Complainant

Respondent

Parties

Meenaz  Sheikh

Asba Meats Limited

Representatives

Victoria Stephens, SIPTU

 Did not attend

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-00054816-001

01/02/2023

The Complainant commenced her employment with the Respondent on 1 April 2021 as a HR Manager. She was dismissed on 28 November 2022.

On 1 February 2023, the Complainant referred her claim to the Director General of the WRC alleging that she was unfairly dismissed.

The hearing for the purpose of investigation of the Complainant’s claim was scheduled for 14 September 2023. Correspondence informing the parties of the arrangements for the hearing issued on 21 July 2021. There was no attendance by, or on behalf of, the Respondent. The Complainant and her representative attended the hearing. The Complainant’ representative, Ms Stephens applied for an adjournment on the basis that the Complainant’s former representative had left SIPTU and she would now take over the case.  The adjournment was granted.

The second hearing was scheduled for 23 November 2023 and the parties were notified of the arrangements for the hearing on 23 October 2023. There was no attendance by, or on behalf of, the Respondent at the hearing. The Complainant attended the hearing with her representative. At the adjudication hearing, the Complainant informed the Adjudication Officer that her complaint has been resolved between the parties. She withdrew the complaint and authorised the WRC to close the file on 8 December 2023 unless she specifically countermands this request. On 8 December 2023, the Complainant informed the WRC that she did not wish to withdraw her complaint as the Respondent did not honour the settlement.

Another adjudication hearing was scheduled for 13 March 2024, and the parties were notified of the arrangements on 30 January 2024. The Complainant and her representative attended the hearing. The Respondent did not attend the hearing. An employee of the Respondent hand delivered a letter from Mr Tareq Khan, Director of the Respondent to the Adjudication Officer dated 13 March 2024. The letter stated as follows:

“We requested that the hearing for the above mentioned case be postponed and was told we have to do it in person today. We are very sorry for any inconvenience caused but our legal representative is unavoidably unavailable today due to unforeseen circumstances. We will really appreciate it if this hearing can be postponed to a later date when she will be present to represent us. Thank for understanding.”

The Respondent’s letter confirms that the Respondent was informed that it needed to attend the hearing to apply for an adjournment. The Respondent did not attend the hearing. There was no explanation offered for the non-attendance. Neither was any clarification offered as to the unavailability of the Respondent’s representative. The employee who attended on behalf of the Respondent was given time to call the Respondent and inform it that the adjournment would not be granted. However, given, the proximity of the Respondent to the hearing venue, a short recess was offered in the event that the Respondent decided to attend the hearing.  It was confirmed that the Respondent would not attend. The hearing proceeded in the absence of the Respondent.

SIPTU, on behalf of the Complainant, submits as follows.

The Complainant commenced her employment with the Respondent as a HR Manager on 1 April 2021. The Complainant worked  approximately 43 hours a week and her rate of pay was €14.42 per hour. The Complainant’s weekly pay was €620.06.

The Complainant worked for the Respondent for approximately 19 months and she was dismissed from her employment on 28 November 2022 when her employment permit was to lapse. The Respondent assured the Complainant that it would apply for a Stamp 1 permit for her. However, it did not do so. The Complainant, in the meantime, secured renewal of her Stamp 1G on two occasions.

The Complainant was dismissed on 28 November 2022 without any disciplinary process and was not provided with an opportunity to appeal the dismissal.

The Complainant has received correspondence from the Respondent post-dismissal seeking to settle this claim. However, this has never been followed through.

The Complainant is seeking compensation.

Summary of direct evidence of the Complainant

The Complainant said in her evidence that her work permit (stamp 1G) was to expire in October 2023. The Respondent kept promising her that it would apply for a Stamp 1 permit for her but this never materialised. The Office Manager instructed the Complainant to seek a professional service provider that deals with work permit applications. However, when the Complainant contacted one, the provider was informed that the Respondent would not authorise the Complainant’s application. The Complainant said that she herself obtained two extensions of her stamp 1G to allow her work legally at all times.

The Complainant said that on 28 November 2022 she was 15-20 minutes late for work, as were other staff. Mr Tareq Khan, Director got very angry with her. He said very insulting things about the Complainant and told her to “get lost” and “don’t come back”.  The Complainant thought that she was singled out because she had raised concerns about some activities of the Respondent that, in her view, might have been illegal.

The Complainant said that she secured new employment from March 2024. She could not recall the exact date.

The Complainant was asked about her efforts to mitigate her losses. As no information was forthcoming, the Complainant was given an opportunity to furnish any evidence she might have regarding her efforts to mitigate her losses within a week from the date of the adjudication hearing. No such evidence was received.

The Respondent did not attend the hearing.

Section 6 of the Unfair Dismissals Act, 1977 in relevant parts provides as follows:

6. Unfair dismissal

(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.

 (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.

(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.

The burden of proof to show that a dismissal was not unfair rests with the employer. The Unfair Dismissals Act requires that the employer must be able to show that fair procedures were followed and that there existed substantial grounds justifying the decision to dismiss.

In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: 

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (S.I. No. 146/2000) sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures.

The combined effect of the above requires me to consider whether or not the Respondent's decision to dismiss the Complainant was reasonable in the circumstances. It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent's position and circumstances, would have acted in the same way. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

Procedural Framework

The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·       That employee grievances are fairly examined and processed;

·       That details of any allegations or complaints are put to the employee concerned;

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The core tenet of the Code is that all employees are entitled to fair procedures and natural justice in all of their engagements with their employer.

Based on the totality of the uncontested evidence adduced, both written and oral, and the submissions made, it is abundantly clear that the Respondent did not follow any procedures before dismissing the Complainant. The Respondent’s actions were contrary to the norms of employment relations practice which requires that the dismissal of an employee is effected in line with S.I. 146 of 2000,

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet, UD1294/2008. 

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited [1973] IR 388, stated that:-

"This court in re Haughey [1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

In light of the above, I find that the dismissal of the Complainant was procedurally unfair.

Substantive matters

In Bunyan v United Dominions Trust (Ireland) 1982 ILRM 404, the EAT endorsed and applied the view in the case of N.C.Watling Co Limited v Richardson 1978 IRLR 225 EAT (ICR1049) where it was stated: “The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether, on the evidence, before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded’’.  

It appears that the Complainant was not informed of the reasons for her dismissal. She was not informed of any alleged shortcomings on her part and she was not the subject of any investigation or disciplinary procedures. On the basis of the uncontested evidence of the Complainant, I find that her dismissal was unreasonable in the circumstances.  Accordingly, I find the Complainant was unfairly dismissed.

Redress 

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of section 6 of the Unfair Dismissals Act. Accordingly, I find that the complaint is well founded.

Section 7 Redress for unfair dismissal of the Act provides:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(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, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Acts provides: -

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”

Section 7(3) of the Act provides that future loss may be taken into account as follows: “financial loss, in relation to the dismissal of an employee, 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”.

In accordance with the provisions of Section 7(1) of the Act I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case. In the circumstances, I have decided that reinstatement or re-engagement of the Complainant are not practical options in this case. Instead, I take the view that compensation is the appropriate redress in this case.

The Complainant’s uncontested evidence was that her weekly wage was € €620.06. Her evidence was that she secured new employment in March 2024.

Section 7(2)(c) provides that in examining the financial loss, the Adjudication Officer must have regard to the measures adopted by the employee to mitigate her loss. The legislation does not allow the Adjudication Officer to award compensation in an amount that goes beyond the financial loss attributable to the dismissal.

Therefore, as an award of compensation for unfair dismissal is to make reparation for financial loss actually incurred in consequence of a dismissal, I sought specific details on the losses incurred and the efforts made to mitigate those losses. As no details were forthcoming at the adjudication hearing, the Complainant was given an opportunity post-hearing to furnish any evidence regarding her efforts to mitigate her losses. No such evidence was provided.

Therefore, in all the circumstances of this case and owing to the failure of the Complainant to provide details of her efforts to mitigate her loss, I award her compensation under the Acts in the amount of €2,480.24 i.e. four weeks’ pay.

I find that the Complainant was unfairly dismissed and the complaint is well founded.

I consider it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €2,480.24 i.e. four weeks’ pay.

Unfair dismissal – no mitigation of loss-