Complainant

Respondent

Parties

Aideen  Dunbar

Wheelock Fruits Limited

Representatives

N/A

Robert Jacob Jacob and Twomey Solicitors LLP

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-00048018-001

06/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00048018-002

06/01/2022

The Complainant commenced her employment as a Pastry Chef with the Respondent on 15 September 2020 where she worked 32 hours per week and was paid €12 per hour. She stated that she was dismissed from her employment on 29 December 2021 which the Respondent disputed. In addition, the Complainant alleged that she did not receive a written statement of her terms and conditions of employment which was also disputed.

The Complainant stated that several difficulties arose towards the end of her employment with the Respondent. Specifically, she said in the first instance that issues arose with the undercooking of puddings in November 2021 but claimed that this was the result of the oven not working properly and not due to any oversight or failing on her behalf. She also stated that an issue arose over the hours she was due to work on Christmas week although these had been agreed in advance. Specifically, she stated that she received a call from the Respondent when she was at home with her children on 23 December 2021 asking why she was not in work and alleged that this call had caused her considerable distress over the Christmas period because she was not due to work on the day in question.

As a result of her mistreatment prior to the Christmas period and the distress this caused her, the Complainant indicated in a meeting on 29 December 2021 with both Ms Wheelock, a director of the Respondent, and her line manager that she was exploring other employment options. Shortly after the end of the meeting, she stated that her line manager approached her in the kitchen where she was working and informed her that the Respondent was offering her four weeks’ pay to leave their employment immediately. She stated that because of this conversation she felt she had no other option but to finish up there and then. She highlighted that there was no formal disciplinary process, that she was not afforded the opportunity to improve any aspect of her performance and was not given the option to have a colleague attend any of the discussions with her for support.

The Complainant also stated that she obtained alternative work very quickly and is now working in a role where she earned more than she did with the Respondent. She also disputed that she received a copy of her written terms and conditions of employment. 

The Respondent stated that in November 2021 there was an issue regarding the undercooking of three hundred puddings which had been prepared by the Complainant. When this matter was raised with her, the Respondent stated that she got very upset and proposed to resign from her employment. However Mr Wheelock stated in his evidence that he urged her not to do so and she remained in employment. Mr Wheelock stated that he further sought to speak with the Complainant on 28 December 2021 in relation to work related matters but was ignored. On the same day, her line manager asked the Complainant to meet with her and Mrs Wheelock, who was also a director, to discuss work related concerns that the Complainant had raised on 23 December 2021. The Complainant refused to meet however.

On 29 December 2021, the Complainant met with her line manager as well as Ms Wheelock, confirmed that she was seeking alternative employment and would be leaving the employment of the Respondent when she found a suitable role. Given that she was clearly unhappy in her role and repeatedly indicated a desire to leave her employment, the Respondent later offered her four weeks’ pay to leave so that she could focus on seeking work elsewhere. The Respondent asserted that it was the Complainant’s decision to leave her employment and stated that if she had decided to refuse the offer of four weeks’ pay to finish up, she would have been allowed to remain working.

The Respondent also stated that the Complainant had been furnished with a contract of employment which she refused to sign.

CA-00048018-001:

The Law:

Section 6 of the Unfair Dismissals Act 1977 in relevant part states:

(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.

(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.

(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, 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 section 7 (2) of this Act.

Findings:

While I note that the Respondent disputed the Complainant was dismissed and asserted instead that it was her decision to leave, I find that the decision to offer the Complainant four weeks’ pay to immediately finish her employment was not the conduct of a reasonable employer and left her with little option but to accept the package. Specifically, while I recognise that the Complainant had indicated a desire to move on from her employment at the meeting of 29 December 2021, a reasonable employer would have had a discussion with her to see if they could persuade her to stay or sought to find an alternative role for her and if they were unable to do so would have allowed her the opportunity to end the employment when she found an suitable role elsewhere in her own good time. Given that the Respondent decided however to effectively force the Complainant to leave her employment without any regard to due process or fair procedure because she was honest enough to tell them of her intentions following what she believed to be their mistreatment of her, I find that she was unfairly dismissed.  

CA-00048018-002:

Section 3 of the Act imposes an obligation on employers to provide their employees with a written statement of terms and conditions relating to their employment within two months of commencing employment. 

Specifically, section 3 of the Act provides:

3.— (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Findings

This is a complaint pursuant to the Terms of Employment (Information) Act regarding the section 3 requirement to provide an employee with a statement of the terms of their employment. It also requires that the document is signed by the employer and retained on file for at least a year after the ending of that employee’s employment. It is a requirement that transposes EU law, the Written Statement Directive of 1991 (91/533/EC and latterly, Directive 2019/1152). The requirement set out in section 3 has been law since 16 May 1994. 

Although the Respondent alleged that he provided the Complainant with a written copy of her terms and conditions of employment, the Complainant stated that she did not receive it. Apart from the direct evidence of the Respondent however there was no supporting evidence such as a registered letter or an email to confirm that the contract was issued.

In the circumstances, I prefer the evidence of the Complainant and therefore find that this complaint is well founded.

CA-00048018-001:

I have found that the Complainant was unfairly dismissed for the reasons set out above.

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(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, 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,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

I note the Complainant’s preference for compensation as a remedy, that she has obtained alternative work elsewhere and consider therefore that this is the appropriate redress in this instance.

According to the Complainant’s evidence, she obtained alternative work very quickly and suffered no financial loss because of her unfair dismissal. Section 7 (1) (c) (ii) of the Acts states that where there is no financial loss, I may award 4 weeks’ pay. Accordingly, I make an award of €1,536 in respect of the unfair dismissal.

CA-00048018-002:

I find that this complaint is well founded as set out above. In making a decision on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that the Respondent was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks remuneration, namely €1,536.