Complainant

Respondent

Parties

Emma  Doyle

Annie's Corner Limited

Representatives

  Self

Self

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-00058278-001

14/08/2023

The Complainant is a waitress and college student. She commenced working for the Respondent on the 6 August 2020.   The Respondent operates a coffee shop.  The Complainant worked part-time and was paid €12 per hour.  The employment relationship ended 20 July 2023.

They Complainant's case is that she was unfairly dismissed without notice on the 20 July 2023. The Respondent owner said to her at the time of her dismissal were "I don't think I have a position for you. Also, the state of the copy area was left on Tuesday evening was not acceptable".

The Complainant submitted that during her employment with the Respondent, she was not involved in any disciplinary or performance related issues. She never received a warning either written or verbal.

In March 2023 she was preparing for her final year degree exams. She asked the Respondent owner to take off the roster from late March until after her exams were over in May. This was a period of less than eight weeks. She asked for this time as study leave to prepare for her final exams.  She gave evidence that the Respondent asked for her to give the date of her return as soon as she had finished her exams. She explained that there was no question that she would not be back to work.

She explained that she never received a contract of employment.

After the Complainant completed her exams in May, she contacted the Respondent owner by text and informed her that she was available to return to work on 18/19 May 2023. The Respondent rostered her for the following week and the next shift she worked was 18 May 2023.  She returned to work to the same position carrying out the same duties as she did in March 2023.

She didn’t receive a new contract or staff handbook. 

She continued to work for following 10 weeks until the Respondent terminated her employment. She calculated that during this period she worked 201.07 hours with an average of 20.1 hours per week.

On the 19 July 2023, the Complainant asked the Respondent owner not to roster her for work on the 23 July 2023 and 24 July 2023. The reason for this was that she had received notification of an interview for her Masters Degree Course. She explained that she needed time to prepare for the interview which was being held on the 24 July 2023.

She received a reply on the 20 July 2023 from the Respondent Employer that shocked her. It set out

"Hi Emma, I have your shifts covered for tomorrow and also Sunday. Your availability is so limited that I don't think I have a position for you anymore. Also the state of the coffee area was left on Tuesday evening was not acceptable. Best of luck with the Masters but I need someone that is available to work weekends as it's not fair on staff who are available then thanks for everything".

The Complainant replied

"Hi Aine, I think this is an awful way to terminate someone's employment. Are you really sacking me by text with no notice??"

The Respondent Employer replied:

"Yeah I am I'm very annoyed at how badly the place was left and that you spent over on your break. It's hard to keep asking someone to do their job"

The Complainant replied stating

" I always leave the place spotless. You have never ever complained to me about how I clean the place. What are doing to me here is very wrong. I would not treat you the way you were treating me".

The Respondent replied:

"It wasn't let spotless on Tuesday. You spent over on your break. You were late twice in the past two weeks. It's not personal but I need people who work hard and don't take the piss out of me and my business. I have to do what's best for business and from what I see and from what other staff have said they are carrying you in work. It's not good for staff morale".

The Complainant responded:

"Can you send me photos of the way the place was left please. This is not true."

The Respondent owner replied:

"I opened on Wednesday and saw for myself. I don't have photos. Also you spend 53 minutes on your break but signed for 45. I can't go around micromanaging people. You know the break times are 45 minutes. I have spoken to you about the issues with your work before”.

In a later text, the Respondent Owner said that the Complainant was on probation.

In response to a query on that, the Respondent Employer replied

"You are back to work since the end of May. You terminated your previous contract. I better go I have work to do, take care".

The Complainant's case is that she did not determine, resign or terminate her contract when undergoing her study leave.

The Complainant was not on notice of any the allegations made which grounded the decision to terminate her employment.

She submitted that she never took extended lunch breaks.

She said the work she carried out on the earlier Tuesday was no different to the work she carried out the previous three years.

Her evidence was that the Respondent never raised with her any issue of alcohol or being under the influence at work. 

As regards her limited availability, the Complainant pointed out that she was a part-time worker and for the 10 weeks prior to the termination of her employment, she worked on average more than 20 hours per week. She worked every second Sunday as requested by the Respondent.

The Complainant identified the lack of procedures leading up to the termination of her employment.

The Complainant gave evidence of her efforts to mitigate her loss.  She stated that she approached 8 local businesses looking for a job. She was not called for interview and felt that "word was out" about the termination of her employment. She said this affected her self-esteem and confidence. Ultimately, she gave up looking for a job and was in receipt of jobseekers allowance. She has since commenced her studies for her Masters degree.

The Respondent owner gave evidence.  She set out that the Complainant had resigned verbally from her position at the end of March 2023. She compared the Complainant to the student who travelled abroad on a J1 visa. When a student left to travel, they resigned, but sometimes the student would return to employment.  She said she never kept “ a job open for a student” and that the only time she allowed a staff member to go on extended leave was for maternity leave.

She said that the Complainant informed her that she would finish work on 26 March 2023 and that would be her last working day. The Respondent paid her “last pay” on the 27 March 2023 together with holiday pay.  The Respondent asked for her resignation in writing, but it was not provided.

When the Complainant commenced working again for the Respondent she was provided with a new contract of employment. This contract was given to the Complainant in the workplace. The Complainant didn't sign the contract or return it to the Respondent.

She submitted that under the terms of the Complainant's new contract, she was on probation.

The Respondent owner gave evidence regarding the ongoing issues she had with the Complainant with her work. She explained that the Complainant notified her by text on 24 June that she was sick and would not be in work.  The correct procedure was that the Complainant telephone to say that she was sick and would not be in work.

She explained that the Complainant was 2 minutes late on 27 June 2023.

She described how the Complainant took longer breaks that she was entitled to. She did not identify what date this occurred. She was aware of this because another member of staff reported it to the manager.

She gave evidence that on the 9 July 2023, the Complainant attended work smelling of alcohol and the Respondent considered her to be under the influence.  Under cross examination she accepted that she did not send the Complainant home. The Respondent gave evidence that ‘maybe she should have sent her home’, but instead she allowed her to continue working.

Overall, they Respondent had an issue with the Complainant's poor work performance. She was conscious she was on probation and take into account all of the above, her position was that the Complainant was guilty of gross misconduct and was entitled to terminate the Complainant's employment without notice.

The coffee shop Manager gave evidence and stated that the Complainant had advised her that she had "handed in her notice" on the 26 March 2023. She said Complainant had said to her that she hoped to return to work “if there was a position available for her”.

She said that the Complainant's work ethic had declined when after she commenced working in May 2023. She verbally spoke to the Complainant about cleanliness and closing up. She had issues with the Complainant not cleaning the coffee machine or the work surfaces and floors. She said her efficiency had declined and the “quality of her coffee making had slipped”.

She gave evidence that she had checked the CCTV cameras having received a complaint from another staff member that the Complainant had gone on breaks longer than she had signed for.  She noted the Complainant had taken longer than she had signed off for.

A co-worker gave evidence.  Said that she was very close to the Complainant and counted her as a friend. She said that the Complainant had told her that she was leaving her employment and hoped to return in the summer.

During the hearing, the Respondent owner made reference to her accountant providing a new contract to the Complainant and taking her off payroll. The accountant did not attend at the hearing and no direct evidence was given in this regard. 

In the Respondent’s written submissions, I was provided with handwritten notes but there was no indication that these were contemporaneous notes and from reading them they did not appear to be so.

I was provided with a payroll submission report dated 23 May 2023. The context of this was not explained at the hearing.

I was provided with a written contract signed by both the Respondent owner and Complainant dated 22 August 2020.  I was provided with a written contract which contained up-to-date employment provisions than the 2020 written contract. This was not signed by the Respondent or dated.

The burden of proof in an unfair dismissal claim is on the Respondent.

Subsection (1) of the Unfair Dismissal Act contains the general overriding proposition that the dismissal of an employee is deemed to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying dismissal.

Subsection (6) further provides that, in determining whether the dismissal was unfair or not, it will be for the employer to show that there were substantial grounds justifying the dismissal.

Dealing firstly with the Respondents submission that the Complainant resigned from her employment in March 2023 and was reinstated under a new contract in May 2023, the evidence on the fact of resignation was in dispute.  The Labour Court has stated the ‘general rule’ as follows:

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end.”

The Respondent owner relied on the Complainant’s verbal resignation and stated that she had requested the Complainant's resignation to be put in writing, however she did not receive this.

The evidence from the Complainant and the Respondent witnesses is at variance but both sides evidence did refer to the Complainant returning to work after her exams.  The Manager’s evidence was that the Complainant “hoped to return if there was a position available” and the co-workers evidence was she “hoped to return in the summer”.    

Having considered the evidence presented to me both oral and in writing and the fact that the Complainant was a student and worked part time and the short period of time for which the Complainant was not in the workplace which coincided with her final year college exams, I prefer the evidence of the Complainant that she did not resign for her employment on the 26 March 2023 but instead asked to be provided with study leave and to be taken off the roster for the period of her exams. The Respondent may have believed that the Complainant had resigned, however the lack of clarity as to what was taking place in March 2023 should have been identified and followed up with by the Respondent. Also, the Complainant's text of 11 May 2023 did not read as a text from a former employee seeking to be re-engaged on a new contract of employment.  The text was

"Hey Aine, how are you haven't spoken in ages!

Just said I'd send you a quick text-I'm flying through my final paper and feel like I'll have it done sooner than expected. If you need me to fill in shifts Thursday or Friday next week let me know. (18th/19th).

Therefore, I find that the Complainant had continuity of service since the commencement of her employment on 6 August 2022 to the ending of her employment on 20 July 2023.

Moving onto the grounds justifying the dismissal namely of

-availability

-competence

-conduct

It is accepted in the case law that for an employer to meet the standard of reasonableness, before dismissal, it should first tell the employee of the respects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving performance.  See Hennessy v Read & Write Shop Ltd UD 192/1978

No evidence was provided to me that the Complainant was made aware of all allegations and complaints that formed the basis of the dismissal nor that the Complainant was provided with adequate opportunity to deny the allegations or explain the circumstances before the decision to dismiss was taken.  In addition, the question of whether the penalty of dismissal was proportionate to the alleged misconduct needs to be addressed.

 Section 6(7) of the Unfair Dismissal Acts sets out

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

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.]

In Kilsaran Concrete v Vet UDD 11/2016, the Labour Court noted that there were “certain fundamental requirements” of fair procedures that could not be disregarded. These included the requirement

(i) to make the employee who is subject of the investigation aware of all of the allegations against him or her at the outset of the process;

(ii) that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and

(iii) in the event that an allegation against the employee is upheld, that any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.

In this case, the dismissal process was fundamentally flawed because the Respondent owner had wrongly concluded that the Complainant was on probation and made the decision to terminate her employment in a vacuum. 

The Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 sets down standards and minimum entitlements for any workplace.  The code sets out that the procedures serve a ‘dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.’

Having heard the evidence both sides, I'm satisfied that the manner of the Complainant's dismissal fell far short of the standard of fairness that could be expected from a reasonable employer. The Complainant was denied an opportunity to address any concerns the Respondent had with regard the cleaning of the coffee shop and at no point was the Complainant advised there were any difficulties with her availability/competence or conduct or that her employment was in jeopardy.

The lack of procedures or fairness in the dismissal was contrary to the most basic requirements of procedural fairness and good practice.

Taking the above into account, I find that the dismissal of the Complainant was unfair.

Regarding redress, the Complainant made reference in her evidence to the impact the dismissal had on her self-esteem and confidence.  Section 7 (1) (c) of the Unfair Dismissal Acts sets out that ‘if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss as is just and equitable having regard to all of the circumstances’.  In Stephens v Archaeological Development Services Ltd [2010] IEHC 540, MacMenamin J. confirmed that, despite the 1993 amendments, the parameters for an award remain “strictly within the realm of financial loss and still do not encompass any scope for a claim under any heading in the law of torts, nor for the awarding of punitive or exemplary damages”.

In Sheehan v Continental Administration Co Ltd UD 858/1999 the EAT set out “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 inform 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.”

Similar views were expressed by the Labour Court in Smith v Leddy UDD 74/2019 where it was said that the Court expected to see “evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”.

I note that the Complainant incurred financial loss attributable to the dismissal, however I am not satisfied with the efforts by the Complainant to mitigate her loss arising from the termination of her employment. I note that the Complainant made limited efforts to find new employment and I find it difficult to accept that a student was not able to secure similar part-time employment in a busy country town in the summer months.  I note that the Complainant commenced her Masters degree at the start of September 2023.

As regards the calculation of the Complainant's average salary, the hours she worked on her return on 18 May 2023 were a multiple of the hours she worked at the start of 2023.  I was not provided with the Complainant's tax deduction cards for 2022.  I have calculated the Complainant's wage in 2023 as an average of €195 per week.

Having considered the facts of this case and the serious flaws in the procedures adopted by the Respondent in the summary termination of the Complainant's employment, I award the Complainant compensation of 6 weeks’ pay amounting to €1,170.00.

This complaint is well founded. I award the Complainant compensation of six weeks’ pay amounting to €1170.00.

Dispute as to resignation. Unfair dismissal