ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00056193

Parties:

Complaints:

Date of Adjudication Hearing:  01/07/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Act 1973 and Section 12 of the Minimum Notice & Terms of Employment Act 1973  following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant contends she was unfairly dismissed following an incident at work on 8 July 2024.   Dismissal is in dispute.

Summary of Complainant’s Case:

The Complainant gave evidence on affirmation summarised as follows:

She stated that following an incident on 8 July 2024 in which she was subjected to intimidating and threatening behaviour from her Supervisor Ms B, she was so upset that she had to leave work before her shift ended.  She was told by Ms B “if you walk out that door your job is gone”.  She then went to Sister R, the manager and explained that she could not continue her shift given the situation.  Sister R responded by stating if she left early she would not be welcome back on the premises and her contract would be terminated.  On cross examination, she agreed that she was aware of the grievance and disciplinary procedures.  She elected not to use the grievance procedure as she was told she would have to submit her grievance to the very manager who had subjected her to threats and aggressive behaviour.

She questioned why the Respondent had not made contact with her for many months after she left the premises.  She stated that she had no option but to have considered herself dismissed.

Summary of Respondent’s Case:

The respondent is a registered charity and operates a care home. On 22 February 2022 the complainant commenced employment with the respondent. A permanent contract of employment issued to the complainant on 5 May 2023. The contract of employment contained, inter alia, a grievance procedure and disciplinary procedure.

On the 8 July 2024 a disagreement occurred between the complainant and her line manager as a result of which the complainant left her shift early. Prior to her leaving, the complainant was informed by two members of staff of the respondent that leaving her shift early could give rise to disciplinary proceedings.

On 9 July 2024 Ms B, the complainant’s manager emailed the complainant inviting her to raise a formal grievance. No reply was received to this email. The text of the email was as follows:

I am writing to formally address a significant concern regarding your compliance with the terms of your Contract with us, specifically since July 8, 2024. This breach not only affects our operational efficiency but also undermines the mutual trust and collaboration we strive to maintain. It is imperative that all parties adhere to the agreed-upon terms to ensure a smooth and productive working relationship. 

In light of the above, I must emphasize the urgency of this matter. I require a comprehensive response from you within the next 10 working days, detailing your plans to rectify the situation. Should you fail to respond within this timeframe, we will have no choice but to terminate your contract with immediate effect. I appreciate your prompt attention to this matter and hope to resolve this issue amicably. Should you have any questions or require further clarification, please do not hesitate to reach out.

On 17 October 2024, the complainant replied by way of letter enclosing a ‘formal complaint’ document. In both the covering letter end enclosed complaint, the complainant asserts that she was dismissed from her employment. This is denied by the respondent.

On 31 October 2024, Sister R responded to the complainant’s letter confirming that no decision was made to terminate the complainant’s employment. Further, it was indicated to the complainant that she was in fact welcome to return to work.

On 7 November 2024 the complainant replied indicating her belief that she had been dismissed by the respondent as follows:

Please note that following an incident occurring on Monday 8th July 2024 at approximately 1:30pm, my position as Carer for St. Columban's Nursing Home was terminated and I consider myself to been unfairly dismissed wherein I was informed by my Line Manager that "if you walk out that door, your job is gone" and was further informed by my boss that "if you leave your shift early you will not be welcome back on the premises and your contract will be terminated". This arose after an extremely intimidating and threatening conversation with my Line Manager TB which a left me in a such a distressed state that I felt I could no longer continue with my shift that day and had requested to go home.

My understanding is that having been told by two superior staff members that my job would be gone and contract would be terminated if left, that I had been immediately dismissed without warning or notice. Please note that I reserve the right to submit a claim to the Workplace Relations Commission for unfair dismissal in addition to claims for outstanding holiday pay and for pay relating to my notice period. In circumstances where I receive a response with a reasonable offer of resolvement, along with payment for my notice period and untaken annual leave within seven days from the date hereof will consider not proceeding to the Workplace Relations Commission for claims in relation to these aspects. I await hearing from you by return and am open to considering any offers you may wish to make at this juncture to resolve the matter and in particular to discharge outstanding holiday and notice pay to me as a matter of urgency.

On 17 November 2024 the respondent replied in clear terms setting out once again that the complainant was not dismissed, but that she had now resigned her position. In those circumstances the respondent indicated that the complainant would receive payment of accrued annual leave in the sum of €426. The respondent further indicated that as the complainant had resigned her position and had not given notice, she was not entitled to any notice pay. Finally, as a gesture of good will the respondent offered to pay the complainant the sum of €700. This proposed sum was offered on an ex-gratia basis as a gesture of good will and in no way connected with any assertion of wrongdoing on behalf of the respondent its servants and/or agents.

On 29 November 2024 the complainant replied in the following terms:

As I stated in my last email, my understanding is that having been told by two superior staff members that my job would be gone and contract would be terminated if left, that I had been immediately dismissed without warning or notice on July 8, 2024.

I wish to reiterate my very clear position that I did not decide to cease my employment, I was very clearly informed by my Line Manager that "if you walk out that door, your job is gone" and was further informed by my boss that "if you leave your shift early you will not be welcome back on the premises and your contract will be terminated". This arose after an extremely intimidating and threatening conversation with my Line Manager TB which left me in such a distressed state that I felt could no longer continue with my shift that day and had requested to go home.

I am writing to inform you of my decision to submit this claim to the Workplace Relations Commission for unfair dismissal. Similarly, I am eligible to submit a claim under the Minimum Notice and Terms of Employment Act 1973 for outstanding notice pay, as well as under the Organisation of Working Times Act for unpaid holidays. I am declining your offer of an 'ex gratia' payment as it is in my best interest to submit the above claims to the Workplace Relations Commissions.

The respondent replied on 5 December 2024 as follows indicating the very clear position that the complainant was not dismissed and was in fact given every opportunity to return to work.

It is of course your prerogative to avail of the services of the WRC. I would, however, encourage you to reflect on the content of my previous letters to you. It is clear to us that you were not dismissed, and further, that in spite of any misunderstanding that may have arisen on July 8th 2024 you were given every opportunity to return to duties and for any grievances or other issues to be resolved. In these circumstances, as we did not dismiss you, the issue of us giving notice to you did not arise.

For the avoidance of all doubt, between July and October 2024 the respondent had continued to roster the complainant for hours of work.

On 31 November 2024 a final payslip issued to the complainant comprising of holiday pay.   The complainant has not yet been ceased on Revenue or Payroll by the respondent.  The complainant lodged the Complaint Form on 6 January 2025.

The complainant alleges through her complaint form and as set out in the correspondence above, that she was directly dismissed from her employment. This is denied. It is submitted that the complainant resigned her position on 7 November 2024 by indicating that she would not return to work. In those circumstances, the fact of dismissal is in dispute, and the burden of proof rests with the complainant. In that respect the respondent relies on the Labour Court decision of Longford Co Co v Joseph McManus, UDD1753, where it was held:

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined”

Other Case law was cited in support of the Respondent’s position. Vasilveca v Maybin Sports Services (Ireland) Ltd UD1655/2012,

In Devaney v DNT Distribution Company Ltd, UD 412/1993, the EAT found:

“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.”

At the outset it is worth noting that the respondent does not accept the complainant’s version of events relating to her alleged dismissal. The complainant was not told that she would be dismissed if she left her shift early.   Rather, the was informed that if she left her shift early, it may constitute a disciplinary action. The respondent will provide sworn testimony in this regard and will require the complainant to be available for cross examination. In relation to direct dismissal,

Section 1 of the Unfair Dismissals Act 1977 defines dismissal as follows: “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, or

In light of the foregoing, the respondent submits as follows:

1. The complainant was not dismissed. At no point was she told by any servant or agent of the respondent that she was dismissed. The complainant was informed that should she leave her shift early; it may have been a disciplinary issue. The disciplinary procedure defines absenteeism as a form of minor misconduct. In the circumstances, no disciplinary action was commenced in respect of the complainant;
2. On the day following the incident at the core of these proceedings, the complainant was contacted by the respondent and invited to submit a grievance. She did not respond to this communication and did not attend for work despite having been continually rostered;

iii.As the complainant had not presented for work, the respondent wrote to her enquiring of her status;

1. Nothing in the conduct of the respondent could give rise to a reasonable inference that the complainant was dismissed from her employment. She was given every opportunity to return her employment;
2. The respondent ultimately resigned her position on 7 November 2024 and received the requisite holiday pay.

CA-00068438-002: MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973

The complainant resigned her position. In those circumstances section 4 of the Minimum Notice & Terms of Information Act 1973 does not arise. Section 4(1) provides as follows:

An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

As outlined above, the respondent did not terminate the complainant’s contract. In the circumstances, the respondent would have been entitled to a notice period of two weeks pursuant to the complainant’s contract of employment which provides as follows:

Should you wish to resign from the Company you must give 2 weeks' notice in writing to your manager.

In the circumstances, the complainant is not entitled to the relief sought nor any relief.

Evidence on affirmation was given by Line Manager Ms B and the Employer Sister R.

Both denied that they stated to the Complainant that if she left her shift early she would not be welcome back or her contract would be terminated.

Ms B stated that she sent an email to the Complainant that day to ask her to come in and discuss matters but the email address was incorrect.  Another email was then sent to the Complainant on 9 July 2024 asking her to respond urgently to what had happened on 8 July 2024.

Sister R stated that she was the employer and she did not dismiss the Complainant.  When the Complainant approached her after the 8 July incident, she told her to return to the Nursing Home and sort the problem out and if she left her shift early that would be a disciplinary matter.

Evidence on affirmation was given by Ms K, Health Care Assistant who confirmed that she was aware there was a disagreement between the Complainant and Ms B regarding break times as she observed them talking at the end of the corridor.  She did not hear screaming or shouting. The Complainant was upset and said she was leaving.

Findings and Conclusions:

CA-00068438-001             Unfair Dismissals Act 1973

The fact of dismissal is in dispute in this case.  The Respondent contends that the Complainant was not dismissed following an incident on 8 July 2024.  The Complainant contends that she was dismissed by the two people who had responsibility for the employment, Ms B when she stated that “if you walk out that door your job is gone”, and Sister R when she stated if she left early she would not be welcome back on the premises and her contract would be terminated.  Both witnesses deny they said those words.

Section 1 of the Unfair Dismissals Act 1977 defines dismissal as follows: “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..

The question to be addressed is was the Complainant entitled to consider herself dismissed?

I note the sequence of events and correspondence which followed the incident on 8 July 2024.

There was a conciliatory email sent by Ms B to the Complainant asking her to make contact and submit a grievance.  However, this email was sent to the incorrect address.  Then a rather less conciliatory email was sent on 9 July 2024 which is contained in the Respondent submission, extract as follows:

I am writing to formally address a significant concern regarding your compliance with the terms of your Contract with us, specifically since July 8, 2024. This breach not only affects our operational efficiency but also undermines the mutual trust and collaboration we strive to maintain…   I require a comprehensive response from you within the next 10 working days, detailing your plans to rectify the situation. Should you fail to respond within this timeframe, we will have no choice but to terminate your contract with immediate effect…

The Respondent then sent a formal letter to the Complainant on 10 October 2024 with essentially the same wording as the 9 July email.  The Complainant wrote a detailed letter on 17 October 2024 outlining her account of the incident on 8 July 2024.  The response to that was on 31 October 2024 when the Respondent outlined that there is a grievance procedure and in order for the letter of 17 October 2024 to be considered a grievance and to be dealt with accordingly, the Complainant must return to work.  The Respondent also stated quite clearly that not attending for work would be a breach of contract.    The wording of the correspondence of 9 July and 10 October 2024 confirms the Respondent’s position that there was a breach of contract.  Therefore it follows that a disciplinary procedure should have been instigated by the Respondent.

The disciplinary code in the Respondent employment is quite clear in that an investigation must be conducted and the employee has entitlements in the process. I note that despite the Respondent’s contention that dismissal was not mentioned but disciplinary action was mentioned on 8 July 2024, no such disciplinary process was instigated.  No contact was made with the Complainant until 10 October 2024 when the Respondent wrote to the Complainant along the same lines as the 9 July email.  Even if I believe the Respondent referred to ‘a disciplinary matter’ rather than termination of contract in the conversations, the fact that the Respondent failed to follow up leads to the conclusion that the Complainant did consider herself to have been dismissed.  As there was no due process as provided for in the Respondent’s code of Disciplinary procedures, I find the Complainant was unfairly dismissed.  I consider re-instatement or re-engagement not to be appropriate remedies in the circumstances where the employment relationship has been irretrievably broken.  I note the Complainant’s evidence in relation to mitigation of losses and I award her the sum of €2,040 compensation.

CA-00068438-002: Minimum Notice & Terms of Employment Act 1973

As I found the Complainant was unfairly dismissed, I find that she was entitled to 2 weeks minimum notice.  I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €510.

Decision:

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-00068438-001             Unfair Dismissals Act 1973

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Based on the findings and reasons above, I have decided that the complaint is well founded.  I award the Complainant the sum of €2,040 compensation.

CA-00068438-002: Minimum Notice & Terms of Employment Act 1973

Section 12 of the Minimum Notice & Terms of Employment Act 1973 requires that I make a decision in accordance with the redress provisions under that Act.

Based on the findings and reasons above, I find the complaint to be well founded.  I require the Respondent to pay to the Complainant the sum of €510.

Dated:   21-08-25

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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