Complainant

Respondent

Parties

Mary  Lane

Bridge St. Pharmacy Limited

Representatives

Glenn Cooper Dundon Callanan LLP

Michael Dowling O'Sullivan Reidy 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-00049516-001

05/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00049516-002

05/04/2022

The Complainant commenced employment with the Respondent on the 11/4/2011. The Complainant was employed as a sales assistant.  The Complainant worked with the Respondent on a full-time basis until March 2020 when she was asked to take leave due to the Covid 19 pandemic and its impact upon the Respondent’s business. From May 2020 onwards the Complainant’s hours were reduced to a three-day week as a result of being placed on short-time. The Complainant was dismissed on the 15/03/2022 without notice.  The Complainant was paid a weekly gross salary of €645.54 for 40 hours per week and a reduced salary of €387.33 gross per week post May 2020 for 3 days at an hourly rate of €16.14.

On the 05/04/2022 the Complainant referred two complaints to the Workplace Relations Commission pursuant to Section 8 of the Unfair Dismissals Act 1977 as amended, claiming that she was unfairly dismissed. The Complainant also referred a complaint under Section 41 of the Workplace Relations Act, 2015 concerning a claim under Section 6 of the Payment of Wages Act 1991 claiming that her wages were subject to an unlawful deduction by the Respondent based on the reduction in her working hours. The Respondent denies both claims. 

The Complainant also claimed under Section 6 of the Payment of Wages Act 1991 that she was not paid her accrued annual leave upon her dismissal nor was she paid any monies regarding her entitlement to a minimum notice period prior to her dismissal. The Complainant’s representative at the hearing of the case, withdrew both aspects of her claim.  

The complaints were heard at adjudication hearing on the 10/11/2022.

The Complainant worked as a counter assistant for the Respondent Company from 2011 to the date of her dismissal for gross misconduct on 15/3/2022.  She agreed with the Respondent submission regarding her weekly wages, as €387.33 gross per week post May 2020 at an hourly rate of €16.14. for 3 days per week and €645.54 gross and €538.29 net per week for 40 hours per week.

CA-00049516-001 complaint under the Unfair Dismissals Act, 1977

The Complainant submitted that she had been unfairly dismissed on 15/3/2022 and sought the remedy of compensation. She took issue with the fact that she was summarily dismissed on the grounds of gross misconduct and the lack of any procedural framework in respect of her dismissal. 

It was submitted by the Complainant’s representative in their written submissions that there were no grounds to justify dismissing the Complainant. It was submitted that at the meeting on the 15/3/2022 Ms. McElligott demanded an apology from the Complainant on the grounds that she had been complaining about a breach of her contracted hours for a period of 2 years.

It was contended that this could not constitute a valid ground for her dismissal and that no procedure at all was applied.  It was submitted that on the 15/3/2022 the Complainant was brought unawares into the kitchen area of the premises where the pharmacy management team were waiting for her. She was not advised in advance of this meeting, nor was she advised of her right to be represented. It was further submitted that she was summarily dismissed at this meeting, no reason was provided for her dismissal nor was any procedure whatsoever applied.

At the hearing the Complainant’s representative contended that the Respondent has not provided any evidence of any behaviour that would constitute gross misconduct, or “intolerable conduct” as alleged apart from the table being banged as alleged by Mr. Mulcahy described in the note dated 30/4/2020.  This note which describes the alleged incident, included by the Respondent in their booklet of documents, was unsigned and purportedly typed by Mr. Mulcahy, was not forwarded to the Complainant. It was submitted that the Complainant’s dismissal was both substantively and procedurally unfair. In this regard it was stated that the decision to dismiss the Complainant was made in advance of the meeting of 15/3/2022.

It was submitted in regard to mitigation of the Complainant’s losses, that it took the Complainant 24 weeks to find alternative employment and she encountered some difficulty in finding a job. It was contended that further losses should be considered as the Complainant’s current role involved a maternity cover contract. It was further submitted that the Complainant’s compensation should be assessed at the full value of her salary for 5 days a week and reliance was placed on the case of O’Meara v AIBP (Nenagh) Ltd 1099/1993. The Complainant’s representative referred to Ryan, Redmond On Dismissal Law, 3rd Ed 2017 at para 24.44. which clarified that it is not the net figure being received by the employee on short time working but the figure he/she receives on normal working hours that should be considered as compensation. 

Evidence of Mary Lane, the Complainant

The Complainant gave evidence that she started as a counter assistant with the new pharmacy in 2011 on 40 hours a week on a gross salary of €645.54 per week. She stated she didn’t get her contract of employment in 2011 but received an unsigned copy in 2016. At the start of the pandemic Mr. Mulcahy rang her asking her if she wanted to take some time off. She agreed to that. In April 2020, she met him in the street, and he told her she would be coming back to work after Easter. The following week he rang her and told her that she would be coming back to work a 4 day week. Further to this he confirmed that it would be a 3 day week. She stated she thought this was unfair as the part-time staff had the same hours as full-time staff.

She stated that the Respondent employed three pharmacists, two worked part-time one manager and three counter assistants two were full time and one part-time.

The Complainant’s solicitor read out to her a document dated 30/4/2022 regarding the meeting of the 30/4/2022. She disputed the assertion as alleged, that she banged her fists on the table or shouted during the meeting. She stated that during the meeting Mr. Mc Elligott confirmed that the reason for the reduction in her hours to a 3 day week was due to public health restrictions connected to social distancing rules.

The Complainant gave evidence that she was asked to sign a new contract in March 2021. There was a meeting a week before she signed the contract on the 12/3/2021 when she queried why she was asked to sign a contract for 40 hours a week when she was working 24 hours a week. She was advised that she had 3 choices she could sign the contract, she did not need to sign it, or she could go the legal route.

The Complainant stated that she was told by Ms. Mc Elligott on the 1/6/2021 that she was not getting back her hours, as this was their choice and that is the way they wanted it. She was further told by Mr. Mulcahy on 11/2/22 that her hours would remain the same due to the situation with Covid.  She then contacted her solicitor who sent a letter dated 10/3/22 to the Respondent.

The Complainant stated that she was dismissed during the meeting on the 15/3/2022.  She denied that her demeanour was ever abusive or that she displayed conduct that could be described as “intolerable” as alleged.

The Complainant stated in evidence that her view of the reason why she was dismissed was due to the fact that the Respondent received a letter from her solicitor and took it as a personal insult.

Mitigation of loss

The Complainant stated that after her dismissal she started looking for a job. She registered with Indeed and also had interviews with two retailers in June 2022. By the end of June, she also did an interview with a local supermarket.  In July she did an online interview with another retailer and a chemist.  Written submissions were provided with evidence of various other job vacancies which the Complainant had applied for.

The Complainant stated that she secured employment with a named pharmacy on the 29/8/2022 as a pharmacy assistant on a specific purpose contract to provide maternity cover, the hours are variable and she works an average of 36 hours a week on €14.00 per hour, a copy of the contract was provided.

Cross examination

During cross examination, the Complainant confirmed that she was given the option to take time off at the start of the pandemic and it was her understanding that when her hours were cut that she would get them back. She also confirmed that another full-time staff member with the same role had her hours reduced to part-time.

During cross examination, the Complainant confirmed that she initially agreed with the pod system, introduced by management of only three people working at a time but that changed during 2021 when the pod system got mixed up.  She confirmed that in February 2021 a student was taken on and it was difficult to distinguish two sperate pods from then on.

She confirmed that she did agree to a reduction in her hours until September 2020 and that she was looking for her hours back all the time.

It was put to the Complainant that she was constantly complaining which she disputed and stated that she “just wanted my job back”. It was put to the Complainant that she approached Mr. Mulcahy in February 2021 and asked him about getting her hours back. The Complainant confirmed that she was told that her hours would remain the same due to the Covid restrictions.

On re-examination the Complainant confirmed that another staff member who was taken on in February 2021 on work experience was offered a full-time role in September 2021 which she accepted. The Complainant submitted that it was the same role as her role.

 CA-00049516-002 – complaint under the Payment of Wages Act, 1991

The Complainant’s representative submitted that from the 1/4/2020 until 15/3/2022 the Complainant should have been paid for 5 days a week when in fact she only received payment for 3 days a week. This deduction was disputed by the Complainant who consistently requested that her hours should be restored in line with the provisions of her contract which provided her with 40 hours per week.

The Complainant contended that the Respondent had no jurisdiction to place her on short-time, this deduction amounted to an unlawful deduction and constituted a breach of the provisions of the Payment of Wages Act 1991.

The Complainant’s representative conceded that there were “circumstances beyond its control” as provided for in the contract while the first pod system was in place at the start of the pandemic, however once that pod system ended it was no longer justifiable to keep the Complainant on short-time. It was submitted that the Respondent must be able to justify the reduction in hours in line with the relevant clause which stipulates that “it is unable to maintain you in full employment”.  It was submitted that the Respondent has not proved this as a matter of fact. 

It was acknowledged by the Complainant’s representative in their written submission that the Complainant is only entitled to claim for the 6 months preceding the lodging of the claim on the 5/4/2022. Therefore, the relevant period is from the 5/11/2022 to 15/3/2022 a period of 18 weeks and the loss for unpaid wages is €4,648.32.  

CA-00049516-001 complaint under the Unfair Dismissals Act, 1977

The Respondent’s representative submitted that the Respondent was entitled to summarily dismiss the Complainant on the grounds of gross misconduct. Prior to the hearing the Respondent’s representative furnished a note dated 15/03/2022 purportedly typed by Mr. Mulcahy which stated, “Mary Lane was informed that she was being asked to leave immediately due to her behaviour - gross misconduct”.

In response to a letter from the Complainant’s solicitor the Respondent’s representative stated in a letter dated 05/10/2022 that “At the hearing, we will be claiming your client was immediately dismissed for gross misconduct under the terms and conditions of her employment contract……All will give evidence of the behaviour of the applicant in the period leading up to her dismissal.”

The Respondent’s representative, at the hearing of the case submitted that the Respondent was entitled to dismiss the Complainant due to her “intolerable conduct”. He further submitted that the letter that was sent from the Complainant’s solicitor dated 10/03/2022 seeking to have her hours restored and to pay her full salary in accordance with the terms of the contract was “the straw that broke the camel’s back”. He further stated that after two years of harassment from the Complainant, regarding her efforts seeking to have her hours restored, the Respondent had no other option but to let her go.  He stated that the Complainant had an abusive attitude, that she was trying to orchestrate her own dismissal, and in the circumstances, it was reasonable for the Respondent to summarily dismiss her.

Evidence of Mr. Mulcahy, Manager with the Respondent

The witness gave evidence in relation to how the pandemic caused by Covid 19 in March 2020 had affected the business and the implications of the public health restrictions for the staff and for the business. He stated that he contacted staff in March 2020 and give them the option to stay at home or come into work.

Mr. Mulcahy stated that as a result of the public health restrictions, which the Government introduced in March 2020 it was decided that only 3 customers were allowed into the pharmacy at any one time. The management had to put in place a plan to allow them to operate their business in the safest way possible. They received advice from the Irish Pharmacy Union (IPU) and the Pharmaceutical Society of Ireland (PSI) and introduced a two pod system, whereby two teams of three employees worked in the pharmacy at any one time. He stated that the pods included 2 counter assistants and 1 pharmacist. Each employee was allocated to a pod. As a result of staff changes the makeup of the pods changed in September 2020, however the pod system remained in place.  Mr. Mulcahy stated that all employees who were counter assistants with the same role as the Complainant had their hours reduced to 3 days a week.

The Complainant had decided to take time off from March 2020 when she was contacted and given the option of taking time off or working. He contacted her prior to her return in April 2020 and initially advised her that she would be coming back on 4 days a week. He then phoned her again to say that it would be a 3 day week as the Respondent needed to reduce her hours as a result of the pandemic and the effects of same on the business and explained this was the best system that could be put in place for all the staff.

Mr.  Mulcahy stated that all staff had their hours reduced and were also working 3 days a week. He stated the Complainant applied for a social welfare benefit for the 2 days that she didn’t work and he signed the relevant form. He stated that she was paid for 3 days, and she accepted the reduction in her hours and wages and all staff were treated the same.  

An incident took place in the pharmacy on the 29/04/2020 prior to the Complainant returning from leave in March 2020. He stated that the Complainant came into the pharmacy on that day and demanded to speak with Mr. McElligott. He brought the Complainant and Mr. McElligott to the canteen. He stated that the Complainant banged the table with her fist and stated that she wanted her hours restored to 5 days a week. He explained that her hours were reduced because of the effects of Covid on the business and the health restrictions that were in place. She then asked why they were trying to get rid of her. She was advised that the Respondent was not trying to get rid of her. 

Mr.  Mulcahy said that there was a meeting on the 18/6/2020 between the Complainant, Mr. Mulcahy, Mr. McElligott and Ms. McElligott where the management explained the reasons why the Complainant’s hours were reduced and that they would be reviewed in 3 months’ time in September 2020.

He further stated that he was regularly asked by the Complainant when would her hours be restored, and she was told it was a necessary measure due to the pandemic. He stated that this led to a bad atmosphere and tension in the pharmacy. Mr. Mulcahy stated that all employees were treated the same. He further stated that he agreed with the impression imputed to the Complainant that management was against her solely in that she was being singled out by having her hours reduced. 

Cross examination of Mr. Mulcahy

Under cross examination Mr. Mulcahy confirmed that the pod system did stay in place, albeit with changes to the teams and some members of staff were interchanged between both pods. He stated it was the best they could do at the time.  He confirmed that they were required to operate the pod system and that the restriction on the number of customers allowed into the pharmacy (3 only at any one time) was introduced in line with public health guidelines and these restrictions remained in place until the end of February 2022. 

Mr. Mulcahy confirmed that a staff member who had qualified as a pharmacy technician was offered a full-time role in September 2021. He stated that this was a new role as there was a need for that position within the pharmacy. He stated, that as the Complainant was not qualified in that regard she was not considered for the position.  

Mr. Mulcahy confirmed that in 2016 the Complainant was provided with a contract of employment which was signed by both parties. He stated that he can recall the Complainant giving him a signed copy, which he had already signed, but that he couldn’t find the signed copy.

Mr. Mulcahy stated in evidence that in the interests of safety the pod system was introduced and that various meetings including one on the 18/6/2020 were held with staff including the Complainant to advise them of the situation, which was kept under review. He stated that the situation was reviewed in September 2020 and referred to a letter he sent to the Complainant dated 24/9/2020 in that regard. He confirmed that he met with the Complainant on the 9/11/2021 and advised her that the 3 day week would remain in place as the circumstances due to Covid had not changed and that all members of staff remained on 3 days a week.  

Mr. Mulcahy confirmed that the meeting on the 29/4/2020 had not been planned and he affirmed his view that the Complainant was aggressive at the meeting, and she did bang her fists on the table as set out in his note. He confirmed that the note he took dated 30/04/2020 was not forwarded to the Complainant.

He stated that he didn’t initiate a disciplinary process regarding the above incident but with the benefit of hindsight he should have done so. He confirmed that the reasons given to the Complainant for the reduction in her hours were as a result of the public health restrictions imposed due to the pandemic.

He confirmed that upon receipt of the letter from the Complainant’s solicitor dated 10/3/22 it was decided to have a meeting between himself, Mr. Mc Elligott, Ms. Mc Elligott, and the Complainant. He confirmed that the Complainant was not given any notice of the meeting which took place on the 15/03/2022 nor was she advised of her right to representation. Mr. Mulcahy confirmed that at that meeting Ms. Mc Elligott demanded that the Complainant hand over her keys to the pharmacy and leave the premises immediately.

Evidence of Ed Mc Elligott, Superintendent Pharmacist and Director with the Respondent.

Mr. Mc Elligott stated in evidence that the Complainant was dismissed on the 15/03/2022. When  the Complainant  arrived at the pharmacy to work on the 15/03/2022 he asked her to go down to the kitchen.  He stated that Ms. Mc Elligott who was also present at the meeting told the Complainant she was dismissed.

Cross examination of Ed Mc Elligott

Under cross examination Mr. Mc Elligott confirmed that there was a meeting between himself Ms.  Mc Elligott and Mr. Mulcahy on the day prior to the meeting with the Complainant. In reply to a question regarding the reason for the Complainant’s dismissal he confirmed that he had “had enough of complaints” from her and “that I am in business a long time and had never received a solicitor’s letter”.  He further stated that when Ms. Mc Elligott told him that there was a solicitor’s letter from the Complainant, he replied “this is it”. He stated on that basis he decided to dismiss the Complainant.

He confirmed that there was a meeting between himself, Ms. Mc Elligott and Mr. Mulcahy on the morning of the 15/3/2022. He confirmed that the decision to dismiss the Complainant was taken prior to meeting with the Complainant.

CA-00049516-002 complaint under the Payment of Wages Act, 1991

It was submitted by the Respondent’s representative that the Complainant had agreed to the reduction in her hours, whether she liked it or not, and that she continued to work for 2 years on reduced hours.

It was further submitted that the Respondent was entitled to rely on the clause in the contract which allowed the Respondent to reduce her hours which stated “through circumstances beyond its control, it is unable to maintain you in full employment. …….You will be paid for hours actually worked during the periods of short-time”.  This clause was included in both contracts provided to the Complainant in 2011 and 2021.

Accordingly, relying on the above clause, it was submitted that the Respondent was entitled to vary the Complainant’s hours which reduction was caused by the global pandemic and subsequent public health restrictions introduced by the government.  It was contended that the pandemic satisfied the criteria set out in the contract which amounted to “circumstances beyond its control”. It was further submitted that all staff members including all counter assistants employed in the same role as the Complainant had their hours reduced to 3 days a week. 

It was submitted by the Respondent that the Complainant was not entitled to any compensation pursuant to the provisions of the Payment of Wages Act 1991.

CA-00049516-001 complaint under the Unfair Dismissals Acts

The Relevant Law

It is necessary to examine the relevant facts giving rise to the complaint of unfair dismissal in light of the statutory framework set out in the Unfair Dismissals Acts, 1977 as amended (the Act) and the applicable caselaw.

Section 6 of the Act in the relevant part provides;

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(b) expressly lists the grounds where dismissal of an employee shall not be deemed to be unfair including dismissal wholly or mainly resulting from the conduct of the employee.

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair.

Section 6(7) provides for an Adjudication Officer to have regard :-

 “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” 

Section 7 outlines the provision for a remedy in the circumstances of a successful claim for unfair dismissal. 

In The Governor and the Company of Bank of Ireland -v- James Reilly [2015] IEHC 241, Mr Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: 

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.” 

It is also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000, provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and outlines the principles of fair procedures for employers and employees generally.

In its judgement in Frizelle -v- New Ross Credit Union Ltd [1997] IEHC 137, the High Court provided a number of points or ‘premises’ which must be established to support an employer’s decision to terminate employment for misconduct, including the following:

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

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

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

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

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

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

Gross misconduct is not defined at Section 6 (4) (b) of the Act but conduct is provided for in the Act, which has given rise to a body of caselaw regarding the interpretation of this provision.

The Employment Appeals Tribunal in Lennon v Bredin M160/1978 provided an outline of what types of behaviour will constitute gross misconduct for the purposes of Section 6(4) (b) of the Act in the following terms:

“We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the Legislature had in mind such things as violent assault or larceny or behaviour in the same serious category”. 

In accordance with the above caselaw, the remit of my role as the Adjudication Officer in this case, is not to substitute my own judgment for that of the employer but rather to objectively assess the evidence to determine whether the decision to dismiss the employee was reasonable for that employer, in the circumstances of this case. 

I am required to consider two key issues in the context of deciding the fairness or otherwise of the dismissal in this case. Firstly, whether the Respondent acted reasonably in dismissing the Complainant in the circumstances and secondly, whether the dismissal adhered to the principles of fair procedures and natural justice. 

Dismissal as a fact is not in dispute, therefore in accordance with Section 6 (6) the burden of proof rests with the Respondent to establish that in the circumstances of this case the dismissal was neither substantively nor procedurally unfair. 

It is undisputed that the Respondent summarily dismissed the Complainant on the 15/3/2022. I note that the Respondent did not provide the Complainant with a reason for her dismissal on the 15/3/2022 either verbally or in writing directly to her. The Respondent’s representative in their written submission furnished a note dated 15/03/2022 that was purportedly written by Mr.  Mulcahy which stated “Mary Lane was informed that she was being asked to leave immediately due to her behaviour - gross misconduct”.

It was confirmed at the hearing that this note was not given to the Complainant. The Respondent’s representative stated in a letter dated 05/10/2022 that “At the hearing, we will be claiming your client was immediately dismissed for gross misconduct under the terms and conditions of her employment contract……All will give evidence of the behaviour of the applicant in the period leading up to her dismissal.”

I found the evidence of the Complainant to be clear and credible. The Complainant stated in evidence that she believed that she was dismissed because the Respondent received a letter from her solicitor dated 10/3/2022 seeking to have her hours restored and the Directors of the Respondent took it as a personal insult.

At the hearing the Respondent’s representative submitted that the Respondent was entitled to dismiss the Complainant due to her “intolerable conduct”. He further submitted that the letter that was sent from the Complainant’s solicitor dated 10/03/2022 was “the straw that broke the camel’s back”.

Mr. Mulcahy referred to an incident on the 30/4/2020, when allegedly the Complainant behaved in an aggressive manner, banged the table with her fist and requested her hours restored to 5 days a week. This was disputed by the Complainant. It was also stated that the Complainant was aggressive at this meeting. There was no dispute that no disciplinary action was instigated following the alleged incident.

I am not required to make finding of fact in relation to this incident. However, even if I accept the evidence of Mr. Mulcahy regarding the alleged incident, in my view the alleged behaviour would not amount to gross misconduct which could justify the summary dismissal of the Complainant nearly two years later on the 15/3/2022.

Mr. Mulcahy affirmed in his evidence that at the meeting on the 15/3/2022 Ms. Mc Elligott demanded that the Complainant hand over her keys to the pharmacy and leave the premises immediately. Mr. Mc Elligott, stated in evidence that the reason for the Complainant’s dismissal was due to the fact that he “had enough of complaints” from the Complainant. He further stated when Ms. Mc Elligott told him that there was a solicitor’s letter dated 10/3/22 from the Complainant, he replied “this is it”. He stated on that basis he decided to dismiss the Complainant, though it was Ms. Mc Elligott who told the Complainant she was dismissed.

I note that the Complainant’s contract dated 12/03/2021 refers to “Dismissal” and lists non-exhaustive examples of gross misconduct such as “serious damage to company property” and “violent, dangerous or intimidatory conduct”. 

After careful consideration of the evidence provided by Mr. Mulcahy and Mr. Mc Elligott, I am satisfied that no evidence was provided to support a finding that the Complainant engaged in conduct that amounted to gross misconduct, or “intolerable conduct” as alleged, or akin to the list of examples as set out in the Complainant’s contract or the types of behaviour described in the case of Lennon v Bredin M160/1978.

I am of the view that the Complainant’s dismissal was due to the fact that the Complainant consistently sought to have her hours restored.

It is my view that the Complainant was entitled to question the Respondent in relation to when her hours would be restored particularly during the period from the end of 2021 and at the start of 2022.  I am of the view that the Complainant was summarily dismissed for consistently questioning the Respondent on this topic and for instructing a solicitor to assert her contractual right to restore her hours by way of  letter dated 10/3/2022 to the Respondent. 

Based on the above reasoning and the evidence adduced at the hearing I am satisfied that there was no evidence to support a finding of dismissal on the grounds of gross misconduct. Accordingly, I find that the decision to summarily dismiss the Complainant was not within the range of reasonable responses of a reasonable employer.

It is undisputed that no procedural rights were applied to the Complainant’s dismissal. Mr. Mulcahy stated in evidence that the Complainant was not given any notice of the meeting of the 15/3/2022, nor was she advised of her right to representation. Mr. McElligott confirmed that the decision to dismiss the Complainant was taken prior to the meeting of the 15/3/2022 with the Complainant.  The Respondent did not put any allegations to the Complainant concerning any matter of her alleged gross misconduct, no investigation was conducted by the Respondent, nor was the Complainant provided with an opportunity to challenge any allegations or evidence or have any input into the decision to dismiss her.  

I find that the Complainant was not afforded any procedural rights in relation to her dismissal contrary to the rules of constitutional and natural justice, the legal principles set out in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) Order and the provisions of the Complainant’s contract.  Furthermore, I am satisfied that the requirements set out in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137 were not met in the circumstances of this case.

Based upon the above reasoning, I am satisfied that the Respondent has not discharged the onus of proving that the Complainant’s dismissal was substantively and procedurally fair in this case. Accordingly, I determine that the Complaint’s dismissal was unfair.

I am satisfied that the appropriate form of redress, having regard to all the circumstances, is that of compensation. Regarding compensation, the Act provides that compensation for financial loss (which is defined as including any actual loss and any estimated future loss) attributable to the dismissal, as is just and equitable having regard to all the circumstances, of up to a maximum of 104 weeks remuneration, may be ordered.

In assessing the level of compensation to be awarded I note that the Complainant was paid a gross weekly salary of approximately €645.54 by the Respondent for five days and a reduced gross salary for 3 days of €€387.33, at the time of her dismissal. I have received submissions from the parties in relation to the Complainant’s loss arising from her dismissal and her evidence in relation to her efforts to mitigate those losses, which I have considered in deciding the quantum of compensation.

I have considered the Complainant’s submission that the Complainant’s compensation should be assessed at the full value of her salary for 5 days a week and reliance was placed on the case of O’Meara v AIBP (Nenagh) Ltd 1099/1993. Reference was also made to Ryan, Redmond On Dismissal Law, 3rd Ed 2017 at para 24.44. which clarified that it is not the net figure being received by the employee on short time working but the figure he/she receives on normal working hours that should be considered as compensation. 

I referred both parties to S.I No 287/1977 – Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977.

I find that reg 4 of the above noted S.I. is applicable which states that:

“…..his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked the number of hours that was normal for the employment.”

Accordingly, in line with regulation 4 of S.I No 287/1977 as noted above, I find that the Complainant’s compensation should be assessed at the full value of her salary for 5 days a week at the gross figure of €645.54. 

I am mindful of the decision of the Employment Appeals Tribunal (EAT) in Sheehan v Continental Administration Co. Ltd. UD 858/1999 where the Tribunal set out the extent of the onus upon a Complainant to make efforts to mitigate their loss in the following terms;

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work….The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss”. 

Based upon the evidence of the Complainant which was supported by various documents regarding her efforts to mitigate her loss I find that the Complainant made significant efforts to mitigate her loss in line with the dicta of the EAT in the above case. I note that she secured employment with a named pharmacy on the 29/8/2022 as a pharmacy assistant on a specific purpose contract to provide maternity cover, the hours are variable and she works an average of 36 hours a week on €14.00 per hour, a copy of the contract was provided.

I determine that the Complainant is entitled to compensation for actual loss from the date of dismissal on the 15/3/2022 to the date she secured alternative employment approximately 24 weeks later in the sum of €15,493.  In light of the fact that the Complainant is currently in receipt of wages at €14 per hour, at a reduced level from her previous role where she received €16.14 per hour, I determine that she is entitled to €2,507, in respect of ongoing and future losses.  

CA-00049516-002 complaint under the Payment of Wages Act, 1991

In considering whether the Complainant’s wages were the subject of an unlawful deduction as alleged, it is necessary to examine the relevant provisions of the Payment of Wages Act 1991, as amended and the applicable caselaw.

Section 5 in the relevant part provides for the following:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

Section 6 in the relevant part provides for the following:    

6.       - (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

             (a)the net amount of the wages (after the making of any lawful deductions therefrom)      that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount presented to paragraph (a), twice the former amount.

Hedigan J. in the High Court, in Lichters & Hass v Depfa Bank Plc [2012] 23 E.L.R 258in referring to the discretion provided to an employer by virtue of the terms of the contract affirmed that such discretion is not unfettered:

“In Clarke v Nomura International [2000] IRLR 766 the Court of Appeal for England and Wales considering this type of situation observed: -

"An employer exercising a discretion which on the face of the contract of employment is unfettered or absolute, will be in breach of contract if no reasonable employer would have exercised the discretion in that way."

He further stated at paragraph 6.9 that:

 “Whether in the context of a contract in restraint of trade if that is the case, or to determine the proper exercise by the defendant of its discretion as an employer, the question for the court is as to whether it can be considered that in the circumstances of this case no reasonable employer would have acted as the defendant company did. …..It seems to me that the plaintiffs have fallen a long way short of meeting the standard of unreasonableness necessary to overturn the actions of the defendant company herein, either under their contract of employment or on the basis of a restraint of trade. I must therefore dismiss the claims of both plaintiffs.”

Both contracts dated 2016 and 2021 contained the same Lay Off/Short-time clause set out at Section 16 of both contracts. I am satisfied that both contracts are valid and note that the Respondent relies upon Clause 16 to place the Complainant on short-time, which provides:-

“The Company reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in full employment. You will receive as much notice as is reasonably possible prior to such lay-off or short-time. You will not be paid during period of lay-off. You will be paid for hours actually worked during the periods of short-time. “ 

I also refer to the decision of the Labour Court PWD2253 – PW/22/188, Swissport Ireland Limited T/A Swissport and Mr Shay O Hare,  where the Court, upholding a decision of an Adjudication Officer, held that no wages were payable to the Complainant during the period of lay-off as the lay -off was based on a term of the contract and stated:

“He was laid off in accordance with the lay-off provisions contained in his individual contract of employment and a relevant Collective Agreement, both of which stipulate that periods of lay-off will be unpaid.”.

The Complainant was placed on short-time from May 2020 onwards as a result of the outbreak of the Covid-19 pandemic.  I accept the evidence of Mr. Mulcahy who stated that the reduction in the Complainant’s hours were as a result of the introduction of a 2 pod system where all staff members were allocated to either pod and that the number of customers allowed into the pharmacy at any one time was capped at 3. He stated that these measures were implemented in the interests of staff safety, on foot of advice received from the relevant professional bodies such as the PSI and IPU.

I note his evidence that both the pod system and the restriction on the number of customers remained in place until the public health restrictions were lifted at the end of February 2022. I also note his evidence that all members of staff including all the counter assistants had their hours reduced to 3 days a week in May 2020.

I find that the justification provided by the Respondent, supported by the evidence of Mr. Mulcahy, does satisfy the conditions provided for in Clause 16. I accept that the reduction in the Complainant’s hours from May 2020 until end February 2022 were necessary as a result of “circumstances beyond its control” in light of the impact that the Covid 19 pandemic coupled with the public health restrictions, had on the Respondent’s business. 

Grounded upon the test set out in the caselaw above, I find that the Respondent had a discretion to place the Complainant on short-time based upon Clause 16 of the contract and that  it exercised this discretion properly and within the threshold as set down by the Courts, that it was within the band of reasonableness, while the operational changes necessitated by the Covid 19 pandemic  remained in place.

The Complainant’s representative submitted that the Complainant’s claim is limited to the 6 month period prior to lodging her claim on the 5/4/2022, and the relevant period is from 5/11/2021 to 15/3/2022. I find that the cognisable period is the period commencing 6 months prior to the lodging of the claim on 5/4/2022 which is the period from 6/10/2021 to the 5/4/2022.  It was further submitted that during this period it was no longer justifiable to keep the Complainant on short time. In this regard it was stated in evidence by the Complainant that another staff member was provided with full time hours towards the end of 2021.

In this regard I accept the evidence of Mr. Mulcahy that this member of staff who started as a counter assistant was a qualified pharmacy technician and therefore was offered a full-time role as a pharmacy technician, given that a need arose within the pharmacy for this particular role. I accept Mr. Mulcahy’s evidence that, as the Complainant did not possess the required qualification she was not considered for the role and that all other counter assistants remained on reduced hours. Accordingly, I find that the Respondent was entitled to rely on Clause 16 while the public health restrictions remained in place and the operational changes including the reduction in hours for staff remained in place. 

Accordingly, I find that no payment properly payable to the Complainant was unlawfully deducted from her wages in so far as the pod system and cap on customers entering the pharmacy, remained in place. Based upon the evidence of Mr. Mulcahy these measures remained in place until the end of February 2022 when the public health restrictions were lifted.   However, I find that it was unreasonable of the Respondent to keep the Complainant on short-time when the measures such as the pod system and cap on the number of customers entering the pharmacy were no longer in place. Based upon the evidence of Mr Mulcahy, I am satisfied that by the end of February 2022 these measures were no longer in place as a result of the lifting of the public health restrictions. 

Accordingly, I find that for a period of two weeks from the 1/3/2022 until the 15/3/2022 no circumstances beyond the control of the Respondent existed to justify the Complainant’s reduced hours and, consequently she should have been paid for 5 days for this period.

I determine that the complaint is well founded in part, and the Respondent made an unlawful deduction from the wages properly payable to the Complainant for the period of two weeks commencing on the 1/3/2022 to the 15/3/2022.

In accordance with Section 6 (1) (a) (i), I determine that the Complainant is entitled to reasonable compensation equivalent to the unlawful deduction based upon the net amount of her wages at a daily rate of €107.65. The Complainant is entitled to compensation of €430.63 equivalent to 4 days wages.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts for the reasons set out above. Accordingly, I find that the complaint is well founded. I determine that at an award of compensation to include actual, on-going and future loss to be the appropriate award in the circumstances of this case. I require the Respondent to pay the Complainant €18,000 in compensation.

I declare that the complaint is well founded in part, for the reasons set out above, and I direct the Respondent to pay €430.63 for the unlawful deduction in wages properly payable to the Complainant.

Unfair Dismissal – gross misconduct – wages – short-time – unlawful deduction of wages -