Complainant

Respondent

Anonymised Parties

A Childminder

A Childcare Facility

Representatives

Philip Moloney BL                                  Cathal Mooney Solr.                             John Battles & Co. Solicitors

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-00048142-001

13/01/2022

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

CA-00048142-002

13/01/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. 

I additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where it is clear that there is a serious and direct conflict in evidence between the parties to a complaint, then an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate to each of the witnesses in turn. It is noted that the giving of false statements or evidence is an offence.

I have agreed, in circumstances where the evidence inevitably references children, that this decision is to be anonymised so as to protect all those children who might otherwise be identified. Due to the existence of these special circumstances, I have also directed that the proceedings should be conducted in private.

The Complainant was not represented.  At the outset, the Complainant was happy to make an Affirmation to tell the truth and her case was largely based on her own oral evidence. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative and the Respondent.

The Complainant alleges that she was summarily dismissed in the course of a telephone conversation with her Employer.

Where I deemed it necessary, I made my own inquiries of the Complainant so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent entity had representation at the first day of the hearing. The representation did not return on the second date of hearing and the Respondent Owner/Manager represented the interests of the Respondent on the second date. A number of other witnesses gave evidence on behalf of the Respondent. All the witnesses gave evidence after first making an appropriate Affirmation. I was also provided with a written submission from the Respondent dated the 7th of November 2022. A number of documents were attached thereto

The Respondent rejects that there has been an Unfair Dismissal and asserts that the employment ended by way of mutual agreement and in circumstances where the work was proving too much of a challenge to the Complainant. 

Even though the Respondent disputes that there was a Dismissal, there can be no doubt that the Employment relationship herein ended in the aftermath of a conversation had between the parties on the 11th of November 2022. I am therefore satisfied that the Burden of Proof rightly rests with the Respondent to establish that it has acted reasonably and fairly.

Where I deemed it necessary, I made my own inquiries of the Complainant so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced by both sides in this Unfair Dismissal complaint.

The childcare provider herein has operated since 2010. This is a comprehensive service providing breakfast club, pre-school and after-school facilities. At any one time there might be up to 50 children on site with the need then to have 10 employees in charge.

As it happens, the Complainant lived quite close to the Montessori, and was looking for part time work to allow her to also continue to care for her Husband, who was at home post a brain-trauma. The Complainant held a level 5 childcare qualification and had additional catering talents which made her an ideal fit for the business which offered hot meals to the children in its care. The Complainant started in August of 2020. The Respondent provided me with the Contract of Employment signed by the Complainant on the 24th of August 2020. The Contract sets out the main terms and conditions and the first Respondent witness HT (the overall owner of the facility) directed me to the signature confirming that the Complainant agreed to abide by the policies.

The Complainant worked between 28 and 29 hours a week at a slightly enhanced rate of pay – taking into consideration her culinary skillset. The Complainant was on about €360.00 per week. I accept that the after-school catered to anywhere between 15 and 25 children each day.

By the end of the relationship, the Complainant was primarily assigned to the afterschool class which operated from about 1pm through to 6pm. The Complainant came in before 1pm to set up, prepare, cook and complete the meals to be given to the children coming in for the afternoon. The Complainant together with her colleague C rolled out the trolley of food and fed the children. When meals were done the crockery and cutlery was collected and brought back to the kitchen for cleaning and putting away. The Complainant would routinely handle this part of the job and ensured the kitchen was spic and span and that it would be ready for the cooking and preparing to be done on the next day.

The Complainant’s colleague C gave evidence of working alongside the Complainant. It is clear that C did not think that the Complainant was well suited to the job. In particular the Complainant, she felt, had low tolerance levels for the children and was liable to become frustrated and ”narky” with them. C noted that the Complainant was liable to spend most of the time that they were both assigned to the After-school room away from the after-school room. The Complainant tended to spend most of her time in the kitchen preparing a cleaning up. C was of the view that the Complainant did not particularly enjoy interacting with the children or helping them with their homework. C did say that the Complainant was an excellent chef and was really good with the Arts and Crafts but just had no relaxed rapport with the children. This witness said that she believed the Complainant was stressed and consumed with concern for her own health and the health of her Husband (in those Covid times).

The Owner HT confirmed that she had the same impression. She said that her relationship with the Complainant was a good one but that she could see external factors were proving stressful for this employee. In so far as she could, she would facilitate any requests for time off or otherwise and assist. However, HT knew this was a busy and intensive job that required everyone on duty to be working at their optimum, and sometimes she had to remind the Complainant to focus and try harder. This was never a disciplinary discussion and only ever intended to encourage. I do understand that at some point in time, HT was approached by C and S (another colleague) to complain that the time being spent in the kitchen was looking like an attempt to avoid the work of interacting with the children. After this was brought to her attention, and at HT’s direction, C was required to take over cleaning up after mealtimes and the Complainant was obliged to stay in the after-school room for a greater part of her day. Things appeared to settle down for a little while.

Then on or about the 3rd of November C and S again approached HT concerning an incident which had upset both of them very much. It is noted that only C gave evidence, as S was on maternity leave. C gave evidence that she had observed the Complainant behaving in such a way as to frighten the children on the 2nd of November. C said she observed the Complainant in an apparent fury with the children who had made a mess of the room without any consideration for those that would have to clean up after them. C said she could see the Complainant picking toys off the floor and throwing them behind her all the time shouting about the need to tidy up. C said she could see the children getting scared and upset and when the complainant realised that she had upset the children she tried to make it up to them by giving them sweets which was not policy.

Quite independently of the approach by two of her staff over this incident, HT was also approached by two parents who were upset that the children had been given sweets when they shouldn’t. I understand that one of the parents stated that her child (who was of a nervous disposition) was so upset that she/he would not be returning to the Montessori.

HT was clearly very upset at this plethora of complaints coming in and she rang the Complainant. She had formed the impression from her two members of staff that the Complainant had “lost control”. The Complainant agreed that she had raised her voice though had not meant to intimidate or frighten. The Complainant said that she needed to be heard over the noise that the children made. The Complainant was apologetic.

HT was in a difficult situation. The Complainant was a key member of staff performing the necessary work of preparing the food/meals for everyone. However, the Complainant was clearly not behaving appropriately with the children and HT assumed that some of this stemmed from external stressors. It was agreed that the complainant would stay at home until she met with HT the next day. The Complainant says that she was very upset at what she perceived to be a series of complaints that were not justified and were over-reactions. However, the Complainant did meet with her boss HT the next day in a café away from the workplace. HT advised that the Complainant needed to step back from childcare for a while. She needed to deal with the parents concerned. She wanted the Complainant to continue preparing meals and was hopeful that if the Complainant’s external circumstances improved, she could in due course, return to working with the children in the preschool room. This option was seen as less demanding. The Complainant agreed that her personal issues should not have been brought into the workplace. HT specifically said she advised the complainant not to approach the parents involved. The Complainant agreed that this was a fair option though was upset that her hours were being reduced to 15 hours a week for the foreseeable future. I understand that the Complainant worked for three days on the reduced hours assigned to her.

The witness RM gave evidence of a conversation with the complainant during those few days and she said the Complainant was comfortable with working less closely with the children.

On the third day, the complainant had a chance encounter with one of the two parents that had made the complaint about her in the previous week. The Complainant took the opportunity to apologise for having raised her voice the previous week. The Complainant gave evidence that the parent had almost brushed off the incident stating that as she was a teacher herself, and she knew what it was like.

The Complainant clearly felt that the particular parent’s reaction was evidence of her innocence. That the incident everyone had complained about the previous week had not been that big of a deal. The Complainant appears to have tackled C that same day. In essence the Complainant was now suggesting that C had been in the wrong in over-dramatizing what had happened the previous week. Harsh words were possibly exchanged.

HT gave evidence that C now approached her and was very upset at having been tackled by the Complainant. Regardless of how the parent was downplaying the incident, C believed that the Complainant’s behaviour had been out of line and needed to be addressed. The priority was to have happy and well-adjusted children.

HT stated that if the parent had seemed confused it was because the parent had not known the specific identity of the member of staff that had upset her child and had accepted that HT would deal with it.

HT was now obliged to communicate with the Complainant again. This time to address the argument the Complainant had now had with C as well as to determine if the Complainant had approached a parent when she had been asked not to? HT phoned the Complainant. The conversation seems to have been on the heated side. HT was annoyed that a parent had been approached and that the Complainant had had a go at C. HT sys that the Complainant was dubious that any parent had made a complaint and that this was a question of the Employer favouring C’s version over that of the complainant.

I am satisfied that as part of this conversation the Owner HT did say “That this isn’t really working out?” HT says she also immediately asked “what do you think?”. HT asserts this second question was her looking for some sort of consensus.

The Complainant took this to be a dismissal. In fact, the Complainant says the Employer was more categoric, saying “I think we should call it a day?”

Whatever exactly was said, within seconds the parties were discussing the return of kitchen utensils and cookbooks. To my mind this is evidence of a termination of the employment having happened. There was no preamble to this termination and there was certainly no disciplinary procedure adopted in advance of the dismissal. The employer rang up the employee when she was annoyed  about a number of things that had happened, and in the conversation she called time on the employment relationship. In her defence, the Respondent owner states that the Complainant herself also wanted to terminate the employment.

On balance I am inclined to accept that the Complainant was dismissed in the course of this conversation and that it was not reasonable of the Respondent to dismiss her in a summary way and therefore this dismissal was Unfair.

It is true that neither party sought to reflect on the outcome of this telephone conversation. For example, neither one asked the other was she sure? The conversation was not re-visited.

I do not believe the Complainant was given a letter of termination and was therefore given no right of Appeal. I do not believe she was given pay in lieu of notice. I note no reference was provided.

In assessing loss, I am mindful of the fact that the Complainant did get alternative employment some eight months later. The Complainant did not provide any evidence of what efforts she made in the first eight months after the termination of employment and this is pertinent, as the complainant does have skills and qualifications in a sector which always has vacancies.

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

CA-00048142-001 – The Complainant was unfairly dismissed, and I award €3,600.00

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

CA-00048142-002 – Complaint not well founded as the relevant information formed part of the Contract of Employment provided.