Complainant

Respondent

Parties

Deborah  Dalle Crode

Poundland Limited T/A Dealz

Representatives

Paul O'Donoghue, O' Donoghues Solicitors

Naledi Bisiwe, IBEC

Act

Complaint Reference No.

Date of Receipt

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seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - WITHDRAWN

CA-00043076-001 WITHDRAWN

15/03/2021

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adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - WITHDRAWN

CA-00043076-002 WITHDRAWN

15/03/2021

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

CA-00043076-003

15/03/2021

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

CA-00043076-004

15/03/2021

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seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - WITHDRAWN

CA-00043076-005 WITHDRAWN

15/03/2021

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

CA-00043076-006

15/03/2021

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by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 - WITHDRAWN

CA-00043076-007 WITHDRAWN

15/03/2021

The Complainant commenced her employment with the Respondent on 23 August 2018. Her employment was terminated on 10 December 2020. At the relevant time, the Complainant was paid €430.14 gross per week.

On 15 March 2021, the Complainant referred to the Director General of the WRC seven claims against the Respondent. At the adjudication hearing on 4 May 2023 four claims were withdrawn.

The Complainant pursued the following complaints:

CA-00043076-003  under section 27 of the Organisation of Working Time Act, 1997

CA-00043076-004 under Section 8 of the Unfair Dismissals Act, 1977, and

CA-00043076-006 under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The Respondent rejects the claims.

The Complainant alleges that she was not compensated for the loss of her annual leave on leaving.

The Complainant’s representative submitted at the hearing that he received no communication from the Respondent or the Respondent’s representative regarding the outstanding annual leave, as alleged.

The Complainant did not provide any details regarding the outstanding leave.

IBEC, on behalf of the Respondent, conceded that the Complainant was not paid her outstanding annual leave on the termination of her employment. IBEC asserted that it had reached out to the Complainant’s representative on 15 March 2023 informing him of same. However, no reply was received.

The Respondent submits that its calculations show that the Complainant was owed €2,153.85 gross in outstanding annual leave.

The law

19. Entitlement to annual leave

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer's disposal, and

(b) carrying on or performing the activities or duties of his or her work.

3. Compensation on cesser of employment

(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

(b) In this subsection—

“relevant period” means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii)—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii)—

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.]

The Complainant referred her complaint to the Director General of the WRC on 15 March 2021 alleging that she was not compensated for the loss of her annual leave at the time of dismissal. The Complainant did not provide any details in that regard. At the adjudication hearing, the Complainant was unable to provide any details in relation to the annual leave due to her.

The Respondent conceded that no payment was made to the Complainant in respect of accrued annual leave on cessation of her employment. The Respondent  informed the hearing that, based on its calculations, the amount owed to the Complainant was €2,153.85 gross.

In the circumstances and in the absence of any evidence to the contrary having been adduced before me, I must conclude that the Complainant is entitled to cesser pay of €2,153.85 gross.

I declare this complaint to be well founded. I require the Respondent to pay the Complainant €2,153.85 gross in relation to cesser pay. The Respondent shall also pay to the Complainant redress of €2,000. This is redress for a breach of a statutory right and is not remuneration or arrears of remuneration.  

Background to the Respondent

Poundland Limited (the Respondent) is a British value retailer and operates a number of locations in the Republic of Ireland (trading as ‘Dealz’). The Respondent offers a wide range of products, including many well-known international brands, and local Irish brands for €1.50. Today, there are over 50 Dealz stores open in Ireland.

Background to the Complainant

On 23 August 2018, the Complainant commenced employment with the Respondent company in the role of Duty Manager.

The Complainant worked 40 hours per week and earned €1,863.92 gross per month.

Background to the Claim

The Complainant attended various counselling sessions with management during her employment at the store, for example, in relation to various disciplinary issues.

On 1 November 2019, the Complainant returned to work following an absence. On 3 November 2019, the Complainant attended an investigation meeting in relation to an incident that had occurred regarding a till discrepancy to the value of €267.00 in store while the Complainant was on duty. The Complainant was subsequently suspended from cash duties and advised that a disciplinary hearing would be organised.

On 5 November 2019, the Complainant was invited to attend a disciplinary hearing, set to take place on 7 November 2019. On 7 November 2019, the disciplinary hearing was held. The Complainant was issued with a verbal warning (meeting notes regarding the process were exhibited at the adjudication hearing).

On 25 November 2019, the Complainant attended an investigation meeting regarding alleged gross misconduct. It had been alleged that the Complainant had failed to charge a customer for helium (for balloons purchased from another retailer), and this had resulted in a financial loss to the Respondent company. At the end of the meeting, the Complainant was suspended with full pay pending disciplinary hearing.

On 6 December 2019, the Complainant attended a disciplinary hearing and received a First Written Warning. The suspension was lifted and the Complainant was advised that she could return to work. The Complainant did not return to work following the lifting of the suspension due to health issues, from 7 December onwards (meeting notes and relevant correspondence regarding December 2019 process were exhibited at the adjudication hearing).

On 2 January 2020, the Complainant was invited to attend a welfare meeting, in line with the Respondent’s ill health capability procedure, in order to discuss the Complainant’s ongoing absence and to ascertain the steps which could be taken to support her return to work. The Complainant was offered the opportunity to avail of representation at this meeting. (Invitation to Welfare Meeting 2 January 2020 was exhibited at the hearing).

On 7 January 2020, the Complainant attended a welfare meeting. It was noted during the meeting that (Minutes exhibited at the hearing):

·       in relation to how she was feeling, the Complainant stated that she was “getting there” but that she had a “bad throat and chest infection”;

·       the Complainant stated that she had struggled with the suspension and its effects (i.e., she couldn’t speak to colleagues and customers);

·       the Complainant stated that she was currently seeing her doctor;

·       the Complainant stated she would be able to return to work soon, but the chest infection had knocked her back somewhat; and

·       the Complainant was asked if there were any reasonable accommodations that the Company could make to facilitate her return to work as soon as possible, and the Complainant responded “no”.

On 23 January 2020, the Complainant e-mailed to request copies of any counselling meetings that she had been party to during 2019.

On 4 March 2020, the Complainant’s solicitor, Paul O’Donoghue Solicitors, e-mailed the Respondent on her behalf to state that she had been subject to investigations and disciplinary processes for “bizarre” reasons, and also alleged bullying, harassment and intimidation (Solicitor’s communication of 4 March 2020 was exhibited at the hearing).

On 14 May 2020, the Complainant attended a welfare meeting with a Manager from a different store (‘the Manager’). The Complainant stated that she was feeling “no better or no worse”. The Complainant stated that she was not undergoing any treatment and was not due to receive any treatment for her condition. The Complainant stated that she was “still not sure” as to when she would be able to return and that this would depend on advice received from her doctor. The Manger asked if there were any adjustments that could be made to enable the Complainant to return sooner. A follow-up was agreed to take place on 28 May 2020 (Minutes were exhibited at the hearing).

On 15 May 2020, the Complainant was invited by the Manager to attend a welfare meeting in order to discuss the Complainant’s ongoing absence and what steps could be taken to assist the Complainant’s return to work, including a phased return to work, amended job duties, altered hours of work or workplace adaptations.

On 28 May 2020, the Complainant did not attend the welfare meeting with the Manager.

On 29 May 2020, the Complainant was asked to attend another welfare meeting, set to take place on 4 June 2020 (Correspondence of 15 and 29 May 2020 was exhibited at the hearing).

On 29 May 2020, the Complainant was requested to fill out a consent form in order for her to attend an appointment with the Company Doctor (Request for Consent for Occupational Health Referral of 29 May 2020 was exhibited at the hearing).

On 3 June 2020, the Respondent received consent from the Complainant and the referral to the Company Doctor was made (Consent dated 3 June 2020 was exhibited at the hearing).

On 4 June 2020, the Complainant attended the rescheduled welfare meeting with the Manager. The Complainant stated during this meeting that progress was “slow” (Minutes of the Welfare Meeting 4 June 2020 were exhibited at the hearing).

On 8 June 2020, the Complainant was invited to attend a welfare meeting, which was set to take place on 2 July 2020 (Invitation to the Welfare Meeting 8 June 2020 was exhibited at the hearing).

On 14 June 2020, the Complainant attended the medical assessment with the Company Doctor/ Occupational Health Advisor. The main points from the report were as follows (Occupational Health Report 14 June 2020 was exhibited at the hearing):

·       The Doctor noted that the Complainant was “considering” counselling sessions but had not started these yet.

·       The Doctor noted that the Complainant was suffering from anxiety and this had led to some symptoms (such as disturbed sleep and high fatigue, etc.).

·       The Doctor opined that the Complainant was “fit to work at [that] point in time” (medically).

·       The Doctor noted that the Complainant had stated during the consultation that if the work situation could be resolved, she would be able to return to work, and recommended that the Respondent engage with her on this and offer the grievance procedure.

·        The Doctor recommended that the Complainant work reduced hours during her first week back.

On 2 July 2020, the Complainant attended a welfare meeting with the Manager. The Complainant stated that she was not receiving any treatment for her condition and that she wasn’t able to envisage a timeframe for her return. In relation to reasonable accommodations which may have been made to assist her return to work, the Complainant referred to the recently made occupational health report (Minutes of  the Welfare Meeting of 2 July 2020 were exhibited at the hearing).

On 3 July 2020, the Complainant was invited to attend a Capability Meeting, in order to discuss the recent Company Doctor’s report which pertained to work-related stress (Invitation to a meeting to discuss Company Doctor Report was exhibited at the hearing).

On 9 July 2020, the Capability Meeting was held. The Manager chaired the meeting, a Duty Manager was the note-taker and the Complainant was in attendance (she chose not to avail of representation at this meeting). The following was discussed by the Manager and the Complainant (Minutes of the Capability Meeting of 9 July 2020 were exhibited at the hearing).

·       The Manager stated that she had sent a leaflet to the Complainant regarding counselling services offered by ‘Retail Trust’ – the Complainant said she had not contacted the service but she “possibly” would.

·       The Manager explained that the report stated that the Complainant had no home or personal difficulties – only work difficulties. The Manager asked the Complainant if she was aware of the grievance procedure and she replied “No, not really”.

·       The Manager informed the Complainant how to raise a formal grievance.

·       The Complainant stated that she would be willing to meet with the Respondent to discuss any outstanding workplace issues.

·       The Complainant said that she would be interested in the interim measures proposed in the medical report, i.e., reduced hours and training.

·       The Manager asked if there was any suggestion or resolution the Complainant could propose to facilitate her return to work and the Complainant replied “Not at present”.

The Complainant made reference to her issues with the Store Manager during this meeting. The Respondent noted that subsequently, the Complainant started to communicate with the Respondent about these allegations through a solicitor and refused to engage with the Respondent directly (and did not raise a formal grievance through the Respondent’s formal procedures).

On 30 July 2020, the Respondent e-mailed the Complainant to advise that there had been concerns raised by the Complainant about the workplace and that it intended to address any concerns that she had, and she was asked to put these points in a letter/e-mail to the Respondent so that it could investigate them. The Respondent asked the Complainant to do this by 6 August 2020.

On 31 July 2020, an e-mail was received by the Respondent from the Complainant’s solicitor, which stated that the solicitor was surprised that the Respondent had contacted the Complainant directly (Solicitor correspondence of 31 July 2020 was exhibited at the hearing). The Respondent noted that it is not its practice to communicate with legal representatives about day-to-day workplace grievances and long-term absence issues.

On 6 August 2020, the Respondent responded to the solicitor to advise that it had followed its internal processes in respect of the Complainant’s grievance, and sent the grievance policy to the solicitor (exhibited at the hearing).

On 29 September 2020, the Complainant was invited to attend a welfare meeting which was set to take place on 1 October 2020 (Welfare Meeting Invitation was exhibited at the hearing).

On 1 October 2020, the Complainant attended a welfare meeting. The Complainant stated that she could not “put a date” on her return. The Complainant said that she would consider mediation but she wanted to raise a grievance first (Minutes of the Welfare Meeting were exhibited at the hearing).

On 15 October 2020, the Respondent e-mailed the Complainant to advise that it had e-mailed her directly on 30 July 2020 and her solicitor on 6 August 2020 about her concerns and that it had e-mailed her about her potential desire to raise these concerns formally. The Respondent asked for confirmation as to her intentions in this regard. A response was requested by 22 October 2020.

On 20 November 2020, the Complainant was invited to attend a welfare meeting, set to take place on 26 November 2020 (Welfare Meeting Invitation was exhibited at the hearing).

On 25 November 2020, the Respondent’s HR Business Partner confirmed that the Complainant’s Store Manager (who the Complainant had raised issues about in welfare meetings) was set to transfer to a new store and would no longer be working at the Complainant’s store. The Respondent explored if it was possible for this development to be discussed with the Complainant in the context of a welfare meeting in order to establish if this may have aided with the Complainant’s return to work.

On 2 December 2020, in the context of a welfare meeting with the Manager, the Complainant:

·       stated that she was beginning to suffer anxiety at the prospect of returning to work and that she had previously enjoyed coming to work but that this had changed – the Complainant did not want to comment further;

·       stated that there were a number of factors which had contributed to her long-term absence but that she did not want to comment any further on these.

·       acknowledged the potential for a phased return to work and task amendments and was open to this, but she once again noted that she was still following up on the grievance and that everything was taking a little longer with the pandemic – there was no further comment on the potential return to work.

·       stated that "it would make life a little easier" but that again she could give no definite answer if this could enable her to return to work (when asked if a change in management would enable her to return to work).

The Manager stated that the Respondent was willing to work alongside the Complainant to enable a return to work but the Complainant was not willing to give any timeframe or suggest any further adjustments that could be made to help her return to work.

On 7 November 2020, the Complainant was invited to attend another Capability Meeting (titled ‘Capability 2 Meeting’ under the Respondent’s capability procedures), further to the occupational health report which had been received on 17 June 2020. The Complainant was advised in this letter that a potential outcome of the meeting could be the dismissal of the Complainant due to incapability. The Complainant was informed of her right to representation and her right to appeal the decision ( Capability Meeting 2 Invitation exhibited at the hearing).

On 10 December 2020, the Complainant attended a capability hearing. At this hearing, the Complainant was afforded the opportunity to avail of representation by a work colleague or a trade union representative, which she declined. The Respondent discussed the Complainant’s absence in detail, the potential for her return to work, whether or not any reasonable accommodations could be provided, and any other supports. The occupational health report obtained on 17 June 2020 was discussed also. The Complainant was informed that one of the options to be considered was the termination of her contract of employment due to incapacity. In detail, some key pieces of the meeting were as follows:

·       The Complainant said she was feeling “pretty much the same”, but there had been “slow progress” and “setbacks”.

·       When asked if she had followed up on counselling, the Complainant said that she had not yet done so, due to Covid-related difficulties.

·       The Manager asked the Complainant when she could envisage herself returning to work; the Complainant said that she “couldn’t put a date on it” – the Manager also asked if she could see herself returning within 3 to 6 months and the Complainant could not give a “specific timeline”.

·       The Manager asked if the Complainant would be more likely to return to work if the Complainant’s Store Manager was relocated – the Complainant said this would “assure” her but she wasn’t sure if she was ready.

·       The Manager discussed amended duties and a potential phased return to work – the Complainant said that she never had any problems with her duties but she would consider this for the first week or two.

·       The Manager asked if the Respondent had provided the Complainant with enough support and the Complainant responded “yes”.

·       The Manager asked if there were any further supports which could be offered or any other suggestions – the Complainant said she had “no suggestions”.

·       The Manager stated that the Store Manager was being relocated and the Complainant responded that she had heard about this.

·       The Manager asked about whether or not the Complainant had taken a grievance through the company procedures – the Complainant responded that there had been issues with her solicitor and that “things were taking longer than usual to follow up on”.

·       The Manager stated that a possible outcome to this meeting could be the termination of the Complainant’s employment on grounds of incapability and the Complainant responded that she understood this.

·       The Manager informed the Complainant verbally after an adjournment that her employment was terminated on grounds of incapacity (based on the removal of the Store Manager and the lack of a potential timeframe for the Complainant’s return) and wished her the best of luck into the future.

The minutes of the meeting were exhibited at the hearing. The Manager was the Chairperson, a Duty Manager was the note-taker. The Complainant was in attendance and declined the opportunity to avail of representation.

On 15 December 2020, the Complainant received notice in writing of her dismissal from the Respondent company by reason of incapability. As the decision-maker, the Manager summarised the following points which she had taken into account in terms of her decision:

·       The Complainant had been provided with the contact details for ‘Retail Trust’ (the Employee Assistance Programme) but did not contact this service to seek advice/support.

·       The Complainant had been advised that her current Store Manager would be relocated by January 2021 (the Complainant had raised concerns about the conduct of this Store Manager) but the Complainant was not in a position to say that this would aid her return to work.

·       The Complainant could not provide any sort of timescale as to her potential return to work.

·       A phased return to work and amended duties were discussed with the Complainant in order to aid her return to work, but the Complainant did not engage with these suggestions.

·       The Complainant did not provide any suggestions which may have aided her potential return to work.

·       The Complainant agreed that the Respondent could not provide any other supports which may have aided her return to work.

The Complainant was advised that she would be paid up until the date of her dismissal including any accrued but untaken holiday entitlement and pay in lieu of notice, to be issued in the next payroll.

The Complainant was advised of her right to appeal the decision to the Employee Relations Team within five working days of the date of the letter (Termination of Employment Letter was exhibited at the hearing). The Complainant did not appeal the decision.

In the case of Pungor v MBCC Foods Ltd (UD584/2015), the Complainant had been dismissed for abusing a loyalty card scheme and she lodged unfair dismissal proceedings without ever exercising her internal right to appeal. The EAT stated as follows:

“The [employee]… was afforded the right of appeal, which she did not avail of. The [employee] has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.”

The Respondent notes that the Complainant’s Store Manager was subsequently relocated to a different store. This relocation occurred as of 29 December 2020. The Store Manager subsequently returned to the store as of 2 August 2021.

The Respondent submits that the issues of 2019, including the verbal warning issued in November 2019 (to remain on file for three months) and the final warning issued in December 2019 (to remain on file for 6 months) should not be considered. Tesco Ireland Limited v A Worker LCR21862 was cited in support of this position.

The Respondent submits that, in accordance with section 6(4)(a) of the Unfair Dismissals Acts 1977 to 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the capability of the employee.

During the duration of the Complainant’s long-term sick leave (7 December 2019 to 10 December 2020), the Complainant attended an appointment with the Company Doctor for medical assessment on 14 June 2020. The Company Doctor was of the opinion that the Complainant was fit to return to work provided the Respondent engage with her about outstanding workplace issues. On foot of the medical evidence, the Respondent invited the Complainant to many welfare meetings and to formal capability meetings.

The Respondent made numerous efforts to meet with the Complainant and review options that would facilitate a potential return to work (which had been recommended by the Company Doctor, i.e., a phased return to work and a reduced hours arrangement). The Complainant did not engage with the Respondent in relation to options which would facilitate a potential return to work.

On 7 December 2020, the Respondent informed the Complainant that termination on grounds of incapability was a possibility. Given the circumstances, and based on the medical information, the Respondent made the decision to dismiss the Complainant with notice on 10 December 2020.

It is a long-established principle that persistent absence from work, whether certified or not, may render an employee incapable of doing their job and, as such, justifies dismissal. One of the earliest cases to address this was the case of Reardon v St. Vincent’s Hospital, UD74/79, and the principle has stood since. In that case, the Complainant had a number of prolonged absences over a period of time, all of which were medically certified. The tribunal found the dismissal not to be unfair on the grounds that he was not capable under section 6 (4) of the Unfair Dismissals Act 1977 of carrying out the job for which he was employed.

Moreover, in Behan v An Post, UD 320/2006, this position was reaffirmed where in the case of an employee with a prolonged absence record, the Tribunal determined:

“[T]he [Complainant] had rendered himself incapable of fulfilling his obligations to his employer under his contract of employment. […] In the circumstances because of the [Complainant]'s incapacity to fulfil his contract with his employer in a reasonable fashion the Tribunal consider his dismissal fair in all the circumstances”.

It is the Respondent’s position that the same principles apply in the instant case. The Complainant’s prolonged absence, considered in addition to the advice of the Company Doctor and the Complainant’s refusal to engage with the Respondent’s good-faith efforts to facilitate her return to work, rendered her incapable of conducting the job for which she was employed to do. Accordingly, the Complainant’s dismissal was fair in light of the principles as established through the case law of the Tribunal.

The case of Bolger v Showerings (Ireland) Limited, ELR 184, outlines four key requirements needed for a dismissal on the grounds of incapability to be fair:

a.       Ill health must be the reason for the dismissal;

b.       This must be a substantial reason;

c.       The employee must have received fair notice that the question of dismissal for reason of incapacity was being considered; and

d.       The employee must be given the opportunity of being heard.

It is clear from the facts of the instant case that the Respondent can show all of the above requirements have been met:

a.       It was clearly the case that the termination of employment was on grounds of incapability. The Complainant stated in the final capability meeting that she could not provide any timescale for her return, due to her anxiety issues, for which she had also been medically certified.

b.       There was no other reason for the dismissal (apart from the Complainant’s prolonged absence). It is clear that the Respondent wanted the Complainant to return to work and was keen to support her in this, but the Complainant did not engage with these efforts.

c.       The Complainant was informed by letter on 7 December 2020 that her employment may be terminated on grounds of incapability.

d.       The Complainant was given every opportunity to provide representations on her behalf and throughout the process (during each welfare meeting and capability meeting). The Manager asked the Complainant many times if she had any suggestions which may have aided her return to work.

The employment relationship is based on mutuality of obligation. It is an inherent factor in any working relationship that the employee attends work, thus, fulfilling their part of the contract. By not attending work on a regular basis, an employee is not fulfilling their contractual obligations. Absences from work cannot continue on an indefinite basis. If an employee is unable to fulfil their contract of employment due to illness, then the employer may be left with no option other than to terminate employment, based on available medical advice.

The Respondent has in place a clear policy for managing absence, as set out in the Capability Policy (exhibited at the hearing) which outlines a standard procedure to follow in the event of prolonged absence as a result of incapability to return to work owing to long-term illness. The system in place in the organisation demonstrates an incremental and consistent approach, involving regular monitoring and reviews in order to provide assistance and clarity to the employee. The ultimate step should the employee be unable to achieve a return-to-work capability, is termination.

It is necessary to examine whether, at the point of the decision being made, the employee is capable of carrying out their role into the future. Based on the medical advice in this case, this unfortunately was not the case. The role of the Respondent is not to examine the cause of the absence. Neither the Respondent nor the Complainant is medically qualified to make such a decision. The decision of the Respondent to dismiss the Complainant was difficult; however, based on the Complainant’s illness, the Company Doctor was unable to provide a return to work date and was of the opinion that capability for work would not be achieved in the foreseeable future. Taking all the factors into account the Respondent was left with no alternative but to terminate the Complainant’s employment on the grounds of incapability.

The Complainant’s dismissal was not taken lightly and in order to give the Complainant every opportunity it could, the Respondent adopted a phased approach in an attempt to determine a return-to-work date. The Respondent arranged for the Complainant to meet with the Company Doctor and organised many welfare and capability meetings. The Respondent endeavoured to facilitate the Claimant in returning to work and had they received a medical confirmation that she was fit to do so, would have assisted the Complainant to return to work if possible. Unfortunately, this was not the case.

It would be unreasonable to expect that the Respondent keep the process going indefinitely, where the Complainant detached herself from the process and refused to engage (i.e., the Complainant did not engage with the proposals for a phased return to work and it was explained to the Complainant how to raise a grievance internally and she did not do this).

Procedurally, the Respondent conducted a fair process and was open-minded in its approach to the Complainant. In relation to the procedures used to implement this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the Respondent’s established policy and the universal principles of natural justice. All the evidence in its entirety was considered, including the Complainant’s representations, before any decision was made or action taken. In light of all of the above, the Respondent believes it to be clear that the dismissal of the Complainant was procedurally fair in all respects. It is noted that at no stage was any perceived issue with the Respondent’s procedures ever raised by the Complainant or her representative.

The Respondent notes also that the Complainant was given the opportunity to appeal the decision but did not do so.

Loss of Remuneration

Per section 7(2)(c) of the Unfair Dismissals Acts 1977 to 2015

“(2) … In determining the amount of compensation payable… regard shall be had to – (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…”

It is the Respondent’s contention that the Complainant has not demonstrated that she has made reasonable efforts to mitigate her loss.

Furthermore, in line with Burke v Superior Express Ltd, the Complainant has a responsibility to expand her job search beyond her field of expertise, and the standard in demonstrating same is a high one. The Respondent further refers to Sheehan Continental Administration Co. Limited.

Without prejudice to the Respondent’s position that the dismissal was fair, the Complainant has not made significant efforts to mitigate her loss to date and as such, the Complainant’s failure to make significant efforts to mitigate her loss must be taken into account when calculating financial loss for the purpose of redress under the Unfair Dismissals Act.

In response to the Complainant’s representative’s post-hearing letter of 8 May 2023 regarding loss mitigation, the Respondent noted that at the adjudication hearing of 5 May 2023, the Complainant testified that she had proof at home of job applications she had made. Her failure to produce those must be taken as proof that she never made those applications, she does not have the proof that she claimed to have, and she misled the Commission in testifying that she had such proof fully knowing that she did not have it. The Respondent submitted that the Adjudication Officer must accept that the Complainant has shown that she made no reasonable efforts to mitigate her losses on termination of her employment, despite her claim that she was fit to work from December 2020.

Summary of direct evidence and cross examination of the Manager, Ms Blennerhassett

The Witness outlined her career with the Respondent and her experience. She said that she had never worked with the Complainant, she was based in a different store. She met the Complainant previously at a disciplinary meeting.

The Witness said that she dealt with similar issues in her store but they would have reached a resolution. It was the first time that the Respondent could not find a resolution.

The Witness said that she was not privy to any information except matters related to the welfare meeting.

The Witness said that at the meeting on 7 December 2019, the Complainant could not suggest how the Respondent could facilitate her return, she did not communicate any treatment that she was getting, she was not able to say when would she be able to return to work. They agreed to meet again.

The Witness said that on 15 May 2020 she sent a letter to the Complainant to invite her to another welfare meeting. However, as there was some miscommunication, she did not believe that the Complainant received the letter. On 29 May 2019 she sent another invitation. The welfare meeting was held on 4 June 2020. The Complainant confirmed at the meeting that she was “pretty much the same”, she wasnot taking any medication, she had not and was not due to receive any treatment, she did not suggest any adjustments that the Respondent could make to enable her return.

The Witness said that the Complainant consented to the Occupational Health referral which deemed her fit to work.

As the Complainant did not return to work, the Witness held another welfare meeting with the Complainant on 2 July 2020. The Complainant said that there was no sudden fix. She did not take any medication, did not receive any treatment, could not give her return date, and had no suggestions as to the adjustment the Respondent could make to facilitate her return.

The Witness then invited the Complainant to discuss the Occupational Health specialist’s report on 9 July 2020. The Witness said that at the meeting, the Complainant asked about grievance process, she gave her all details. The Witness said that her goal was to return the Complainant to work. She informed the Complainant that, if she had any grievance, there is a process to raise any issues she had with the Store Manager. The Witness said that, as far as she was aware, the Complainant did not lodge a grievance.

The Witness said that on 29 September 2020, she invited the Complainant to another welfare meeting to be held on 1 October 2020. At the meeting, the Complainant confirmed that she was not taking any medication, did not receive any treatment, she could not give a return date. She said that she wanted to go through a grievance process and , once the process has started, she would consider mediation.

On 20 November 2020, the Complainant was invited to a welfare meeting. This, however, did not go ahead.

On 7 December 2020, the Complainant was invited to a capability meeting. The invitation letter advised that the Complainant could be dismissed as a result.

The Witness said that she was in contact with HR about this case. They were trying to come up with adjustments to assist the Complainant’s return to work.

The Witness said that it come to her attention that the Store Manager was moving, she told that to the Complainant. The Complainant said that she would be interested in returning but the damage had been done.

At the meeting on 10 December 2020, the Witness communicated to the Complainant that the Respondent was open to make adjustments to facilitate her return. No suggestions were put forward by the Complainant. The Complainant did not comment on the grievance process. The Witness said that she believed that the Complainant understood the seriousness of the matter. The Witness said that she would be transparent, open and honest with colleagues she had meetings with. The Witness said that she told the Complainant that termination of her contract would be considered but it would be as an absolutely last resort. The Complainant replied “ok”.

The Witness said that she found that there had been no real, constructive engagement, no suggestions put forward by the Complainant. The Witness said that she pushed the Complainant through these meetings, she did all she could and her aim was to have her back at work. However, there was nothing put forward by the Complainant, she could not envisage a time when the Complainant would be able to come back. The Witness said that she exhausted all the measures available so she had come to a conclusion to terminate the contract.

The Witness said that the Complainant was given her right to appeal this decision, she did not do so.

In cross-examination, the Witness said that she was not aware of the Complainant’s solicitor’s letter dated 3 March 2020. It was put to the Witness that she should have been aware of this letter and the Complainant’s doctor’s letter. She should have known everything. The Witness said that she knew what the Complainant told her. She could have told her or appealed the decision.

It was put to the Witness that the Complainant’s cert was until 26 December 2020 and she should have waited until that date. The Witness replied that she put all the measures, she built a relationship with the Complainant, she was transparent, their discussion was based on communication with the Complainant. There was no timescale, no medication, no treatment.

The Complainant’s solicitor listed all the events which the Complainant outlined in her submission relating to the disciplinary process and asked if the Witness was aware of them. The Witness confirmed that she was not.  She confirmed that some time ago, she attended a meeting regarding cash handling procedures but could not remember details of what happened.

The Complainant’s solicitor insisted that the Witness should have made herself more informed. The Witness reiterated that her role was to facilitate the Complainant’s return, she exhausted all options. She said that she sent the notes of their meetings to HR, she was not sure if the Complainant got them.

In re-examination, the Witness said that she brought the grievance process to the Complainant’s attention. She wanted to make sure that the Complainant had every opportunity to raise her concerns.

The Witness confirmed that she was not a medical expert, she was aware that the Complainant was assessed by the occupational health expert, who in turn guided the Respondent as to how to facilitate the Complainant. Medically the Complainant was deemed fit. The Witness said that she communicated to the Complainant the occupational health expert’s suggestions.

The Complainant alleges that she was unfairly dismissed.

In a written submission received on 9 June 2023, the Complainant submits as follows.

The Complainant has never received copies of her counselling sessions, as they were called, when an employee is spoken to by two managers, as a warning. The Complainant submits that she was told that she would get them but then she was told to apply to the Head Office in England as her own store had them destroyed despite her asking for them since 27 March 2019. The Complainant only received the front page of each but not the notes taken which she had signed along with the managers.

The Complainant submits that the counselling session she attended on 10 May 2019 was because of voids on the self-service machines. These are a regular occurrence but the Complainant was blamed instead of the staff actually looking after them when she was working on the shop floor. She was the only one brought in over this.

The Complainant submits that her 6-month review was not done by the Store Manager as the Assistant Manager told her that it “would not end well” for her. The Complainant never had a review with the Store Manager in all the time she was there.

The Complainant submits that she was accused of lying in situations when she had proof she was not.

The Complainant submits that she was spoken to in an inappropriate manner on an almost daily basis which was witnessed by the staff.

The Complainant submits that she was given unrealistic jobs which she could not complete in the timeframe she was given.

The Complainant submits that the Respondent refused to sign any social welfare papers to show that she was not being paid while she was out sick which delayed the payments to her and she fell behind with her bills and rent. This added to the stress she was already experiencing.

The Complainant submits that even after explaining her case during the Investigation into missing money on  3 September 2019, the Complainant was not exonerated. As a result, the office key was taken from her, she was given a verbal warning, and she was suspended from all cash duties. She was still left to close the shop on her own with another manager coming in to cash up the tills, which left the Complainant feeling humiliated and demoted in front of the staff.

The Complainant had a back to work review on 1 November 2019 after her sick leave. The Assistant Manager told her that she needed to be tougher because nobody in management cared about them. She was told that the Store Manager would not be her next reference for another job, and she was told not to throw colleagues under a bus with all the things they were doing in the shop just because she was in trouble.

On 1 November 2019, the Complainant was told to stay away from self-checkouts, tills, not to do a price check or assist customers in any way around the tills until further notice. This was humiliating.

On 5 November 2019, the Store Manager told the Complainant that if it was him, he would just quit.

The Complainant submits that the Store Manager spoke to his wife about her illness and told the Complainant that he had every right to do so even though she does not work in the company. The staff were also told about her illness.

The Complainant had another meeting on 25 November 2019 regarding a helium balloon she blew up for a regular customer. This cost the company €2 worth of helium. It was regarded as gross misconduct. The Complainant was suspended from work and handed over her keys. She was banned from entering the shop or contacting any customers, staff or representatives. In a small town it meant that she could not speak with a lot of family and friends who chose to stop shopping there instead of putting the Complainant through that as they knew that her mental health was affected.

On 6 December 2019, the Complainant received a written warning because of this matter. By then she was too ill with stress to return to work. The Complainant never returned to work after this and brough her certs on time every month to the store.

The Complainant submits that she had her monthly wellness meetings over the phone due to Covid-19 with a Manager from another store.

The Complainant submits that she had a meeting with COPE and she complied with everything the company asked of her during her absence. However, she was still dismissed on 10 December 2019 even though she still had a valid sick cert until 26 December 2019.

The Complainant submits that she was dismissed for failing to give a return to work date. As the Store Manager was moving to another store, the Respondent expected the Complainant’s mental health problems caused by him would just disappear and she could return.

In his closing remarks, the Complainant’s representative referred to the Complainant’s GP’s letter which stated that it appeared to the doctor that it was one of the most egregious cases of workplace bullying they have ever encountered. Mr O’Donoghue asserted that the Complainant should not be asked to go to the employer she had no confidence in. To expect her to appeal to the Respondent was unfair, she appealed to the WRC. 

Loss mitigation

On 8 May 2023, the WRC received correspondence from the Complainant’s representative informing the WRC that the Complainant was awarded Disability Allowance from 18 August 2021 and stating that any emails in relation to the Complainant’s employment applications were deleted. Similarly, any emails the Complainant received in response to her applications confirming that her applications were not successful were also deleted. Therefore, the Complainant has no documentary evidence in relation to her employment applications.  It was further stated that the Complainant does not have a car and could not make applications outside of her place of residence. The letter stated that the Complainant applied for a job in some 13 retail outlets including Dunnes Stores, Tesco, Garvey’s SuperValu, The Range, Homestore, Homesavers, Mr Price, TK Maxx, Penneys, Sports Direct, Aldi, Corrib, and Eurogiant.

Summary of direct evidence and cross-examination of the Complainant

In her direct evidence, the Complainant described in detail the events referred to in her written submissions and in the complaint form.

The Complainant said that she progressed slowly.

Regarding a phased return to work, the Complainant said that she was unable to work with the Store Manager, the issue was not resolved.  She would have hoped to come back to work after 26 December 2020.

The Complainant said that she had been looking for a job, she applied for a good number of positions. She said that from January 2020 she was in receipt of Supplementary Welfare Benefit and from January 2022, she was in receipt of Illness Benefit.

In cross-examination, the Complainant confirmed that the grievance process and the disciplinary process were outlined in her contract and in the handbook. She confirmed that she received both.

The Complainant confirmed that she never lodged a grievance.

The Complainant confirmed that she informed the Respondent that she was not ready to return to work. She agreed that she knew that she was entitled to raise a grievance if she had concerns about the Store Manager. She said that she had no trust in anyone in the store. She said that it was because the Assistant Manager told her not to throw others under the bus.

The Complainant agreed that her right to representation was explained to her.

The Complainant confirmed that she was advised of the EAP but said that she did not trust anyone that was connected with the Respondent.

Regarding a treatment for her condition, the Complainant confirmed that she had none. She was asked why she did not avail of a treatment if she felt strongly about her condition. She said that she believed in healing herself naturally, she needed to recover without the help of medication.

It was put to the Complainant that she disregarded the occupational health specialist’s advice and that of her own GP. She said that she did not want to take medications.  The Complainant was asked how she expected to get better if she did not want to avail of any treatment, counselling or medication. She said that she considered them but not the company related services. She said she did use some treatments after she was dismissed but did not elaborate.

It was put to the Complainant that the occupational health report recommended to address workplace issues and reasonable accommodation. The Complainant agreed but said that she did not want to deal with anyone from the Respondent company. She believed she would resolve it herself.

It was put to the Complainant that she is blaming the Respondent but it was her who decided to do it all on her own and disregard the occupational health specialist’s recommendation. It was also put to the Complainant that counselling, training, reduced hours, etc. had nothing to do with medications.

The Complainant said that she was put on the spot, she was not given time. It was put to her that the process started in May 2020, she saw the report, therefore by December 2020 she could not be surprised.

The Complainant said that she would fulfil her contractual obligations toward the Respondent if she was not subjected to what she was.

The Complainant was asked if there was anything else the Manager could have done. The Complainant said that she was broken by everything that she went through.

It was put to the Complainant that she had legal advice. She said that at this stage too much had happened.

Regarding mitigation of her loss, the Complainant said that she was not working, she said that she sent her CV by email or handed it out. She said that she got one letter back.

In re-examination, the Complainant said that she tried a number of places, only one wrote back.

She said that it was pointless to appeal the disciplinary sanction, she did not want to name the other manager. In relation to the appeal of the dismissal, the Complaint said that too much happened. She said that she could not give a return date, she was not sure when could she return.

When asked by the Adjudication Officer, the Complainant confirmed that she first contacted her solicitor on 8 January 2020.

She said that she had no confidence in the Respondent but confirmed that she had “no trouble” with the Manager, she had no bad experience with the Area Manager either, she had their phone numbers and email addresses.

The Complainant referred her complaint to the Director General of the WRC on 15 March 2021 alleging that she was unfairly dismissed.

The relevant law

6. Unfair dismissal

(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.

(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 qualifications of the employee for performing work of the kind which he was employed by the employer to do,

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

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(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 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.

In reaching my decision I have taken into consideration all written and verbal submissions of the parties and I have had full regard to the evidence adduced in the course of the proceedings.

The fact of dismissal was not in dispute between the parties. The Respondent contends that the Complainant’s dismissal arose as a result of her incapacity to return to work to carry out the duties for which she was employed following a period of more than one-year sick absence.

The Act provides that where dismissal is “wholly or mainly” on the grounds of the employee’s incapability to perform the work of the kind they were employed to do it will be deemed not to be an unfair dismissal. In such circumstances the onus of proof lies with the Respondent to show that it was genuinely of the belief that the Complainant was incapable of fulfilling her duties.

It is well established that it is not the function of the Adjudication Officer to establish whether the employee was, in fact, incapable of carrying out the duties for which she was employed. If an employee is dismissed for one of those reasons provided for in subsection (4) it is sufficient that the employer honestly believes on reasonable grounds that the employee was incompetent or incapable. The requirements that should be applied in this regard were stated by Lardner J. in the case of Bolger v Showerings (Ireland) Ltd [1990] E.L.R. 184where it was held that:

“In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:

(1) It was the ill-health which was the reason for his dismissal;

(2) That this was substantial reason;

(3) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and

(4) That the employee was afforded an opportunity of being heard.”

It was not in dispute that the Complainant was absent from work on continuous sick leave for a period in excess of one year prior to the Respondent making the decision to terminate her employment on the grounds of ill health. 

The Complainant was certified medically unfit to attend work by her GP and did not return to work following her suspension being lifted on 6 December 2019.

The Respondent held welfare and/or capability meetings with the Complainant on 7 January 2020, 14 May 2020, 4 June 2020, 2 July 2020, 9 July 2020, 1 October 2020, and 10 December 2020.

The Complainant underwent a medical assessment by the occupational health specialist on 17 June 2020 at which stage she was deemed fit to work. The occupational health specialist noted that the solution to the matter was not a medical one and made recommendations that:

·       the Complainant was given advice on the grievance process;

·       the Complainant returned to work on a reduced hours basis to limit any natural anxiety the Complainant could feel upon returning to work after a long absence;

·       the hours should be 25-30 hours per week, depending on what was reasonable for management to accommodate;

·       by her second week, the Complainant could return to working her usually contracted hours;

·       the Complainant was given any education or re-training as soon as possible after her return, to ensure competence at work, which will help to build her confidence.

Having regard to the evidence adduced, I am satisfied that the Complainant’s sick absence was managed proactively by the Respondent during the period of her absence and that the Respondent engaged with her on a regular basis to keep informed in relation to her medical condition and to establish if/when she would be in a position to return to work.

Furthermore, I am satisfied that the Respondent made genuine attempts during the Complainant’s absence to facilitate her return to work. The Respondent continuously inquired with the Complainant as to what accommodations could be made to facilitate her return. The Complainant did not make any suggestions throughout the process. She repeatedly informed the Respondent that she was not receiving any treatment and/or medications, that she could not envisage when would she be able to return to work, and that there were no adjustments the Respondent could make to enable her to return to work.

Furthermore, the Complainant was given information regarding Retail Trust which she confirmed she did not contact. She was not able to give a reason why did she not contact the service. The Complainant said at the hearing that she did not avail of the Employee Assistance Program or counselling as suggested by the Respondent because she had no confidence in the Respondent. She said that she wanted to heal herself naturally. All attempts by the Respondent to facilitate her return to work proved unsuccessful, despite the Complainant being deemed fit by the Occupational Health specialist.

I also note that, while the Complainant asserted that the difficulties with the Store Manager were what prevented her from returning to work, the Complainant did not lodge a grievance despite being provided with advice regarding the process. I note that, in their letters of 4 March 2020 and 31 July 2021, the Complainant’s solicitor informed the Respondent that unless the Complainant was compensated in full within seven days for losses sustained, they would immediately institute such legal proceeding as were appropriate in the circumstances. In response, the Respondent in its reply of 6 August 2020 informed the Complainant’s representative that the internal grievance process has not been followed and forwarded the Respondent’s Grievance Policy.

I also note that, even in the absence of a complaint or grievance, the Respondent informed the Complainant that the Store Manager in question would be moved to another store. This, however, did not aid the Complainant’s return to work.

Having regard to the foregoing, I find that it was not unreasonable for the Respondent, in the circumstances, to consider the possibility of having to terminate the Complainant’s employment on the grounds of her incapacity to carry out the duties in respect of which she was employed. I am satisfied that the Complainant was made aware and put on notice that the question of her dismissal for incapacity was being actively considered by the Respondent. In this regard, I note that the letter of 7 December 2020 stated as follows:

“You are advised that a possible outcome of this meeting could be the termination of your contract of employment with notice, due to long term ill health. Should this be the outcome, you would be given the right to appeal against my decision.”

I find that the Complainant was given an opportunity to make any submissions she deemed relevant on any aspect of her case in light of the knowledge of the decision she was facing. While I note that quite a short notice of the meeting was given to the Complainant, I do not consider this frailty in the process to be determinative of a flawed process overall. I note that the Complainant confirmed repeatedly, up to the last capability meeting on 10 December 2020, that she did not avail of counselling; she did not contact Retail Trust to seek support as per the Respondent’s suggestion;  she could not give even an approximate timeline for her return to work. While she insisted that the difficulties she had with the Store Manager prevented her from returning to work, she could not confirm that his relocation would aid her return to work. The Complainant confirmed at the meeting on 10 December 2020 that the Respondent offered her enough support and had no suggestions as to any further support the Respondent could offer.

The Complainant was informed of her dismissal, and she was advised that she had the right to appeal the decision to dismiss her by letter dated 15 December 2020. The Complainant did not avail of same. I note the Complainant’s assertion that the reason for not appealing the decision was that she thought it was “pointless”, she had no confidence in the Respondent and did not want to “name  the other manager”. The Complainant confirmed at the hearing that she had the benefit of legal advice at the relevant time. She also confirmed that she had “no trouble” with the Manager who conducted the welfare and capability meetings or with her Area Manager. I find the Complainant’s assertion that, having had an unsatisfactory experience with the Store Manager, she lost her trust in the Respondent not credible.

In the circumstances, I am satisfied that the Respondent had acted in an appropriate fashion in terms of the manner in which it had managed the Complainant’s sick absence and that it had fully satisfied the requirements in the Bolger v Showerings (Ireland) Ltd case.

Having considered the oral and written submissions made together with the evidence adduced, I am satisfied that the Complainant’s ill-health was the substantial ground for the dismissal.

I declare the complaint to be not well founded. Accordingly, I dismiss the complaint.

The Complainant submits that she did not receive her statutory minimum period of notice on termination of her employment or payment in lieu thereof.

The Respondent conceded at the adjudication hearing that the Complainant was owed €861.54 gross in respect of the notice.

The Complainant referred her claim to the Director General of the WRC on 15 March 2021 alleging that she did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu of same.

The relevant law

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 provides as follows:

4. Minimum period of notice

(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—

…

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

The Respondent conceded at the hearing that the Complainant was not paid her notice and that she was owed €861.54 gross in respect of same.

There was no dispute that the Complainant commenced her employment on 23 August 2018 and her employment terminated on 10 December 2020. It was clarified at the hearing that, at the time of dismissal, the Complainant was on an annual salary of €22,367.04 gross and her weekly pay was 430.14 gross. This was not contested by the Complainant.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €860.28 in respect of the minimum notice.

Capability – dismissal – minimum notice – annual leave