Complainant

Respondent

Parties

Vita  Dobson

Two Pups Coffee Two Pups Coffee

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058563-001

29/08/2023

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

CA-00058563-002

29/08/2023

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

CA-00058563-003

29/08/2023

The Complainant commenced her employment with the Respondent in June 2021.  Her hours of work varied but she averaged four days’ work per week. She was paid €675.75 gross per week. A complaint was received by the WRC on 29 August 2023.

The Complainant gave evidence on Affirmation.

The Complainant stated that she was never issued with a formal contract or Employee Handbook.

The Respondent gave evidence on Affirmation

The Respondent accepted that she had never issued a contract of employment to the Complainant.

Section 3 (1) of this Act states, "an employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment."

Section 7 of the Act, states:

7. — (1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3 , 4 , 5 or 6 , if the employer concerned has —

( a ) complied with a direction under section 6A given in relation to the contravention F11 [ before, on or after the commencement of section 8 of the Workplace Relations Act 2015 ] , or

( b ) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

(2) 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 3 , 4 , 5 or 6 shall do one or more of the following, namely —

( a ) declare that the complaint was or, as the case may be, was not well founded,

( b ) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5 or 6 , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

( c ) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

( d ) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 . ]

It is clear from the evidence that the Complainant was never provided with anything approaching a written contract of employment as required. All employers must take their responsibilities seriously; this did not happen in this case and I find in the Complainant’s favour.

In her complaint form to the WRC the Complainant submits that she commenced employment with the Respondent in June 2021, as a part time chef, she became Head Chef from January 2023. The Complainant submits that she took planned and approved unpaid leave in April 2023, to undergo IVF treatment. Unfortunately, the first round of IVF was not successful. The Complainant was then certified unfit to work by her GP.  The Complainant informed the Respondent about this, but it was always her intention to return to her post; she was told by the Respondent that her job would be there for her whenever she was available to return. 

In the week of 9 August 2023, the Complainant saw an ad the Respondent’s social media that they were hiring for a chef again. This coincided with the Complainant’s ability to return to work.  The Complainant rang the Respondent about coming back to work and they said they would get back to her in four days. The Respondents never did get back to her nor did they answer her calls or texts.  On 24 August 2023, the Complainant submits that she received a text message from the Respondent which included the line; “We’ve actually filled the position.  Best of luck and take care….”

The Complainant submits that on 28 August 2023, she noticed on her Revenue account that her employment had been ceased by the Respondent on 13 August 2023. 

The Complainant submits that she does not feel she was being unreasonable by not expecting or demanding her old role back.  She was out on certified sick leave and when she was able to return there was a job available for which she was suitable. At no point was it indicated to her that she would not be able return to employment with the Respondent.

The Complainant gave evidence on affirmation at the hearing.  She stated that she had taken sick leave in early 2023.  She informed the Respondent on 26 April 2023, that she could not return to work but this was not a sign that she was resigning from her job nor was there any discussion about her resigning.

 On 30 April 2023, the Complainant texted the Respondent about returning to work but that she was going to look for a few months off.  The Respondent called the Complainant on 1 May 2023, and according the Complainant, reassured her that her job was always available to her.  The Complainant proposed that she should be available for work by the end of the summer. The Complainant stated that she was led to believe that the Respondent wanted her back at work at the end of the summer.

On 5 May 2023, the Complainant visited her GP and was given an unfit to work certificate. The Complainant believes this proves she did not resign from her job as you cannot be certified as sick/unfit for work “if you don’t have a job”. The Complainant received sick pay from social welfare.

The Complainant stated that by 11 August 2023, she was fit and ready to return to work. She saw a chef job advertised for the Respondent’s restaurant and dropped in to talk to the Head Chef. On 18 August 2023, the Complainant states that she received a phone message from the Respondent saying they were considering the matter.  On 24 August 2023, the Complainant stated that she received a text message from the Respondent telling her that her position had been filled.  The Complainant later discovered that her employment had been officially ended on 13 August 2023.

The Complainant stated that she commenced employment on similar terms and conditions with a new employer in or around 6 September 2023.

In concluding, the Complainant stated that she took no pleasure in making these complaints but she knows there was an unfair dismissal.

The Respondent presented a written submission and read this into the evidence at the hearing.

The Respondent disputes that the Complainant was unfairly dismissed. The Respondent submits that the Complainant resigned by way of a WhatsApp message dated the 26 April 2023.  This resignation was accepted by the Respondent by message and orally on a call on 26 April 2023.

The Respondent submits that the Complainant did not turn up for work or submit sick certificates to the Respondent during the period leading up to the date she is alleging to have been unfairly dismissed from her employment.

The Respondent submits that the correspondence made available at the hearing supports the contention that the Complainant resigned from her job; she, the Complainant, acknowledges her resignation and the fact that her employment ended before 13 August 2023, in this correspondence.  For example; she requested her holiday pay on 27 April 2023; she states that she still hopes to return the Respondent’s employment – if there is still a place for her; she states that she is trying to ger certified sick leave for a few months and she requested that the Respondent not pay her holiday hours as it might impact on her [SW] payments.

The Respondent submits that they hired a full-time Chef on 16 August 2023.

In cross examination, when asked why the official status of the Complainant as an employee was only changed with Revenue in August 2023, when the claim is that she resigned in April 2023, the Respondent stated that they had done this at the behest of the Complainant. When asked why the Respondent did not call her (the Complainant) when they were about to advertise the chef’s role, the Respondent replied by saying that she had not done so because she knew the Complainant was going through a difficult time. The Respondent stated that when the Complainant resigned, it was a relief because it had been a very difficult time. When asked why she had not raised these difficulties with the Complainant, the Respondent stated that she was really sorry about it. She had tried to work together [with the Complainant] but she could not go back to that level of intensity.

I have considered this matter carefully. I acknowledge the difficulties this case has created for the parties.  I accept the bona fides of the parties.

The first issue to be decided is whether the Complainant was dismissed.  The question of dismissal, to a large part, centres on the text messages sent on 24 and 30 April 2023.   Obviously, there is no variation between the two protagonists as to the words used in these text messages, however there is a major difference in the interpretation of what these words meant. The Complainant asserts that the words indicated a temporary break in service not a resignation.  For the Respondent the words were interpreted as a resignation.

The Complainant’s words in the text of 26 April 2023, included the following paragraph; “Have to make another hard decision to not come back to work. I’m honestly very sad to do this and it isn’t what I wanted or envisioned but I feel I have no choice. I need to do what is best for us.”

On 27 April 2023, in a text message, the Complainant asked the Respondent to have her accrued holiday days paid. On 30 April 2023, in a text message, the Complainant wrote, “So, I am still hoping to come back to Two Pups – provided there is a place for men – but am going to try and get written off work by Doc for a couple of months and was just wondering if you’ve had to change anything on revenue to say I’ve been fired or anything that might affect that? “

On 5 May 2023, in a text message, the Complainant asked the Respondent the following, “…but actually please don’t pay me those hols next week, it’ll mess up my payment I think. “

there is no corroborative evidence to the effect that the Complainant's words were such as to form a resignation, however a reader could interpret them as an indication that the Complainant no longer wished to remain as an employee. The fact that she sought her holiday pay is, or at least could be, considered another indication that the employment relationship was being terminated by the Complainant. The fact that the Complainant’s status with Revenue was not altered by the Respondent to that of non-employee until August 2023, lies in the Respondent’s attempt to not cause difficulties for the Complainant with her social welfare payments, ( the Complainant had intimated to the Respondent that a change to her status could cause her difficulties).

Notwithstanding the above, it behoves an employer to take whatever steps are necessary to find out the exact status of an employee or, as the Respondent would have it, a former employee.  The employer must ensure that an employee is really resigning.  Ambiguous text messages that are open to differing interpretation are not sufficient. The employer must be sure who is in their employment and who is not.  This did not happen in this case and in those circumstances, I find that this was an unfair dismissal.

The Complainant found work within a few weeks a finding out that her job was not available to her, on terms and conditions similar to those she enjoyed with the Respondent.  I therefore believe an award of four weeks’ pay is just and equitable in the circumstances.

The Complainant was unfairly dismissed and I award compensation of €2,703.00.

Contract of Employment, text messages, uncertainty