ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014432
JJ Fitzgerald & Co. Solicitors
Tom Smyth & Associates
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 26/02/2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
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 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.
The Complainant commenced her employment with the Respondent on 11th June 2009. Her employment was terminated on 6th March 2018.
The Complainant claims that she was unfairly dismissed. She also claims that she did not receive her statutory minimum notice and that she did not receive a statement in writing of her terms of employment.
This complaint was initially scheduled for an adjudication hearing on 29th November 2018. On the day of the hearing the parties informed the WRC that the complaint has been resolved between the parties and the Complainant was withdrawing the complaint subject to the Respondent fulfilling its side of the agreement reached by 6th December 2018. The Respondent did not do so, and the case was re-listed for an adjudication hearing on 26th February 2019.
The parties were unable to provide adequate information in respect of the Complainant’s weekly remuneration. It was agreed at the hearing that the Respondent would calculate the Complainant’s weekly remuneration in accordance with the S.I. 287/1977 Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977. On 5th March 2019 the Respondent provided its calculations of the Complainant’s weekly remuneration amounting to €403.78 gross. The Complainant was given an opportunity to comment. The Complainant did not dispute the figure as calculated by the Respondent.
CA-00018779-001 – Section 8 of the Unfair Dismissals Act, 1977
Summary of Respondent’s Case:
The Respondent submits that as a company involved in waste management it must put weighted importance on health and safety and ensure that it is always compliant with health and safety legislation and guidelines. The Respondent submits that it has a duty of care to both employees and customers to provide a safe place of work and safe systems of work. As such, all staff receive ongoing health and safety training as part of their duties. The Respondent submits that all staff are given an opportunity to review the Company Safety Statement on joining the Respondent company and it is available to staff at all times. The Respondent submits that the Statement outlines the employee’s responsibility to adhering to all instructions and guidance in terms of health and safety.
The Respondent submits that on 28th February 2018 the country experienced an unprecedented weather event causing many businesses including the Respondent to close and, in the interest of health and safety, to send their staff home. (The Respondent exhibited p. 35 of the Safety Statement which refers to adverse weather). The Respondent submits that the country was preparing for a national shutdown and the following day the National Emergency Co-ordination Group Chairman “urged the public to heed the official warnings”. The Chairman said: “the red-alert weather warnings for the entire country, announced late last night, are in place to protect people’s lives”. “Having considered the Met Éireann warning and the likely impact of the blizzard conditions, and for reasons of public safety, we are advising people should not venture out of doors when the red-level warning is in place.” “It would be suicidal to go driving in the conditions, in blizzard-like conditions. Do not be out there from 4pm.”
The Respondent submits that on Wednesday morning 28th February at 10am it informed all staff that they were to go home due to the adverse weather and not to attend until notified safe to do so. The Respondent claims that the Complainant was present at the meeting.
The Respondent claims that, despite this clear and detailed warning, on Saturday 3th March 2018 the Complainant attended the site. Mr D opened the gate to gain access himself as he was coming onsite to check equipment as was Mr S both of whom are management within the company. As there was a delay in the gate closing the Complainant’s colleague’s, Ms K’s car proceeded to follow him. The Complainant informed Mr D that she needed to retrieve a coat. Mr D allowed the Complainant access on that belief and only for that reason and expected that she would get the coat and leave. Ms K was not present for this conversation as she was further down having been trying to get the attention of security to enter. Ms K was therefore not given permission to enter. The Respondent notes that, due to the extreme severity of the weather the decision had been taken not to have security on the building on Friday night as it was felt that it was too dangerous. This security person was now onsite operating a large loading shovel clearing the snow.
The Respondent submits that at this time, on Saturday morning 3rd March 2018 no employee had been given permission to enter the site freely as the health and safety alert had not been lifted. The Respondent argues that, despite this the Complainant did not make herself known on site to the machine operator and transversed the site without the operator knowing she was there and without any PPE. The Respondent submits that the site has various safety signage throughout regarding the mandatory wearing of hi vis and safety boots as a minimum. In addition, the wearing of PPE was covered in the last risk assessment and hazard training which was attended by the Complainant.
The Respondent submits that this was clearly in breach of onsite health and safety guidelines and the Complainant was aware of this.
The Respondent argues that the Complainant informed Mr D that she needed to get a coat and given her actions on the day this was clearly not true. The Complainant further stated in a meeting on 6th March 2018 that she was there to feed the cats. This displays a lack of credibility on the part of the Complainant in terms of reasons for attending on 3rd March and it is still not clear to the Respondent why would she intentionally and willingly ignore and blatantly disregard a status red warning issues on a national level and clear instructions from her employer not to attend onsite until notified safe to do so. The Respondent argues that the Complainant actions were reckless and put her own and the safety of others onsite that day at risk.
The Respondent submits that when it was brought to the attention of Mr R, Operations Manager on Tuesday 6th March 2018, the Complainant and Ms K were called to a joint meeting. Neither party raised issue with this and interpreter was present. When the allegations were put to the Complainant that she had attended on the site, she did not deny this and confirmed that she did attend onsite to feed the cats. The facts were established that the Complainant had attended onsite, and it was clear and evident that there had been a deliberate breach of health and safety instructions. Heavy machinery was operating at the time to clear snow and the operator was unaware that any staff were onsite.
The Respondent further submits that the Complainant did not dully accept the severity of her actions, even at the meeting and whilst other sanctions may have been considered it was felt that this was clear gross misconduct. The Complainant did not provide the Respondent with any assurance that a defiance of direct health and safety instructions would not be adhered to in the future. In her deliberate act to ignore reasonable instructions given for her own safety, the Respondent had no alternative but to find that her behaviour demonstrated a distinct lack of respect for health and safety procedures, for instructions by the Respondent and this coupled with her lying to Mr D for the reason for needing access, constituted gross misconduct. The Complainant’s dismissal was confirmed in writing in both, English and the Complainant’s first language.
The Respondent submits that the Complainant was provided with a copy of the grievance and disciplinary policies in both English and the Complainant’s first language, which outline that any employee not in agreement with a sanction should write to the next level of Management within the Respondent organisation in order for a meeting to be arranged and provide their grounds for appeal in writing. The Complainant did not appeal the decision to terminate her employment.
The Respondent refers to the Company Safety Statement regarding disciplinary action for breaches of health and safety.
In summary, the Respondent argues that it had always acted reasonably with the Complainant and in dealing with past disciplinary matters had not always imposed sanctions and applied fairness in its approach. Nevertheless, this clear and deliberate lack of respect for health and safety measures imposed for the employees’ own protection could allow only one finding of gross misconduct and it was with regret that the decision to dismiss the Complainant was taken. As with all other staff who were notified of the site closure had she conformed to the rules, the Complainant would still be in employment today with the Respondent. The rules of health and safety cannot be substituted or undermined, and the Respondent makes no apologies for ensuring that it complies with health and safety guidelines, direction and legislation at all times.
Evidence of Mr R, Operations Manager
In his evidence and cross-examination Mr R confirmed that on 28th February 2018 at 10.30am the staff were informed of the decision to close the plant until further notice. Mr R conceded that he did not do head count, but he was of the opinion that all supervisors and majority of operators were there. He noted that Mr M, his assistant announced the decision in Polish and Ms A, supervisor passed the information on to other operators. He was confided that the instruction was given to all.
In respect of the disciplinary process, Mr R stated that the issue was brought to his attention on Monday. He viewed the CCTV footage and was satisfied that the Complainant entered the site on Saturday. Mr R stated that the Complainant was called to a meeting on 6th March 2018. She did not raise any issued with Mr M acting as interpreter, asked for a postponement or requested to be accompanied. Mr R agreed that it is probable that he did not speak with Mr D prior to dismissing the Complainant and had he spoken to him it is possible that he would have made a different decision. The Complainant’s representative pointed out that the Complainant stated at the dismissal meeting that she obtained permission from Mr D, who is the Director of the company and Mr R confirmed that he did not verify this with Mr D.
Mr R stated that he did not consider a lesser sanction, he claimed that this was a health and safety event, the Complainant decided to ignore instructions and trust was broken. He was disappointed as he expected more of the Complainant.
In respect of the dismissal letter Mr R noted that normally English version is created first, it is then sent for translation and normally both versions are issued at the same time.
Mr R stated that appeal to the next level of management is always an option offered.
Evidence of Mr D, Director
Mr D stated that the cameras onsite were down on the day in question and he had to check them. The gate was blocked by Ms K’s car, the driver’s door was open, and the Complainant was in the passenger’s seat. She got out and asked about the coat. Mr S, who was accompanying Mr D moved the car. Mr D drove onsite. He stated that he assumed the Complainant would stay outside. Mr D noted that permission was granted to the Complainant only to retrieve her coat and the car could have been left outside the gate if they wanted. Mr D stated that if the Complainant told him she wanted to feed the cats he would not give her permission to enter. Mr D stated that he could not remember seeing the Complainant after permission was sought. He conceded that she could have put her hi vis jacket but he did not take any notice of whether she went to the cloakroom.
Mr D confirmed that he was not interviewed or asked for a written statement as part of the investigation. He further confirmed that there are four directors of the Respondent company, all are family members. He confirmed that the appeal would be heard by a member of his family (a brother).
Summary of Complainant’s Case:
The Complainant gave direct evidence at the adjudication hearing with an assistance of interpreter.
The Complainant submits that she is 46 years of age. She got a job at the Respondent facility in 2009 with an assistance of a friend. She has not worked anywhere else in Ireland. She had no problems over the years with management.
The Complainant submits that she and some other staff members were looking after a number of cats living on site. The Complainant submits that this was with the full knowledge of the management.
The Complainant submits that on Saturday when she arrived to feed the cats the gate was closed. It was clear to her that they cannot entered without a permission. She claims that the “boss’ (Mr D) arrived with another man and she asked if it would be any problem to feed cats. He gave them permission to do so. The Complainant was uncertain why was the coat mentioned now by Mr D, she had her coat at home.
The Complainant says that Mr S moved their car as it was blocking the gate. Mr D drove in first and the Complainant and Ms K followed directly behind him. The Complainant says that they went to the cloakroom and put hi vis jackets on, they fed the cats and returned the jackets to the cloakroom. The Complainant argues that Mr D saw them going to the cloakroom.
The Complainant argues that there was no meeting on 28th February 2018. She claims that the supervisor (Ms A) told everybody to go home and come back to work on Monday, there was no indication was the reason for that.
The Complainant submits that on Tuesday at around 9.30am her supervisor, Ms A told her to go to the office, she was not told what the reason for that was. She was met by the Operations Manager, Mr R, his assistant (Mr M) and health and safety officer. The Complainant claims that she and Ms K were told straight away to clock out. They were never told that their jobs were in jeopardy prior to the meeting. The Complainant says that she cried and repeatedly begged Mr R to change the decision and find another solution. She told Mr R that she had been with the Respondent for 10 years and never had any problems. The Complainant submits that she did not receive any communication in writing that she was dismissed. She was away for two weeks and after her return in the end of March she contacted Mr M in that regard. She said that on the next day she found the letter in her first language in her letter box. She assumes that the letter was hand-delivered as there was no post stamp affixed. She then had to ask Mr M for an English version and she received it on 3rd April 2018.
In cross-examination, the Complainant stated that she was on the way to a petrol station when she saw Mr M leaving the site. The Complainant and Ms K stopped outside the site on the way back. The Complainant stated that they had planned to feed the cats through the fence when the ‘boss’ arrived and allowed them to enter the site. The Complainant argued that no loading shovel was in operation as at this stage there was no snow onsite.
The Complainant denied that she was told about her right to appeal the decision at the dismissal meeting. She also said she did not trust the Respondent anymore.
The Complainant submits that she has not secured a new employment since the dismissal and is in receipt of social welfare benefits. She has not applied for any jobs except submitting her CV to the Department of Employment Affairs and Social Protection. The Complainant argues that English is not her first language and she signed up for English classes (two hours twice a week). The Complainant argues that she worked for 9 years in an environment where she was not required to learn English, which now puts her at disadvantage.
Findings and Conclusions:
Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. The Respondent argues that the dismissal was warranted due to the Complainant’s conduct.
The Unfair Dismissal Act, 1997 stipulates that:Section 6(1) ”Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”
Section 6(4) “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: ...
(b) the conduct of the employee,…”
Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for an Adjudication Officer to have regard to “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to 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 section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.” It is also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. (See Re: Haughey (1971) IR 217). In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures.
My role is not to conduct a further factual investigation and substitute my own judgment for that of the employer but rather to objectively assess whether the decision to dismiss the employee was reasonable for that particular employer in the circumstances.
I find that there was a number of procedural irregularities in the disciplinary processes carried out by the Respondent.
The Respondent has detailed a Disciplinary Procedure in place, a copy was exhibited at the adjudication hearing.
I find that the Respondent did not investigate the matter, as is required and the persons involved were not interviewed. Mr R confirmed at the hearing that had he spoken with Mr D, who was central to this case, he might have made a different decision. I find that it was an unacceptable omission.
Mr R confirmed at the hearing that he was informed that the Complainant attended the site during the period of closure by Mr M, Assistant Operations Manager. Having been informed of the alleged breach of the procedures, Mr R progressed immediately to a disciplinary meeting.
The Complainant, along with a work colleague (Ms K) was called to a meeting with Mr R, the Operations Manager on 6th March 2018. She received no notice of the hearing and no details of the purpose of the meeting was given to her. Similarly, no details of any allegations were put to her prior to the meeting. The Complainant was not given the opportunity to avail of the right to be represented. I note Mr R’s contention that Mr M, Assistant Operations Manager acted as an interpreter. He was also the Respondent’s witness at the meeting as it was Mr M who brought the matter to Mr R’s attention in the first place. Taking account of the role of Mr M in the process I find the Respondent’s request of Mr M to act in the capacity of the Complainant’s interpreter at the meeting improper.
The minutes of the meeting of 6th March 2018 were exhibited at the hearing. Having reviewed same, I am of the view that the Complainant was not given the opportunity to respond fully to any allegations against her. In fact, the Complainant confirms at the beginning of the meeting that she came on site to feed the cats and then speaks again after the decision to dismiss was communicated to her and Ms K saying “can I talk to you more [Mr R] on your decision?”. To which Mr R replies: “I’m sorry but you decided to disregard your and other safety on site and I stand over my decision.” It appears that the Complainant did not speak except of these two short remarks. In fact, at some stage the Complainant having gotten upset left the office and the meeting proceeded in her absence.
I note that very early in the meeting (his fifth statement at the meeting, as per the minutes) Mr R stated: “…I am formally dismissing you from work with immediate effect”. Throughout the meeting Ms K offered a number of explanations and outlined to Mr R that they would have fed the cats from the outside the gate and if Mr D would not have let them in they would not have come in. However, to each attempt to explain the matter Mr R gave replies such as: “That’s not good enough”, “My decision Is final- I want you to clock out and leave the site with immediate effect”, “no compromises” etc.
I find that the Complainant was denied her right to a fair and impartial determination of the matter and representations made by Ms K on behalf of both of them were not taken into consideration.
The Complainant was informed at the meeting that she will be provided with the decision in writing and advised of the “appeal situation”. Thereafter, the Complainant was instructed to remove any personal belongings from the changing room and canteen and was escorted to the gate.
There was a dispute as to when was the dismissal letter issued to the Complainant. The Complainant argued that, following her return from holidays, in the end of March 2018 she contacted the Respondent to obtain same and she subsequently found a letter in her first language in her letter box. She claimed that she again had to request the English version and picked it up from the Respondent on 3rd April 2018. The letter is dated 12th March 2018 but signed on 3rd April 2018 by the Respondent. The Respondent was not clear when were the letters issued but noted that ordinarily both versions are issued at the same time. In any event, the letter made no mention of the right to appeal. I note that a copy of the Respondent’s Disciplinary Procedure, which was enclosed, provides for an appeal within 10 days (i.e. 16th March 2018). It appears that the Complainant hasn’t received the letter by that date. I also note that the Respondent confirmed at the hearing that the appeal would be heard by a brother of Mr D, which puts a question mark over the fairness of the process.
I find that the Respondent did not apply fair procedures prior to arriving at the decision to dismiss the Complainant and the disciplinary process which led to the Complainant’s dismissal was procedurally unfair.
As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, quoted above.
It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made.
The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states: ‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’
The decision to dismiss related to the alleged unauthorised entry on 3rd March 2018.
There is a considerable divergence between the Respondent’s and the Complainant’s respective account of the events. However, I find that the Respondent did not conduct an investigation into what had actually happened. By the Respondent’s own admission, the witnesses who could have shed some light on the matter were interviewed during the process.
Mr D gave evidence at the hearing and confirmed that the Complainant approached him asking for permission to enter the site. Mr D stated that he allowed the Complainant to enter to collect her coat but not to feed the cats. I find it not plausible. Whether due to the language barrier or otherwise I find that there seemed to be some miscommunication in that regard. In any event, the Complainant was given permission to enter the site. Mr D helpfully explained that once opened the gate closes automatically after approximately 1 minute. He was therefore fully aware that the Ms K’s car followed his car and that the Complainant and Ms K entered the site. Although, he stated that he did not pay attention to whether they went to the cloakroom or not it is clear that with his permission they entered the site. I find that the Complainant would not have been able to enter the site if the gate was not opened for her.
Taking into consideration that Mr D played a crucial part in the events, I find it astonishing that Mr R did not consider it appropriate to speak with Mr D to clarify the matter.
I note the Respondent’s emphasis on the matter of the wearing of the PPE. The Respondent in its dismissal letter stated that the Complainant traversed the site without wearing the prescribed PPE and safety footwear. I find that the Respondent asked the Complainant and Ms K at the disciplinary meeting if they were wearing hi-visibility clothing and safety boots. Ms K replied that they did wear hi- vis jacket to which Mr R replied: “My decision is final - I want you to clock out and leave site with immediate effect”. I find that in these circumstances it would be prudent to investigate the matter further and, at the very least, view the CCTV footage. The Respondent confirmed at the adjudication hearing that the CCTV footage was not made available to the Complainant.
The Respondent did not seek witness statements and did not establish through an investigative process what had happened and that what had occurred amounted to gross misconduct. In addition, I find that the inconsistency in the management’s perspective in terms of access to the site on the days in question was more than unhelpful. I also note the Complainant’s long service with the Respondent.
Having considered the matter, I find that the decision to dismiss the Complainant was wholly disproportionate and not within the range of reasonable responses of a reasonable employer.
Mitigation of Loss
The Complainant stated that she is in receipt of Jobseekers Benefit and had not secured a new job since her dismissal. I am cognisant of the standard set out in respect of loss mitigation (Sheehan v Continental Administration Co. Ltd (UD858/1999). I note the Complainant’s assertion that her poor level of English limits her opportunities to apply for and secure new employment. The Complainant at the hearing stated that, with help of a friend she secured employment with the Respondent but had not worked anywhere else in Ireland since her arrival. However, the Respondent, post-hearing provided P45, which it obtained from the Complainant at the time she commenced her employment with the Respondent confirming that, in fact she had worked in another employment in Ireland for a period of three months in 2009.
I find that for some 9 years the Complainant worked in an environment where there was no requirement for her to learn English. I note that the Respondent provided all documents in her native language and some of the staff and managers spoke the same language and provided interpretation when required. The Complainant was dismissed through no fault of her own and she found herself in the situation where she is at significant disadvantage due to her lack of the English language. I find that the Complainant clearly did not envisage losing her job in this manner.
However, I also note that the Complainant was able to secure employment back in 2009.
I note that the Complainant has registered with the Department of Employment Affairs and Social Protection and is in receipt of Job Seekers Benefit. The Complainant stated that she relies on the Department to assist her with here efforts to secure employment. I also note that since her dismissal the Complainant has commenced English classes.
Even bearing in mind the Complainant’s poor English, I am not satisfied that within the particular circumstance of the case, the Complainant had adequately attempted to mitigate her loss.
In conclusion and having regard to all of the circumstances of the complaint, I find that the dismissal of the Complainant was substantively and procedurally unfair and the sanction of dismissal was disproportionate.
I have decided that compensation is the appropriate form of redress having regard to all of the circumstances of this case.
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.
Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that the dismissal of the Complainant was unfair, and I award the Complainant €15,000 in compensation.
CA-00018779-002 Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Summary of Complainant’s Case:
The Complainant submits that she did not receive her statutory minimum notice.
Summary of Respondent’s Case:
The Respondent submits that the Complainant was dismissed for gross misconduct and therefore, is not entitled to notice.
Findings and Conclusions:
The evidence before me confirms that the Respondent dismissed the Complainant with immediate effect and without adhering to its obligations under the Minimum Notice and Terms of Employment Act, 1973 which under Section 4(2)(c) requires four weeks’ notice if the employee has been in the continuous service of his employer for five years or more, but less than ten years.
In accordance with Section 4(2)(c) of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant was entitled to four weeks’ notice as she had over 5 years’ service at the time of her dismissal. In accordance with Section 12(1) of the Act I direct that the Respondent pay the Complainant compensation of €1,615.12 amounting to four weeks’ pay.
CA-00018779-003 section 7 of the Terms of Employment (Information) Act, 1994
Summary of Complainant’s Case:
The Complainant claimed in the WRC Complaint Form that she did not receive a written statement of her terms of employment.
Summary of Respondent’s Case:
The Respondent rejects the claim. At the hearing the Respondent exhibited a copy of a “Employment Offer Letter” dated 11th June 2009.
Post hearing, the Respondent also provided a template of “Employment Agreement” which the Respondent argued was issued to all staff including the Complainant. The Respondent argued that, although it was not able to locate a signed copy of the Complainant’s contract, it affirms its position that the Complainant was issued with a contract and extensive documentation at the time of her induction.
Findings and Conclusions:
Section 3 of the Terms of Employment (Information) Act, 1994 requires that:
“(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.
(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.
(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1) may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.
(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.
(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.
I note the Respondent assertion that the Complainant was furnished with her terms and condition of employment. However, the Respondent was not in a position to present a copy of same. I am of the view that the Respondent was in breach of Section 3 of the Terms of Employment (Information), Act 1994.
Section 7(2)(d) of the Act states that an employer can be ordered “to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration”.
Taking all of the circumstances of this case into consideration I direct the Respondent to pay the Complainant compensation of €807.56 (2 weeks remuneration).
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Unfair dismissal- gross misconduct- minimum notice-terms of employment-