ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004373
Complainant / Respondent
Anonymised Parties Montessori Teacher / Montessori School
Representatives Shane Geraghty BL instructed by Emeria Flood, Solicitor Nooney & Dowdall Solicitors
Gerard Carty Connellan Solicitors
ActComplaint/Dispute Reference No. Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00006312-001 02/08/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00006312-002 02/08/2016
Date of Adjudication Hearing: 21/04/2017, 9/06/2017 and04/09/2017
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The Respondent made a preliminary application on whether there was a valid compliant before Workplace Relations Commission (WRC). The Complainant wrote a letter to the WRC on the 16th of January 2016 enclosing correspondence between herself and the Respondent stating that she had made numerous attempts to find a resolution to the termination of her employment asking for the WRC “to assist her in this regard”. The Complainant received a reply from the WRC dated the 2nd of February 2016 with advice as to how to proceed with her complaint. Details of the Irish Human Rights and Equality Commission were also given to the Complainant if she believed her dismissal was motivated by her disability. The Complainant wrote another letter on the 30th of May 2016 which was received by the WRC on the 6th of June 2016 again asking for the office to assist. The Complainant engaged a firm of solicitors and they wrote to the WRC on the 27th of July 2016. The Complainant’s solicitor completed a Workplace Relations complaint form and lodged same with the WRC on the 29th of July 2016 received by the WRC on the 2nd of August 2016. The Respondent’s position is that complaint form was not lodged with the WRC until the 29th of July 2016 received on the 2nd of August 2016 which was outside the statutory period for making a complaint. Section 41 of the Workplace Relations Act 2015 governs the presentation of complaints and referral of disputes. Section 41 (9) (a) states that a complaint to which this section applies shall be presented to the Director General under sub section 1 by giving notice thereof in writing to the Director General and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister. Section 41 (17) repeats same. As no statutory forms have been introduced by the Minister for Business, Enterprise and Innovation, I accept that the Complainant’s letter of the 16th of January 2016 constitutes the presentation of a complaint to the Director General in accordance with Section 41. At the hearing, I drew the parties attention to the case of O’Halleron –v- Guidant Luxembourg S.A.R.L. (UD 708/2006). I am bound by this decision. I find that the Complainant’s letter of the 16th of January 2016 was sufficient to initiate the claim for unfair dismissal and failure to provide minimum notice. In any event the matters complained of were well within the knowledge of the Respondent. Therefore, I find that I have jurisdiction to hear the claim.
Summary of Complainant’s Case:
As dismissal as a fact was in dispute, it was for the complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Unfair Dismissals Act 1997 as amended. The Complainant gave evidence that she started employment in 2008 in childcare facility/ Montessori school. A transfer of undertaking took place and the Respondent became her employer in 2012. In 2011, the Complainant was diagnosed with limb girdle muscular dystrophy. She notified her employer at the time. Her deterioration was slow. She had no issues with her employment. Her employment was uneventful until July 2015. At the end of June 2015, the Montessori school had broken up and the Complainant was laid off for the months of July and August. This was as usually occurred. She received a text from the Respondent on the 15th of July 2015, asking her to organise a staff night out for a colleague. The Complainant replied texting that was no problem. On the 20th of July 2016, the Complainant received a text from her employer asking if she would be at home at 2.30pm that day as the Respondent wanted to “chat” with her. The Complainant replied giving the house number and asking if everything was ok. The response from the Respondent was “just need a chat”. The Complainant’s evidence was that the Respondent called to her house between 1.00pm and 2.00pm. The Respondent was upset when she came to the house. She advised that there were issues with insurance and the HSE because of the Complainant’s “condition”. The Complainant gave evidence that it was a short meeting. She said the Respondent indicated that “disability benefit was there for her”. The Complainant’s evidence was that it was made clear to her that her job was gone. She said there was no mention of medical assessment at the meeting. She was in tears. The Respondent was also in tears. Her evidence was that there was no other way to take the conversation other than her employment was gone. Later that day, she sent a text to the Respondent texting “can you ask someone else to organise [redacted]’s night…….. just no interest in trying to get everyone together”. She received no reply to that text. The following day she sent a further text to her employer “just wondering if you could put in writing what you said to me yesterday about my job as social will need to know etc. that I didn’t leave of my own accord or won’t be entitled to payment thank you”. The Complainant’s evidence was that she received a phone call later on the 21st July 2015 from the Respondent and that the Respondent said in the call that she had to do this “for insurance, for her business, for her family or they would be on the street”. The Complainant gave evidence that the Respondent used words that “she (the Complainant) was a liability and that she might fall on a child”. The Respondent stated she would give the letter in writing when she has it ready and worded appropriately. The Complainant’s sister gave evidence that she was in the kitchen with her sister when the Respondent telephoned her 21st of July 2015. She said she could hear the Respondent screaming down the phone at the Complainant. The Complainant conveyed to her what was said on the phone and her sister wrote it down for reference. There is a series of texts between the Complainant and the Respondent in July and the start of August 2015. The Complainant wrote a letter to the Respondent on the 6th of August 2015. In the letter, she expressed her shock and disappointment regarding the meeting of the 20th July 2015 and set out that she was informed that her job would not be available to her from September 2015 due to an insurance problem. She asked the Respondent to set out in writing the reason for the dismissal. There was further correspondence between the parties which I have noted. The Complainants evidence was that she considered her employment ended after the 20th of July 2015. There was never a mention on that day about attending a medical examination with the company doctor. She felt that the Respondent was backtracking on what took place on the 20th of July 2015 in later arranging this medical appointment with a local GP. The Complainant’s evidence was that she should have been back at work at the start of September 2015. Instead the parties were involved in an exchange of correspondence. Under cross examination it was put to the Complainant that by letter the 1st of September 2015 the Respondent wrote to her disagreeing with her take on the meeting which took place on the 20th of July 2015. The Respondent set out in that letter that she did not dismiss her during the meeting and confirmed that her “position remains open for you here”. The Complainant reiterated that it was her belief that she was being let go from her job. The Complainant gave evidence as regards her employment status post the ending of her employment in July 2015. She gave evidence that she fell pregnant in September 2015 and her baby was born in May 2016. She has been looking into courses/re-education but was not looking for full time work. She gave evidence that she did look for employment, however the documentary evidence for same was ad hoc. She confirmed that she registered with the Department of Social Protection. The Complainant gave evidence that she couldn’t look for any job because she wasn’t in the “right place”. When she was pregnant, she was quite ill and she put “everything on hold”. There wasn’t much that she could do at the time because she had to attend hospital. The Respondent’s representative requested that these original handwritten notes the Complainant and her sister made on the 20th July 2015 and 21st July 2015 would be produced for examination at the hearing and they were. In the note of the telephone conversation 21st of July 2015 there was a redaction of two lines which were scribbled out from the original notes. The Complainant couldn’t explain why the two lines were scribbled out. She couldn’t answer what was written under the redaction. Her sister scribbled out those two lines. She had no knowledge as to why they were scribbled out.
Summary of Respondent’s Case:
The Respondent’s case was that there was no dismissal. The Respondent wrote to the Complainant on the 7th of August 2015 advising her that an appointment had been arranged with a local General Practitioner on the 17th of August 2015 at 2.30 at his surgery. The letter set out “The purpose of this medical is to assess your condition (muscular dystrophy) and to confirm whether or not you can carry out the duties required in relation to your work”. By letter of the 15th of August 2015 the Respondent wrote to the Complainant clarifying that she has not and was not at any time dismissed from her employment. She set out she was not sure on what grounds she believed she was dismissed and she went on to assure her that it was never her intention in the conversation she had with her. On the 1st of September 2015, the Respondent again wrote a detailed letter to the Complainant setting out that she did not dismiss the Complainant and her position remains open for her at the Montessori school. She went on to rely on a text message she had sent clarifying that she had not been dismissed. The Respondent’s representative had great reservations regarding the handwritten notes and any attempt to rely on them as contemporaneous notes of what occurred at the meeting of the 20th of July 2015 or the phone call of the 21st of July 2015. The Respondent’s position was that if the notes were to be relied upon, it should be noted that they did not contain the word “dismiss”. The Respondent queried why the Complainant didn’t follow a grievance procedure or contact an independent person to intervene on her behalf. Her position was that the Complainant resigned by looking for her P45. The Complainant just wanted to bring a claim for unfair dismissal and didn’t want to undergo the medical examination that was arranged for her. The Respondent had obtained advice from her accountant to have a medical review of the Complainant as regards her ability to carry out her duties. The Respondent’s evidence as regards the meeting of the 20th of July 2015 was that it was cordial and she didn’t feel that the Complainant was uncomfortable. She gave evidence that she told the Complainant “straight out that she wanted to have her medically assessed”. The Complainant replied that she “knew that this day would come”. The Respondent agreed that she was upset and that the Complainant was upset. She confirmed that the meeting was “outside her comfort zone”. She said when she left the meeting her understanding was that the Complainant would go for the medical and she set about organising that appointment. As regards the telephone call of the following day, the Respondent disputed the Complainant’s evidence as to what was said on the phone. Specifically, she disputed the language that was attributed to her. She gave evidence that she was initially confused with the texts she had received from the Complainant. Initially she thought that the Complainant was asking about a rent allowance form. When she realised the Complainant was referring to “being dismissed”, alarm bells started going off in her head. She already had an employee bring a claim for unfair dismissal and she “smelled a rat”. She felt something else was going on. She disputed the Complainant’s version of what happened on the 20th and 21st of July 2015. She didn’t dismiss the Complainant. She felt that the advisor of the co-worker who had brought an employment rights claim was behind the correspondence from the Complainant and she was afraid of where this situation would end up (meaning a claim for unfair dismissal). Under cross examination, she agreed that after the meeting on the 20th July 2015, the Complainant was distraught and she gave her a hug. She stated that she left the meeting of the 20th of July 2015 upset herself. She said she never had to do something like that before. She went and talked to a colleague immediately afterwards. She said she was upset because the Complainant was upset. She restated that the word termination was not mentioned or discussed. At a later stage during her evidence, she said she didn’t remember making the phone call of the 21st of July 2015. She did admit that she was very stressed and exhausted at the whole incident around this time. She stated that she “wouldn’t be backed into a corner”. She gave evidence that in the days after the meeting, she was on holidays and that may have lead to a breakdown in the communication as to what did and didn’t happen on the 20th of July 2015.
Findings and Conclusions:
The uncontested facts of this case are that the Respondent came to the house of the Complainant during the afternoon of the 20th of July 2015. A conversation took place and the two parties have two different versions of what occurred. The contents of the telephone call of the 21st of July 2015 are also in dispute. The texts and correspondence between the parties from 21st July 2015 until the 1st of September 2015 are available, however both parties rely on a misunderstanding by the other side in reading some of the texts. I have had the benefit of substantial oral submissions in this case over a period of two and a half days. Dismissal is disputed. The meeting of the 20th July 2017 came about at the request of the Respondent. She gave the Complainant no indication of what the meeting was about in her text of that morning. The meeting took place in the Complainant’s home. There was nobody else in attendance either as a note taker or as an independent witness as to what occurred. The Respondent did not immediately follow up in writing with a summary of what occurred at this meeting. Where an employer has used unclear language or ambiguous terminology as to what his/her intention is, I am required to apply an objective test as to how the words used would be construed of by a reasonable person. As the EAT put it in Devaney -v- DNT Distribution Company Limited UD 412/1993 “….where words are genuinely ambiguous 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 “ I have not placed any reliance on the notes kept by the Complainant of the meeting and subsequent telephone call. I have noted the evidence of both the Complainant and the Respondent as to the ending of the meeting of the 20th of July 2015, where both agreed that each other was upset by what had taken place and they hugged. Overall, I found the evidence of the Complainant to be more credible than the Respondent and I accept the evidence given by the Complainant as to what occurred at the meeting of the 20th July 2015 and telephone call of the 21st July 2015. I have noted the texts of the 30th of July 2015 from the Complainant looking for a reference and P45 and the reply of the Respondent on the 4th of August 2015. In particular, the text from the Complainant stating “I am not requesting a P45. I am entitled to it after being let go” The Respondent replied “still require it in writing”. The Respondent had an opportunity to correct the Complainant’s understanding of her employment status in the aftermath of the meeting of the 20th of July 2015 and to reassure her that her employment had not been terminated. The first clarification was by text of the 8th August 2015 which I find was too late to undo the events that preceded it. Having considered the totality of the evidence, I have decided that whether it was intentional or not on the Respondent’s part, the Complainant’s employment was brought to an end by the Respondent at the meeting of 20th July 2015. As there was no grounds justifying the dismissal, the claim for unfair dismissal succeeds. As regards the remedy for dismissal, I find that compensation is the appropriate remedy especially considering the passage of time since the dismissal took place. The remedy of compensation is described in section 7 (1) (c) of the Unfair Dismissal Act (as amended). There is a requirement of the Complainant to mitigate her losses under section 7 (2)(c) of the Act. The Complainant is required to provide evidence that she has made a determined effort to find work. I find that the Complainant has not fully mitigated her loss. This must be reflected in the quantum of the award. However, the test to be applied is one of reasonableness. The case brought by the Complainant was under the Unfair Dismissals Acts and not the Employment Equality Acts. The date of dismissal was the 20th July 2015. The date the hearing commenced was the 21st April 2017. The Complainant gave birth on the 6th May 2016 but due to a misunderstanding did not claim maternity benefit. She gave evidence of attending her local Intreo office 7 weeks after giving birth for an administrative interview. Evidence was provided that she was in receipt of a gross wage of €275.00 per week. I am allowing the complainant her financial loss for the following periods: 2015: 12 weeks 2016: 30 weeks 2017: 10 weeks
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. 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. CA-00006312-001 I find that the Complainant was unfairly dismissed and award her compensation of 52 weeks’ financial loss which amounts to €14,300.00 gross. This is taxable in accordance with the Revenue taxation rules. CA- 00006312-002 As the Complainant was in employment with the Respondent and her predecessor since 1st September 2008, she is entitled to a minimum notice award of 4 weeks. I calculate this at €1,100.00 gross payment.
Dated: 18th December 2017
Workplace Relations Commission Adjudication Officer: Marguerite Buckley Key Words: