Complainant

Respondent

Parties

Noreen  Hanley

Friends Forever, Castletownbere (amended on consent)

Representatives

  Appeared In Person

 Appeared In Person

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-00058138-001

04/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00058138-002

04/08/2023

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

CA-00058138-003

04/08/2023

On 4 August 2023, the Complainant, a Lay Litigant submitted three complaints before the WRC. She submitted that she had been unfairly dismissed on 20 February 2023 from her position as a Cleaner in a Childcare setting. She submitted that she had not received the minimum rates of pay as set out in the Employment Regulation Order for Contract Cleaning. Finally, she submitted that she had not been notified in writing of a change in the terms of her employment.

On 18 August 2023, the Respondent was placed on notice of the three complaints. The Respondent did not file a rebuttal or a defense to the claims at that point.

Both parties were invited to hearing on the remote platform on 29 January 2024.

On 14 January 2024, the Complainant submitted her outline submission in the case, which was shared with the Respondent.

On 25 January 2024 I wrote to the Respondent seeking whatever submissions they were choosing to rely on at hearing. The Respondent filed a short outline submission.

The case came to hearing on 29 January 2024. the Hearing was conducted as a Remote hearing by a designated body in accordance with Section 31 the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020, as amended.

During the course of the hearing, the Respondent agreed to make an outstanding payment to the complainant under the second claim.

CA-00058138-002.

The Complainant agreed to notify the WRC on or before February 2024 that the matter was resolved and consequently withdrawn.

In the absence of that message, on 12 February 2024.  I wrote to the complainant for an update in this aspect of the case. The matter was not withdrawn, and I will now move to decision in the matter. I did not receive any explanation as to why the agreed mutual plan for resolution and withdrawal was disturbed and unfulfilled.

At the conclusion of the hearing, I requested the Respondent provide some supplementary documents, which were subsequently shared with the complainant, but did not illicit a response from her.

The Respondent legal title has been amended on consent to reflect the correct legal title for the Respondent.

The Complainant commenced work as a cleaner in a childcare setting on 31 August 2020. She submitted that she had earned €220.00 gross per week in respect of a 20-hr week. The Complainant appeared in her own case and submitted that she had received independent advice to help her make her case.

Application to extend time in the second and third named cases, for reasonable cause.

CA-0005818138-002

CA-00058138-003

The Complainant requested an extension of time for reasonable cause. she submitted that she contended that her claims were in time.

The Respondent, when asked to comment on the application to extend time argued that “well, if it’s not in time, it’s not in time “

CA-00058138-001 Claim for Unfair Dismissal

The Complainant submitted that her employment was terminated by the Respondent on 20 February 2023. She outlined that she had been a part time worker from August 2020 and had received a written contract and staff handbook.

The Childcare facility changed ownership in September 2021. Ms Martina Doody took over the operation of the Creche.

The Complainant submitted that her working hours were reduced to 15 hrs per week over the Summer, 2022, but did not resume at the 20 hrs.

In October 2022, the Complainant received a message that her hours were to be reduced to 4 hrs per week to “economise “and “the staff were going to clean their own rooms “The Complainants reservations of this reduction were not heard.

The new work pattern 1.5 hours for hoovering all floors, 1.5 hrs for mopping and 1 hour for bathrooms and changing area “

On 5 January 2023, the Complainant picked up on a service complaint from the Respondent.

She sought to reply that she understood that the staff were meant to address this aspect of the cleaning but did not receive a response.

On 14 February 2023, the Respondent placed the complainant on one weeks’ notice that she was no longer needed as of 20 February 2023” because the level of cleaning was not up to TÚSLA standards.”

This was a surprise for the complainant as the respondent procedural framework on disciplinary had not been utilised.

The Complainant exhibited an extract from online premises report on compliance with the external inspection which she argued did not criticise her cleaning. She did not put forward the named authors of the report as witnesses.

The Complainant submitted that the Respondent was not justified in dismissing her for work performance as they had not followed their own procedures.

The Complainant found new work at 15 hrs per week on 13 May 2023.

On 20 June 2023, the Complaint sought to invoke a grievance which challenged the dismissal and sought a response within 10 days.

She sought re-instatement and compensation in respect of the unfair dismissal.

She sought €226.20 in pay differential, €11.00-€11.55 rate per hour.

She sought €92.40 in payment in lieu of notice.

She sought a withdrawal of the criticism of her cleaning skills and an apology.

On 17 July 2023, she received a response from the Respondent which did not resolve the matter and the complainant referred three complaints to the WRC in early August 2023.

Evidence of the Complainant:

The Complainant submitted that she was troubled by the steady decline in her hours of work from mid-2022 onwards. She understood the reduction emanated from a local closure of “pods “at the creche.

The Complainant confirmed that she survived financially with DSP support as a short time worker “X, O “casual category.

The Complainant expressed confidence in her cleaning performance.

She did not recall receiving any disciplinary sanctions from the respondent. She was unaware of the disciplinary policy of March 2021.

She confirmed that she was without work for three months following her dismissal before securing work with a Contract Cleaning company.

During cross examination, the complainant again disputes any issue with her performance in her cleaning role. She disputed having access to a staff handbook.

She expressed some peace of mind at retaining her weekend work pattern as it meant that she wasn’t expected to engage with the managers.

The Complainant confirmed that she received legal advice from an Advisory service. She was seeking either the remedy of re-instatement or compensation for financial loss of €554.50.

The Complainant did not place any names before the Respondent on who exactly was provided with contracts of employment.

CA-00058138-002 claim for Minimum rates of pay set out in the Employment Regulation Order (ERO)

The Complainant has submitted that at €11.00 per hour from August 2020 to September 2022 that she ought to have been in receipt of €11.55 per hour from 1 April 2022.

She raised this underpayment in July 2022 and received an assurance from the Respondent that her pay would be remedied to the new hourly rate of €11.55 on September 1, 2022, following a contract renewal. The Complainant had not received a new contract, yet her hourly rate increased to €11.55 per hour on 16 September 2022.

The complainant exhibited a respondent text dated 18 July 2022

“You are currently being paid €11.00. your pay will increase on 1/9/2022 to €11.55 and there will be no back pay given. In order for back pay to be given a new employment contract would need to be given and signed by both employer and employee. This I will do and have ready for Sept 1…. “

The Complainant sought payment of €226.60 in respect of 412 hours differential in €11 to €11.55 per hour.

CA-00058138-003 Notification in writing of a change to terms of employment

The Complainant submitted that she had not received a statement of the change in her pay.

 She expanded this by outlining that she had been promised a new contract in the July 18, 2022, email which did not materialise.

She argued that all staff were told that they would receive a new contract on 18 January 2023, but this did not occur.  The Complainant sought a remedy under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent has disputed two out the three submitted complaints.

The Respondent came to hearing as a lay litigant, who had prepared a brief outline submission in the case.

Ms Doody, for the Respondent, clarified the correct legal title for the Respondent and agreed to amend the title.

MS Doody confirmed that she took over the operation of a previously run community Creche / Childcare facility on August 1, 2021, and she retained the staff present at that time. She acknowledged that the 20 hrs cleaning allocated to the complainant was thought to be “a huge amount of time to be cleaning in any one week “

The business had transitioned from a Community to a Private creche at point of changeover in August 2021.

The Respondent submitted that she had reservations regarding the complainants cleaning skills and staff began to echo her concerns.

By October 2022, the complainants’ hours had been reduced to 4 hrs a week, tailored to weekend attendance with staff cleaning their own rooms.

By January 5, 2023, the Respondent had cause to point to a further deficiency in the complainants cleaning. Things did not improve and a Túsla investigation later that month identified “stains under sinks in one of the bathrooms “

The Respondent remained unhappy with the complainants cleaning performance.

On 14 February 2023 the Respondent informed that complainant that she was no longer required from February 20, 2023, due to the service gap in the cleaning required at the creche.

The Complainant did not serve her notice and directed her “so you best get another cleaner “

The Respondent undertook to send in the live Disciplinary Policy, operational in February 2023 as she disputed knowledge of the disciplinary procedure relied on by the complainant in her papers.

The Respondent submitted a contract of employment signed by the Complainant from October 2020 and minutes from a staff meeting in January 2023.

She also exhibited revised contracts signed by staff who remained at the creche.

CA-00058138-001 Claim for Unfair Dismissal

The Respondent disputed that the complainant was unfairly dismissed. Ms Doody relied on the defence available to her in Section 6(4)(a) of the Unfair Dismissals Act 1977 when she submitted that the Complainant had failed to clean the Creche to Túsla standards which caused her to terminate her employment.

Ms Doody operates a Creche with a Manager and 14 employees. She confirmed that she dismissed the complainant on 17 February 2023, when directed by her that “she had better get another cleaner “as she had not served her notice.

Evidence of the Respondent

Ms Doody submitted that following her take over of the Community Creche in August 2021, that she had concerns about the quality of the cleaning from the outset. The Complainant, the sole cleaner was retained on 20 hrs per week, which covered evenings and weekend presence.

She was receiving feedback from staff that areas were not well cleaned, which in turn caused them to have to take up cleaning duties.

By Summer of 2022, the complainants’ hours were reduced to 15 hrs. By the end of September, the complainant was unavailable for work, followed by two weeks sick leave.

She was disappointed in October 2022 to learn that the complainant had deserted a leak, without follow up reportage.

Ms Doody said that she was not happy with the complainant’s standard of cleaning and reduced her to weekend attendance, only.

By the external Inspection of 24 January 2023, she was firmly of the viewpoint that the cleaning service did not match the Regulations required.

Ms Doody submitted that she had given the complainant several warnings and had engaged in several negotiations to seek to correct the shortfall. She confirmed that she had applied a verbal warning to the complainant in January 2023, before finally placing the complainant on notice of cessation of employment on 14 February 2023.

She countered any desire the complainant might have to go back when she submitted that “I do not want her back, ever “

Ms Doody confirmed that the complainant was the sole cleaner and no other dismissals had followed the external investigation in January 2023.

The Complainant did not appeal the decision taken to dismiss her.

During cross examination, Ms Doody confirmed that the verbal warning linked to January 2023 had not been committed to writing. She confirmed that specific criticism of the standard of cleaning had not been set out in the external report.

In response to clarifications, Ms Doody confirmed that the matters which led to the dismissal had not been addressed via an investigation. She acknowledged that she had not considered any lesser sanctions short of dismissal as her priority was the Integrity of her business which was being damaged by the low standard of cleaning.

The Complainant put to the Respondent that following a staff meeting of 24 January 2023, all staff were promised contracts the next day. The respondents agreed that contracts were planned, but that it was a “fluid “process lasting over 5/6 months.

CA-00058138-002 claim for Minimum rates of pay set out in the Employment Regulation Order (ERO)

The Respondent contended that the claim was submitted outside of the statutory time limits.

Subsequently during the hearing, the Respondent conceded the claim.

The Respondent agreed to forward the retrospective pay, discussed at hearing to the complainant.

I followed this up with the complainant as she was to withdraw this claim once that sum had been received, but I have not been informed that the matter was actioned as agreed at hearing.

CA-00058138-003 Notification in writing of a change to terms of employment

The Respondent contended that the claim was submitted outside of the statutory time limits.

The Respondent submitted that the complainant was not denied a contract. This was work in progress. Ms Doody maintained that the Complainant was not in line for a notification in writing of a change to her terms of employment.

I have been requested to make a decision in these three cases. In reaching my decisions, I have had regard for the parties written, oral submissions and the evidence adduced at hearing.

Both parties attended in their own cases.

This is a case which has as its backdrop a Transfer of Undertakings in August 2021, when a community run creche was taken over by the Respondent and the complainant, then, one year in employment as a 20 hr Cleaning Operative was retained in employment.

The Legislative framework for this transition is covered in:

European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (Consolidated)

S.I. No. 131 of 2003

Regulation 5 of this SI 131/2003 has a historical context in this matter, where dismissal of itself as a result of transfer is prohibited, save, for economic, technical or organisational change reasons.

I have not been provided by any written surety issued by the Respondent to the complainant, which confirmed that a transfer of undertakings had occurred here, however, the Respondent confirmed that she was compelled to retain the complainant in employment post transfer in August 2021.

5. Dismissals and termination of employment

(1) The transfer of an undertaking, business or part of an undertaking or business shall not in itself constitute grounds for dismissal by the transferor or the transferee and such a dismissal, the grounds for which are such a transfer, by a transferor or a transferee is prohibited.

(2) Nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons which entail changes in the workforce.

(3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment.

(4) If a dismissal of an employee, in contravention of paragraph (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to [2015], relief may not be granted to the employee in respect of that dismissal both under these Regulations and under those Acts.

The claim before me is for unfair dismissal and not a contravention of the above Regulations. I am merely placing a specific context on the background to the change of ownership in August 2021.

CA-00058138-001 Claim for Unfair Dismissal

The Complainant has submitted that she was unfairly dismissed on 20 February 2023. She accepts that she did not work beyond the 17 February 2023.

The Respondent has relied on the defence contained in Section 6(4)(a) of the Act that the complainant’s performance as a cleaner fell short of what the respondent required and thus justified her dismissal.

The Law on what constitutes an unfair statutory dismissal is set out in Section 6(1) of the Act.

Unfair dismissal.

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Respondent defence is set out in section 6 (4) (a))

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(7) of the Act permits an Adjudicator to measure the reasonableness of the Respondent conduct in relation to the dismissal.

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

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

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

Before, I advance in my findings, I would like to offer some feedback to the parties in relation to this employment.

While I appreciate that both parties disagreed on the availability of conflict resolution measures at this employment, it is very clear to me that the contract, in being since October 2020, and in the possession of both parties, provided tools for both parties to seek to resolve the issue of cleaning standards much sooner.

I am satisfied that the extract from the staff handbook exhibited by the Complainant dated March 2021 provided a comprehensive and fair disciplinary procedure.

Equally a comprehensive grievance procedure was available to the Complainant to contest the slow erosion of her working hours from Summer 2022 to the termination of employment.

Neither party utilised the procedures outlined above, yet these procedures were clearly constructed to resolve such difficulties for each party.

I must now return to the circumstances of the instant case and the dismissal outlined in the 14 February 2023 email, which in essence arbitrarily terminated a 2.5-year employment and was not accompanied by dialogue, discussion or opportunity to appeal.

Just as an employment relationship is built on mutual trust and confidence, its cessation must be examined carefully.

When the Respondent took over the responsibility for the complainant’s employment in August 2021, she was working a 20-hr week. The Respondent reconfigured the work pattern and adjusted it downwards to 15 at first in Summer 2022 to an eventual 4 hrs a week from October 2022.

This resulted in the Complainant relying on social welfare to subsist.

I accept the Respondents evidence when she told the hearing that she had reservations around the complainants cleaning standards from 2021. However, what is difficult to reconcile is that she did not take any corrective action to fix this.

I understand that the Respondent honestly believed that she negotiated improvements in standards with the Complainant, but no records of these discussions were retained or exhibited by her.

The issue of the contended verbal warning in January 2024 was not recorded anywhere. I cannot accept it existed.

However, the issue of the Túsla Investigation of January 2023 was relied on by the Respondent as substantial grounds which in turn justified dismissal.

I am clear from the evidence that the Respondent did not have this completed report by the time she wrote the email of dismissal on 14 February 2023. The email was co signed but the second signatory, who did not attend the hearing.

The decision taken to dismiss the complainant was not prefaced by investigation or disciplinary procedure. It was instead a knee jerk reaction to receiving some negative feedback on the service.

Dismissal is meant to be an action of last resort not the first action taken.

I have not identified any consideration for measures short of dismissal and I am particularly struck by the lack of any consideration of the impact a dismissal would have on the complainant.

I have found that the dismissal was a disproportionate reaction by the respondent, who simply ran out of patience with the complainant. She did not record or retain statements of her concern of cleaning standards at any time before January 2023. She chose not to manage the complainant.

The absence of any dialogue or discussion on the topic renders the actions of the respondent to be completely unreasonable.

The Complainant ought to have been allowed an advocate of her choosing. She was not heard in her dismissal and was denied fair procedures. The area in which this case is set is a small community. I found a distinct lack of regard by the respondent for the complainant’s reputation.

The absence of an appeal of the decision taken renders the action careless and not in keeping with the actions of a reasonable employer.

The complainants’ hours of work had been steadily eroded from Summer 2022 to October 2022 from 20 hrs per week to 4 hrs per week.

The complainant endeavoured to resolve this matter by her contact of July 17, 2023, but this was rejected out of hand by the Respondent.

I am satisfied that the dismissal was substantially and procedurally unfair as the Respondent refused to be bound by her own employment procedures and the complainant  was denied fair procedures and natural justice .There was a clear disregard for measures short of dismissal .

I found the High Court case of Frizelle and New Ross Credit Union from 1997, Flood J , to be of help in reaching my decision .

“The actual decision , as to whether a dismissal should follow , should be a decision proportionate to the gravity of the complaint , and the gravity and effect of the dismissal on the employee .”

I have found that the Complainant was unfairly dismissed.

CA-00058138-002 claim for Minimum rates of pay set out in the Employment Regulation Order (ERO)

I could not establish a declaration on the pay relationship between the Employment Regulation Order for Contract Cleaning and the instant employment, none the less, I am satisfied that pay was related to the ERO, historically. I am also satisfied that the reduction in pay was meant to be restored in October 2022, but instead was reduced.

However, this claim was submitted outside of the statutory time limit allowed for this claim at

Section 41(6) of the Workplace Relations Act, 2015

6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I have not established any reason to extend time in accordance with Section 41(8).

The claim is not well founded.

CA-00058138-003 Notification in writing of a change to terms of employment

I found some difficulty in establishing what the complainant was seeking under this heading. I accept that she wanted to pursue a lack of notification of a change in her pay from July 2022.

However, this claim was submitted outside of the statutory time limit allowed for this claim at

Section 41(6) of the Workplace Relations Act, 2015

6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I have not established any reason to extend time in accordance with Section 41(8).

The claim is not well founded.

CA-00058138-001 Claim for Unfair Dismissal

I have found that the Complainant was unfairly dismissed. I have taken evidence on financial loss. I am mindful that the complainant found new work which was more favourable in hourly rate by May 2023.

I find that compensation is the practical remedy open to me in this case. There is no remedy open to me in ordering an apology for the respondent assertions outside of the plain comment that the respondent did not formalise  or validate any assessment of the complainant’s performance at any time.

 The Complainant has found new work, more favourable in pay but not in tenure. The Respondent was emphatic that she did not want to re-instate the complainant. I accept that submission on this occasion as the employment is not salvageable.

In assessing the facts of the case, my attention has been drawn to the complainants eroding pay scale from July 2022 from €220 per week to €175 euros per week and subsequently to €46.20 per week from October 2022 (inclusive of the pay rise to €11.55)

I am satisfied that the pay was meant to be restored in Autumn 2022 but instead was further eroded to 4 hrs.

In order for me to identify the correct salary on which to measure compensation, I have had regard for:

Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 (Consolidated)

S.I. No. 287 of 1977

At Regulation 4

In the case of an employee who is wholly remunerated in respect of the relevant employment at an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by him, his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked for the number of hours that was normal for the employment together with, if he was normally required to work overtime in the relevant employment, his average weekly overtime earnings in the relevant employment as determined in accordance with Regulation 5 of these Regulations.

I have found that I must calculate the weekly earnings in accordance with Regulation 4 and in terms of the last week of June 2022 at €11.55 per hour for a 20-hour week, as being normal for the employment, as exhibited on the contract of employment exhibited by both parties at hearing.

= €231.00

Section 7 of the Unfair Dismissals Act 1977

 c) (i) 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 (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances

I order the Respondent to pay the Complainant €5,081 in compensation for the unfair dismissal. This sum is comprised of

12 weeks actual loss at €2, 772

2 weeks minimum notice €461.00

8 weeks estimated prospective loss €1, 848, inclusive loss of rights under Redundancy Legislation.

2.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00058138-002 claim for Minimum rates of pay set out in the Employment Regulation Order (ERO)

Section 45A of the Industrial Relations Act, 1946 requires me to decide on whether a contravention of the ERO has occurred .

The claim is not well founded as it was submitted outside of the statutory time limits permitted.

CA-00058138-003 Notification in writing of a change to terms of employment

Section 7 of the Terms of Employment ( Information )Act 1994 requires me to make a decision in accordance with Section 5 of that Act .

The claim is not well founded as it was submitted outside of the statutory time limits permitted.

Unfair Dismissal, Employment Regulation Order, Notification of a change in terms of employment