Complainant

Respondent

Parties

Máiréad  Hanlon

North Kerry Day Care Centre Limited Trading As Ard Cúrum

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Eamon Murray, Eamon Murray & Company

Mairead Carey, Carey Solicitors

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-00062572-001

03/04/2024

The Complainant commenced employment as a Physical Activity Project Worker on 20 February 2018. She worked 20 hours per week and was paid €15 per hour. She stated that she was dismissed by the Respondent when she indicated her intention to resign on an unspecified date in the future.

The Complainant stated that she regarded her job as being an outdoor role, visiting people in social centres and day care centres across Kerry. In January 2021, she received a call from the Respondent instructing her to report for work in the Fuschia Centre. The Complainant stated that this constituted a change in her terms and conditions of employment because her role was one that involved working outside in the community.

As a result of this instruction from the Respondent, she endured significant stress and was signed off sick. She subsequently referred a complaint to the WRC under the Terms of Employment Information Act 1994 stating that her terms and conditions had been changed without her consent and that she had not been notified of same in writing. She stated at the subsequent WRC hearing on 17 October 2023 that it was not her intention to return to her employment.

The Respondent subsequently wrote to her on 19 October 2023 stating that they were accepting her “resignation”. When the Complainant subsequently replied on 23 October 2023 to clarify that she had not in fact resigned and challenged their acceptance of her “resignation”, the Respondent refused to change their position and informed her that they did not want any further correspondence from her. The Complainant also wrote in November 2023, December 2023 and February 2024 clarifying once again that she had not in fact resigned but the Respondent did not engage with her.  

The Respondent asserted that the Complainant stated under oath at a WRC hearing on 17 October 2023 that it was not her intention to return to her employment. They stated that they waited to see if she intended to resile from this position but when they did not hear from her, they wrote to her accepting her resignation. The Complainant reiterated in subsequent correspondence to the Respondent that it was her intention to resign, but that she would not put it in writing until it suited her. As it was clear she would not be returning to work, the Respondent stated that they were entitled to conclude that she had abandoned her employment.

THE LAW

The Act at Section 1(b) defines dismissal and constructive dismissal in the following manner

“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,

This is an extraordinary case in that there was no termination of the contract of employment by the Complainant only an indication at a WRC hearing on 17 October 2023 that she intended to resign at an unspecified date in the future. A reasonable employer would have contacted the Complainant after this indication to seek clarification before accepting any such resignation. Incredibly, the Respondent in this case did not do so and stated that they waited instead to see if the Complainant would resile from her intention to resign. When she did not do so, they effectively took advantage of her indication to do so and wrote to her accepting her “resignation”.

My view that the Respondent effectively took advantage of the Complainant’s “resignation” is supported by the fact that they wrote to her on 19 October 2023, only two days after she indicated her intention to resign at the WRC hearing, accepting her “resignation”. When the Complainant subsequently replied on 23 October 2023 to clarify that she had not in fact resigned, which was clearly the case, and challenged their acceptance of her “resignation”, the Respondent steadfastly refused to change their position and informed her that they did not want any further correspondence from her. Even though the Complainant also wrote in November 2023, December 2023 and February 2024 clarifying once again that she had not in fact resigned, the Respondent did not resile from their position.   

Given that the Complainant did not resign from her employment, I find both that the Respondent terminated her employment, and that this dismissal was unfair.

The Law:

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(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, 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, 

(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 financial loss referred to in that subsection was attributable to an act, 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,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

3) In this section—

“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;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Findings

I find that the Complainant was unfairly dismissed for the reasons set out above. In considering the appropriate remedy, I gave serious consideration to the Complainant’s re-instatement because of the egregious treatment of her by the Respondent as outlined above. Given that she stated that she was only seeking compensation however, I have decided to make an order of compensation.

The Respondent’s representative highlighted, without prejudice to her submission that the Complainant had not been unfairly dismissed, that as she had failed to sufficiently mitigate her loss, any award should be minimal. In considering this assertion, I note that there is conflicting case law around the calculation of an award of compensation with many decisions focusing solely on the efforts of a Complainant to mitigate their loss and appearing to disregard the conduct of the employer in relation to the dismissal. This is, in my view, at odds with the legislative provisions set out above and, in calculating the compensation to award in the instant case, I have regard to the decision of the Adjudication Officer in ADJ 32667, where she stated, inter alia, that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

In examining section 7(2)(a), I find, as outlined above, that the Respondent acted wholly unreasonably in dismissing the Complainant. The peremptory nature of the dismissal was underscored by the refusal to engage with her following her attempts to challenge their acceptance of her “resignation”. In considering section 7(2) (b) and (f), I find that the Complainant made no contribution to the termination of her employment. Furthermore, I determine that section 7(2)(d) and (e) of the Act do not apply in this case because there was no disciplinary issue. Considering section 7(2)(c), it is worth noting that the Complainant provided little evidence of mitigation.

Given the egregious conduct of the Respondent surrounding the dismissal and the Complainant’s insufficient efforts to mitigate her financial loss, which I found are the only elements of section 7 (2) above applicable in the instant case, I make an award of €6,500 in respect of the unfair dismissal.