ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00011922
A fieldmarketing company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 31/05/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
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 to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced employment with the Respondent 27/07/2015 and this employment terminated on 20/10/2017. The Complainant was employed in a merchandising capacity and worked 8 hours per week for which she received a gross payment of €75 per week.
The Complaint, referred under section 8 of the Unfair Dismissals Act, 1977 was received by the Workplace Relations Commission on 13th November 2017.
Summary of Respondent’s Case:
The Respondent fully rejects the claim of unfair dismissal.
The Respondent was aware that the Complainant had unfortunately suffered a miscarriage in early September 2017 and as such she was unable to carry out her duties, a replacement person was employed to cover her work until the Complainant was fit enough to return to work.
Several requests were made to the Complainant that she provides the Respondent with a letter from her doctor confirming that she was fit to return to work – she did not provide this letter.
During the second week of October the Complainant carried out three calls unknown to the Respondent and without furnishing the ‘fit to return to work’ letter requested by her employer. This was the cause of concern by the Respondent.
The Contract of employment issued to the Complainant was a “Specific Purpose Contract” and quite clearly states “where the employment is determined by the duration of the Contract with the client”.
Summary of Complainant’s Case:
In September 2017 the Complainant suffered a miscarriage at home and was hospitalised for some days. She also injured her back when she collapsed at home and was taken to hospital by ambulance. The Complainant was an in-patient in hospital from 23rd to 28th September 2017.
With regard to her employment with the Respondent the Complainant made an effort to help in finding a replacement to carry out her duties until such time as she was fit enough to return to work.
The employer was aware of the situation and sent the Complainant a text message whilst she was in hospital enquiring about a return to work date and the also highlighted the need to produce a letter from her doctor stating that she was fit for work. The Complainant could not provide such a certificate until, at least, the following week as she was still unfit.
On 17th October the Complainant returned to both her shops where she was well welcomed by the Client.
On Wednesday 18th October the Complainant received a telephone call from her employer to inform her that the Respondent company had lost the contract with both shops, it is alleged by the Complainant that the Respondent informed her that he was not surprised at this as the performance of the cover during her absence had led to this decision being taken by the client. It was during this call that the Respondent informed the Complainant that due to the short notice he would try and arrange two weeks’ pay for her.
The Complainant also alleges that she was informed by another employee that she had been forwarded on an email stating that the Complainant had requested her P45.
When the Complainant requested a letter outlining the reasons for her dismissal she received no reply other than a short text message to say they were sorry for the loss of hours and if anything else came up she would be considered. The Complainant points out that on checking the company website they are still advertising for merchandisers countrywide.
The Complainant feels that she was mistreated by the Respondent in this situation as she was already dealing with an extremely emotional and stressful situation and that the Respondent took advantage of this.
Findings and Conclusions:
There can be no doubt that this was an extremely upsetting time for the Complainant.
At hearing the contract of employment was not available and to date still has not been received.
There are two letters that require consideration:
1. Letter to the Complainant dated 20th July 2015 from Respondent MD offering employment to the Complainant and refers to Specific Purpose Contract (where the employment is determined by the duration of the Contract of Work with the client).
2. Letter to the Complainant dated 26th July 2015 from Respondent MD offering employment to the Complainant and refers to a Fixed Term Contract (where the employment is determined by the duration of the Contract of Work with the client).
No one present at the hearing could explain why there are two slightly different letters issued. What is consistent in both letters is that both state that the duration of the contract of employment is the duration of the business contract with the client. The business contract with the client appears to have ended on 18th October 2017 and this fact was communicated to the Complainant during the telephone call received by the Complainant on the same date and confirmed by text message on Thursday 19th October 2017 at 9.32am.
I cannot consider the question of notice under section 8 of the Unfair Dismissals Act, 1977.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(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.
The dismissal of the Complainant was brought about by the Respondent losing the business contract with the client – this is clearly stated in both letters referred to above.
For this reason alone the complaint under the Unfair Dismissals Act of 1977 has to fail.
Dated: September 19th 2018
Workplace Relations Commission Adjudication Officer: Jim Dolan