Complainant

Respondent

Parties

Lisa  Phillips

Kilmore Investments Limited T/A Saltees Coast Hotel

Representatives

Tom Forde Wexford County Council

 John Roche

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-00055201-001

20/02/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent gave their evidence under affirmation and both parties were permitted to cross examine the witnesses.

The complainant’s average salary as evidence by her payslips amounted to €291.51 per week and the respondent took over the hotel by was of Transfer of Undertakings.

The respondent submitted that the complainant was not dismissed but was laid off.  It was submitted that the business environment was difficult and therefore they no longer had need of a receptionist.

In oral evidence the witness for the respondent confirmed that the complainant’s last paycheck was dated 13 October 2022.  He also confirmed that that apart from and emails dated 12 and 26 October 2022 when the current operating environment was outlined to the workforce, no further communication took place with the complainant.

The respondent suggested that the end of the relationship amounted to a redundancy but confirmed that no paperwork or procedures to that effect were followed.

The complainant submitted that she only became aware of her dismissal when the Revenue Commissioner confirmed to her in January 2023 that she no longer worked for the respondent and that the date of her termination was 6 October 2022.

She submitted that she received no communication from the respondent regarding the termination of her employment beyond that received in October 2022.

The complainant outlined her efforts to secure employment in evidence, ehe outlined her efforts to secure a position through applying to websites, and via the Department of Social Welfare.  She stated that she started a jobseeker’s course in February after she became aware that her previous employment was terminated.

She outlined how she was in receipt of jobseeker’s assistance from the time she finished with the respondent in October until she secured employment at the end of April 2023.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

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.

The witness for the respondent submitted that the unfortunate business environment was outlined to all staff members in October 2022 and that the complainant was amongst those informed.  This was followed up with two email communications to all staff keeping them up with any developments.

I note that nowhere was the complainant informed in writing that she was on temporary layoff.   Although the suggestion was made by the witness for the respondent that she was made redundant, he confirmed that she was not provided with any information, written or otherwise to that effect nor was any procedure followed.  I also note that the respondent confirmed that the complainant was not informed, either in writing or orally, that she was dismissed.  The termination of her employment was never confirmed to the complainant by the respondent, only to the Revenue Commissioners.

The Unfair Dismissals Act defined dismissal as follows:

“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;

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;

Having regard to the written and oral submissions, I am satisfied that the end of the employment relationship in this instance falls into the above definition of dismissal.  Under the provision of Section 6(1) the end of this employment, the dismissal of an employee shall be deemed to be an unfair dismissal unless there were substantial grounds justifying the dismissal.  In the absence of any paperwork or ongoing discussion regarding the layoff, redundancy or the dismissal and any procedure for the complainant to engage with the respondent to explore any options available to her, I find that the complainant was unfairly dismissed.

As regards the complainant’s loss, she outlined how her social welfare benefits amounted to around €210 per week and that her weekly loss amounted to €87.51.  The complainant noted that she was unaware of her employment situation until the Revenue Commissioners confirmed to her that her employment was terminated in October.  She outlined her efforts to obtain alternative employment and noted that she undertook a course with Social Welfare from February onwards to improve her employment prospects.  She eventually secured employment towards the end of April.  In the circumstances, I am satisfied that the compliant tried to mitigate her losses.  Accordingly, I award the complainant redress equal to €87.51 per week for the period from 13 October to 28 April, a 27-week period.  The amount of the award of is €2362.77

Having regard to the written and oral submissions made in relation to this complaint, my decision is that the complainant was unfairly dismissed, and I award her redress of €2363.77

Unfair Dismissals Act – dismissal established – deemed unfair – award of redress