Complainant

Respondent

Parties

Barbara  Nalepa

Winifred Rochford t/a The Health Store

Complainant

Respondent

Representatives

Terry Gorry , Solicitor of Terry Gorry & Co. Solicitors

Des Kavanagh , HR Consultant

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040075-001

25/09/2020

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

CA-00040075-002

25/09/2020

The issues in contention concern the alleged Unfair Dismissal of a Health Food Shop Manager by a Health Food Shop.

The employment commenced on the 9th of July 2018 and ended on the 28th of March 2020.

The gross pay was €484 per week for a 30-hour week.

1:1     Unfair Dismissals Act ,1977: CA-00040075-001

The Complainant made an Oral Testimony supported by a Written submission. She was fully cross examined by the Respondent Representative.

At the start of the Covid 19 lock down in March 2020 (calls of the 24th and 28th March refer) the Complainant contacted her former Employer to ascertain her position and what the plans were for the Shop. It was agreed that the Shop was an essential service and would remain open albeit on reduced hours -effectively on 12 hours per week. It was agreed that the three staff members would work as follows – The Complainant and Colleague A would be “laid off” and colleague Rachel would do the 12 hours herself. This suited her Social Welfare arrangements. The Complainant then went on the PUP €350 payment.

On the 11/04/2020 the Complainant discovered that a new lady was starting in the Shop. The Complainant contacted the Respondent by phone on the 17/04/2020. This was a heated call, and the upshot was that the Respondent indicted that the Complainant had effectively left her employment.

By e mails of the 20/04/2020 and the 29/04/2020 the Complainant unsuccessfully sought clarification of her employment status. By this stage the Shop was back to full hours and Colleague A had been called back to work. Failing to get Respondent relies to her e mails the Complainant sought legal advice and received via her Solicitor an e mail of the 1st of June 2020 confirming that she was no longer employed.

The Complainant never resigned either verbally or in writing. She had at all times indicated that she wanted to get back to work in the Shop. There were no Employment procedures (SI 146 of 2000) followed and the Dismissal was grievously unfair.

2:1         Unfair Dismissals Act ,1977: CA-00040075-001

The Respondent made an Oral Testimony supported by a Written submission. She was fully cross examined by the Complainant Representative.

The Respondent stated that she was suffering from poor health and had restricted oral volume.

Following a severe stroke in 2019 she had to reduce her day-to-day involvement in the Shop. The Complainant had been promoted to Store Manager in early 2020.

In late March 2020 there was considerable confusion regarding Covid closures, but it was made clear that the Shop was an essential service and could remain open. Various calls were exchanged but on the 28th of March 2020 the Respondent and the Complainant had a lengthy phone conversation. Due to a staff bereavement and a Covid Health restriction the shop was now down to only three employees – the Complainant, Colleague A and Colleague R. The Complainant informed the Respondent that Colleague A and herself would stop working and go on to the PUP. Rachel would do the 12 hours in the Shop. Initially the Shop would be open for only 12 hours.  The Respondent felt that the Staff had decided this course of action among themselves without any regard to her position as the Owner. She had always wanted to keep the shop on full hours but his was impossible with the Complainant and Colleague A effectively absenting themselves.

Fortunately, by hiring another employee on or about the 13/04/2020 and going into the Shop herself, despite her very serious Health concerns, she was able to get the Opening Hours back to near normal.

The Respondent was strongly of the view that the Complainant had allowed her personal circumstances (husband made redundant etc) to influence her decision to go on the PUP. She had effectively abandoned the Respondent at the worst possible time and reduced the Shop to only Rachel who was very new. The Complainant was the Manager and she had effectively jeopardised the business by going on to the PUP when she was clearly needed in the Shop. The Complainant had, in the Respondent’s view, abandoned her employment. By going out on the PUP and encouraging Colleague A to do likewise the financial viability of the Shop was severely threatened.

In her e mail of the 1st of June, to Mr. Gorry for the Complainant, she had stated that the Complainant had effectively “reneged” on her employment in March to go on the PUP.  This was not required as the Shop was remaining open. There was no possibility of her ever coming back to the Respondent as the relationship of trust built up over a number of good years with the Owner/ Respondent was now completely broken.

3:1      The Relevant law

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

Accordingly in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “band of Reasonableness”.

However, legal issues notwithstanding, all cases rest on their own evidence and this has to be reviewed below.

3:3     Review of the Evidence both written and Oral.

While considerable Written evidence was submitted much of this case rested on the Oral testimony of the Complainant and the Respondent. A lot of the background was influenced by the ill health/stroke recovery of the Respondet.

The key questions in the Oral Testimony revolved around the exchanges by telephone between the Complainant and the Respondent especially the call of the 28th of March 2020. Recollections strongly varied and the varying interpretation of the meaning of the words “Lay Off” was very contentious between the Parties.

The ill health and verbal difficulties of the Respondet had not helped. Both the Complainant and the Respondent gave direct oral evidence. The Respondent Representative, Mr. Kavanagh, forcefully argued what he referred to as the “Logic” of the Respondent case.

The Business had been in existence for many years. Unfortunately, due to the ill health of the Owner and the serious, terminal ill health of a staff member coupled with the Covid restriction on another staff member, the available staff were reduced to three persons.

In this context it was completely illogical argued Mr Kavanagh, for the Respondent to have agreed to “Lay off” her most vital employee, the Manager- the Complainant - and thereby force the Shop to work reduced hours with all the negative impact on revenue/cash flows etc.

It was clear from the written evidence / copies of What’s Ap messages etc that the Staff had been largely running the Shop independently while the Respondent was ill. The late March decisions regarding Covid opening hours and staffing appeared to have been taken without much involvement or prior consent from the Respondet Owner.

In her Oral Testimony the Complainant was, the Adjudicator felt, somewhat hazy in some of her recollections regarding conversations with the Respondent. It was clear that’s she had been attracted to the prospect of the PUP €350 particularly as it saved her the travel costs of commuting from outside Carlow. The fact that her husband had lost his job at the same time was of major concern to her. The personal relationship with the Respondet as Owner/Manager seemed to have been overshadowed by these factors.

The Oral evidence of the Respondent, while difficult due to her speaking issues, indicated a deep feeling of personal hurt regarding the actions of the Complainant.

On balance the argument of the Respondent representative had more weight. The Respondent had built up a successful business. Due to unfortunate ill health, she had had to step back and let the Complainant assume most managerial responsibilities. In this context it seemed almost impossible to agree how she could have agreed to allow her most vital worker go on lay off especially in a situation where the business, as essential service, did not have to close.

The Complainant was on the PUP -this was not a Resignation, and the expectation of the Scheme was of a return to work as soon as possible by the Scheme claimants.

In all the evidence the major issue for the Respondent was a very strongly felt Breach of Trust by the Complainant toward the Respondent. The evidence pointed to the Complainant and her colleague Ms A having taken a virtually unilateral decision regarding the Shop Opening hours and having Ms R cover the 12 hours.  This approach to business decision making was probably a carry over from the previous period when the running of the Shop was largely left to the Complainant during the Respondent’s serious illness.

However, to a reasonable observer the rights of the business Owner -the Respondet had to be given preference and it appeared, from the evidence, that she may have rightly felt that she was given no proper input. Taken with the death of a long-standing fellow employee and her recovery from a severe illness the Respondet felt personally very hurt towards the Complainant.

In an Unfair Dismissal context, the legal question of a “Breach of Trust” between an employee and an employer is fraught with difficulty. Objective evidence is always helpful – non-payment of wages for example – but in this case this is lacking and is overshadowed by the ambiguity / varying public advice etc of the Covid situation. However, the Oral testimony of the Respondent, assisted by Mr Kavanagh due to medical speaking issues, came across more convincingly than that of the Complainant.

However, merits or demerits of the case notwithstanding, proper employment procedures are required to defend an Unfair Dismissal case.

In this regard Respondent follow up to the nonattendance at work of the Complainant was devoid of any recognised employment procedures, investigation meetings, disciplinary / appeal hearings etc. Natural Justice as required by Mr. Justice Flood, as set out above, was clearly absent. The Complainant was not informed of any proposed dismissal or given an opportunity to make a case in her own defence. The Respondent’s instruction of the 3rd of April 2020 to her Accountant to issue the Complainant with her P45, effectively ending her employment, was it could be argued, a rather precipitative act.

On these procedural grounds the finding has to be one of Unfair Dismissal.

However, in considering appropriate Redress, the overall situation and the contribution of all Parties has to be considered.

Unfair Dismissal, Covid 19, Breach of Trust