FULL RECOMMENDATION
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : BARRY O' CALLAGHAN KILCOCK TEST CENTRE (REPRESENTED BY BARRY O' CALLAGHAN KILCOCK TEST CENTRE) - AND - EDILIA PATRICIA VALAZCO LOPEZ DIVISION : Chairman: Mr Foley Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer Decision No ADJ-00001990.
BACKGROUND:
2. The Company appealed the decision of the Adjudication Officer to the Labour Court on the 22 September 2016 in accordance with Section 9 (1) of the Unfair Dismissals Acts, 1977 to 2015. A Labour Court hearing took place on the 7 February 2017. The following is the determination of the Court:
DETERMINATION:
This is an appeal by Barry O’Callaghan (the Appellant) against the decision of an Adjudication Officer in a complaint made against him under the Unfair Dismissals Acts 1977 – 2015 (the Act) by his former employee Edilia Patricia Velazco Lopez (the Respondent) that she had been unfairly dismissed.
In a decision dated 17thAugust 2016 based on the uncontested evidence of the Respondent the Adjudication Officer found that the Respondent had been unfairly dismissed and awarded her the sum of €3,500 in compensation.
The Appellant was employed from 11thFebruary 2014 until the termination of her employment on 7thOctober 2015.
The fact of dismissal is in dispute.
Factual background.
It is common case that the Respondent was employed by the Appellant as a part-time receptionist. It is also common case that the Appellant and the Respondent were in a personal relationship prior to and during the majority of the period of employment of the Respondent.
It is common case that the Respondent was paid amounts varying between €150.00 per week and €250.00 per week during her employment and that no payslips were supplied to her and no record of hours worked was kept during the period of employment of the Respondent.
The Court was supplied with a P45 Cessation Certificate in respect of the Respondent and it was common case before the Court that the earnings details contained therein were inaccurate.
Summary position of the Respondent.
The Respondent stated that she carried out the role of part time receptionist from February 2014 onwards. She stated that the Appellant employed Ms AE at the beginning of 2015. She submitted that Ms AE was regularly rude to her and that the Appellant had failed to deal appropriately with those circumstances when they arose. The Respondent asserted that Ms AE had increasingly begun to carry out work previously done by the Respondent. The Respondent asserted that a disagreement arose on 7thOctober 2015 between her and Ms AE and that the Appellant had advised her to take a few days off. She stated that she returned to the office ion 15thOctober and that she had been ignored.
The Respondent submitted that the set of events described by her amounted to a constructive dismissal.
Summary position of the Appellant
The Appellant contends that the Respondent was offered part time employment in consequence of his personal relationship with her. He stated that he was providing her with money in any event and decided in 2014 that she should undertake some duties in the employment.
The Appellant stated in evidence that the Respondent worked on a part time basis and that she regularly ‘came and went’ from the employment.
The Appellant stated in evidence that in early 2015 he had employed Ms AE to also work part time. He stated that there was discord between the Respondent and Ms AE during the period from early 2015 onwards. The Appellant stated in evidence that he had never dismissed the Respondent but that she had left the employment in October 2015. The Appellant had no recollection of events on 7thand 8thOctober 2015 and stated in evidence that he made payments to the Respondent after her departure from the employment because he was concerned for her.
Ms AE stated in evidence that the Respondent had not carried out all of her duties after July 2015. Ms AE stated in evidence that she had a disagreement with the Respondent on 7thOctober 2015 following which the Respondent left the Test Centre and never returned. Ms AE stated in evidence that the Respondent had given no indication on 7thOctober 2015 that she was leaving the employment permanently.
The Appellant submitted that the matter before the Court amounted to a complaint deriving from the breakdown of the personal relationship between the Appellant and the Respondent.
Discussion and conclusions.
The Respondent contends that she has been constructively dismissed. It is therefore for her to demonstrate that the conduct of the Appellant was of such a nature as to mean that it was not reasonable for her to continue in her employment. Alternatively the Respondent is charged with establishing that the conduct of the Appellant was such as to undermine the fundamental tenets of the employment relationship.
The employment relationship outlined to the Court appears to contain few of the characteristics of a normal employment relationship insofar as (a) no contract of employment or statement of terms and / or conditions of employment existed, (b) no record of payment in the form of payslips was ever created or supplied to the Respondent, (c) no grievance procedure of a formal or informal nature existed and finally (d) no record of hours worked by the Respondent was ever created. In addition, a Cessation Certificate – P45 – which was the only document supplied to the Court which purported to describe any aspect of the employment relationship was acknowledged by both parties to be inaccurate.
In all of the circumstances of this particular employment relationship where the interaction between employer and employee was unstructured and where the deficiencies in framework of the employment relationship were extensive the Court has concluded that events in the period leading up to and including 7thOctober 2015 can be taken as being of such a nature as leave the Respondent with no alternative but to terminate her employment relationship. The Court finds that the complaint of the Respondent is well founded.
Determination.
The Court determines, for the reasons set out above, that the Respondent was unfairly dismissed and awards the sum of €2,750 in compensation for loss suffered.
The decision of the Adjudication Officer is varied.
Signed on behalf of the Labour Court
Kevin Foley
CO'R______________________
9 March, 2017Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.