Complainant

Respondent

Parties

Patricia  Burke

Sunnyside Daycare & Montessori Limited

Representatives

 O'Connor Tormey & Co. Solicitors

David Doyle  Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00048666-001

15/02/2022

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

CA-00048666-002

15/02/2022

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

CA-00048666-003

15/02/2022

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

CA-00048666-004

15/02/2022

The Complainant was employed as an Early Childhood Practitioner/Teacher and was dismissed for a number of reasons by the Respondent. The Complainant alleged the Respondent did not have substantial grounds to dismiss her and claimed she was unfairly dismissed. The Complainant also submitted complaints that she did not receive a written statement of her terms and conditions within two months and she did not receive a statement of her core terms of employment within five working days. The Complainant also submitted she was due outstanding holiday pay.

The Complainant was employed from September 17th 2019 to August 19th 2021 when she was dismissed.

The Complainant earned 234 Euros per week for a 20 hour working week.

The Complainant stated she was on a one day certified illness on August 19th 2021.

The Complainant stated she was due holiday pay but not sure of the amount due.

The Complainant stated she may have got a contract of employment but was not sure of it.

The Complainant stated she was unfairly dismissed and given no warning, right of representation or appeal and was summarily dismissed without cause.

The Respondent denied the Complainant was unfairly dismissed.

The Respondent stated the Complainant was not able to fulfil her minimum hours of work, had received warnings about the use of her phone while at work, was given permission once to use because of a family situation and asked to make personal appointments outside of work hours and not during work hours. The Respondent advised the Complainant had received numerous warnings about the use of her phone while at work and had missed one day a week since November 2020.

The Respondent stated the Complainant was on a fixed term contract from July 1st 2021 to August 27th 2021 and had signed two contracts of employment, one on January 6th 2020 and one on July 1st 2021. The Complainant alleged that she did not receive a statement of her core terms in writing. The Respondent states that the Complainant received and signed the Employment Contract dated the 1st July 2021. The Complainant also received and signed an earlier Employment Contract dated the 6 th January 2020. The following core terms of employment, as required by the legislation, are included in the contract: • The full names of the employer and the employee; • The address of the employer; • The expected duration of the contract, in the case of a temporary contract, or the end date if the contract is a fixed-term contract; • The rate or method of calculation of the employee’s pay; • The number of hours the employer reasonably expects the employee to work per normal working day and per normal working week.

The Complainant was dismissed on the grounds of capability, competence and conduct, summarised as follows: -The Complainant’s failure to fulfil the minimum number of contractual hours mandated by her employment contract; -The Complainant’s failure to fully engage in her work purported to frustrate the Respondent’s aims to cultivate the abilities of each child as a result of persistent stimulation and challenges; -The Complainant’s continual use of her mobile phone during working hours which was strictly prohibited in accordance with Section 14(b) of her employment contract; -The Complainant’s apparent lack of regard for the requirement that all personal appointments be arranged outside of working hours. The Complainant was extremely unreliable and received numerous warnings in relation to her absences from work, work ethic and phone use.

Following the evidence at the Hearing what was common between the parties is the following;

The contract contained a clause for termination for breach of material rules.

The Contract did not contain a grievance procedure.

The Contract did not contain a disciplinary procedure.

The Complainant had never received a formal verbal or written warning about her performance.

The Complainant was never brought to a formal meeting to discuss the issues the Respondent dismissed the complaint for.

The Complainant was dismissed by text.

The Complainant was sick the day before she was dismissed and produced a medical certificate the day after as her Doctor did not work the day of her sickness.

The Complainant was given no right of representation at her dismissal.

The Complainant was given no right of appeal of her dismissal.

The parties gave different evidence in relation to the issues that brought about the dispute. With regard to the substantial grounds for dismissal it is unclear if the Complainant made a material breach of any contractual terms and even if she did, she was not given any warning or no formal disciplinary meeting was held with the Complainant. None of the issues in dispute on their own or cumulatively amount to grounds for summary dismissal.

With regard to loss and mitigation of loss the Complainant got a new job very shortly after being dismissed and her loss was quantified as 300 Euros.

In this Adjudicators experience every possible procedural breach possible is contained above relating to the way the Respondent acted in the dismissal of the Complainant and in the deficiencies in its contract with the regarding its disciplinary procedure.

The Respondent submitted two contracts of employment signed by the Complainant.

The Respondent submitted detailed analysis of pay/leaved due and amounts paid to the Complainant which did not show any amount owing to the Complainant.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Respondent argued the Complainant was overpaid by 4.1 hours for her leave entitlements. The Complainant did not submit any evidence to contradict this assessment. I therefore find that the Complainant under the Organisation of Working Time Act 1997 is not well founded. .(CA-00048666-001) .

The Law

Section 41(6) and (8) of the Workplace Relations Act 2015 (‘the 2015 Act’) provides as follows:-

“41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

41(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The within claims were presented to the Workplace Relations Commission on tFebruary15th 2022. The Complainant’s employment commenced on September 17th 2019. The complaints relating to the Terms of Employment were presented out of time and is consequently statue barred. Therefore, the Complaint under the Terms of Employment (Information) Act 1994 (CA-00048666-002) and the Complaint under the Terms of Employment (Information) Act 1994 (CA-00048666-003) are statue barred and not well founded.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I decide that the Complainant was unfairly dismissed an award her the maximum compensation possible, her loss, of 300 Euros. (CA-00048666-004)

Unfair dismissal