ADJ-00025600

Complainant

Respondent

Anonymised Parties

A Cleaner

A Contract Cleaning Company

Representatives

Jason Meagher B.L. instructed by Blake Horrigan 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-00032520-001

27/11/2019

The complainant had worked as a cleaner for the respondent since 30 November 2017 and was earning €648 per fortnight. She was dismissed on 14 October 2020 and claims this dismissal was unfair. A hearing was scheduled for 13 February 2020, the complainant was present, but the respondent did not attend. I proceeded to hear the complainant’s evidence in the respondent’s absence. Following the hearing I checked and was satisfied the respondent was properly notified of the date, time and location of the hearing. Two representatives of the respondent attended the Workplace Relations Commission (WRC) the following day, 14 February. They were advised the hearing had taken place in their absence the previous day, as scheduled, and shown a copy of the hearing notification letter that was sent to them on 21 January 2020. They were advised, in line with the usual procedures of the Adjudication Services of the WRC, that consideration would only be given to rescheduling the hearing if they provided substantial reasons in writing for their non-attendance on 13 February 2020. Later that day, 14 February, the Director of the respondent wrote to the WRC requesting the hearing to be rescheduled as he had been unable to attend on 13 February; his partner had a sudden episode of a chronic debilitating illness and she has a son with Down’s Syndrome and serious behavioural issues. He attached a Certificate from a GP which stated, “family member sick” and he was unfit for work from 13/02/2020 to 14/02/2020. In order to fully consider the request, the WRC asked the Director to explain why he had attended the WRC the day after the hearing. The Director acknowledged that he had made a mistake with the hearing date and said this was due to the personal domestic situation which occurred the previous day and he repeated the details of the previous day, saying he would have been unable to attend. If I accept the Director’s reason for not attending the hearing on 13 February, then this does not explain why he attended the WRC the following day. It is my conclusion that he simply made a mistake with the hearing date and this is not a substantial reason to reschedule the hearing.

The respondent did not attend the hearing, but they made a written submission and stated the complainant was employed by them since 30 November 2017 on a temporary, part-time basis. She was placed with one client for six hours per day and Monday to Friday, her time was split between two adjacent sites. The client had advised them that on a number of occasions her performance was somewhat unsatisfactory, but this was addressed satisfactorily. Then on 25 September 2019 the client told them that over the previous two months there were a number of occasions when the complainant worked less than her six hours a day and had not attended on one of the two sites she worked, on a number of occasions. They submitted a time sheet, provided to them by the client, which they allege shows this. The client informed them they were no longer prepared to have the client on their site. She was offered another placement which she refused. The respondent says she was not dismissed

The complainant stated she started work for the respondent on 6 November 2017 and confirmed she worked on two sites for the same client for a total of six hours a day, five days each week. She says on 27 September 2019 she was advised by her Manager that her position in the client company had become untenable because of complaints made at the workplace. She was not given the specifics of these complainants. She met the Director on Monday 30 September and he told her that she had not been working her full six hours. A letter from the Director dated 7 October 2019 refers to a previous verbal warning which she denies took place. Furthermore, the letter says she was being issued with a final written warning and if the respondent does not hear from the complainant within 7 days they will assume she is no longer interested in employment with them. The complainant denies the allegations made regarding her timekeeping and attendance and says she attended for a full six hours on the days highlighted by the client. At the hearing she explained that she did not clock in and out herself, but her arrivals and departures were noted in written log by a security guard as she went in and out. In a meeting with the Director on 14 October she was offered a job for 4 hours each day (she had been working 6 hours a day) and was told the person in the job would have to be let go. She therefore submits it was reasonable to refuse this offer, particularly when the reduction in hours would have affected her entitlement to Family Income Supplement. She was not offered any further employment. The complainant had no written contract setting out her terms of employment and I cannot confirm the respondent’s contention the complainant was employed on a temporary part-time basis. The respondent says they had issued a verbal warning and the letter of 7 October 2019 amounted to a final written warning. However, I accept that she was not, at any time, told she was part of a disciplinary process Furthermore, she was not aware the respondent had any written grievance or disciplinary procedures. When she was not offered any further work, she considered she had been dismissed unfairly. The complainant produced evidence of having applied for a number of jobs but has not been successful in obtaining further employment. That is apart from a two-week relief placement.

Section 6 of the Unfair Dismissals Act provides as follows in relation to an unfair dismissal:

“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.

(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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(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 or with the provisions of any code of practice referred”

The onus is on the employer to show that a dismissal was wholly or mainly arises from one of the matters referred to in subsection 4. The respondent did not present evidence that supported the basis of the dismissal and the complainant refuted the allegations made in their written submission. I cannot accept the timesheets submitted by the respondent, as they were unable to corroborate their source, particularly when the complainant did not clock in or out herself. Furthermore, the complainant had no written contract detailing her terms of employment. Nor was she aware of any written disciplinary or grievance procedures. Therefore, I conclude she was not dismissed for any of the reasons in subsection 4 and there were no substantial grounds for the dismissal. Also, taking these into account I conclude that the complainant’s dismissal was carried out without fair procedures being used; for example, in not carrying out an investigation or in not complying with any disciplinary procedure. I find that the complainant’s dismissal was substantively and procedurally unfair. In respect of redress I note the efforts of the complainant to find alternative employment. Having regard to the circumstances of the case I award the complainant €11,000

Pursuant to the Unfair Dismissals Act I find that complaint is well founded, and the respondent shall pay to the complainant compensation of €11,000.

Key Words: Respondent not present