ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042615
Parties:
| Complainant | Respondent |
Parties | OCS One Complete Solution Limited |
| Complainant | Respondent |
Anonymised Parties | A Complainant |
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Representatives | Ms Bebhinn Murphy BL instructed by O’Hanrahan Lally D’Alton LLP | Ms Naledi Bisiwe IBEC |
Complaints:
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-00053114-001 | 05/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00053114-002 | 05/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00053114-003 | 05/10/2022 |
Date of Adjudication Hearing: 23/06/2023 & 13/06/2024
Workplace Relations Commission Adjudication Officer: Eileen Campbell
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. These matters were the subject of two hearings conducted in person in Lansdowne House on 23/06/2023 and 13/06/2024 respectively.
Anonymisation – special circumstances
At the outset of hearing the parties were advised that in accordance with the Workplace Relations (Miscellaneous Provisions) Act, 2021 hearings before the Workplace Relations are now held in public and, in most cases, decisions are not anonymised. However, the Complainant representative requested that I consider the anonymisation of the Complainant in circumstances where sensitive medical information was disclosed. Accordingly, I have decided that special circumstances exist and I exercise my discretion to anonymise the Complainant. I will anonymise the name of the location in which the Complainant was working at the material time. The names of persons referred to in submissions and during hearing but not present at hearing are redacted.
While the Complainant is not named in the Decision, I will simply refer to her as “the Complainant” and to OCS One Complete Solution Limited as “the Respondent”.
The Complainant attended the hearings and was represented by Ms Bebhinn Murphy BL instructed by O’Hanrahan Lally D’Alton LLP. The Respondent was represented by Ms Naledi Bisiwe of IBEC. Ms Natalie McGrath Head of HR, Ms Bukola Keshinro Area Manager, and Ms Carol Walsh Regional Manager attended on behalf of the Respondent. Mr John McCarthy attended as a witness on behalf of the Respondent.
Evidence was given under oath and the parties were afforded the opportunity to cross examine.
Much of this evidence was in conflict between the parties. I have given careful consideration to the submissions and to the evidence adduced at hearing by the parties. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute. I can confirm I have fulfilled my obligation to make all relevant inquiries into this complaint.
No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.
Background:
These matters came before the Workplace Relations Commission dated 05/10/2022 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977, a complaint submitted under section 12 of the Minimum Notice & Terms of Employment Act, 1973 and a complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994 respectively. The aforesaid complaints were referred to me for investigation. A hearing for that purpose was scheduled to take place on 23/06/2023 followed by a second hearing on 13/06/2024.
The Complainant at all material times was employed as a cleaner by the Respondent. The Complainant worked approximately 40 hours per week for which she was paid €945.00 fortnightly.
The Respondent is a facilities management company providing services including cleaning and security nationwide.
Both parties filed helpful written submissions with supporting documentation in advance of the first hearing on 23/06/2023 for which I am grateful.
The Respondent filed supplementary submissions with appendices on 01/08/2023 in advance a hearing due to take place on 18/08/2023 and subsequently postponed. There was a dispute between the parties as to the significance of the contents in terms of evidence. For the avoidance of any possible doubt, I can confirm the contents of the aforesaid supplementary submission have not materially affected the outcome of this matter and I do not attach any weight to same.
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Summary of Complainant’s Case:
As per written submission CA-00053114-001 By way of background, the Complainant commenced her term of employment with the Respondent in September 2021 as a cleaner. She had worked for the Respondent for over one year at the time of her dismissal. The Complainant worked 40 hours per week and was paid approximately €945.00 fortnightly. She did not receive the written terms of her employment or other documentation from the Respondent during her course of her employment. The Complainant was mainly tasked to work in 12-hour shifts at [redacted]. The Complainant submits latterly, she was assigned to cleaning at [redacted] for a period of two weeks commencing on 26 September, 2022. [Redacted] (OCS) had contacted the Complainant directly to ask her to work in [redacted] for two weeks as a favour for him so she agreed. The Complainant submits on the 26th of September, 2022 she wasn't sure of the location and was late for the start of her shift. The Complainant submits when she arrived at [redacted] Bukola (the regional manager) said words to the effect that she was expecting the Complainant to be late as she did not know where she was going. The Complainant strongly denies that she raised her voice at any stage to Bukola (as contended for in the Respondent's submissions). The Complainant submits that on the 28th of September 2022 she arrived at [redacted] to commence her duties at 7.30am. She was required to clean the toilets, to clean the reception areas, and to empty the dishwasher. The Complainant submits that on the same day, at approximately 3.30pm and eight hours into her shift, the Complainant received a phone call from the regional manager (Bukola). The Complainant submits the regional manager asked the Complainant where the Complainant was. The Complainant stated that she was on her way to the canteen and entered the canteen thereafter. The Complainant submits there was a [redacted] member of staff sitting and eating in the canteen at that time. The Complainant submits Bukola was also in the canteen and asked the Complainant why she had not washed the floor. The Complainant submits Bukola then asked the Complainant to wash the floor. The Complainant told Bukola that she couldn't wash it because there was a [redacted] employee 'sitting there eating his lunch and I don't want him to have an accident'. The Complainant submits Bukola then said to the Complainant: 'Are you refusing to wash the floor?' The Complainant submits she then said that it was unsafe for the [redacted] employee for her to wash the floor while he was still there, and that she couldn't wash it because of a risk to health and safety. The Complainant submits she was of the view that the [redacted] member of staff might fall and hurt himself if he slipped on a wet floor. The Complainant submits that specifically, during her Health and Safety training (with [redacted] on behalf of OCS) the Complainant was told never to wash a floor when there is another person present and using the location. The Complainant submits she was informed by [redacted] during her training that in another building a cleaner, also from OCS, washed a floor when a third party was present. The third party fell and had an accident and OCS were brought to court and fined €1000.00 under Health and Safety legislation. The Complainant submits the regional manager (Bukola) then asked the Complainant if she was refusing to wash the floor and the Complainant said that it was unsafe for the employee, and that she would do it the next morning when she arrived to start her shift at 7.30am. The Complainant submits Bukola then said to the Complainant: 'Give me your badge', to which the Complainant asked, 'Are you sacking me? '. The Complainant submits Bukola replied, 'Yes'. The Complainant submits Bukola then took her badge and said, 'Off you go' The Complainant submits she then walked out of the canteen after handing over her badge and handed the site keys over to [redacted] who told the Complainant that her shift was not finished. The Complainant submits she told him that Bukola had sacked her and she submits [redacted] thought she was joking. The Complainant submits she got very upset and then got her coat and left the [redacted] site. The Complainant submits she left her place of work believing herself to have been dismissed on the spot. The Complainant submits she immediately phoned another line manager Carol Walsh and explained what had happened. The Complainant submits that Carol Walsh told the Complainant that she would phone her back in five minutes but did not return her call. The Complainant visited her Solicitor the next day to consult on unfair dismissal. The Complainant submits on the same day, the Complainant sent an email to the human resources department to inform them of what occurred and that she had been unfairly dismissed. The Complainant submits [redacted] of the HR department responded on the same day stating: 'Thank you for your email, I will look into this situation and get back to you'. The Complainant submits that later that evening, she responded by email to the HR email address saying: ' there is really no point in looking into this situation, Bukola did not follow any protocol I'm taking this very serious [sic] as she has me so upset I'm really taking this further. ' The Complainant submits the next day, on Thursday the 29th of September 2022, a member of the HR department sent an email to the Complainant to inform her that they had contacted the regional manager, Bukola. They stated that the Complainant had 'failed to follow a reasonable request from a manager' and that she was just advised to leave the site, not dismissed with the company. They stated that it was a misunderstanding and 'resulted in you believing that you had been dismissed from your position with the company when you were asked not to return to a specific site'. The Complainant submits she considered herself dismissed and was extremely upset by the circumstances. The Complainant submits she then refused to answer phone calls from the Respondent because she did not want to work for them again due to the manner in which she was treated on the day of the dismissal. The Complainant submits the Respondent, in response to notice of the within filed complaint, have denied in correspondence that the Complainant was dismissed. The Complainant submits the Respondent did not engage with correspondence sent to them by the Complainant's Solicitor. The Complainant submits that the Respondent ultimately on the 17th of April 2023 the Respondent wrote to the Complainant by email stating: “Dear [Redacted] I am writing to you as we have noted that you have not attended for work since 9/23/2022. Given the length of time that has passed, during which we have received no communication from you, it is possible that you may have resigned from your position with OCS, however we do not have a record of this. I would ask that you contact the company as a matter of urgency to advise us further. If we do not here [sic] from you before 5.00pm on Monday 24th of April, we will presume that you did resign from your position and we will process you as a leaver.” The Complainant submits her mental health deteriorated due to the manner of her dismissal. She was diagnosed with reactive depression and is taking anti-depressants. The Complainant submits she has not been in a position to apply for alternative work due to her mental health presentation. Legal Submissions The Complainant submits these submissions have been prepared in support of her case that she was unfairly dismissed on 28 September 2022 from her employment as a cleaner with the Respondent when she was working onsite at [redacted]. The Complainant submits that she was dismissed on the spot by her regional manager in her manner and conduct and the words uttered by her. The Complainant submits that when she asked if she was being dismissed on the spot, this was confirmed. The Complainant submits the [redacted] badge was removed from her and she was told to leave. The Complainant submits there was no qualification offered by the regional manager that she was only restricted from returning to the specific [redacted] site. The Complainant submits it is accepted that in this unfair dismissal case, the burden of proving the dismissal lies with the Complainant. The Complainant submits thereafter, the Unfair Dismissals Act, 1977 (hereafter the 1977 Act) places the onus of proof on the Respondent to show that the dismissal was fair. Dismissal is defined in s 1 of the 1977 Act to mean: (a) the termination by his employer of the employee 's contract of employment with the employer, whether prior notice Q/ the termination was or was not given to the employee; (b) the termination by the employee of his contract of employment with his employer, whether notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer; or (c) the expiration of a contract of employment for a fixed term without it being renewed under the same contract, or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose. Redmond on Dismissal Law in Desmond Ryan, Bloomsbury Professional, makes it clear that 'in general, a person is dismissed when the employer informs them clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or it may reasonably be inferred as having been intended. ' In Duggan v. A&T Drain Services t/a Drain Doctor [UDD 1337] the Labour Court case dismissed the employer's appeal and increased the compensatory award to €15,000.00. The Court was tasked essentially to consider if the conversation between the employee and his superior in context had amounted to a dismissal. If the Court so found 'then the dismissal was unfair unless it was justified in all the circumstances of the case. However, as [his employer] says he did not dismiss [the employee] a finding of dismissal by the Court is inevitably a finding of unfair dismissal '. The Complainant submits the Adjudicator in the present case will hear evidence from the Complainant to the effect that the words and conduct of the regional manager left the Complainant with no doubt in her mind but that she had been dismissed on the spot. Also, in Duggan v. A&T Drain Services t/a Drain Doctor, the Complainant described the hostile manner in which he and his brother were addressed on the occasions of his dismissal and that this 'influenced his decision not to return to work when invited to do so the following day and again the following Monday ..and on the following Tuesday... the relationship had broken down and he felt he could not accept the offer of re-employment '. The Complainant submits she accepts that she was contacted by the Respondent's HR department. The Complainant submits she was not issued with the Grievance Procedure (or any Employee Handbook) until after the incident. As in Duggan, the Complainant was disturbed by the manner in which she had been addressed and believed that the relationship between employer and employee had broken down to such an extent that she could not accept re-employment. The Complainant submits had it been the Respondent's actual belief that the Complainant had not been dismissed on the spot on 28 September 2022 and that she was on unauthorised absence from work, it would have been expected that the Respondent would commence a disciplinary procedure for that unauthorised absence. The Complainant submits it would also reasonably be expected that the Respondent would reply to the Complainant's Solicitor's letter which issued on the 6th of October, 2022. It is submitted by the Complainant therefore that none of the asserted alternative beliefs on the part of the Respondent can be found credible in the circumstances. Fairness of the Dismissal Section 6(1) of the Unfair Dismissals Act, 1977, provides as follows: 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. Thereafter however, section 6(6) of the Unfair Dismissals Act 1977 (as amended) [hereafter the 1977 Act] provides that: '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'. The burden of proof in determining whether a dismissal was unfair or not is therefore firmly on the Respondent herein. The Complainant submits the Adjudicator must determine whether the dismissal was fair or unfair in the circumstances that unfolded. The Respondent's reason for dismissal must be identified and secondly, it must be considered whether that reason was one which was fair or unfair, or if there were other substantial grounds for the dismissal. The Complainant submits the Respondent employer must be able to justify its decision to dismiss. The Complainant submits a test of reasonableness must also be applied to determine the fairness or unfairness of the dismissal and s 6(7) of the 1977 Act emphasises this where consideration of whether if a dismissal is fair or unfair may look 'to the reasonableness or otherwise of the conduct (whether by act of omission) of the employer in relation to the dismissal The Complainant submits in Hennessy v. Read & Write Shop Limited [UD192/1978] the Employment Appeals Tribunal described 'the test of reasonableness' as: (i) the nature and extent of the enquiry' carried out by the employer prior to the decision to dismiss the claimant; and (ii) the employer's conclusion following such enquiry' that the claimant should be dismissed. The Complainant submits not only must the Respondent show that the reasons for the Complainant's dismissal be deemed to be substantively fair, but also the decision to dismiss itself, must be reasonable and in line with constitutional principles of natural justice and fair procedures. In Garvey v. Ireland [1981] IR 75 AT 97 O'Higgins CJ stated that: 'The Constitution incorporates into our laws and their administration the requirements of natural justice, and by Article 40, s. 3, there is guaranteed to every citizen whose rights may be affected by decisions taken by others the right to fair and just procedures. This means that under the Constitution powers cannot be exercised unjustly or unfairly. It is submitted first by the Complainant, that in circumstances, as in Duggan, where the Respondent says that it did not dismiss the Complainant, that a finding of dismissal by the Court is inevitably a finding of unfair dismissal. Moreover, the Complainant submits that where an on-the-spot dismissal occurs without having any regard to her or allowing her to be heard to any extent cannot be considered fair and the Adjudicator should make a finding that the Complainant was unfairly dismissed and award her a sum in compensation. Summary of direct evidence of the Complainant The Complainant states she commenced her employment with the Respondent on 15/09/2021. She started on part-time and then she went full-time in November. The Complainant states she never received a contract. The Complainant states she started in a new site on 26/09/202 where she was to work for two weeks for cover. The Complainant states that on the Wednesday the traffic was very bad, and the bus was packed and she was 15 minutes late and she said she would stay late. The Complainant states her supervisor BK phoned her at 3.30 and asked her where are you and she said I am still here. The Complainant states BK told her to wash the floor and she (the Complainant) told her (BK) that she can’t wash it as there is a fellow sitting there and that she would wash it in the morning. The Complainant states she was following the Health and Safety procedure she was taught. The Complainant states BK says to her ‘give me your badge and she says you are dismissed.’ The Complainant states she told [redacted] what had happened when she was leaving the site. The Complainant states she phoned CW and she said she would call her back in 5 minutes but the call never came. The Complainant states there was no communication from the Respondent. The Complainant states she did not respond to the email from the Respondent of 03/10/2022 because she did not see it. The Complainant states she went to her GP. The Complainant states no investigation took place. Summary of cross-examination of the Complainant The Complainant confirms her line manager is CW. It put to the Complainant that BK will give evidence that she told her (the Complainant) to leave the site to which the Complainant responds “she told me I was being dismissed I heard the words dismissal and she kept repeating I was being dismissed.” The Complainant is asked if she wrote to HR to which she replies she phoned and she was promised a phone call 5 minutes later. The Complainant states she did not receive payment for her back week. The Complainant states she phoned her line manager straight away and she said she would call her back. Re-direct Complainant Clarification with the Complainant that BK was to be her line manager for the next two weeks. Complainant closing submission The Complainant representative submits it is accepted the burden of proving the dismissal lies with the Complainant and refers to the case law set out above. The Complainant representative submits that crucially the Complainant did not have a place of work to go do the next day. The Complainant representative submits the Complainant truly believed she had been dismissed and the crucial point here is the words that were spoken.
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Summary of Respondent’s Case:
CA-00053114-001 As per written submission The Respondent submits the Complainant started her employment with the Respondent as a Cleaning Supervisor on 7 September 2021, and last worked on 28 September 2022. The Respondent submits the Complainant’s employment was never terminated. The Respondent submits the evidence will show that she abandoned her employment after being instructed to leave a work site where she was temporarily placed. The Respondent submits despite efforts through the Complainant’s line manager and HR, of calling and sending correspondence to the Complainant advising her that she was not dismissed and that she should return to work, the Complainant steadfastly ignored that communication and never returned to work. The Respondent submits this position was also communicated to the Complainant’s Solicitor, however, the Complainant proceeded to file this complaint alleging unfair dismissal. The Respondent submits the Complainant bears the onus to prove that she was indeed dismissed, and in the event of that burden not being discharged, the Respondent argues that the Adjudicator should dismiss the claim due to lack of jurisdiction. Sequence of events: In September 2022, the Complainant and her line manager agreed that the Complainant would temporarily move from the [redacted] site to the [redacted] site for two weeks, and in that period would work under the supervision of the [redacted] site manager. The Respondent submits on 26 September 2022, the Complainant arrived late for work at the [redacted] site and the site manager was unhappy with the behaviour the Complainant displayed, some of which was witnessed by the client manager. The Respondent submits on 28 September 2022 the Complainant called the [redacted] site manager, enquiring about working on Saturdays and staying permanently in that site. The Respondent submits the site manager explained to the Complainant that she did not work Saturdays, that there were already arrangements in place to cover Saturday work, and that the position was filled. The Respondent submits the Complainant did not take kindly to this response and shouted at the site manager. On 28 September 2022, the [redacted] site manager visited the site to review work due to be completed by the Complainant, in preparation for a scheduled client visit for that afternoon. The Respondent submits the canteen floor was supposed to be cleaned and washed before the client team arrived at 4pm, and the floor was not ready. The Respondent submits the site manager questioned the Complainant why this had not yet been done and requested her to complete the task as required. The Respondent submits the Complainant became aggressive, and the situation escalated, and this happened in front of the client’s manager. The Respondent submits that after again asking the Complainant to clean the floor and she refused, the site manager instructed her to leave the site and not to return to it. The Respondent submits the Complainant duly left the site. The Respondent submits that 16h12 on 28 September 2022, the Complainant sent an email to HR reporting the incident with the [redacted] site manager further advising that the statement by the site manager that she should leave the site and not return amounted to an unfair dismissal. The Respondent submits HR replied, acknowledging the Complainant’s email and undertook to investigate the matter. The Respondent submits the Complainant responded to HR’s email stating there was no point in looking into situation as the site manager did not follow protocol, she was upset about it and would take this further. The Respondent submits on 29 September 2022, HR emailed the Complainant clarifying that she was not dismissed and advised that she was awaiting information regarding the alleged incident and would contact her if further investigation was required. The Respondent submits HR also advised the Complainant that her line manager was copied on the email and would be in touch with her to discuss work arrangements. The Respondent submits the Complainant responded to HR’s email stating that she had refused to wash the floor due to Health and Safety concerns. The Respondent submits HR again advised the Complainant that the information would need to be provided to the investigating manager, and that the line manager would contact the Complainant to arrange alternative working hours. On 6 October 2022, the Respondent received a letter from the Complainant’s Solicitors alleging she had been unfairly dismissed, and that she never received written terms of employment and that a claim would be filed with the WRC. The Respondent submits that on 7 October 2022, HR emailed the Complainant querying receipt of the solicitor’s letter, and again advised her that she was not dismissed and attached copies of her Terms and Conditions of employment and the Grievance Procedure and advised her to use this procedure to resolve any concerns she had. The Respondent submits HR also asked the Complainant to advise of her availability to attend a meeting to discuss these issues further. The Respondent submits the Complainant never responded to those emails and never returned to work. The Respondent submits that on 29 November 2022, the Respondent received this WRC complaint form, alleging Unfair Dismissal, Minimum Notice and Terms and Conditions of Employment. The Respondent submits that on 21 December 2022, HR sent a letter to the Complainant acknowledging receipt of the WRC complaint form and again advised her that no dismissal had taken place and requested her to contact the Respondent. The Respondent submits the Complainant never responded to that correspondence, has never returned to work, nor contacted the Respondent to date. Respondent’s Arguments The Respondent submits that as explained and demonstrated in the sequence of events above, the Complainant was involved in an argument with her temporary manager and, arising from that incident, she was told to leave that site and not to return to it. The Respondent submits both these parties could have handled the situation differently. The Respondent submits the Complainant knew that the site manager had no powers or authority to terminate her employment and that is why the Complainant took it upon herself, and correctly so, to report to HR the incident that had taken place at the [redacted] site. The Respondent submits that what took place thereafter, if there was any doubt, was clarification to the Complainant of her standpoint with the Respondent. The Respondent submits that HR made her aware that she was within her right to report the matter; that an investigation into the incident would be conducted; that alternative work placement would be arranged for her; and that she was not dismissed. The Respondent submits it appears that the Complainant had taken the stance that the dye was cast, and nothing could be done to turn back from this point. The Respondent submits this stance seems unreasonable when the context of the situation is considered. The Respondent submits this is more so for a person who had legal advice even before referring this claim to the WRC. The Respondent submits the Complainant should have known that she could not desert her work of her own and turn around and claim dismissal when all relevant persons in charge in the business had told her to get back to work and that she was not dismissed. The Respondent submits the context to this incident is that the Complainant did not normally work in the [redacted] site, she was seconded there as a cover for a temporary period of two weeks. The Respondent submits that HR and her line manager assured her, after her argument with the [redacted]site manager, that she should contact her line manager for placement in an alternative site. The Respondent submits the Complainant rejected and ignored all efforts of mending and continuing with the employment relationship. The Respondent submits it is trite law that both employees and employers are expected to act reasonably in their dealings with each other. The Respondent submits that for an employee, that includes the responsibility to follow and exhaust all internal grievance procedures, whether formally or informally, to resolve any grievances that may arise in the course of employment. The Respondent submits that it goes against the principles of a grievance procedure that an employee should ignore an internal policy of lodging a complaint and only raise that to an external third party. The Respondent submits that this denies an employer the opportunity to address the complaint and to nip the conduct complained of in the bud. The Respondent has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI - 146 of 2000). Legal submissions The Respondent submits case law supports the principle that an employee has an obligation to exhaust the internal disciplinary process prior to seeking to enforce their rights externally. The Labour Court judgements in Dunnes Stores v A Worker LCR22639 and Melinda Pungor and MBCC Foods (Ireland) Limited LCR22639 support this argument. The Respondent submits these principles are also confirmed in the following cases namely McCormack v Dunnes Stores, UD 1421/2008; Conway v Ulster Bank, UD474/1981 and in Travers v MBNA Ireland Limited, UD720/2006. The Respondent submits in Martin Barry v Board of Management, St Oliver Plunkett School UD93/2006, the Court dealt with an employee who did not exhaust internal procedures in a dismissal case and held that “there is little point in an employee being reticent during a disciplinary process and forthcoming before a Tribunal. If an explanation is not given to the employer, the employee is depriving himself of an opportunity of exculpation”. The Respondent submits the obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of an employment contract. In Travers v MBNA Ireland Limited, UD720/2006 the complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. The complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found “the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”. In this case, the Respondent submits the Complainant failed to provide the Respondent an opportunity to fully respond to her concerns by failing to utilise any of the formal channels to seek to address any issues she may have had and, importantly, rejected the offer made to her to return to work. The Respondent submits in Fitzsimons v Mount Carmel Hospital, UD855/2007, in the complainant’s letter of resignation she raised a complaint against her line manager. The employer investigated the matter and invited the complainant to abandon her resignation and return to work. The complainant rejected the offer of return on the grounds that her relationship with her manager had deteriorated so much. She subsequently lodged a constructive dismissal claim. The Tribunal held that: “It is regrettable that this final step [of acceptance of the return-to-work offer] was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through.The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties.” In conclusion, it is the Respondent’s position that it never dismissed the Complainant and neither did it repudiate her contract of employment but rather operated the employment relationship at all times within the parameters of fairness. The Respondent submits that furthermore, its interactions with the Complainant were at all times reasonable, and that conversely, the Complainant’s actions in failing to utilise and exhaust the internal grievance procedures; and failing to return to work following several efforts to plead for her return; were unreasonableness on her part. The Respondent submits that the Complainant’s action of claiming unfair dismissal in these circumstances is misguided, premature and ill-founded and that the Complainant only has herself to blame for abandoning her employment. The Respondent respectfully requests the Adjudication Officer to reject the Complainant’s claim under the Unfair Dismissals Acts, 1977-2015, and to find in favour of the Respondent. Summary of direct evidence of Ms Bukola Keshinro (hereafter BK) witness for the Respondent on 23/06/2023 BK explains her position within the Respondent company as that of a manager of a number of sites. The Complainant was allocated to BK on a temporary basis as there was a vacancy in [redacted] for which there had been somebody recruited but she needed to fill the gap for two weeks until the new employee started. BK states it is customary to support each other across the regions. BK states she was told by the Complainant’s line manager that she had asked to be moved from her current site and that CW her line manager was looking for a place for her. BK outlines the cleaning requirements for [redacted]. BK states she explained the cleaning requirements for [redacted] to the Complainant and she explained exactly what needed to be done in the whole building. BK states the Complainant was very abrupt each time she explained something to her. BK confirms the job in this specific site [redacted] is a Monday to Saturday job. BK states the Complainant told her she does not work Saturdays and she states she told her that’s ok. BK outlines she explained the routine to the Complainant and she introduced her to the client and she states the told the Complainant that it was a very crucial week for the client [redacted] as they were preparing for customer visits. BK states the Complainant requested some cleaning stuff and she got that for her. The witness states [redacted] is one of key clients and she had communicated to the team there would be customer visits and that an industrial team would be coming on Wednesday evening to do the canteen floor. BK states she was not on site on the Tuesday. BK states she received a phone call from the Complainant asking if she could work on the Saturday and that she (the Complainant) would like to move there to work permanently. BK states she told her that was not possible as she had somebody recruited for there and due to start after the two weeks. BK states the Complainant hung up on her. BK states there were issues about the Complainant refusing to wipe spillages in the fridge as she (the Complainant) had said that was not her job. When she visited the site on the Wednesday BK states the floor was not swept or washed. BK states the Complainant told her she did not have the time and that she had her own routine to which the BK states she said to the Complainant that the floor needed to be done and she (the Complainant) refused to do the floor. BK states she told the Complainant you can leave the site and leave your badge at reception. BK states this was overheard by a member of the client company at which point the hearing adjourned. Summary of direct evidence of BK witness for the Respondent continued on 13/06/2024. BK states she met with the Complainant on 26/09/2022 and that her line manager had referred her for cover for 2 weeks. BK states she agreed to meet the Complainant on the site and that she was late but she herself commenced on the tasks until the Complainant arrived. BK states she walked her through and showed her what needed to be done. BK states they went to the kitchenette on the ground floor and told her to get milk for the fridge to which the BK states the Complainant responded “where do I get the milk – from the cow?” BK states she introduced the Complainant to the client and showed her what needs to be done. BK states the client was preparing for a very important visit from customers. BK states the cleaning of the canteen is part of the Complainant’s daily tasks. BK states that when she went to the site on the Wednesday the canteen floor was not cleaned swept or mopped. BK states she called her (the Complainant) and she was on her phone. BK states she said to the Complainant that the floor was not done to which the Complainant responded that she did not have the time as she had to do the sink and the dishwasher. BK states she said to her (the Complainant) that she would do those and that the Complainant could do the floor to which the Complainant responded “no I have my routine.” BK states the Complainant was aggressive and said she wasn’t doing it. BK states she asked the Complainant to give her (BK) her pass and to leave the site immediately. BK states it was before 4pm as she recalls the industrial team were due to be on site at 4pm. BK states she did not dismiss the Complainant. BK states she (the Comlplainant) was there to cover for 2 weeks. BK states she asked her to leave the [redacted] site and she states did not dismiss her from the Respondent company. BK states she phoned CW as she was the Complainant’s line manager. The witness states that after the Complainant left the building she sent her (BK) a text to which she did not respond. BK states she had no further communication with the Complainant. BK states she did not dismiss the Complainant. Summary of cross-examination of the Respondent witness BK BK is asked on what date she prepared the incident statement to which she replies shortly after the event. BK is asked on what date. BK checks her laptop and confirms date of 4/10/2022. BK is asked if HR asked her to make the statement to which she responds no that an incident report is part of company procedure. The witness is asked why she did not refer to [name redacted] referenced in the incident report in her direct evidence if she felt it was part of the narrative. It is put to BK that the Complainant states she asked her for her badge and she (BK) states she told her to hand it in at reception. It is put to the BK that the Complainant’s position is that she (BK) demanded her badge and that she handed it to her and it was the keys that she handed over at reception. BK is asked why did she tell the Complainant to leave and not come back to which BK responds that the Complainant refused a reasonable request and that she said somebody was sitting there and Health and Safety says you don’t mop around people. BK is asked if she remembers seeing somebody sitting in the canteen to which she responds there was nobody in the canteen when she asked the Complainant to do the floor and that was incorrect there was no man sitting there. BK confirms in response to a question that floors are usually done in the morning. BK is asked if she knew that the Complainant and the client facilities manager (JMcC) had a conversation and he told her not to mop the floor to which she replies she did not know that. BK reiterates she told the Complainant to leave the site and the word dismissal was not used. It is put to BK that she told the Complainant to leave and not come back again. BK is asked what did she tell HR about asking the Complainant to leave and the Complainant representative makes reference to an email from the Respondent where they accept the Complainant thought she had been dismissed. BK is asked if she was told by HR that the Complainant had emailed HR to give the reason why she did not mop the floor as there was someone sitting there. This is followed by a line of questioning around the other cleaner present on the day in terms of what time that cleaner arrived and what time the Complainant left to which the witness responds she can not remember the exact time, but it was before 4pm as the industrial cleaners were due then. It is put to BK that she had never said that the Complainant told her she did not have the time.
Summary of direct evidence of Respondent witness Mr John McCarthy (hereafter) JMcC of the Client Company JMcC confirms he is the Fleet and Facilities Manager for the client company. The witness states the Respondent company does all the cleaning on all their sites around Ireland. The witness states he knows BK in her capacity as the area manager and she conducts regular audits and site visits and any issues would be relayed back to her. The witness is asked to recall events of 26/09/2022. The witness states they were going through a period where they were trying to ensure they had correct staff in place and certain tasks laid out and that they were very fussy as they had potential clients coming in. The witness states he was on the ground floor of the building and he happened to be in the kitchen where BK introduced the Complainant to him. The witness states he went to make himself a coffee and the two (BK and the Complainant) were talking about what needs to be done. The witness states BK told the Complainant that milk needs to be brought in and that the Complainant asked where would she get the milk – from a cow at which he states he was a bit taken aback. The witness states he left the kitchen at that stage. The witness in recalling the 28/09/2022 states they were expecting visitors and everything has to be done. The witness states he requested the main canteen to be done as the floor needed buffing and it had to be prepped before that. The witness stated they (himself, BK and the Complainant) met in the main canteen and there was a general conversation going on. The witness states the Complainant was at the countertop area and that BK said to the Complainant that the floor was not clean to which she (the Complainant) replied she had no time to do it. There was a discussion with the Complainant saying she wanted to be made permanent in [redacted]. The Complainant refused to do the floor and the witness states BK told the Complainant to leave the site. The witness states he left after that. The witness cannot recall if there was a man in the canteen and he cannot say for certain if there was or there was not a man there. The witness states floor cleaning is generally done in the morning and it needed to be done. The witness states the main canteen floor is cleaned every day and it is usually done up to around 11 in the morning. The witness states a sign will be put up and the area will be closed off. The witness states one person being there would not stop it from being cleaned. JMcC states he had no conversation with the Complainant about the cleaning of the canteen. The witness states he had no discussion about that with the Complainant and he states he had no engagement about the timing of cleaning with the Complainant. JMcC states the Complainant was asked to leave. The witness states he does not know if the word “site” was used. The witness states the word dismissed was not used and the word sacked was not used. The witness states you hand your keys and your badge back to security and you sign out and that is the procedure. Summary of cross-examination of Respondent witness JMcC JMcC confirmed that all he heard was what he had just stated and as far as he can recall the Complainant had left before him. The witness is asked to confirm the statement he made and he is asked who asked him to make the statement to which he replies BK had told him there were issues and his taking of it was she (the Complainant) was asked to leave the site. It is put to the witness that no mopping would be expected in the afternoon so you would not expect to see the gate to which he replies yes. When the witness is asked if there could have been someone there he accepts there could have been. JMcC states he definitely did not tell the Complainant not to mop the canteen floor and he repeats he did not tell her (the Complainant) not to mop. The witness is asked if he would accept that the Complainant and BK did not get on and he responds that he would not know whether they did or not and from his dealings with BK she always deals with people in a professional manner. It is put to the witness that he made reference in his statement that the Complainant had an aggressive tone and he is asked about BK’s tone to which he responds that she does not have a tone. It is put to the witness that everybody has a tone and he responds that BK never raised her voice and that she was calm. JMcC states that BK did not raise her voice she asked the Complainant to leave in a calm way. Summary of direct evidence of Respondent witness Ms Carol Walsh (hereafter CW) CW describes her role as that of Regional Manager and she states the Complainant would have worked on a couple of different sites under her remit. CW confirms the Complainant was going to work in [redacted] for 2 weeks from Monday 26/09/2022. The witness states she explained to the Complainant it was a Monday to Saturday but BK had already said that’s grand and that she would get somebody else to do the Saturdays as the Complainant does not do Saturdays. On the day it happened the Complainant rang her and she said BK is after putting her off the site because she (the Complainant) wouldn’t wash the floor. The witness states this phone call was between 3.30 and 4.30 but she couldn’t be 100% sure of the exact time. The witness states she told her she would get back to her in 20 minutes but she didn’t. CW states she tried to contact her on the Thursday and she emailed her. CW states she tried calling her and she wasn’t picking up and she emailed her and she never answered. Summary of cross-examination of Respondent witness CW The line of questioning from the Complainant representative has an initial focus on the buffing due to take place on the day in question and the requirements prior to that regarding floor cleaning. The Witness confirmed the floor needs to be swept mopped and dried and this could be done at any stage during the day. The witness confirms that if it is done in the morning the dust controller might need to be used in the afternoon but it was highly unlikely the whole floor would need to be done again. CW is asked if the Complainant had been trained to not clean if there was someone present to which the CW replies no that they have wet signs that would be used and that the Complainant knows Health and Safety and that the Complainant has mopped stairs of buildings with 300 people in them and she would have placed the wet signs on every landing. The witness states she has worked with the Complainant in the past. CW is asked if she was at any of the Complainant’s training to which she replies no. It is put to the witness that the Complainant considered herself to be dismissed and the Complainant representative puts it to the witness that she assumes she has a number of sites to which the witness responds yes. When asked if she had a site available on 29/09/2022 CW replies yes in Tesco in Dun Laoire. The witness is asked why did she not give her work on the next day and puts it to CW that she is now saying she rang her on the day after (the next day) and CW states she rang the Complainant on the Thursday, the Friday, the Sunday and the Monday morning and she never picked up. When asked why she did not get back to her on the day the witness responds that it totally went out of her head. CWis asked why did she not say in her email that she had Tesco for her to which she replied “alternative working arrangements” said it all. CW is asked if even there has been a refusal to carry out a reasonable request are staff allowed to continue working or are they suspended to CW replied that it would depend on the circumstances. It is put to CW that the Complainant would have to be told where to go and nobody followed up with her on the Wednesday or the Thursday. Summary of direct evidence of Respondent witness Ms Natalie McGrath (hereafter NMcG) NMcG outlines that she is Head of HR for Ireland and at the time this occurred she was the senior HR advisor. The witness states she is not 100% sure when she became aware but she believes she became aware on the day. The witness refers to the Complainant’s email on the day stating she was taking the company to unfair dismissal court and to her email to the Complainant on 29/09/2022. The witness states her last communication with the Complainant was on 29/09/2022 where it was made clear to her that there was no dismissal from her role and that her line manager had been spoken to with regard to contacting her with alternative working arrangements. The witness states it all started off with the Complainant stating she had been removed from the site and this progressed to unfair dismissal then. NMcG states the Complainant disengaged from the Company and she was never dismissed. Summary of cross examination of Respondent witness NMcG The Complainant representative asks the witness about an email received from the Respondent on 17th April 2023. NMcG this email was sent to the Complainant in error as part of a mail merge to people who were inactive on their system. The witness states the Complainant was never processed as a leaver and that she is still an active employee because there is an ongoing dispute as the had received the WRC claim. The Complainant had been captured and pulled into a mail merge in error that had been sent to 214 people. The Complainant representative puts it to the witness that it is unfair of them to keep her on the system and why would they cling on to that as her (the Complainant’s) position is that she was dismissed and the Respondent position is that the Complainant is still on their payroll and still registered as a full time member of staff with Revenue. Respondent closing submission The Respondent representative submits the Complainant is still employed by the Respondent as the evidence shows. The Respondent representative states the Complainant was placed temporarily in [redacted]. The Complainant did the Respondent a favour but things did not go well and the Complainant refused to carry out a reasonable instruction and she was told to leave the site. The Respondent representative states the Complainant herself confirmed this in an email and this cannot now be interpreted to mean she was dismissed. The Complainant reported this that day and HR looked into it and came back to the Complainant and told her to contact her line manager. The Complainant was informed she should return and an investigation would follow but the Complainant said there was no need to look in to it. The Respondent representative submits the Complainant might have felt hurt but this does not amount to a dismissal. The Respondent representative submits the Complainant had already made up her mind that she was leaving and she was already saying she was taking an unfair dismissal claim. The Respondent representative states the Complainant assumed she was dismissed and she was not willing to engage. The Respondent representative states the Complainant did not want to engage as her mind was made up. The Respondent submits the Complainant’s solicitor wrote on 06/10/2022 and the WRC complaint was already lodged. The Respondent representative submits this did not amount to a dismissal and the Complainant was immediately forwarded a copy of the grievance procedures. The Respondent representative submits the Labour Court makes it clear that an employee should exhaust internal procedures. The Respondent representative submits there is a duty to engage even where an employee feels aggrieved and that failure to engage is an invitation to disregard the principles of S.I 146 of 2000 and that an employee must follow due process. The Respondent representative submits that if the Complainant is not dismissed she is not entitled to notice pay and that the claim she (the Complainant) was dismissed in unfounded and premature.
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Findings and Conclusions:
CA-00053114-001
In conducting my investigation, I have reviewed the relevant submissions and supporting documentation presented to me by the parties. I have carefully considered the oral evidence adduced at hearing. I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.
Having carefully considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded on the 28/09/2022.
I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances. The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing. Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities. Fact of dismissal This case pivots around the fundamental issue of whether an actual dismissal, as defined by the Unfair Dismissals Act, 1977 has taken place. It is well established that the initial burden of proof falls upon the Complainant to establish the fact of dismissal in circumstances where such a fact is at issue. The burden of proof primarily is on the Complainant to prove the fact of dismissal, and if that burden is discharged, the burden of proof then shifts to the Respondent to show the dismissal was caried out fairly. Section 1 of the Unfair Dismissals Act, 1977 defines “dismissal” in relation to an employee in the context a complaint of unfair dismissal as: “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, Before an employee can obtain redress under the Unfair Dismissals Act, 1977 there must have been a dismissal. The Labour Court in Parkboro Developments Ltd T/A Park Engineering v. Mariusz Witkowski [UDD2338] held as follows: “There can be no absolute rules about [sic] is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.” The Labour Court held as follows: “A sharp exchange of words in a workplace does not usually provide a basis for the sundering of an employment relationship.” The Labour Court added in Parkboro Developments: “…the only aspect of this exchange that elevates it above what might be termed normal run of the mill workplace disagreements is the fact that the Respondent failed to direct the Complainant back to his work, and instead, led him to believe that he was being dismissed.” [emphasis added] The Relevant Facts I have carefully reviewed and considered all the evidence presented to me at the two hearings of this complaint. There is much in dispute in this case but there is no dispute about the fact there was a verbal altercation (hereafter referred to as the incident for ease of reference) between the Complainant and her line manger during her temporary two week placement in [redacted] on the afternoon of 28/09/2022. It is common case that the Complainant had left the site before 4pm on 28/09/2022 as she had left before the industrial cleaners arrived at 4pm but there is no definitive from any of the parties on the exact time of her departure from the site. Notwithstanding, the Complainant phoned her line manger CW and the Complainant told her “BKput me off the site because I didn’t wash the floor.” CW states she received this phone call between 3.30 and 4.30 but she could not be sure of the exact time. CW states she told the Complainant she would call her back in 20 minutes but she did not do so and she states it went totally out of her head. At 16.12 on 28/09/2022 the Complainant emailed the Respondent HR Department as follows: “I [redacted] was working in [redacted] at [redacted] bukola arrived on site asked me to wash the floor in the canteen I said no as there was people in it I told her I do it tomorrow but that was not good enough for her, so she told me to get off the site and don't return tomorrow she did this in front of the main boss John McCarthy as this is unfair dismissal I'm going to take this matter further.” HR responded at 17.57 as follows: “Thank you for your email, I will look into this situation and get back to you.” At 20.24 the Complainant responded to HR as follows: “There is really no point in looking into this situation, bukola did not follow any protocol I'm taking this very serious as she has me so upset I'm really taking this further.” On the following morning 29/09/2022 at 10.25 HR emailed the Complainant as follows: “Good Morning [redacted] I have spoken to Bukola about the situation that occurred yesterday and have been advised that an incident occurred where it is alleged that you failed to follow a reasonable request from a manager and that this situation occurred in front of the client. I am awaiting statements from the relevant parties regarding this alleged incident and will contact you if there is further investigation required. Following this incident Bukola advised you to leave the site and that she did not want you to return to the site, she did not dismiss you from your position with the company. My understanding is that your manager is Carol Walsh, you were temporarily covering this site for Bukola for a period of 2 weeksand were due to move to a different site following this. I would seem there was a misunderstanding that resulted in you believing that you had been dismissed from your position with the company when you were asked not to return to a specific site. I have copied your manager on this email so that she can follow up with you and arrange alternative hours for you at another suitable location. I have also attached our grievance policy for you to review. If you need anything further please let me know. Kind Regards” At 11.09 the Complainant responded as follows: “ I refused to wash the canteen because that is a health and safety as there was a person who was sitting there having their lunch, as she was demanding me to wash the canteen if the or any other people came in to the canteen if they slipped and hurted themselves who would be responsible me or Bukola” At 11.53 HR responded as follows: “Hi “The complainant”, Thank you for the below. This information will need to be provided to the investigating manager once one has been appointed, I would not be involved in the investigating of this alleged incident but I will provide the investigating manager with any information you have shared. I have also spoken to Carol regarding contacting you to arrange alternative working arrangements and she has advised she will contact you to discuss further. If you need anything further please let me know. Kind Regards Natalie” On 03/10/2022 the Complainant’s line manager emailed her as follows: Hi [redacted] Further to the emails sent and received last week I have tried to contact you a number of times but have not been able to reach you. As advised I need to discuss alternative working arrangements with you, can you please contact me as a matter of urgency. Kind regards Carol I note there was no further communication from the Complainant. I note the Complainant in her written submission states she “visited her Solicitor the next day (which would have been 29/09/2022) to consult on unfair dismissal.” I note the Complainant’s solicitor wrote to the Respondent on 6/10/2022 advising as follows: “Our client has now instructed us to make an application to the WRC for unfair dismissal in relation to this matter.” I note this complaint was filed with the WRC on 05/10/2022. As I carefully consider all of the foregoing I am mindful of the case of Parkboro Developments Ltd T/A Park Engineering v. Mariusz Witkowski [UDD 2338]where the Labour Court held that where dismissal was not intended, it is up to an employer to “…take immediate and comprehensive steps to assure the Complainant otherwise.” I am mindful also of an EAT decision in the case of Mansour v. Romanza Limited [UD360/2004]. This was a case in which the EAT was confronted by conflicting evidence but concluded that it was reasonable for the employee who was allegedly told to “leave now” to believe he had been dismissed. The EAT found support for this conclusion in the fact that no effort had been made bythe manager to contact the employee to resolve their dispute. [emphasis added] Unlike in Mansour, the Respondent in this case clearly, unequivocally and unambiguously notified the Complainant by email at 10.25am the morning following the incident that she had not been dismissed from her position with the company. The Complainant was advised that her line manager had been copied on the email and would follow up with her to arrange alternative hours at another suitable location. I note the Complainant attended with her solicitor the day after the incident and at the time of that attendance it is likely the Complainant would have been aware of the fact she had not been dismissed based on the assurances she had received thereto. I note numerous attempts were made by the Respondent to contact the Complainant by phone and by email up to and including Monday 03/10/2022 where her line manager CW requests of the Complainant that she contact her “as a matter of urgency” having called her over the preceding days and received no response. I note the Complainant ignored all attempts to contact her by both phone and email. I am bound to consider the Complainant’s unreasonableness in her failure to engage with the Respondent. I accept the Complainant believes herself to have been dismissed. However, this belief is not borne out by the facts. When I consider the content of the emails sent to the Complainant and the numerous attempts to contact her by phone I find it perplexing that the Complainant would persist in considering herself to have been dismissed albeit I have no doubt that she felt aggrieved by the verbal altercation that occurred on 28/09/2022. I am satisfied the Respondent everything possible to assure and to reassure the Complainant that she had not been dismissed. The Complainant received a copy of the grievance procedure from the Respondent on the morning of 29/09/2022 and she could have availed of that procedure to make a complaint but this does not appear to have been considered at all by the Complainant. Nor did the Complainant seem to want the incident investigated based on her email to HR that there was no point and that she was “so upset” and she is “really taking this further.” I am bound to consider the evidence as adduced in this regard as I consider the reasons that may have supported the Complainant’s belief that she had been dismissed in circumstances where the Respondent took immediate and exhaustive steps to reassure the Complainant that she remained an employee. I am satisfied the Complainant was provided with every opportunity to remain in her employment, but she chose not to do so. There is a significant variation between the evidence of the Complainant and that of the Respondent. The conflict in the evidence adduced at hearing is stark. The Complainant states in direct evidence that BK said to her “give me your badge and she says you are dismissed.” In cross-examination the Complainant sates “she told me I was being dismissed I heard the words dismissed she kept repeating I was being dismissed.” BK states in direct evidence that she told the Complainant to “leave the site.” In cross-examination BK states she “asked her to leave the site and the word dismissal was not used.” The Respondent witness JMcC states in direct evidence that the Complainant was “asked to leave” and he “does not know if the word site was used.” JMcC states “the word dismissed or sacked was not used.” In cross-examination JMcC states “his taking of it was that she was asked to leave the site”. Having carefully considered all of the evidence presented to me at the hearing of this complaint I cannot find that the Complainant could have reasonably understood herself to have been dismissed on 28/09/2022. Taking all of the above factors into account it is my view that the Complainant was not dismissed from her employment with the Respondent and that she left that employment of her own accord. CA-00053114-002 I have found the Complainant was not dismissed from her employment. Therefore, her complaint pursuant to the Minimum Notice & Terms of Employment Act, 1973 is not well-founded. CA-00053114-003 The Complainant claims she was not provided with written terms of her employment. The Respondent exhibited a contract template completed in part with some details which were incorrect, and which was not signed by either party. I find this complaint to be well-founded and I order the Respondent to pay the Complainant in the sum of 1,890.00 by way of compensation for a breach of her statutory rights.
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Decision:
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.
CA-00053114-001 For the reasons stated above I decide this complaint is not well-founded. CA-00053114-002 I have found the Complainant was not dismissed from her employment. Therefore, her complaint pursuant to the Minimum Notice & Terms of Employment Act, 1973 is not well-founded. CA-00053114-003 For the reasons stated above I decide the complaint of a contravention of the Terms of Employment (Information) Act, 1994 is well founded and I order the Respondent to pay to the Complainant the sum of €1,890.00.
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Dated: 10-07-2024
Workplace Relations Commission Adjudication Officer: Eileen Campbell
Key Words:
Dismissal in dispute; |