ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00019072
Aisling McGowan Damien Tansey Solicitors
C Gallagher /A Fallon
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: 1.07.2019 & 3.02.2020
Workplace Relations Commission Adjudication Officer: Emer O'Shea
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)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant asserted that she effected a contract of employment with the respondent on the 7th Nov. 2017 and that she was unfairly dismissed on the 23rd Nov. 2018. The contract was submitted into evidence and amongst its provisions provided that an extensive disciplinary procedure would apply if the required standards of work were not met; that there would be a 6 month probationary period which could be extended at the respondent’s discretion but could not exceed 11 months; that the agreement could be terminated by either party during the probationary period and referred to the provision of one week’s notice by the respondent and that on completion of the probationary period the min period of notice would be 4 weeks. It also referred to a bonus which was to be mutually agreed. It was submitted that that the claimant accepted the respondent’s offer by email dated that 7th Nov. 2017.
It was submitted that the claimant’s acceptance of the offer was life changing for her as she was leaving a secure post she had held for 9 year and she was obliged to make alternative child care arrangements. It was submitted that the claimant “formally commenced fulfilling her on-site contractual duties with the respondent on the 27th.Nov. 2017”. It was further submitted that at the request of the GM the claimant was asked to manage a forthcoming sales project prior to working on site with the Sales Team. It was submitted that the claimant was happy to get involved and that around the same time the claimant was asked to work on another project for the respondent on foot of which she devised an outline Business Development Plan for Golf. It was submitted that the claimant received remuneration on a weekly basis from the 4th Dec.2017 to the 4th Nov. 2018. It was submitted that in the course of her employment the claimant successfully implemented a number of Sales & Marketing Strategies and details of her achievements were presented into evidence. It was submitted that one of the company directors Ms. BF had an aversion towards the claimant and that the claimant tried to ignore it and focus on her work. It was submitted that the claimant never received any sanctions from the respondent in relation to her performance or behaviour.
On the 23rd.October, the claimant was advised by the Director Mr. DF that she was being let go since “it was just not working out”. It was submitted that the Director refused to give her any explanation. It was contended that on the 25th Oct. the claimant started experiencing extreme stress and anxiety as a consequence of said meeting and she submitted a sick cert for work related stress on the 25th Oct. 2018 which ran to the 1st Nov. 2018.
On the 26th Oct., the claimant received an undated letter from the respondent stating that the employment agreement was terminated, that she would be paid her annual leave entitlement of one week and notice of one week and her P45 would ensue in the post. The claimant responded to assert she was due 4 weeks’ notice; that she received no warning or notification of the intention to terminate her employment and that she was experiencing extreme stress and anxiety as well as significant financial difficulties. No response was forthcoming.
It was submitted that the respondent intentionally terminated the agreement on the 23rd Oct.2018 to prevent the claimant from acquiring a year’s service. It was submitted that the claimant had already completed her probationary period as of the 23rd Oct. 2018 and that in accordance with the terms of her contract she was entitled to 4 weeks’ notice. It was submitted that “it is reasonable to conclude that the Agreement between the parties could have been lawfully terminated not earlier than the 23rd Nov. 2018, as it was not until the 26th day of October when the complainant received the respondent’s letter, whereby the respondent wished to terminate the Parties Agreement”. It was submitted that on the 23rd Nov. 2018 the complainant would have completed her one year of continuous service with the Respondent. Therefore, it was argued that the present complaint falls within the scope of Section 2(a) of the 1977 Act. It was further submitted that the respondent was acting in bad faith in limiting the notice to one week.
It was submitted that no disciplinary procedures were followed by the respondent and consequently the dismissal was unfair – the provisions of UDD1735 and Owerbrook Ltd., t/a Castle Durrow Country House Hotel v Eugene Young IEHC 425 (16.07.2018 , unreported) were invoked in support of the claimant’s contention that she was denied her right to fair procedures .
At the first hearing the claimant submitted that she commenced work on promotional projects in early November and correspondence between the claimant and the then General Manager were presented. The following email was submitted on behalf of the General Manager following the first hearing – this was received by the WRC on the 17thJuly 2019.
“I was employed as General Manager of the respondent’s premises from the 28th July 2017. In my capacity as General Manager I interviewed and subsequently hired [the complainant] to the position of Sales and Marketing Manager. She accepted the offer on 7th November.
She was working as Sales and Marketing Manager of [Y Hotel] at the time and was unable to formally start until 28th November. We had however a wedding showcase scheduled for the 11th December which we desperately needed to be successful. We did not have anyone in sales and Marketing at the time and in addition had no wedding co-ordinator.
I asked the claimant to undertake a marketing campaign/ design advertising collateral, meet advertisers and liaise with us in relation to the suppliers who would attend. I agreed that she would obviously be paid for this approx. four days’ work by adding it as time in lieu because she was still employed by the Y Hotel. To the best of my knowledge she took this in January in addition to holidays taken at the time.
We met a Graphic designer on site and she started the campaign as requested a full suite of images was produced she liaised with me on advertising budget for the event, advertisers to use, road signage etc.”
It was submitted that a meeting on site between the claimant and the GM took place on the 11th November and that this work would have to be factored in in determining the claimant’s commencement date. It was submitted that the claimant was paid for this work when she was placed on the pay roll and that she was paid a week in arrears. The claimant stated that she had been placed on emergency tax when she started and that she was paid for the advance work in her pay on the 4th Dec. 2018. The claimant said that she only received 3 /4 payslips while in employment. She asserted that she was advised by the former GM that she would be paid for the work done prior to her official commencement during the week of the 7th December.
The former GM did not give direct evidence at either hearing. At the second hearing the claimant asserted that it had been agreed that she would be paid for the advance work by way of Time Off in Lieu and that the respondent’s figures indicated that it was paid in January 2018. The claimant asserted that she prepared promotional material for the former GM around the 11th November, that she issued Press Releases around that time and that “I did what needed to be done”.
It was further submitted that the claimant was entitled to 4 weeks’ notice as per her contract of employment and that it was not accepted that the claimant was still on probation as she was never notified or advised of any extension to her probationary period. The claimant made a written submission to the payslips furnished by the respondent and referenced her final pay slip which referred to Days worked in lieu. She submitted that it would not be normal practise to engage in research and PR in advance of commencing with the respondent. She further submitted that “not receiving a payslip or payment into my bank account for the work completed in advance of starting ‘officially’ with the respondent does not prove that I did not get paid. As per the then GM’s email, it was arranged that I was paid with ‘Time in lieu”.”
Summary of Respondent’s Case:
The respondent asserted that the claimant commenced employment on the 28th Nov. 2017 and that her final day of employment was the 28th Oct. 2018.It was submitted that the claimant was advised by the Director on the 23rd Oct 2018 that her employment was ceasing with immediate effect. The claimant had furnished the respondent with a medical cert on the 25th Oct. 2018 and the respondent had advised the claimant by way of letter on the 25th Oct. 2018 that her employment was terminated on the 23rd Oct. 2018 and that she should not submit sick certificates.
It was submitted that the claimant was statute barred from bringing the claim- it was advanced that she lacked the requisite service to succeed in a claim for unfair dismissal.
The respondent denied that the claimant worked prior to her official start date on the 28th Nov. and disputed that claimant’s contention that she was paid during the early weeks of her official employment. It was submitted that it was normal practise for people to do some preparatory work in advance of starting with a new company but if it had been considered work, the claimant would have been paid and she was not. It was contended that the claimant was still on probation when she was let go and the company were unaware that she had been appointed. ”We had no record of it not being extended so we presumed probation was not formally finished” It was contended that even if the claimant was given 4 weeks’ notice she still fell short of the requisite year required under the Act – 4 weeks from the 23rd October would have brought the claimant to 23rd November but she did not commence work until the 28th November 2017. It was submitted that prior to this the claimant was still employed by Y Hotel. It was submitted that the payslips that would be furnished by the respondent would establish that the claimant was not paid for that earlier disputed period.
The Financial Controller gave evidence at the second hearing that payments made to the claimant in Jan. 2018 were not for TOIL previous to the 28th Nov. 2018. He submitted that if TOIL was to be paid it would have to be communicated to him and that was never done. He confirmed that the Company do give time in lieu but it was never processed through him. The witness was adamant that if he doesn’t receive an instruction by email, TOIL is not paid. The respondent submitted that notwithstanding this the claimant still did not have the requisite service to have the protection of the Act. While it was accepted that the claimant’s probation was not formally extended, it was submitted that the claimant would still not have the 12 months service required.
The respondent submitted the claimant’s leave returns to the WRC on the 3rd March 2020 and submitted that it demonstrated that the claimant was never paid TOIL for any time prior to her commencement date on the 28th Nov. 2018.
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.
I have reviewed the evidence presented at the hearings and noted the respective position of the parties. Section 1 of the Act specifies the date of dismissal as follows :
“date of dismissal” means—
(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973 , the date on which that notice expires.
(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973 , the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—
(i) the earliest date that would be in compliance with the provisions of the contract of employment,
(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973 ,
(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of the expiry or cesser;
The claimant’s contract of employment contained the following provisions with respect to notice “Having successfully completed the probationary period the minimum period of notice will be four weeks, after ten year’s service you will be entitled to receive the appropriate period of notice as set down in the Minimum Notice of Terms of Employment Acts 1973-1991”.
It was not disputed by the parties that the claimant’s probation was not formally extended and consequently in accordance with the Act and the provisions of her contract I have determined that the date of dismissal was the 23rd November 2018.
The claimant commenced her formal period of employment with the respondent on the 28.11.2017. I have considered all of the arguments advanced by the parties in relation to the duration of her service. Section 1 of the Act defines employee as follows :
“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;
While I acknowledge that the claimant did engage in marketing work prior to her official start date of the 28th November, I am not satisfied that any compelling evidence has been advanced to support the claimant’s contention that during this time she was an employee as defined above with the respondent. Consequently, I find the claimant does not have the requisite service to rely upon the protection of the Act and accordingly I have no jurisdiction on the matter.
Dated: 13th November 2020
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Requisite Service / Jurisdiction