Complainant

Respondent

Parties

Aoife  Foley

Waterford Health Park Pharmacy Ltd t/a Stratus Healthcare

Representatives

David Lane, SIPTU

Mark Walsh,  Kenny Stephenson Chapman 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-00043162-001

22/03/2021

The complainant worked as a healthcare assistant for the respondent.  She commenced employment on 18 March 2020.  Her employment was terminated on 18 March 2021.  She worked 43.5 hours per week.  Her rate per hour was €11 during probation.  On successful completion of her probation her rate was €12 per hour.  On 12 February 2021 the complainant was told her hours would be reduced to 3 days per week.  The complainant asked for an explanation in writing of the reason for short time, the duration and why only three staff were affected.  On 18 February 2021 the complainant was told that her contract was being terminated effective 18 March 2021.  The complainant claims she was unfairly dismissed. 

The respondent, at the first hearing, stated there was a serious conflict on the issue of jurisdiction to hear this complainant due to the length of the complainant’s service.  At the hearing on 30 September 2022 the respondent’s representative stated that the fact of dismissal and unfair dismissal was not disputed.  The issue between the parties was the amount of the loss suffered by the complainant.

The parties requested time for direct discussions, which was granted.

The complainant then gave evidence on oath about the loss she had suffered.

The complainant commenced employment with the respondent on 18 March 2020.  She was employed as a healthcare assistant and normally worked 43.5 hours per week. 

The complainant was issued with a contract of employment.  The commencement date contained in the contract is 23 March 2020, but the complainant worked three days in the previous week, 18 to 20 March 2020.  A copy of the complainant’s payslip dated 20 March 2020 was provided.

The contract provided that the rate of pay was €11 per hour during probation.  Following the successful completion of a three-month probation period the rate of pay increased to €12 per hour.

On Friday 12 February 2021 the respondent’s manager told the complainant that as the footfall and sales were down during the previous few months, she and two other staff would have to work reduced hours.  The complainant’s hours were to reduce to working three days per week.  The complainant inquired if the change was due to another member of staff returning from maternity leave.  The complainant’s question was not answered.  The complainant was told to think about it over the weekend.

The following Monday, 15 February 2021, the complainant was shown a rota that had her off work the following day and working a three-day week.  The complainant asked to speak with the owner.  He would not meet with her, but she met with the Supervising Pharmacist instead.  The complainant explained that she had given up childminding to take a full-time job and she could not afford to be placed on short time. 

The complainant was willing to work a four-day week, at worst.  On Thursday, 18 February 2021, the rota for the following week was produced and showed the complainant was due to work a three-and-a-half-day week.  The complainant requested a statement in writing as to why her hours were being cut, the duration of the proposed short-time and why only three staff were being put on short-time.

At the end of that day the complainant was brought down to the owner’s office where the Supervising Pharmacist told her that they were terminating her contract.  The complainant was handed a letter that stated “In accordance with the provisions of the Contract the Company has decided to terminate your employment with it.  The Contract provides that the Company is entitled to do so on giving you four [4] weeks notice in writing and this letter is intended to serve as such notice.”  The letter, dated 18 February 2021 also stated, incorrectly, that the complainant had commenced employment on 23 March 2020.  The complainant was not required to work the notice period and was told she need not attend work the following day.

The complainant contends that she was unfairly dismissed because she wanted to know why she was selected to be put on short-time.

The complainant was successful in obtaining a new job in June 2021.  However, the new contract was a temporary contract but at a higher hourly rate.

The respondent’s representative, at the hearing on 30 September 2022, stated that the fact of dismissal and unfair dismissal was not in dispute.  The only issue between the parties was the loss suffered by the complainant due to her unfair dismissal.

The respondent submitted that the financial loss of the complainant must be calculated in compliance with the provisions of section 7 of the Act.  It was contended that the financial loss amounted to eleven weeks salary at €522 gross per week, in total €5,742.  The respondent acknowledged that the complainant was fair in her evidence and had obtained a new job at the rate of €15.65 per hour.

CA-00043162-001

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977

Section 6 of the Act 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.

The respondent, at the hearing on 30 September 2022, acknowledged the complainant had been unfairly dismissed.  There was no submission justifying the dismissal.  I find the complainant was unfairly dismissed.

Redress

Redress for unfair dismissal is provided for in section 7 of the Act, as follows:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

 (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The complainant sought compensation for the loss she suffered due to her unfair dismissal. 

Section 7(2) provides:

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

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

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

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

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

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

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

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

 (a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

(2B) …

 (3) In this section—

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

The complainant was a credible witness and in her evidence on oath she described how her she suffered anxiety and loss of confidence after her sudden dismissal from employment.  However, she set about obtaining other work and was successful in obtaining a temporary job at a higher rate of pay.  The complainant commenced her new job in the second week of June 2021.  She accepted that the period she was without income after her dismissal was eleven weeks.

Having considered the evidence I am satisfied that the complainant’s financial loss was wholly due to an act of the employer and that the complainant was not in any way responsible for the loss she suffered.  I am satisfied that the respondent failed to follow a fair procedure before terminating the complainant’s contract.

As is clear from the Act, section 7 (1) (c) (i) compensation is for “any financial loss attributable to the dismissal”.  Financial loss is defined as including, actual loss, estimated prospective loss of income and loss or diminution of the rights of the employee under the Redundancy Payments Acts.  The complainant’s actual loss amounts to €5,742.  She has obtained new employment but only on a temporary contract when she had held a permanent full-time post with the respondent.  The complainant was fair in her evidence and is hopeful that she may obtain a permanent post in the coming months. 

She had not acquired a right to a redundancy payment as she was employed by the respondent for less than two years.  However, the benefit of one year qualification period for redundancy pay was lost due to her unfair dismissal.

I have considered the actual loss, the prospective loss arising from the fact that she has not yet obtained a permanent post and the loss of one-year qualifying period for redundancy pay in deciding the appropriate level of compensation. Having regard to all the circumstances I decide that it just and equitable to instruct the respondent to pay to the complainant compensation in the amount of €14,000.

CA-00043162-001

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

I find the complainant was unfairly dismissed by the respondent.

Having regard to all the circumstances I decide that it just and equitable to instruct the respondent to pay to the complainant compensation for her unfair dismissal in the amount of €14,000.

Unfair Dismissal

Compensation