Complainant

Respondent

Parties

Marie Nugent

Little Stars Childcare Limited

Representatives

Self-represented

Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00060778-001

01/01/2024

The Complainant commenced employment with the Respondent on 23 August 2022 as a childcare practitioner on a fixed term basis providing maternity leave cover. Her contract was subsequently renewed. The Complainant’s final day of employed with the Respondent was 11 July 2023.

The Complainant contends that she was unfairly dismissed by the Respondent.  The Respondent refutes this and asserts that the Complainant resigned from her employment.

The Respondent was generally happy with the Complainant’s performance. Where there were any minor issues with the Complainant’s performance, these were addressed informally.  The Respondent supported the Complainant throughout her employment.

On 12 June 2023, the Managing Director of the Respondent organisation was approached by a member of the public who said that they had been told by the Complainant that there were unsafe staffing levels at the Respondent premises.  Due to the seriousness of this issue, the Managing Director raised the matter at a senior staff meeting held on the morning of 13 June 2023. The purpose of the meeting was to determine the best course of action for dealing with the Complainant’s alleged comments. 

At the senior staff meeting, another member of staff said that she had heard from a member of the public that the Complainant had also told them of an issue regarding staff to child ratios within the Respondent’s premises.

These allegations were of serious concern to the Respondent as, if they were true, the Respondent had breached the relevant Tusla regulations.

Following the senior staff meeting, a decision was made to discuss the matter with the Complainant. The meeting with the Complainant was held at approximately 3.50pm in the staff area of the Respondent’s premises. The meeting was attended by the Complainant, the Managing Director and the Deputy Manager.

At the meeting, the Complainant was informed that serious issues had been raised, and she was asked if she would like to have someone else present for support. The Complainant responded she did not wish to have anyone else present. The Deputy Manger informed the Complainant that she would be taking notes of the meeting.

At the outset of the meeting, the Managing Director told the Complainant about the comments which the Complainant was alleged to have made to a member of the public regarding unsafe staff to child ratios in the Respondent’s premises. The Respondent asked the Complainant if she had made the alleged comments. The Complainant admitted that she had said that ‘she was left alone with 30 children’ while working for the Respondent.  The Managing Director replied that the statement was untrue and if it had been true, it would have been investigated.

The Managing Director asked the Complainant why she made the statement about the staff to child ratios if it was not true.  She reminded the Complainant that if she had any concerns about staffing ratios, she should have raised them with a member of the management team immediately.

The Managing Director further added that the Complainant’s statement was defamatory, and that the Respondent would have been prepared to sue to protect the good name of the Respondent and its staff. 

The Manging Director then said that it had been noticed that the Complainant’s work had been slipping and asked if she was happy at work. The Complainant replied that she was not really happy at work, and she had been applying for other jobs. A discussion then ensued about the Complainant’s desire to work in events co-ordination.

The Managing Director encouraged the Complainant to pursue an alternative career if that was what she wanted and asked if there was any way she could support the Complainant as she had done on several occasions in the past.

The Complainant said that she was considering resigning but could not afford to be without employment. The Managing Director suggested that the Complainant could work four weeks’ notice and would be supported while she searched for another job. The Complainant accepted the Respondent’s offer.  It was agreed that the Complainant would finish working with the Respondent on 11 July 2023. The Complainant was not requested to provide written confirmation of her resignation. The Complainant worked her notice and left on good terms on 11 July 2023.

The Respondent submits that the Complainant was not dismissed but resigned at the meeting on 13 June 2023.

Direct evidence of the Managing Director, Karen Coyne

The Managing Director said that the Complainant was a very good employee who was really well respected. 

The Managing Director said that she had been approached by a member of the public while she was having lunch in a local pub on 12 June 2023 who told her that the Complainant had said that she had been left on her own to take care of 30 children.

The Managing Director said that she was initially very shocked when she heard the allegation as, if it was true, the Respondent was in breach of Tusla regulations, and the Complainant had been left on her own without support.  The Managing Director felt that if staff were working over the ratio, she would have heard about it. 

The Managing Director expressed herself to be blown away because what the Complainant allegedly said was a very serious thing to say which would have a huge effect on the Respondent company and its staff.

After lunch, the Managing Director discussed the matter with the Deputy Manager.  The Managing Director did not think that the Complainant would have said what she was alleged to have said.

On 13 June 2023 a staff meeting took place with all the room leads.  The Managing Director asked staff about what the Complainant was alleged to have said.  During the meeting, staff mentioned times when the Complainant had made similar comments to other members of the public.

The Managing Director also examined the attendance records to see if what the Complainant had said could possibly be true.

Afterwards, she took the time to discuss what had been said.  She decided to speak to the Complainant.  As they had a good working relationship, she decided to have an informal chat in the kitchen over a cup of tea. It was not a formal conversation.

At the outset, the Managing Director noticed that the Complainant was upset and asked her if she wanted anybody to accompany her for support.  The Complainant said that she did not.

The Managing Director explained that it was just a chat.  She wanted to find out more about the Complainant’s alleged comment.  The Managing Director told the Complainant what she had been told.

The Complainant did not deny that she had said what she is alleged to have said.  She admitted that she had made the comment and said that it was because she was under so much pressure.

The Managing Director said that when potentially damaging comments had been made about the Respondent’s business in the past, she had asked her solicitor to issue a cease-and-desist notice.  The Complainant was aware of this. 

The Managing Director said that she was really upset about what the Complainant had said.  She would never have put the Complainant in a position where she would be in a room on her own with 30 children.  The Managing Director did not understand why the Complainant hadn’t spoken to her.

The Managing Director said that she asked the Complainant if she liked working in the Respondent’s business.  The Complainant said that she wanted to work in event management.  The Managing Director asked the Complainant what she thought they should do.  The Complainant replied that she thought that she should leave but that she could not afford to leave.  They agreed that the Complainant could work her four weeks’ notice.  The Complainant would have an income and the Respondent would have time to replace her.

The Managing Director said that if the Complainant had not resigned, she would not have dismissed her.  The Managing Director said that there was a staff crisis in the childcare sector, and she could not afford to lose the Complainant.  She was fond of the Complainant and the children were really happy in her care.  The Managing Director would have preferred if the Complainant had stayed. The Managing Director said that she did not dismiss the Complainant.

Cross-examination of the Managing Director by the Complainant

The Complainant asked the Managing Director why she had told her that she could leave on the 13 June 2023 or go in four weeks.  The Managing Director said that she had suggested that the Complainant have a chat with her GP and her mother.  The Managing Director felt that she had a duty of care to the Complainant.

Questioning of the Managing Director by the Adjudication Officer

The Managing Director said that she had been with Peninsula since she started the business in 2017.

The Managing Director confirmed that she had dismissed a member of staff previously.  In that case, she phoned Peninsula for advice and explained what had happened.  Peninsula advised her to follow the disciplinary procedure in the staff handbook.

The Managing Director said that before she met with the Complainant on 13 June 2023, she had phoned Peninsula for advice.  Peninsula advised her to have an informal and gentle conversation with the Complainant.  The Managing Director said that if Peninsula had told her to do something different, she would have done it.

The Deputy Manager took notes at the meeting.

Direct evidence of the Deputy Manager, Caroline French

The Deputy Manager confirmed that she had written an account of the meeting of 13 June 2023. She wrote it just after the meeting.

Sometime between 3.50 and 4pm on 13 June 2023, the Managing Director invited the Complainant to come into the kitchen for a cup of tea and a quiet chat.  The Managing Director and the Deputy Manager spoke to the Complainant about what the Managing Director had heard about the Complainant saying that she had been left alone with 30 children.  The Managing Director also told the Complainant that another staff member had been told by her driving instructor, who was also the Complainant’s driving instructor, that the Complainant had told him that she had been left alone with 30 children.  The Managing Director asked the Complainant why it had never been brought to the attention of management.

The Deputy Manager said that the Managing Director’s comment during the course of the meeting about the solicitor’s letter was not aimed at the Complainant.

The Managing Director asked the Complainant why she was so upset and if she liked her job.  The Complainant replied that she did not and that she was looking for other jobs.

The Managing Director asked the Complainant what she would like to do and said that she would be happy to keep her.  The Complainant replied that she did not want to stay.

The Managing Director asked her if she wanted to leave that day.  The Complainant said “No”, she couldn’t afford to do that. The Complainant said that she would work her notice.

The Deputy Manager said that neither herself nor the Managing Director dismissed the Complainant at the meeting on 13 June 2023.

The Deputy Manager said that the Complainant worked for four weeks after the 13 June 2023 and left on good terms.  On the day the Complainant was leaving, she came into the office and was given a present of flowers and chocolate.

Mitigation of Loss

The Respondent notes that the Complainant is obliged as per section 7(2)(c) of the Unfair Dismissals Act 1977 to mitigate her loss.  The Respondent refers to the decision of Coad v Eurobase (UD1138/2013) where the Tribunal noted, “In calculating the level of compensation the Tribunal took into consideration the efforts of the claimant to mitigate his losses and finds that these efforts do not meet the standard as set out by the Tribunal is Sheehan v Continental Administration Co. Ltd. (UD858/1999) that a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to infirm agencies that you are available for work nor merely to post an application to various companies seeking work…the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

The Complainant submits that she was unfairly dismissed. She asserts that on 13 June 2023, the Managing Director called her to a meeting with herself and the Deputy Manager and informed the Complainant that she was going to be let go because the Managing Director had been told that the Complainant had said something about the crèche in the pub and it got back to the Managing Director.

The Complainant asked the Managing Director what she was talking about.  The Managing Director replied that she had been told that the Complainant had said that she had been left in a room on her own with 30 children. The Complainant told the Managing Director that she did not say that.  The Complainant asked the Managing Director who told her that the Complainant had said it. The Managing Director said that she didn’t have to tell the Complainant who told her.

The Managing Director then said that she had sent solicitors’ letters to people for doing less and also that she had been very good to her by giving her two weeks off in the past when the Complainant was struggling with her mental health. The Complainant repeated that she didn’t say the thing that they were accusing her of saying.  The Managing Director told her that she couldn’t trust her and that all the trust was gone. The Complainant felt very stressed in the meeting as she didn’t know what was happening or what to do.

The Managing Director said that the Complainant could leave work immediately or she could work for a further four weeks and then would be gone. The Complainant understands now that this was due to the notice period in her contract of employment. 

The Complainant told the Managing Director that she would work the four weeks because she had to pay rent. This meant that the Managing Director permitted the Complainant to work in the crèche, in her role looking after children, for a further four weeks even though she said she couldn’t trust her. The Complainant submits that this doesn’t make any sense.  The Complainant thinks that the fact she was allowed to continue to work in the crèche for four more weeks doing the exact same job she had always done shows that she is entirely trustworthy, that trust had not broken down at all and that it was just an unmeritorious and untruthful excuse used to dismiss her.

The Complainant confirms that she continued to work for the Respondent for those 4 weeks which meant that her last day of work was 11 July 2023.

The Complainant’s last day of work was very emotional especially because parents and children were asking her why she was leaving. The Complainant was heartbroken and also very embarrassed. She didn’t want people to know that she had been fired as she lives in a small town.

No fair procedures

In the past the Complainant had not received a copy of her contract. The Complainant asked for her contract, and this was denied to her. After making a GDPR request the Complainant got her contract of employment on 29 April 2024. Her contract referred to the staff handbook and the Complainant read the disciplinary rules and procedure in the staff handbook.  The Complainant confirms that no part of the procedure outlined in the handbook was followed in relation to her.

The Complainant was not given any notice of the disciplinary meeting. The Complainant was literally called into the staff room/office from work and the meeting started.  The Complainant was not told in advance of the meeting what would be discussed during it, so she had no time to prepare.  The Complainant was not told in advance that she could be dismissed at the meeting. Nor was she informed that she had the right to be accompanied to the meeting.

No investigation took place in relation to the alleged statement. The Managing Director wouldn’t even tell her the name of the person who alleged that the Complainant had said that she was left alone in a room with 30 children.

The Complainant submits that she was not told that she had the right to appeal the decision to dismiss her.

The Complainant submits that the absence of fair procedures and, in particular, the fact that the she had been dismissed on the basis of an alleged statement by an unnamed person overheard in a pub and conveyed to the Managing Director meant that her dismissal was grossly unfair and that the sanction imposed (even if she made the alleged statement, which she denies) was entirely disproportionate.

The Complainant would reiterate that the fact that she was allowed to work out her notice period in the exact same position clearly shows that the Managing Director continued to trust her to work in her business with children.

Mitigation

The Complainant looked for other jobs immediately. She had three interviews the first week that she was not working and was offered all three positions. As the Complainant does not have a car, she took the job that was closest to home and started work there on 22 August 2023. This meant that she was not in paid employment from 11 July until 23 August 2023.

Even though the Complainant now has another job, she is earning less money. When the Complainant was working for the Respondent, she earned €13.50 per hour for a forty-hour week. When she started her new job, she was earning €12.50 per hour for a forty-hour week until the minimum wage was increased with effect from 1 January 2024 bringing her wage to €13.00 per hour. This meant that, in addition to the 6 weeks during which she was not earning, from 22 August 2023 until 1 January 2024 the Complainant earned €1 less per hour for every hour that she worked. The Complainant submits, therefore, that she has an ongoing loss.  She further submits that had she not been dismissed, she would also come within the protections of the Redundancy Payments Act 1967 due to her length of service with the Respondent, unlike in her new position where she has had to start again from scratch.

The Complainant relies on section 7 of the Unfair Dismissals Act 1977 and in particular to the definition of financial loss that includes:

“… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”.

The Complainant also relies on the Labour Court determination in Waterford Health Park Pharmacy Limited t/a Stratus Health Care v. Aoife Foley [UD/23/108]. In that case, even though the employee had got another job that paid her more, her actual past losses were approximately €5,000, and she had only one year of service with her former employer the Labour Court awarded her €14,000 because the Court considered that figure to be “just and equitable having regard to all the circumstances”. The Complainant submits this precedent should apply to her case.

Direct evidence of the Complainant

The Complainant said that she had not been told about the staff meeting which had taken place on the morning of 13 June 2023.

The Complainant said that she had no notice of the meeting with the Managing Director and the Deputy Manager which took place on the afternoon of 13 June 2023.  She did not know what the meeting was about, and she did not have anybody with her.  She felt that she was being ambushed; that’s why she said that she was looking for another job.

The Complainant said that she did not resign and that she did not give the Respondent a letter of resignation.

The Complainant said that she would not have been able to find a fulltime job in event management as it is not a daytime job.  She would need a car for an event management job.  The Complainant explained that she does not have a car or a driving licence.  The Complainant said that, for that reason, she accepted a job close to home when she was dismissed by the Respondent.

The Complainant confirmed that she was well aware of the staff ratios in a creche.

The Complainant said that the Respondent told her that she would be facilitated to attend online interviews during her notice period.  However, this did not always happen in practice.  The Complainant missed on interview because no one was made available to cover her.  The interview was rescheduled for another date.

Cross-examination of Complainant by the Respondent’s representative

The Respondent’s representative asked the Complainant if she had looked for other jobs prior to 13 June 2023.  The Complainant replied that she only spoke about side jobs promoting gigs.

The Complainant said that there were no incidents leading up to the meeting.  She wasn’t unhappy.  She loved the kids and the other staff.  She never said that she was unhappy at work.  She did not resign.

The Complainant said that she was given the option to leave on 13 June 2023 or in four weeks.

Conclusion

The Complainant submits that she was dismissed for something that she didn’t even do.  The Complainant submits that she was not afforded fair procedures and that the Respondent’s decision to dismiss her was unreasonable.

The Complainant is heartbroken that she lost her job. The Complainant loved working with children.  The Complainant lives in a small town, and everyone knows that she does not work at the crèche anymore. The Complainant wishes that she could continue to work with children, but she had to take her current job working with the elderly because she has bills to pay.

The Complainant said that she was embarrassed when she was asked why she left.  Even though she had a qualification in childcare she did not apply for other childcare jobs as she felt that her character had been ruined.  She felt that she should have been told the identity of the person who said that she had made a comment about the staffing in her workplace.

The Law

Section 1 of the Unfair Dismissals Act 1977, as amended (the Act), provides the following definition of “dismissal”:

“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.”

Was the Complainant dismissed by the Respondent?

In order to obtain redress under the Act, the Complainant must first show that she was dismissed by the Respondent. 

In Parkboro Developments Ltd T/a Park Engineering v Mariusz Witkowski (UDD2338) the Labour Court noted:

“There can be no absolute rules about what 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.”

Generally, an employee is dismissed when the employer informs the employee clearly and explicitly that the contract of employment is at an end or if the circumstances leave no doubt that dismissal was intended or may reasonably be inferred as having been intended [Desmond Ryan, Redmond on Dismissal Law (3rd ed., Bloomsbury Professional, 2017) at 22.13].  Where ambiguous words are used, an objective test should be deployed to decide what was intended by the speaker.  In Devaney v DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal stated:

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

As there is a dispute between the parties concerning whether the Complainant resigned or was dismissed, I must first examine the relevant evidence and reach a conclusion in that regard.

A key area of conflict in this case relates to matters that transpired during the course of a meeting between the Complainant, the Managing Director and the Deputy Manager which took place 13 June 2023.  There is a considerable divergence between the Complainant’s and the Respondent’s respective account of events.  The Complainant contends that she was dismissed at that meeting; the Respondent, however, contends that the Complainant resigned at the meeting.

Findings

The meeting of 13 June 2023 took place in response to comments concerning unsafe staffing ratios which were alleged to have been made by the Complainant to individuals not connected to her workplace and which came to the attention of the Managing Director.

It is clear from her submission and direct evidence, that the Complainant, on whom the burden of proof rests to prove that a dismissal occurred, is of the view that she did not resign her position but rather that she was dismissed by the Managing Director.

It would have been helpful if I had been provided with paperwork to assist me in deciding whether the Complainant resigned or if she was dismissed by the Respondent.   However, this did not happen.  It was confirmed at the hearing that no documentation existed to support either position. The Complainant did not furnish written confirmation of her alleged resignation and the Respondent did not issue written confirmation of the Complainant’s alleged dismissal. The Respondent did however, on the advice of its HR advisors, prepare a contemporaneous note of the meeting of 23 June 2023 which was exhibited at the hearing.  This note, which was not signed by the Complainant, supports the Respondent’s position. 

The Complainant considered the meeting on 13 June 2023 to be a disciplinary meeting.  She contends that the grievance procedures which were set out in the staff handbook were not followed; there was no investigation, she did not get an invitation to the meeting, and she was not accompanied by a colleague.

The Respondent, however, contends that the meeting on 13 June 2023 was not a disciplinary meeting. In response to questioning from the Adjudication Officer, the Managing Director said that prior to the meeting she had sought advice from the Respondent’s HR advisors. She was advised to have an informal chat with the Complainant.  The Managing Director confirmed to the Adjudication Officer that she had previously dismissed an employee for gross misconduct.  In that case, she had sought advice from the Respondent’s HR advisors and followed the Respondent’s disciplinary procedure. I am of the view that the Respondent’s evidence regarding the nature of the meeting, supports its contention that it was not a disciplinary meeting and that the Complainant resigned and was not dismissed.

I note that the Complainant asserted that she was dismissed because the Respondent had lost trust in her.  I find it strange therefore, that the Respondent permitted her to remain in employment for a further four weeks after her alleged dismissal.  Surely, if the Respondent had lost trust in the Complainant, it would not have permitted her to continue to work with the children in its care for another four weeks.

I further note the Complainant’s evidence that the Respondent offered to facilitate her in finding a new job during her final four weeks in its employment.  I also note that the Respondent presented the Complainant with flowers and chocolate on the last day of her employment.  Neither of these actions appear to me to be consistent with the Complainant’s contention that she was dismissed by the Respondent.

In reaching a conclusion in this case, I am guided by the findings of the Labour Court in DWT 1018 Rezmerita Limited v Katarzyna Uciechowska where the Court held:

“In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case. There was also an absence of any probative independent corroboration on either side. The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities. In Miller v Ministry of Pensions [1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

“[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not”

Where dismissal is in dispute, the initial burden rests with the Complainant to establish facts from which an Adjudication Officer can determine that a dismissal has occurred. I find that the Complainant has not discharged that burden. Accordingly, on the balance of probabilities, I find that the Complainant was not dismissed by the Respondent on 13 June 2023 as she has alleged but that she resigned her position.

Having carefully considered the submissions and evidence of the parties and having regard to all of the circumstances surrounding this dispute, I find that this complaint is not well founded.

Doubt as to dismissal