Complainant

Respondent

Parties

Sarah  O'Connor

Cas Dental

Complainant

Respondent

Anonymised Parties

Representatives

David Byrnes, BL, instructed by Felix Mc Tiernan Noble Law Solicitors

Barry Crushell, Crushell & Co

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-00045902-001

01/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045902-002

01/09/2021

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

CA-00045902-003

01/09/2021

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

CA-00045902-004 

02/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045902-005

02/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00045902-006

02/09/2021

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

CA-00045902-007

06/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045902-008

06/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00045902-009

06/09/2021

The complainant worked as a dental technician with the respondent.  She commenced work on 21/08/2018.  She worked on a part time basis and was paid a gross salary of €1,126.16 per month.  She was dismissed by the respondent on 06/04/2021 as a result of ongoing errors in relation to her work.  She submitted her complaints to the WRC on 01/09/2021.  The respondent denies that the complainant was unfairly dismissed.

The respondent is a denture clinic where dentures are made and supplied directly to the public.  The Dental Act, 1985 introduced the grade of Clinical Dental Technician and the respondent makes medical devices under the Medical Directive 93/43EC51 No 525 of 1994.  The respondent supplies and fits dentures and are responsible for the insertion, maintenance and advice.  There are two sections to the respondent’s company.  Firstly, the clinical aspect and then the manufacturing aspect.  The manufacturing aspect is the dental laboratory, and the respondent only makes dentures for their own patients.  The dental technicians manufacture the dentures and do not have any patient contact.  The complainant was employed as a dental technician.

As the burden of proof was on the Respondent, its witnesses gave evidence first.

Mrs Deirdre Sower gave sworn evidence.  She confirmed that she is a co-director with the respondent and is also the practice manager.  She outlined the payroll arrangements in relation to the complainant.  The complainant worked part time and was paid monthly.  The pay date was the 20th of each month.  The complainant was entitled to two weeks’ notice, and she was paid two weeks.   Mrs Sower confirmed that the complainant was dismissed on 06/04/2021 and was paid on 20/04/2021.  This payment consisted of payment for the week of 06/04/2021 and two weeks’ notice payment.  Mrs Sower gave evidence that she created the pay slip dated 20/04/2021 for €264.36 and confirmed that she issued it. 

During cross examination Mrs Sower was asked if she had an e mail trail in relation to the payment made to the complainant and she confirmed that she did not.  She confirmed that she sent the complainant the text looking for the money back.  Mrs Sower was asked to confirm that the first time the complainant heard that the money was a “good will payment” was at the hearing and she confirmed that it was.  She also confirmed that she had asked the complainant on three occasions to repay the money.  Mrs Sower was asked why she did not pursue the matter if she felt that the respondent was due a repayment and she outlined that she “just left the matter there”.

Mrs Sower was asked to confirm what notice she understood the complainant was due and she said that it was two weeks.  Mrs Sower was asked how the complainant would know what her notice entitlement was, and she said that the law said it was two weeks.  Mrs Sower confirmed that the complainant was never issued with any written statement in relation to this. She confirmed that she presumed it was two weeks for part time employees. She also confirmed that she did not take any legal advice in relation to this.  It was put to Mrs Sower that the pay slip for €264.36 was the only evidence of a payment to the complainant and she said that was correct.  It was put to Mrs Sower that there is a body of case law in relation to the non-payment of notice and payment in lieu of notice.  Mrs Sower accepted that was what the complainant’s representative was stating.

Mr Colum Sower gave sworn evidence.  He confirmed that he is a qualified dental technician and is also a qualified clinical dental technician.  He is a director of the respondent.  He set up this practice in 1976 and currently has ten employees.  He confirmed that he recruited the complainant as a dental technician.  Mr Sower confirmed that the complainant was a graduate of TCD, and that this qualification allows her to manufacture dental prosthetics.  Mr Sower confirmed that the complainant received a pass grade in her examination.

Under cross examination Mr Sower confirmed that his clinic was very busy.  On average a patient would be seen every 15 minutes and they could see 25-30 patients per day.  Mr Sower confirmed that he is a qualified Clinical Dental Technician (CDT).  Mr Sower gave evidence that there is no statutory regulation of dental technicians.    He also confirmed that he was the CDT representative on the Dental Council in August 2019.  In 2019 he had two part time staff, one full time and then both himself and Mrs Deirdre Sower. 

It was put to Mr Sower that the complainant was not issued with a written contract of employment after a period of seven months.  Mr Sower said that he understood that he had a period of one year to issue a contract and that this was still his understanding based on advice he received from the Small Business Association.

Mr Sower was asked if he was familiar with the Code of Conduct for Clinical Dental Technicians, and he confirmed that he was.  A number of points from the code were put to Mr Sower.  Once section (3.21) states that a CDT must assume responsibility for any service delegated to his/her staff and that the CDT should encourage and assist their staff to avail of relevant training to obtain qualifications.  Mr Sower outlined that he has always and continues to motivate his staff in relation to training and he also did so with the complainant.

Mr Sower was asked to outline if and how his laboratory was regulated by Health Products Regulatory Authority (HPRA).  He stated that the laboratory needs registration, and this is done through an application process.  The licence is maintained by paying the yearly fee and there are no specific audits required.  Mr Sower confirmed that he obtained the licence for his practice in 1993.  He confirmed that there is a quality process in place.  He was asked if the complainant had authority to sign off on products. Mr Sower confirmed that she had but he did take her off the finishing process for their products.

Mr Sower confirmed that the complainant completed a bench-test as part of the recruitment process. He also outlined that the complainant had a probationary period and that during that time she required some guidance and he worked closely with her.  Mr Sower gave evidence that the complainant was not working in isolation, and she was supervised by a Mr D and himself.  He was then asked to outline what training and or counselling she received during her first year.  Mr Sower said that there was constant training and counselling provided to the complainant. It was put to Mr Sower that no formal training was provided, and he outlined that when a dental technician is qualified from TCD they should be competent.  What is required is the training in the nuances of a particular practice.

Mr Sower was asked when he was concerned about the complainant’s performance.  He outlined that from the start of her employment he observed a lack of focus, and he was concerned that it was a regular occurrence that he would have to finish a product she was working on.  Mr Sower was asked if there was any formal process put in place to address these concerns during the complainant’s first year. He outlined that he had regular reviews with the complainant and showed her ways to improve.  He always based his approach on encouragement as he was mindful that there was a shortage of dental technicians.  Mr Sower was asked if there was a need for a full-time employee and he confirmed that there was, but the complainant was not at the standard required of a full-time employee.

Mr Sower was asked how the complainant was working out after year 1 and he said that her performance was worse.  Mr Sower confirmed that he issued the complainant with her first verbal warning on 11/11/2020.  He was made aware of a number of issues in relation to a number of aspects of the complainant’s work.   He made a note of this meeting.

Mr Sower confirmed that he issued a second verbal warning to the complainant on 9/2/2021.  This was issued because of a number of serious mistakes which led to a failure of cases.  Mr Sower gave examples of these mistakes at the hearing and gave evidence to explain the technical nature of these errors and the consequences of having these errors.  Mr Sower gave evidence that the complainant’s performance did not improve after this.

Mr Sower gave evidence that a written warning was given to the complainant on 11/03/2021.  This was issued as a result of her continued poor-quality work.  Mr Sower said that the complainant was told not to make any major mistakes.  Mr Sower confirmed that the warning letter outlined twelve issues in relation to her work.  Mr Sower was asked how the complainant could remedy these and he outlined that his intention was to make the complainant aware of what went wrong and how to fix these.  He confirmed that he supported the complainant by meeting with her.  It was put to Mr Sower that he treated the complainant like a first-year student, and this was not a supportive approach.  He denied that he had done so or that he was ever mean to the complainant.

Mr Sower agreed that the complainant was out sick for one week after these warning and he confirmed that he had asked her how she was.

Mr Sower was asked if the complainant was formally invited to the meeting on 6/4/2021 at which she was dismissed, and he confirmed that she was not.  He outlined that a colleague had told her what the meeting was about.  Mr Sower was asked how the complainant took the news of her dismissal and he confirmed that she was not happy and asked when she was to finish.  She also requested a letter outlining her dismissal. Mr Sower confirmed that the complainant wrote to him on 19/08/2021 and he responded to that letter.

Mr Sower confirmed that the practice was closed for six weeks due to COVID-19.  Mr Sower was asked if there was a final written warning issued to the complainant and he confirmed that there was none.  He also confirmed that there was no formal improvement plan.  Mr Sower agreed that there was no disciplinary issues or issues of misconduct in relation to the complainant. 

It was put to Mr Sower that he stated in his written submission that the complainant worked for a Mr PMC and that he learned that Mr PMC let the complainant go.  However, the complainant will state that she never worked for this person.  Mr Sower said that he spoke to Mr PMC in October.

Mr Sower was asked about the introduction of 3D Printing into the practice.  He outlined that this was introduced in January 2020.  Mr Sower gave evidence in relation to the process used and its impact on the way the practice works.  Mr Sower outlined that the Dental Technician inputs the design based on the prescription.  Mr Sower also gave evidence that all staff received a one-day training, and he showed the complainant how to use the scanner.   Additional training in relation to design took place in mid-February.  Mr Sower confirmed that the 3D products became available to patients in March/April 2020.

It was put to Mr Sower that the complainant had to take on additional duties when a member of staff left towards the end of February and was not replaced.  Mr Sower said that it was he himself that took up the slack in the laboratory.

Mr Sower was asked about the reference/training manual.  He said that this was available but confirmed that it was not mentioned in any of the letters sent to the complainant.  It was put to Mr Sower that a reasonable employer would have focussed on or referred to the manual and standards that were expected.  Mr Sower said that all staff knew where this manual could be accessed.  Mr Sower confirmed that he never told the complainant that other staff were complaining about her performance.

It was put to Mr Sower that he would be negligent if he did not keep records and he agreed that it would.  Mr Sower was asked what records he kept in relation to staff training.   He confirmed that there were kept in the laboratory for all external training, but he did not keep records of in-house training.    Mr Sower was asked what HPRA audits looked for and he confirmed that they were only interested in external training records.  Mr Sower also gave evidence in relation to a scanning course in anticipation of the 3D printing and his involvement in giving external courses.

It was put to Mr Sower that the complainant went on sick leave  due to the volume of work and anxiety this caused her.  Mr Sower said that this was not brought on by the volume of work but by the complainant’s inability to deal with the work.  Mr Sower confirmed that he was not aware if the complainant worked through her lunch in order to get repairs completed.  Mr Sower said that he was not aware of this and accepted that the complainant was entitled to finish at the appointed time.  Mr Sower was asked to explain a number of photographs of work errors made by the complainant, and he provided the hearing with details and explanations of these.

It was put to Mr Sower that as the complainant had no contract of employment and was not given any details of a disciplinary procedure then she would not be aware of what procedure the respondent was using.  Mr Sower noted that he explained the procedure to the complainant and that his emphasis was on making her aware that she could not make any more mistakes.

Mr Sower confirmed that he had written the letter of dismissal before meeting the complainant.  It was put to Mr Sower that a reasonable employer would have put notice of the potential dismissal in the letter.  Mr Sower confirmed that he told the complainant at the meeting about the dismissal.  Mr Sower also confirmed that he did not tell the complainant that she was entitled to representation at the dismissal meeting.  It was put to Mr Sower that in the absence of a written disciplinary procedure the required standard, by default, was that outlined in S.I. No 146/2000.  Mr Sower confirmed that he was not aware of this.

Mr Sower agreed that if other employees were making allegations against the complainant, she was entitled to an opportunity to respond and challenge these.  Mr Sower confirmed that he did not keep copies of his handwritten notes of meetings as he was not aware that he was required to do so.

Mr Sower confirmed that the complainant worked 20 hours per week, and it was put to him that this was equivalent to 6 months full time and in that period the business was closed for six weeks due to COVID-19 and so the complainant did not work a full year.

Mr Sower gave evidence that the complainant did not appeal the decision to dismiss her, and he did not inform her of her right to appeal.  Mr Sower confirmed that he issued a written reference to the complainant dated 8/4/2021 and that this should be taken at face value.  He was trying to be nice to the complainant.

Ms Nicole Colton also gave sworn evidence on behalf of the respondent.  She confirmed details of her education and qualifications. She works full time for the respondent since April 2012 and h role is that of Dental Technician.  She confirmed that there is no “rank” structure, and the dental technicians work on different aspects of the business.  Ms Colton outlined that when she started work, she was not given any additional training but was shown what needed to be done and she” just got on with it”.  Ms Colton outlined that once qualified as a dental technician there are no professional requirements after that.  Ms Colton stated that she started working with the complainant around 2018 and they got on ok and both were doing digital training. Ms Colton gave evidence that she began to have concerns about the complainant’s professional competence when they moved to the second laboratory.  She noted that cases were getting mixed up and that some front teeth were also mixed up.  Ms Colton confirmed that the group WhatsApp was used by her to attach files in relation to errors made by the complainant.  She felt that it was appropriate to use this as the complainant was not there on the day and she had to let her now.  Ms Colton confirmed that she was not the complainant’s supervisor but that she was the longest serving dental technician.  She was keeping an eye on things. Ms Colton gave further evidence in relation to the technical aspects of the errors made by the complainant.  Ms Colton was asked if she agreed that the complainant was often the first person in the laboratory in the morning and she stated that she was not as she did not have a key.  Ms Colton was asked if the complainant was correct when she stated that she was standing over the complainant and pointing out her mistakes.  Ms Colton confirmed that she had to point out the mistakes made. Ms Colton confirmed that she was not in work on 6/4/2021 which was the date the complainant was dismissed.  Ms Colton confirmed that the complainant asked her on 21st March if that was her last day.  Ms Colton also gave evidence that she had raised concerns about the complainant’s work as other technicians were giving out as they had to repeat that work.  Ms Colton confirmed that she was not surprised that the complainant was dismissed.   Ms Colton was asked if she would have done anything different in relation to the complainant’s work and she said that she would advise her employer earlier about her concerns.

Ms Colton was cross examined on behalf of the complainant.  She confirmed that her concerns did not come to light until they moved to the second laboratory.  She also confirmed that she did not receive any formal training when she started working with the respondent.  Ms Colton was asked to clarify if she was friendly with the complainant, and she stated that she considered that they were work related friendly.  It was put to Ms Colton that the complainant will give evidence that she did not confide in her and Ms Colton stated that was not correct.  Ms Colton was asked if there was any hierarchy in relation to the laboratory and she stated that there was no supervisory position designated.  It was put to Ms Colton that she could have addressed her concerns about the complainant earlier and she stated that she could have when she graduated as a Clinical Dental Technician in July 2020.

Ms Colton was asked to clarify her evidence that the complainant asked her if 21st March 2021 was her last day and when she became aware of the meeting with the complainant.  She confirmed that she became aware of the meeting that morning.  Ms Colton also confirmed that the meeting on 11 March was an individual meeting.  Ms Colton confirmed that she could not recall if she was told the complainant was given a verbal warning, but she believes that she was told by the complainant that she had and later by Mr Sower.  Ms Colton confirmed that she did not put her concerns about the complainant’s work in writing to her employer.  Ms Colton confirmed that Mr Sower told her the complainant was to be dismissed in the week leading up to 6/4/2021. Ms Colton confirmed that the WhatsApp group was set up for reporting on issues.  She was asked about a text message sent on 17/8/2020 and if, on reflection, she would now write this differently.  Ms Colton stated that she would not change it as the error that it related to makes her look incompetent. Ms Colton confirmed that she mentioned that it was the complainant who made the error and that there were 3 to 4 people working in the laboratory at that time.  It was put to the Ms Colton that this was a small working environment and she had just come back full time, and this was the beginning of her concerns in relation to the complainant.  She confirmed that this was correct and that this was the culture in the company.  In relation to other text messages sent on 26/3/2021 Ms Colton confirmed that she was annoyed and that these were sent to whoever was doing the articulating work that day.  Ms Colton confirmed that the complainant had gone home at that stage. 

It was put to the complainant that she was not a supervisor, but she was giving out orders.  Ms Colton confirmed that she had no supervisory function.  It was put to Ms Colton that it was not her role to supervise and reprimand.  Ms Colton denied that she reprimanded the complainant and clarified that the work in question “should be a walk in the park for a dental technician”.  It was put to Ms Colton that these messages had an adverse effect on the complainant and sending them on her day off was unfair.  Ms Colton denied that was the case and stated that this work needs to be of a high standard.  Ms Colton confirmed that she was not part of the complainant’s introduction to the company.  It was put to Ms Colton that the complainant will state that she was part of the complainant’s bench test before she commenced employment.  Ms Colton stated that she was not.

It was put to Ms Colton that she was putting the complainant under pressure.  Ms Colton denied this.  Ms Colton confirmed that the complainant had told her that she was on medication for stress.  Ms Colton was asked if she was aware that the complainant was having difficulties at work, and she stated that this was the nature of the work.  It was put to Ms Colton that this was profitable work.

It was put to Ms Colton that the complainant was prescribed medication for stress 15 years previously and now had to take these again due to the pressures of work.  It was also put to Ms Colton that what she was saying was at odds with the reference dated 8/4/2021 by the respondent and that what she was saying was not consistent with her own evidence.  Ms Colton stated that the reference provided was “over generous”.

Ms Colton confirmed that she continues to work for the respondent.

Under redirection, Ms Colton was asked about the standards and specifically the consequences of not meeting these standards.  Ms Colton stated that the standards were to make sure that the public were given the proper goods.  Ms Colton also confirmed that she was not aware of any negligence claims, or any reports made in relation to the practice.

Ms Colton was asked if the standards which applied to her were the same which applied to the complainant, and she confirmed that they were.  Ms Colton also confirmed that the rates of pay which the respondent had were not out of synch with the industry norm.

In a closing submission the respondent’s representative said that it was accepted that the respondent’s procedure was not perfect.  However, the applicable standard is that of a reasonable employer.  In that context there is a conflict of evidence in relation to meetings and communication.

The respondent hired the complainant in good faith and had high expectations. These expectations were no different than that which applied to any other employee.  However, the standards were not only not met but were regularly not met. The meeting on 11/11/2020 the complainant was given her first verbal warning.  She received a second verbal warning on 9/2/2021 due to serious errors.  The complainant’s own testimony was that she feared her role was at risk.   On 11/3/3022 she was given a written warning and the concerns were put in writing and these related to twelve areas.  The complainant did not meet the required standard an incident arose, and the respondent met the complainant and terminated her employment with immediate effect.  In the medical/dental profession there are severe consequences of not meeting a standard.  It is the respondent’s position that when the trust and confidence was broken, they could not keep her in employment. The respondent also did not want to compound matters for the complainant and the reference was written to give her an opportunity to move on.

The respondent did have a reasonable standard.  Was the standard perfect?  No.  Was it reasonable?  Yes.

In terms of moving on it was submitted on behalf of the respondent that reengagement or reinstatement were not feasible options given the breakdown of trust and confidence.  It was also noted that the complainant made no effort to mitigate her loss.  It was submitted that there is limited discretion afforded to an Adjudication Officer when a complainant does not make sufficient efforts and it was noted that ADJ-00019396 quotes the case of UD858/1999 in relation to a finding of the EAT which held that there is a high standard required.  It was also submitted on behalf of the respondent that there are occasions where a nil award has been made by the WRC in such circumstances.

The respondent accepts that there was a dismissal.  This was fair, reasonable and balanced.  The consistent mistakes by the complainant could not be allowed to continue.  The respondent did not take the decision to dismiss lightly.  It is a busy practice and since the complainant’s dismissal there are four dental technicians working in the practice.

The respondent’s representative also noted that their written submission contained a number of legal arguments and  relevant precedents.

The respondent’s representative also asked that it be noted that the complainant’s representative had presented a number of “novel” cases in his closing submission.  None of these were contained in their written submission and the respondent was at a disadvantage in not having sight of these in advance of the hearing.

In a post hearing submission, the respondent’s representative noted that in view of the substantial number of cases cited by the complainant’s representative in their closing submission,  they wished to refer to a single case law.  The case of An Employee v A Limited Company (ADJ-00017658) the WRC held that an employee who had been unfairly dismissed was entitled to a nil award in circumstances where he set up his own company immediately after the ending of his employment.  In that case the WRC found that any financial loss suffered after his dismissal was attributable to the fact that he set up his own business and not attributable to his dismissal. 

The complainant is a qualified dental technician and has also qualified as a Dental Nurse.  She took up a part-time position with the respondent on 21/08/2019.  The respondent did not provide any written statement of the terms and conditions relating to her employment and she was not provided with a written statement in relation to the procedure the respondent would use before and for the purposes of dismissing her.

The complainant submits that there were no written protocols, training manuals or employee handbook available to her.  She did not receive any formal training from the respondent.  She was working in a very busy practice.  She worked through her lunch to keep up to date and to try and alleviate the considerable pressure she was under.

In July 2020 the respondent moved the laboratory section of the practice to a new premises.  A WhatsApp group message was set up to assist with general communications.  In August 2020 the complainant noted that three images of her work were posted on the WhatsApp group.  The accompanying text highlighted errors and the complainant felt humiliated, embarrassed, and undermined as a result of this.  The complainant believes that these images were posted with the full knowledge of the respondent. 

In relation to the minimum notice claim (CA-00045902-002) the complainant’s representative submitted that it was accepted that the complainant was a permanent employee and therefore she was entitled to four weeks’ notice.  There was no question of misconduct.  While the respondent described a payment to the complainant as a “good will payment” the complainant’s representative submitted that this was not a statutory payment.

The respondent’s representative submitted that she was paid four weeks’ pay in the pay period 4. She was dismissed on 06/04/2021 and paid on 20/04/2021.

The complainant, Ms O’Connor gave evidence on oath.  She gave evidence that she was not paid her notice payment and referred to a payslip dated 20/04/2021 which shows a net payment of €264.36.  It was put to the complainant that the respondent has submitted a pay slip for her dated 20/04/2021 and this shows a net payment of €1,119.13.  The complainant gave evidence that she never received this payment.  She confirmed that she was paid by means of bank transfer.  The complainant confirmed that she received a text message from Mrs Sower on 06/05/2021 at 21.38 stating that she tried ringing the complainant and that she had overpaid her by €800.00 and wanted to get this money back.

On the second day of the hearing the complainant gave further evidence on oath.  She confirmed details of her education and qualifications.  She graduated in 2017 with distinction and she previously qualified in dental nursing.  She did not complete a master’s degree as she was hoping to do so when employed by the respondent and was unable to do so after her dismissal as she did not have the requisite service period.

The complainant confirmed that she obtained a “distinction” in her degree and that she was awarded a medal in her final year.  The complainant was asked if the respondent was correct that there were only two people in her class, and she stated that there were eight but only two managed to successfully complete the course.

The complainant worked in two other practices for about three years before moving to the respondent.  The complainant gave evidence that she was accepted by the respondent after she successfully completed a bench test which was observed by Ms Colton and her work was described by Mr Sower as “tidy”. 

She commenced employment on 21/08/2019 and she did not receive a written contract of employment or and information in relation to a disciplinary procedure. She reported directly to Mr Sower and there was no supervision.  The complainant stated that Ms Colton “was the de facto laboratory manager”.  The complainant stated that she worked 8 hours on Tuesday and Thursday and 4 hours on Wednesday.  She was given a key to access the laboratory.  When she commenced employment in 2019 there was another dental technician who left and there were three others two of who were doing the master’s degree.  The only person who could assist her was Mr Sower and she worked on her own.  Mr Sower would see patients at 15-minute intervals, and she was in the laboratory next door on her own.  The complainant outlined that she was told that she had to complete the “wall of work and to do so by date order”.  In relation to her specific duties the complainant gave evidence that she was doing “bite blocks and scanning”.  She was expected to do a bite block every 15 minutes.  The complainant gave evidence that she rarely took a lunch break while in the first laboratory as she was the only technician there and she had to do repairs during her lunch break.  The complainant stated that she was overworked when she started, and she thought that she would be working alongside a dental technician.  The complainant was asked if the respondent knew that the only experience, she had of this type of work was what she done in college and she stated that the respondent done things differently and she needed to learn “his way”.

The complainant was asked what her response was to the respondent’s evidence that some of her work was at the level of a first-year student.  She disagreed and stated that the work she was doing is not done in first year college. The complainant was asked how she felt when “the best in the business” described her work like that.  She stated that it killed her confidence and that it is a tough business, and such a comment was “degrading and upsetting”.  The complainant gave evidence that the respondent never said those words while she was working for him.  The complainant stated that when she started, she did not know if the respondent wanted his bite blocks done in a different way.  The complainant stated that she was primarily doing bite blocks and as she was new to dentures, she was not doing any precision work or finishes.  She only done finishes when they moved to the new laboratory.

The complainant was asked if she agreed with the respondent’s evidence that she had received training. She stated that she received training in 3D design and some in bite blocks. The complainant was asked when she studied flasking and packing in college and she confirmed that this was done in year two. She was asked when she suggested to the respondent that she needed training in flasking and packing and she said that she reported this to another colleague who has since left.  The complainant was asked about the book of standards [Blue Book] that the respondent stated in his evidence was available.  The complainant gave evidence that she never saw this book and that she was never given a copy of it. 

The complainant was asked how she interpreted the pay increases given to her by the respondent.  She stated that this indicated that he was happy with her work.  The complainant was asked what she thought of the respondent’s evidence that it was apparent that she was struggling and that her colleague, Ms Colton, said that she began to have concerns when she completed her master’s degree.  The complainant said that this was news to her.

The complainant was asked about who she worked for as there was some discussion about two distinct parts of the business, the dental side, and the laboratory side.  The complainant stated that she understood there was just the one entity.

The complainant was asked when the respondent’s son started working in the laboratory and she stated that this was in November 2020.  The complainant gave evidence that she asked if she could do more hours when they moved to the new laboratory, but it did not happen.

The complainant was asked what she thought of Mr Sowers evidence that” patient welfare trumps staff care”?  She stated that this was never mentioned to her previously and she would not now be surprised at that comment.  The complainant was asked what that comment means when the respondent states that the laboratory has no patients, and that the clinic is a separate company.  The complainant stated that this sets the tone for the business and that the welfare of the business is the respondent’s main concern.  The complainant was asked what the impact of being targeted in the WhatsApp group was on her when she was off duty. The complainant stated that she “felt ganged up on” and you could not cross Ms Colton as she had the backing of Mr Sower.  She was acting as supervisor.  The complainant stated that she felt nervous and berated and she was shaking a lot.  The complainant stated that she agreed that Ms Colton was a person who has a very high standard. 

The complainant gave further evidence that she was expected to carry the workload of three people and during COVID-19 they got busier.  The complainant stated that she was on her own for 80-90% of the time and with the same level of demand.  The complainant stated that she was nervous all the time and dreaded Ms Colton coming in as she would look at her work.  The complainant stated that she wanted to increase her productivity by working through lunch time and having repairs done.  She confirmed that she was not paid for any work done during her lunch time.  The complainant confirmed that Mr Sower was aware she was working during lunch, and he would come into the laboratory and give her 7 – 12 repairs to complete.  These repairs had to be completed as patients were waiting for them.  The complainant confirmed that repairs were not part of her degree curriculum and she had to learn to do those while working for the respondent.  As every repair is different it took her some months to learn about these. Mr Sower never told her not to work during lunch.

In relation to her performance the complainant gave evidence that she suffered under the working conditions.  She had to continue and try and get as much experience as possible in the 20 hours she was working and also during her unpaid lunch break.  The complainant confirmed that the 3D training was done by a third party.

The complainant was asked about the warnings she received.  In relation to the verbal warning issued on 11/11/2020 the complainant confirmed that she was not told that this was a warning and was told that this was a progress meeting.  She was not informed of the consequences of this warning or what the scope of the warning was.  The same applied to the second warning. The complainant felt that this was a progress meeting.  The complainant was asked about the letter of 11/03/2021.  She gave evidence that she was not told what the issues were and that it was her view that the respondent wanted a perfect standard.  She also confirmed that this letter made no reference to previous warnings and that the promised review never took place.  There was also no reference to the consequences of not meeting the required standard.  The next meeting, she had with the respondent was when she was being told she was dismissed.  The complainant confirmed that she was not given any specific details of the issues being considered.

The complainant gave evidence that the first time she was aware that she was going to be dismissed was on 6/4/2021.  The complainant confirmed that she had a feeling that some of her colleagues knew this was going to happen.  The complainant felt that they were ganging up on her and she had nowhere to go.  The complainant gave evidence that the meeting with Mr Sower lasted about one minute, and she was very nervous and terrified as a result of this.  She was not given a copy of what she was told by Mr Sower.  The complainant confirmed that she received a reference from Mr Sower, and she was happy with it.

The complainant confirmed that her health issues were certified by a GP.  She sent a text message to Mrs Sower on 20/3/2021 and the response was cold and indicated that she did not care about her health issues.  It was also clear to her from that response that Mr Sower just wanted to give out to her.

The complainant gave evidence that she was never told that she had a right to appeal the decision to dismiss her.  The complainant stated that she believed Mr Sowers evidence that he had written the letter before speaking to her.  The complainant confirmed that none of the pictures in the respondent’s written submission were put to her at the meeting with Mr Sower.  The complainant confirmed that the first time she saw these photographs was when she read the respondent’s submission to the WRC.

The complainant was asked what she felt about her performance being measured against an employee who was working full time.  She stated that she believed this was not a fair comparison and she would like to have worked full time.

The complainant gave evidence that since her dismissal she was working with a friend for six months and he was hoping to open a laboratory.  This did not materialise.  She is now doing some work with a business teaching science to children.  The complainant confirmed details of her current working with this company and confirmed she wants to return to study as a Clinical Dental Technician.

The complainant was cross examined by the respondent’s representative.  It was put to the complainant that the respondent’s submission states that they take patients obligations seriously and that service users’ safety must be a priority.  The complainant stated that she would agree.  The complainant was asked if she accepted that the respondent had a duty to address any issues that impact on patient safety, and she confirmed that she did.  She was then asked if she accepted that the respondent had a duty to deal with staff performance and she accepted that they had.

The complainant was then taken through her application process for employment with the respondent and she explained the rationale for studying to become a dental technician and outlined that prior to that she had her own business and in view of her circumstances she needed stability in her life.  Her decision to pursue a career as a dental technician arose from her artistic background and her work as a dental nurse.  The complainant confirmed that she received a number of accolades while studying to become a dental technician.  She attributed the high attrition rate to the difficulties people had with physics and mathematics.   She confirmed that in her final award she received the grade of distinction.  The complainant also confirmed details of her work history up to the time she commenced working with the respondent.

It was put to the complainant that her experience led the respondent to believe that she was suitable for the role.  The complainant stated that the respondent would also have seen that she had no previous experience of working with dentures. Her experience was mainly crown and bridge work as opposed to denture type work.  The complainant confirmed that her qualifications also helped her secure the post with the respondent. She explained that she did not have a masters degree as you must work for three years post qualification to be eligible to apply for entry to the masters programme.   The complainant was asked what her expectations were in relation to training by the respondent.  She explained that other practices send people on training courses, but she only received training in relation to scanning from the respondent.  The complainant was asked if Mr Sower gives training and the complainant stated that he is a member of the Dental Council, but she was not aware if he had any role in relation to the TCD course.

It was put to the complainant that the standard in relation to the supply of dentures is that of” a perfect fit”.   She confirmed that was what was required when dealing with soft tissue.  She was asked if she ever fell short of that standard, and she stated that she did, but she met it more often than has been presented by the respondent.  The complainant was asked if she worked during lunch while in TCD and she confirmed that she did, and this was not paid.  It was put to the complainant that she was laid off during COVID-19 and that she was paid during that time, and she confirmed that she was.  She also confirmed that she was paid during her sick leave.

It was put to the complainant that she gave evidence that she was shocked when she heard she was dismissed.  She confirmed that she was.  She was asked why she did not seek reinstatement or reengagement. The complainant stated that she was not treated well by the respondent as she was brought into a room told she was dismissed and then led out.  The complainant also confirmed that she submitted her complaints to the WRC prior to her receiving the respondent’s letter dated 03/08/2021.

The complainant was asked when the respondent’s son commenced employment.  She stated that it was sometime in November 2020 and that he was assigned to bite blocks, and she was aware he did not have any qualifications.  The complainant was asked to confirm if it was her position that her employment was terminated to make a role available for the respondent’s son.  She stated that was her position at that time.  The respondent’s son was going to college in Ireland but subsequently went to a college in the UK.  She confirmed that she thought that there was a position made for the respondent’s son.  It was put to the complainant that she gave evidence that she was doing the work of three dental technicians, and she was asked to clarify this.  The complainant stated that when she started work in the first laboratory there was another dental technician who was let go and two others whom she identified at the hearing.  The complainant confirmed that there was a shortage of dental technicians.  It was put to the complainant that if there was a shortage then it would have been a big decision for the respondent to dismiss a dental technician.  The complainant stated that she did not agree with that statement as the respondent was aware of a dental technician who was studying in TCD at that time.  The complainant was aware that the respondent hired a friend of Ms Colton’s about three months after she was dismissed.

It was put to the complainant that in her submission and her evidence she stated that she was shocked she was dismissed.  She stated that it was her understanding that if you were going to be dismissed you would have received verbal warnings and written warnings and told you could be dismissed.  She was not aware she would be dismissed. The complainant confirmed that she received a first verbal warning and that she had a progress meeting with the respondent.  The complainant stated that at these meetings she was told that she was not up to the standard in some areas.    She did not recall being presented with photographs by the respondent.  It was put to the complainant that she was on notice of a potential dismissal from February 2021, and she rejected this suggestion. The complainant was asked what more the respondent was expecting from her.  She stated that the respondent said that they have the highest of standards and it was her view that they were looking for a more experienced dental technician.  The complainant was asked how long she felt it would take a dental technician to reach that high standard and she stated that it could take 5  to 10 years but for an acceptable standard it would take two years full time work.

The complainant was asked to review the letter of 11/03/2021.  Each of the twelve points outlined were put to the complainant. The complainant confirmed that the item mentioned in the first point occurred 1 ½ years previously and in relation to another concern this actually related to another dental technician.  Some of the points were not a concern.  The complainant responded to each point and noted that she had no complaints in relation to some of the points and she disputed other points outlined.  In summary some of these points were historical and she disputed others.  It was put to the complainant that these 12 points were samples which refer to her performance and which needed to improve.  The complainant stated that she knew she had to improve in some areas.

The complainant was asked what her understanding was of the issues that led to her employment being terminated.  She stated that there was an issue with articulations.  The complainant also stated that there was an issue for her when Ms Colton was standing over her and making her very nervous and admitted that she would make mistakes when under pressure.  The complainant was asked what happened after this and she stated that the WhatsApp group was informed of an error.  She became unwell and was on sick leave for 2 ½ days.  The complainant confirmed that when she returned from sick leave on 6/4/2021 she had a meeting with Mr Sower at 8.30am and she was told that she needed to get her stuff and go. The complainant outlined that she was shocked and dumfounded when this was said to her.

It was put to the complainant that she knew something was amiss and that she would have expected a conversation or a formal meeting.  She stated that she was not expecting that.  It was also put to the complainant that she was given two verbal warnings and on 11/3/2021 a written warning and she could not have been shocked.  The complainant stated that she understood that she would have received another written warning or a conversation, but she did not even get a chance to take her coat off that morning. 

The complainant was asked if she would agree that the reference provided by the respondent could not be described as glowing.  She agreed and stated that it does not say that she was fantastic.  The complainant also agreed that the reference mostly related to general workers characteristics and that that contradicts what the respondent stated in his testimony.  The complainant also agreed that it was her view that the reference also contradicted the letter of 11/03/2021.  The complainant was asked why the respondent would issue a reasonable reference and she stated that he knew that he had not terminated her employment properly and that she “might go quietly” if he issued that reference.

The complainant was asked about any Social Welfare payments she was in receipt of, and she confirmed that she received supplementary welfare payments.  The complainant was asked if she applied of any full-time jobs since her dismissal and she confirmed that she had not.  She also confirmed that a full-time job would impact on her social welfare, and she would be then off those payments.  The complainant was asked what jobs she applied for since 6/4/2021 and she outlined that she was approached to help set up a dental laboratory with a promise of a laboratory managers role when this was established. This took place in August 2021 when she was approached by an investor, and she worked on this from August to December 2021.  She was not paid for assisting in setting up the laboratory.   The laboratory did not materialise, and she had no role.   She was asked back to help again in January 2022 and she worked on this project until June 2022 and she was paid €400.00 per week during this time. 

Since June 2022 she is working with a friend who has a franchise, and she works part time on this.  The hours and pay vary depending on whether it is week-end work, festival work or work from home.

The complainant was asked if she applied for any dental technician roles.  The complainant confirmed that she was so crushed by her dismissal she was not sure if she wanted to go back to dentistry and did not apply for any such roles.  The complainant confirmed that she was aware of her obligation to seek alternative employment following her dismissal.

In a closing submission the complainant’s representative noted that the fact of dismissal was not in dispute.  The reason advanced by the respondent was alleged incompetence.  The burden of proof rests with the employer and the complainant’s representative submits that they have not met this standard.  The industry is small and to be dismissed for alleged incompetence is a very serious matter.  The complainant was deemed competent by the college that awarded her degree and she passed the respondent’s bench test and came into their employment as competent.    The respondent sought to deem her incompetent for a period of 1 year and 7 months.  There is a contradiction between two of the respondent’s witnesses.  One witness gave evidence that she only observed incompetence when the second clinic opened.

There is no question that the complainant did not have a fair process.  The action of the respondent needs to be reasonable in the circumstances.  The actions of the respondent were not within a reasonable band.

It was submitted on behalf of the complainant that an Adjudication Officer is entitled under Section 7 (e) of the Act to take the failure of the respondent to comply with S.I. 146/2000 into consideration. The complainant was an employee, and she is entitled to a statutory remedy.  This fact is also enshrined in European rights.

The respondent has an obligation to manage its affairs with employees and this must involve a clearly delineated process.  The letter to the complainant dated 11/3/2021 was the first process that the respondent invoked.

There is no evidence that the verbal warning, issued in November 2020, made it clear to the complainant what the scope and consequences of that warning were.  There was a failure to deal with performance.  A “progress meeting” was held with all employees so that the complainant did not feel targeted.  Likewise, the employee would have been on probation and no progress meeting took place during that time.  The complainant was working without a contract of employment or any clue as to what the expectations of her were.

An employer is expected to keep any warnings on file.  This would be what would be expected of a reasonable employer.  The respondent did not have any employee file.  The complainant was not given any opportunity to respond to any allegations on three occasions.  The person dealing with this was supposed to be her mentor.  The complainant held a very junior role, and her performance was being measured against a more senior employee who had a lot more experience.

The complainant was never told what areas she was incompetent in.  She was given a list of 12 items but some of these were 1 ½ years old.  Other areas were not part of the degree curriculum which the complainant successfully completed. The respondent listed some of these as “still continuing” but did not provide any evidence of this.  Of the twelve areas three were historical matters and the others were disputed.  Two do not meet the threshold of wholly or mainly in relation to incompetence.  The WhatsApp messaging was not the appropriate place to deal with sensitive matters including the complainant’s illness.  Every employee, including secretarial staff, were aware and involved in this group.  It was very clear that a decision was made to dismiss the complainant and she was given no right to respond.

The written warning was also defective.  There was no mention of what would happen.  The respondent did not have a perfect standard in relation to their dealings with the complainant and yet they expected a perfect standard from the complainant in relation to her work.  The respondent did not take into account the part time nature of the complainant’s work.  She worked for 1.7 years on a part time basis.  The incredibly high standard that the respondent’s witness has should not take away from a reasonable standard that other employees should have.  There was clear evidence that negligence was never an issue.  The complainant was employed by the laboratory side of the respondent’s business and not the clinic side.  She was at no risk of causing risks or liability for the respondent.

The 3D scanning was a new development, and the complainant was working on her own as two colleagues were undertaking a master’s degree programme.  The respondent, who has a great work ethic and runs a successful business, was not able to mentor the complainant.  The expectations were unrealistic.  She was expected to complete repairs in 15 minutes.  The respondent has confirmed that there are now four dental technicians doing this work and she was the only junior dental technician doing this for a period of 8 months.  This was unfair by any measure.  The complainant clearly came to the respondent as a competent dental technician, and she was trying to cope with the demands of the workload.

It is clear that the respondent had no procedure in place to dismiss the complainant.  She was not given any advance notice.  The Code of Practice, S.I. 146/2000 is binding when there is no procedure present.  The was no procedure in place and so there was no rational process for the respondent to follow.  The range of disciplinary options were not outlined, there was no evidence that the respondent considered alternatives to dismissal and there was no appeal process available to the complainant.  The complainant stated that she had raised a grievance in relation to training.  She clearly reached out, but this training did not happen.

There were other significant deficiencies in the respondent’s process.  No details were put to the complainant before she was dismissed.  The pictures with photographs and e mails submitted at the hearing were only available post her dismissal.  Representation was not offered.    It is clear from the evidence that the respondent allowed her to keep her job for a period of time even though they had already predetermined that she would be dismissed.  The balance of power in this dismissal is something that an Adjudication Officer is also entitled to take into consideration.  

The complainant’s rights, which are enshrined in the Re Haughey case [1971], went out the window in this case. That case stated that any procedures which prevent a party from vindicating their rights to a fair procedure must be outlawed.  The complainant was told on the day over the period of one minute that she was dismissed.  She was shocked as she was never given a final warning. The respondent’s letter dated 11/03/2021 which stated that a follow up review would take place never happened.  Many other actions which are outlined in S.I. 147/2000 never happened.  Quite simply the dismissal of the complainant was the nuclear option taken by the respondent.   The standard of documentary evidence as outlined in Nevin v Portroe Stevedores [2005] EL.R. 282 was not there.

The assertion that the complainant was incompetent does not hold up.  She had demonstrated her ability and was deemed competent when she commenced employment.   The reference/training manual [colloquially referred to as the Blue Folder] was never given to the complainant and the respondent’s evidence was that it was never referred to by him.  The respondent not only had a mentorship/training responsibility to the complainant, but he also had a heightened duty as her employer when technical matters were involved.  The complainant was given incremental increase in her pay, and this is not a practice that is consistent with an employee who is not making the grade. The respondent treated the complainant as if her probation continued and held on to her for as long as she was valuable to them and until her colleagues returned as newly qualified. The respondent did not provide any details to the complainant of what a reasonable standard of performance was.    In that context the case of Richardson v H Williams & Co Ltd [UD/17/1979] the tribunal outlined the principles to be applied.  In summary the tribunal held that when an employee is given a warning that unless his or her work improved in a specific are then his or her job would be at risk, and it followed that the employee must e given a reasonable time to effect the improvement and a reasonable work situation within which to concentrate on these defects.  The tribunal held that if the employee improves in the complained of area to the reasonable satisfaction of the employer and the effect is not repeated an employer cannot solely rely on such a warning for a dismissal or other reasons. 

The complainant was not given any indication of what the reasonable standard was, and she was continually put under enormous pressure.  The targets and expectations set for the complainant were unreasonable given the remuneration she was paid.      If the issue was about incompetence, then the respondent had no fair procedure in place. The unrealistic demands to meet production deadlines in the laboratory area were a matter for the respondent to manage. 

The letter sent by the respondent after the complainant was dismissed was misconceived and the complainant is relying on this as part of her submission. The responsibility for not having adequate supervision rests with the respondent.  The complainant’s colleague should have made a formal complaint in relation to her concerns, and it would be the responsibility of the respondent to deal with this.          

In relation to the complainant’s attempts to mitigate her loss it was submitted that the complainant is entitled to be compensated for her loss for the first six months post dismissal. The complainant’s medical records were not contested by the respondent.  The overarching criteria for an Adjudications Officer is the interest of justice.   [Allen v Independent Newspapers UD641/2000].  In relation to the period of time after the first six months it was noted that the respondent has not written to the complainant seeking details of her loss.   The complainant’s represented cited a number of cases in relation to this point.

In relation to compensation the starting point is that the complainant is entitled to be compensated for the first six months post dismissal and it was submitted that while she was paid €270 per week it was acknowledged that she worked during her lunch hour to meet the respondent’s production deadlines and payment for this would bring her weekly earnings to €297.  It was also submitted that the Adjudication Officer had discretion to make an award in relation to the justice of the case.                                                                                    

At the outset of the hearing, it was confirmed that complaints CA-00045902-004 to CA-00045902-009 were duplicate complaints.  It was also confirmed that complaint CA-00045902-003 should have been listed as a complaint under Terms of Employment Information.

CA-00045901-001:  This is a complaint of unfair dismissal seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1988.

The fact of dismissal in this case is not in dispute.  The dates of the employment are also not in dispute. 

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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) of the Unfair Dismissals Act, 1977 provides as follows:

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 qualification 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 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.

Section 6(6) of the Act states as follows:

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

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act require me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish either the guilt or innocence of the employee.

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

The issue of fair procedures requires examination.  The respondent in this case did not have any written procedures.  In such circumstances the default procedures are those outlined in S.I. No 146 of 2000, more commonly referred to as the Code of Practice on Grievance and Disciplinary Procedures.     These set out the general principles that should apply and these can be outlined as follows:

a)       the details of the allegations or complaints should be put to the employee

b)      the employee should be given the opportunity to respond fully to any such allegations or complaints;

c)       the employee concerned is given the opportunity to avail of representation during the procedure;

d)      the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

In the within case there were performance issues which the respondent was required to address.  The nature of the business required that all work completed was done properly and complied with the prescription.  It was crucial that no injury or discomfort was caused to any client/patient as a result of them availing of the respondent’s services.

The respondent did not provide a written contract of employment which would outline any procedure.  There was no employee handbook provided to the complainant.  At no stage was the complainant informed of what procedure would be followed in relation to concerns about her performance.  The purpose of such a procedure is not to expedite the termination of an employee’s employment but rather to provide assistance to an employee in order to improve their performance with relevant training.

The complainant had no knowledge of the potential sanctions and possible implications following any sanctions that might be imposed.  There was no right to representation. There was no appeal process.  Equally, the respondent had no knowledge of any procedure or process in relation to performance improvement.  I am fortified in this view by the evidence of the respondent who confirmed that he had written the letter of dismissal before meeting the complainant.  The respondent also confirmed that he did not advise the complainant of her rights and the respondent was not aware of the need for a disciplinary procedure as outlined in S.I. No 146/2000.

Overall, I find that there have been serious procedural flaws in the processes which resulted in the dismissal of the complainant.

Where procedural deficiencies are identified these must be considered in line with section 6(1) of the Act which states that “having regard to all the circumstances.”  In that context I note the case of Elstone v CIE (High Court, 13 March 1989, unrep.) it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s. (6)1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

The case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result.”

Having regard to the foregoing points, the totality of the evidence adduced, and the cumulative effect of the continuing shortcomings identified, I find that no reasonable employer would have dismissed the complainant in the circumstances and in the manner in which it was effected.  In the light of same, I find that the dismissal of the complainant was unfair for the purposes of the Acts and the complainant’s claim is well founded.

Having heard the parties on the three forms of redress available under the Act I have determined that compensation is the appropriate form of redress given the circumstances of this case.

To determine the appropriate level of compensation an Adjudicator is obliged to have regard to the terms of Section 7 of the Unfair Dismissals Act.  The complainant is required to provide evidence that she made every effort to mitigate her loss arising from her dismissal.  The complainant has not provided this evidence.

In relation to redress compensation is the form of redress sought by the complainant.  Given that the relationship between the complainant and the respondent is no longer conducive to a good working relationship I have considered that compensation is the appropriate form of redress.  The respondent has made significant submissions in relation to the complainant’s obligation to mitigate her loss as set out in Section 7(2) (c) of the Unfair Dismissals Act and that is taken into consideration in any case when deciding on compensation.

 For the sake of completeness, the obligation on the employee in Section 7(2)(c) is only one of six tests that are set out in that section and that section does not have a greater primacy than any of the others.  The other tests are set out below and I have noted if these are applicable to this case:

“(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.”  This does apply to the complainant in this case.

b)      “The extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee.”  This does not apply to the complainant in this case.

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 provision of any code of practice relating to procedures regarding dismissal approved by the Minister”.   There was no dismissal procedure followed by the respondent contrary to S.I. 146/200 and fair procedures generally.

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, and  There was no copy of any procedure provided by the respondent and no evidence was adduced of compliance with Section 14.

f)        The extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.   This does not apply to the complainant in this case.

It follows from the foregoing extract from the Act that in considering compensation, regard must be had to all of subsection of Section 7 and these tests are not confined to the efforts of the complainant to mitigate  her loss. In this case I find that the respondent did not meet the tests set out in subsections (a), (d) and (e).  There was no right to fair procedures and the complainant made no contribution to the decision to dismiss her.

It would be completely unjustified to penalise the complainant based entirely on a conclusion that her efforts to mitigate her loss were inadequate.  The complainant’s efforts to mitigate her loss must be measured in an equitable manner against the  efforts of the respondent to comply with the terms of section 7 of the Act.

The complainant made a decision not to apply for similar posts while concentrating on a potential business venture.  The respondent cannot be held to be wholly responsible by way of compensation and I have taken this into account.

In all the circumstances of this case I find that the sum of €12,000 is an appropriate amount.

CA-00045901-002: This is a complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973. 

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be  

(a) if the employee has been in the continuous service of his employer for less than two years, one week”.

Having considered the Complainant’s submission, I find that the Respondent contravened Section 4.2e of the Minimum Notice and Terms of Employment Act 1973 . The Complainant did not receive her statutory minimum notice and she is entitled to one weeks’ notice pay amounting to €270.00. There was no clarity in relation to what payment was given to the complainant when she was dismissed.  It is not disputed that she was not dismissed for reasons of gross misconduct. The respondent’s evidence that the payment was a good will payment.  Given the circumstances I find that  this complaint is well founded, and the complainant is entitled to one weeks’ notice.

I award the Complainant €270.00 under the Minimum Notice and Terms of Employment Information Act 1973.

CA-00045901-003: This is a complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994.

It was submitted on behalf of the complainant that she was not issued with a contract of employment or any details of the terms and conditions of employment.  The respondent does not dispute this complaint.

It has been held by the Labour Court that the obligation to provide basic information to an employee is not a complex matter and that attention to detail would enable compliance with the Act.  The Labour Court has consistently found that there is no merit in the argument that if the breaches are of a technical nature which have no adverse consequences arising for the employee, then there is no case.  The implications for the complainant as a result of the failure to provide a contract or employment or any details in relation to applicable procedures were profound.

It is not disputed that the respondent did not comply with the provisions of the Act and therefore the respondent is in breach of the Act. 

I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.2 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should be applied.  I therefore order that the respondent pay the complainant the sum of €1,080.00 representing four week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

It is accepted that complaints CA-00045902-004 to CA-00045902-009 inclusive are duplicate complaints. 

CA-00045901-001: The complaint of unfair dismissal brought by the complainant, Ms Sarah O’Connor against the respondent, CAS Dental is well founded.  The respondent is to by the complainant €12,000 in compensation.

CA-00045901-002: I find that this complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.  is well founded and the respondent is ordered to pay the sum of €270.00 representing one weeks remuneration.

CA-00045901-003:  This complaint was not contested at the hearing. I have decided that this complaint is well founded, and I therefore order that the respondent pay the complainant the sum of €1,080.00 representing four week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

Unfair dismissal. Fair Procedures.  S.I. 146/2000.  Terms and conditions of employment. Minimum notice.