK ltd v Swift [1981] IRLR 91, which follows the thinking of Lord Denning when he stated:

“ …. The correct test is. Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view “

Counsel contended that were where no reasonable grounds for the complainant’s dismissal and that fairness must be decided on objective grounds, Bunyan v United Dominion Trust [1982] ILRM 404, ADJ 381, 2017. The Respondent had applied the ultimate sanction of dismissal without reason and had maintained a “head in the sand approach “in terms of their nonappearance at hearing.

The complainant was unemployed until she found new work in October 2021 and has suffered financial loss for which she sought compensation. She experienced some difficulty in finding that new work

Evidence of the Complainant:

The complainant recalled a work pattern of 19 /22 hours per week in September 2008. She submitted that she had requested an increase in her hours, as she was alone parent with two young children.

She performed a secretarial function in what she described as a big company with “6 female employees based in the office and 10 male employees on the floor “The Complainant stated that she had worked full time.

The Complainant named four family members as Directors and sisters/brothers of her former partner

The Complainant had been placed on covid leave on the temporary wage subsidy scheme in March 2020.

The Complainant told the hearing that she had commenced a relationship with a Director at the Company between 2009 and 2010. she had been acquainted with his brother. she went on to have her family with Mr Y and the relationship broke down in June 2019. She recalled both the Senior Director and Mr Y instructing her go home.

She recalled not receiving wages for the month of October 2020. she was normally paid 28/29 of the month. She queried this at the business, and nobody seemed to know anything then she was informed that a letter had been sent and she would receive payment for holidays.

Ms S who oversaw the bank transactions at the business undertook to speak to the Director. She reverted by asking if she had received a letter? She had not received a letter, but received an email a day after which stated:

28 August 2020

1.      Cessation of employment due to downturn in our business from 25 September 2020.

2.      All holiday Pay to follow “in your last monthly wage slip “

3.      Offer of reference

This letter was signed by a director, a family member and resident in the UK

This period coincided with a family law proceeding which were running concurrently and which concluded in May 2020.

The Complainant said she had not been offered an appeal of the dismissal.

The complainant submitted that she was shocked to learn of her dismissal, and it had a harsh impact on her as she experienced a 10-week gap before securing social welfare, arising in arrears in rent and difficulty in finding new work.

She recalled that she had seen an ex-employee Ms Z, who had been a former partner of a director also terminated in her employment.

The Complainant submitted that she had not resigned her position. She had not experienced reports of poor performance but contended that her former partners access to their children had been reduced through the family law courts and this had occurred in September 2020.

The Complainant clarified that there was no Human Resource function at the company. She recalled that the scale of the company was 20 employees which existed along side a named sister company.

In conclusion, Counsel summarised that the dismissal was wholly unjustifiable and did not reflect a work-based event. Instead, the complainant had not been paid for annual leave, for the month of October 2020 or for her notice period. He sought an award in respect of the financial loss which was materially affected by the complainant’s reported difficulty in securing new work.

The complainant undertook to follow through on a text she had received from the Director of the company, but this did not follow at time of writing.

I have been requested to make a decision in relation to whether the complainant was unfairly dismissed or not.

My jurisdiction arises from Section 6 of the Unfair Dismissals Act, 1977.

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.

Section 6(4) permits an Employer defence . Section 6(7) introduces the band of reasonableness as reflected in Counsels submissions .

In reaching my decision, I have taken account of all written submissions received pre and post hearing.

I have also taken account of the evidence adduced at hearing by the Complainant.

Issue of No Appearance by the Respondent

It is always preferable to have both parties present at hearing. This allows both parties to listen to and consider their opposite numbers of arguments within the framework of fair procedures.

The Unfair Dismissal Act, 1977 places an additional focus on the role of a Respondent when it provides a burden of proof in section 6(6)

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

The Respondent did not attend the hearing. It is important for me to reflect that an earlier application to postpone the hearing was declined early on the morning of 8 July, 3 calendar days prior to hearing and this decision was not appealed, neither did the Respondent send a representative to hear to make further application to postpone the hearing.

I am satisfied that the Respondent was fully on notice of the hearing in this case and recorded a “no show “I am struck by the variety of contact names attributed to the respondent business in their earlier contact with the WRC. In my opinion, it should have been feasible to show respect for the WRC hearing by delegating one of these contacts to address the hearing if someone was claiming illness.

I have reviewed the email which I received post hearing in this case. I found the email implausible as the record shows that WRC notification of refusal of postponement was shared to a past used company email by both parties early on the morning of July 8. This notification concluded by reaffirming that the hearing was going ahead as planned.

I have taken account of the boarding pass and photo of a home-based testing kit. While the  undated boarding pass recorded a one-way journey back to Cork, the home-based testing kit was not individualised to a Company Representative. It was a no name item and not backed up by medical validation or even a reportage of the condition to the Government web site which typically   generates a validation by name. I was not persuaded by the casual approach which accompanied these items.

I have to balance the Parties conduct in any case. In this case, the Complainant and her Legal team made an appearance. They also engaged in the requested preparation for hearing, which the Respondent did not. The Complainant was distressed in giving her direct evidence and in responding to my requests for clarification. She was also distressed when I requested that she comment on the Respondent documents received prehearing.

I found no basis to put the Complainant side to further expense or distress in re-opening the hearing as while I cannot place weighting on the approach adopted by the Respondent on July 11, I did not receive any pleadings from the Respondent in respect of an application for adjournment. I was simply informed that they were not making an appearance.

Both Parties were invited to state their case. In my opinion, the Respondent stood back from this invitation and failed to honour the procedural framework for seeking an adjournment of day of hearing. This Guidance is mentioned on notification of hearing letters.

The Adjudication Officer may grant an adjournment on the day of the hearing but only in exceptional circumstances and for substantial reasons. If a complainant does not attend a hearing, the Adjudication Officer may find that the complaint is not well-founded etc. If the respondent does not attend, the Adjudication Officer may proceed and make a decision based on the information and evidence available. (WRC July 2021)

I conclude the Respondent was a “no show “at hearing and was not represented at hearing on July 11. It is time to move to findings in this long running case.

Substantive Case: Was this an Unfair Dismissal?

The Law on Unfair Dismissal is outlined in Section 1 of the Act where dismissal is defined as:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.

A contract of employment is referred also in Section 1

“Contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing.

The date of dismissal is equally set out in Section 1

“Date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of the expiry or cesser.

I listened very carefully to the Complainant evidence.

I accept that she was in continuous employment from 2010 and that she was working full time across a number of settings at the respondent business .

 I accept that she did not resign her position at the Respondent business. I was struck by the trauma she associated with the sudden shock of learning that her income stream had dissipated overnight and the pressure it placed on her young family. I could not imagine that she would elect for this scenario, willingly.

While the Respondent in the paper documentation has relied on two vastly different reasons which accompanied the termination of employment. I must  conclude that I have not received a record of resignation at any stage or an acknowledgement of resignation.

In the alternative, I am drawn to the Respondent written submission that the letter of August 2020 and the reference that the author, his daughter should have clarified the reasons for dismissal. I must presume is the letter referred to and produced by the complainant at hearing and dated 28 August 2020 which outlined Covid 19 as the reason for cessation of employment.

I accept that this is the letter, received by email in November 2020, which allowed the complainant to believe that she had been dismissed, accompanied as it was by a cessation of pay. I did not have the benefit of hearing evidence from the scribe of the letter, but note that it did not reflect the complainants correct address or habitual practice of postage recalled by the Complainant

I have found that the Complainant was dismissed .

In the absence of the Respondent, and evidence to the contrary , I could not identify that substantial grounds or reasonable circumstances underpinned this cessation of employment  on November 2, 2020 , amounts to a Dismissal under Section 1 of the Act.

It is important to remember the societal backdrop to this case, where an employee placed on covid leave from work was prevented from securing a voluntary redundancy from lay off by emergency legislation. It was a time where the Complainant seemed to understand that she was receiving the benefit of state subsidy but no mention of this was made on the pay slips submitted. It is also important to reflect that reconciliation exercises have since been in place for repayments of these amounts to the Exchequer

In all, I found a sharp deficit in the duty of care I would have expected to see in an Employer: Employee relationship. I appreciate that Covid 19 era challenged everyone and was unprecedented. However, the Complainant was a long-standing employee, who deserved better.

I found the Complainant clear in her recollection of a similar treatment of cessation of employment towards a previous partner of a family member. she did not have an exact dateline for that but was convincing in her recall. I had concerns on this event and would have liked to probe this matter further if both parties had been present.

I found that the Complainant expressed a profound sense of being poorly treated by the Respondent, which for her, occurred in a superimposed fashion to the Family Law issues being played out concurrently. I accept both events had a cumulative overwhelming impact for her.

I would have liked to have seen a demonstrated procedural pathway of fair procedures and natural justice in the approach taken to a cessation of employment. For me, a letter dated 28 August 2020 sent randomly to the complainant on foot of a pay query breaks all the rules of mutual obligation in the respondent zone.

At the very minimum, the letter of August 28, described a context of Redundancy, but was not accompanied by any of the rituals of consultation, alternatives for redundancy, payment of redundancy lump sum or an independent appeal. No action was taken under the Redundancy Payments Act, 1967.

In fact, the assurances of following up with holiday pay were not actioned by the Respondent.

For me , the contents of that letter attributed to a UK based Director amounted to a letter of intent , rather than an actual account of reality .

I am mindful that the Respondent previously wrote to the WRC and expressed an intent to follow my findings.

If that is to be the case in this instance, I would strongly urge the Respondent to compile a staff handbook where a procedural framework on cessation of employment is available and understood by all. Whether this is a temporary cessation i.e., lay off, Redundancy, Dismissal, Resignation through Notice. In addition, in line with the law in Terms of Employment (Information) Act, 1994, all employees are to be provided with contracts of employment. I did not have the benefit of a contract in this case.

It is strange that an employment of this scale did not have these necessary navigation tools at the employment.

I have found that the Complainant was unfairly dismissed on November 2, 2020, when she took issue with an unexpected cessation of pay. This dismissal was both substantially and procedurally unfair.

I have found that the Respondent fell seriously short of best practice and respect for the Complainant both as an employee and associated family member when they deconstructed her employment without inviting her participation. The Act does not permit dismissal inabstentia and the residual and enduring effect here is a sense of abandonment by the Respondent. The complainant had a right to be heard , which was denied .

I would ask that the Respondent reflects on this. I would have much preferred to see an engagement at the workplace prior to the events as described. SI 146/2000 has relevance here in the absence of a notified grievance procedure.

I had some difficulty in identifying a set figure on which to measure salary for the purposes of estimating financial loss in this case.

The Pay slips set before me had an “M “frequency, which seemed to reflect monthly. These had figures ranging from €849 to €875. It appears that the Complainant was also in receipt of a top up payment prior to TWSS.

In the absence of opposing evidence on pay, I am capturing the complainant’s salary as that reflected on her complaint form as €1570.00 per month.

I find that the Complainant was unfairly dismissed.

Remedy:

In considering remedies, I find that section 7(1) (c), Compensation is the only appropriate and sensible course of action in this case. I will now make an award under that section.

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, 

In accordance with Section 7(2) of the Act, I have had regard for the Employer role in that financial loss. I am mindful of the procedure void surrounding the circumstances in this case and the distance between the terms of Section 14 of the Act.

14.— (1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.

I would have liked to have seen a thread of contacts between the Employer and Employee from March 2020. I would also have liked to have seen an execution of a local appeal / grievance prior to referral to the WRC.

I did take evidence on mitigation and loss from the complainant. I am satisfied that she did seek to mitigate that loss in a challenging economic climate. However, I would have preferred to consider material records of attempts to find work. The Labour Court has been very exacting on this point in recent Decisions. note UDD 1930 and TE Laboratories v Jakub Mikolajczki

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I order the Respondent to pay the Complainant €21,980 (equates with 14 months’ salary) in compensation for her actual and prospective financial loss. I have arrived at this figure in response to the profound procedural void in the case and the impact of this omission on the complainant.

This figure includes payment in lieu of notice, unpaid salary and unpaid holiday pay.

Claim for Unfair Dismissal, no appearance by the Respondent at hearing