ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025208
A sales assistant
A department store
Complaint 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: 29/10/2020
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 3rd November 2019, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication on the 29th October 2020.
There was a hearing in early 2020 before a different adjudication officer. Arising from an issue related to service, the respondent did not attend this earlier hearing. The matter was, therefore, re-listed for hearing, although this was delayed by the Covid-19 pandemic.
The complainant attended the adjudication with her father and the person who had previously represented her. The respondent was represented by IBEC and four witnesses attended.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/2020, which designated the WRC as a body empowered to hold remote hearings.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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.
An issue arose right at the end of the adjudication regarding the complainant’s weekly rate of pay. Given that I decide that the complainant was unfairly dismissed, it became necessary to make a finding on the weekly rate of pay. I wrote to the parties on the 21st January 2021 on this issue, and the parties supplied the necessary information by return.
The complainant worked for the respondent as a Sales Assistant between the 25th September 2017 and the 1st September 2019. The fact of dismissal is not in dispute. The complainant was given one week’s notice of her dismissal on the 24th August 2019 on the basis that she would not sign the new contract of employment. The complainant asserts that this was an unfair dismissal, which the respondent denies.
Summary of Respondent’s Case:
The respondent outlined that the complainant was employed under several temporary contracts, starting in 2017. In June 2019, the complainant was offered a permanent contract which she declined to sign. The respondent employs temporary staff for peak periods. By way of a collective agreement negotiated with a union, the respondent agreed to limit the percentage of temporary contracts amongst staff. Permanent vacancies were offered first to existing permanent staff and then to temporary employees.
In June 2019, the collective agreement was updated so that 84 employees could be employed. A permanent staff member was successful in securing the role then worked by the complainant, who was advised of this. The complainant was also offered a permanent contract involving twilight hours, which she declined to sign, but she did work the twilight hours. The complainant liaised with the store manager regarding the new hours, who told her that her previous hours were not available but other hours could be available in the future.
The complainant attended the informal meeting in August 2019 and declined the offer of having representation. There was no other option then available, so the respondent had no option but to end the contract. The HR Manager then offered to meet the union representative and the complainant, so the contract was still available to her. The respondent submitted that the collective agreement was known to all and it had been the complainant who had failed to engage with the respondent.
The respondent outlined that it had to follow a process regarding the allocation of permanent contracts and there was no issue with the complainant’s performance. It said that it came back to the complainant on three occasions, including the meeting of the 13th September. It pointed to the collective agreement and the underlying industrial relations situation as background to how it handled this matter. The complainant did not appear to have contacted the union until after the letter was sent.
In evidence, the HR Manager said that following lengthy negotiations, the respondent agreed to reduce the number of temporary employees to 10%, so that staff with 18-months’ service would have their positions advertised. Vacancies would be first made available to permanent staff before being available to temporary workers. In the store where the complainant worked, four permanent staff were successful, meaning that four temporary staff had to move. The complainant was one of those and she was offered a contract of 16 hours. He outlined that where a person cannot work the new contract, the respondent looked at alternatives, where possible.
The respondent outlined that the other three temporary employees accepted their permanent contracts. The consequences of not signing the contract were not stated in writing, but the complainant had been made aware of the consequences at the meeting.
The store manager outlined that the line manager in question would tell staff of the change in their contracts. The store manager had not attended the meeting between this line manager and the complainant. The store manager said that on the 20th June, he had spoken to the complainant and said that he could not amend one employee’s hours as this would be unfair to others, especially those on twilight hours. They had not discussed the complainant signing the contract at this time. He said that this was first raised on the 24th August. He said that at the June meeting, he had been sympathetic but explained about the collective agreement. He did not know what had happened to the other three temporary employees, but the complainant was the only employee in food who was discommoded.
The respondent outlined that there was a dispute between the parties whether the complainant had been offered representation at the meeting of the 24th August 2019. It submitted that the store manager’s evidence was that representation was offered. It outlined that the respondent had offered to meet again on the 10th September and the complainant could have attended a meeting to keep the role open. The respondent submitted that the complainant had had the opportunity to return to her employment, so any detriment could only be from the 24th August to the 10th September 2019. The respondent submitted that as of the 10th September, it was clear that the complainant could have returned to her role, but she did not do this.
The respondent outlined that the complainant had said she would have gone to Italy in June 2020 to work, but this lack of opportunity could not be attributed to the respondent. Commenting on the evidence of mitigation, the respondent outlined that there were seven examples of efforts to find employment. It submitted that the complainant had not produced evidence of other applications.
Referring to the pay slips for the period of week 25 to 36, the respondent said that €344.80 were not the average weekly earnings. A Christmas bonus could not be included in the calculation as was only payable to those in employment on the 24th December. It submitted that as the complainant did not attend the September meeting, she was not entitled to the Christmas bonus included in any calculation of redress. The respondent submitted that the average weekly earnings were €270.39. It outlined that the initial rate of pay was €11.83 per hour and this increased to €12.07. The complainant worked an average 25.78 hours per week.
Summary of Complainant’s Case:
The complainant outlined that she had signed the permanent contract but did not return it to the respondent. Since June 2019, she had worked the twilight hours per the permanent contract. There was no response to her letter of the 25th August, and this was sent the day after the meeting and conveyed how she was unfairly treated at the meeting.
At the meeting, the store manager asked the complainant whether she would sign the contract and she said that she would not. He then gave her one week’s notice. The complainant said that this was unilateral action taken by two managers and they did not follow procedures.
The complainant said that there was nothing in writing regarding the contract until the 10th September. She outlined that the only time she was asked to consider signing the contract was on the 13th June. She said that a named line manager had asked her to sign the contract and she commenced the new hours on the 20th June. The next she heard anything again was on the 24th August.
The complainant said that the line manager had been upset when telling her that this was to be her new contract. She had been on a 30-hour contract and now had to switch hours. The complainant said that she did not return the contract as she wanted to negotiate her starting time. She had asked for the union’s help on the 15th June. She spoke with the store manager on the 20th June about whether her request could be accommodated, and he said that it could not. The store manager did not say anything about having to sign the contract. The complainant outlined that it was only the line manager who mentioned signing the contract, but he did not explain the implications of not signing it. The complainant outlined that she had been referred to the Stage system of disciplinary procedures, but she had not been on any stage.
The complainant’s representative outlined that he had represented the complainant at the first adjudication. He outlined that the complainant’s employment was terminated on the 24th August and the respondent had accepted that there was nothing in writing regarding the consequences of not signing the contract and she was not given any alternative. He outlined that the HR Manager became involved in September following the dismissal. He referred to the complainant’s detailed letter of the 25th August and had this been responded to, this could have been resolved. He said that no minutes of the meeting of the 24th August were ever provided. There was also no letter of termination and no right of appeal. There was no process. The representative submitted that the complainant had sought a change of an hour in her shift so that she could get a bus home and she was not aware of the implication of not signing the contract.
In closing comments, the complainant affirmed that she had not been offered any right of representation at the meeting of the 24th August 2019. In respect of mitigation, she said that she had submitted screenshots of roles she had applied for, but she had applied for other roles via portals. She was not appointed to several roles at named retailers. She had been scheduled to start work in Italy, but this did not progress because of the Covid-19 pandemic. She had worked for several months in 2020 as a substitute teacher. The complainant noted the long delay in bringing this case to adjudication and asked that the record note that she is a hard worker.
Findings and Conclusions:
Section 6(1) of the Unfair Dismissals Act provides that ‘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) provides grounds on which a dismissal shall not be unfair. Section 6(7) provides ‘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 to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.’
Application to the case
It is clear that the complainant was a hardworking staff member of the respondent. Her employment ended because of a precipitous reaction to the application of a collective agreement. The complainant’s hours changed as a result of the collective agreement; the hours reduced and were less convenient. The complainant had a difficulty as the twilight shift ended after the departure time of the last bus. While she signed the new contract, she did not return it to the respondent. She, however, worked the new hours.
The complainant was informed of the change in her working time in June 2019 and asked that her hours be varied in a conversation with management a few days later. The relevant manager said that the complainant’s suggested change could not be accommodated. There was nothing further until the meeting of the 24th August 2019. The parties differed in their evidence as to whether the complainant had been offered the right to have representation at this meeting. I note this difference, but it is not necessary for me to resolve this conflict in evidence. This is because I find that the respondent has not been able to dislodge the burden of proof in showing that the dismissal was not unfair.
I appreciate the industrial relations context of this case and this decision does not interfere with that collective agreement in any way. The complainant was discommoded following the alteration in her shift pattern but worked the amended hours. She hoped to negotiate a change in her hours, but this was not successful. She did not return the contract. She spoke with one manager at the time the amended hours were introduced and requested an alteration in June 2019. Whatever about the meeting of the 24th August 2019, the complainant clearly set out her position in the letter of the 25th August 2019. This letter clearly disputed the basis of her dismissal.
I find that the respondent has not dislodged the onus of showing that the dismissal was not unfair. In order to do so, the respondent must show that there were substantial grounds justifying the dismissal. Here, the complainant was assigned different hours, which she worked. While she sought to change her rostered hours and did not return the contract, she fulfilled the hours. She was not advised of the consequences of not returning the signed contract. Her letter of the 25th August 2019 clearly challenged the basis of the dismissal. While there was correspondence after the complainant’s dismissal, she was already dismissed, and this cannot change the finding of unfair dismissal. It follows that the complainant was unfairly dismissed, with her employment ending on the 1st September 2019.
Calculation of ‘weekly remuneration’
The complainant sought compensation as the appropriate form of redress. Section 7(1)(c)(i) provides that where there is financial loss attributable to the dismissal, an award of compensation can be made that is just and equitable. Section 7(3) defines “financial loss” as including ‘any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.’ The same provision defines ‘remuneration’ as including ‘allowances in the nature of pay and benefits in lieu of or in addition to pay.’
The Unfair Dismissals (Calculation of Weekly Remuneration) Regulations (S.I. 287/1977) flesh out how to calculate ‘remuneration’ in different patterns of work. The calculation of weekly pay is done according to the established working pattern, including what pay reference period to utilise.
Regulation 4 of these Regulations applies to employees who are paid ‘at an hourly rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by him.’ Weekly pay for this group is calculated according to their last week’s pay. Any overtime is calculated over a 26-week period ending 13 weeks prior to the dismissal.
Regulation 7 is applicable to employees paid wholly or partly on a piece rate or who are paid commission or a bonus as well as employees ‘whose remuneration in respect of the relevant employment varies in relation to the amount of work done by him’. Their pay is calculated over the 26-week period that ended 13 weeks before the date of dismissal, adjusted for any variations in pay that took place in the 13-week period.
Regulation 11 applies to employees who have ‘no number of hours … in each week that is normal for the employment.’ Here, the weekly remuneration is the average pay over the 52 weeks prior to the dismissal.
The complainant’s pay fluctuated over the course of her employment with the respondent. First, the hourly rate of pay increased from €11.83 to €12.07, an increase stemming from the aforementioned collective agreement. This increase took effect in pay period 35, see the pay slip of the 29th August 2019 (close to the end of the complainant’s employment). Second, as set out in the evidence, the complainant’s contracted hours changed per the new contract of employment, dated the 20th June 2019. She then worked 16 hours week, including twilight work, but was also subject to the flexibility clause, where she could work 50% more hours. Per the previous contract of the 8th April 2018, the complainant worked 30 hours per week and finished at 6pm. She was subject to the same flexibility clause. Third, it is clear that over both periods, the complainant worked more than her contracted hours and was also entitled to premium pay for Sunday work etc. The hours the complainant actually worked, and what she was actually paid, are the basis for the calculation of weekly remuneration.
It is certainly arguable that either Regulation 4, 7 or 11 could apply to the complainant’s role. Regulation 4 could be said to apply as she was paid at an hourly rate; however, she was also paid premium pay and her hours varied. Regulation 7 could be said to apply as her pay varied precisely due to the work done by hour, for example the number of hours or whether they attracted a premium. Regulation 11 could be said to apply as her hours and pay varied throughout her employment.
In my assessment, Regulation 7 applied to the complainant’s employment. I find that Regulation 4 applies to roles (unlike the complainant’s) where the weekly rate of pay is stable, taking account of varying overtime. Regulation 7 applies to employees ‘whose remuneration in respect of the relevant employment varies in relation to the amount of work done by him’; this is precisely the complainant’s position – her rate of pay varied according to her hours. I find that Regulation 11 cannot apply as there were contracted hours, albeit with provision for flexibility and additional hours.
Following the finding that Regulation 7 applies, the complainant’s weekly remuneration is calculated per the 26-period that ended 13 weeks before the ending of the employment. This formulation ensures that weekly pay is calculated according to the employee’s normal working pattern, as opposed to events closer to the termination of the employment, notwithstanding any adjustments in pay.
Taking the end date of the complainant’s employment as the 1st September 2019, the week that is 13 weeks from this date is the week of the 2nd June 2019 (the pay slip of the 6th June 2019). The cognisable 26-week period is the 2nd December 2018 (the pay slip of the 6th December 2019) to the 2nd June 2019, again the pay slip of the 6th June 2019). Going through the pay slips, the complainant earned €12,285.96 during the cognisable period (taking account of the overpayment in the pay slip for the 23rd May 2019 and no pay or pay slips being issued for the following two weeks). Dividing this amount by 26 leads to a quotient of €472.53. This is the applicable weekly rate of pay.
It is well-established that a claimant in an unfair dismissal claim must mitigate their loss, as in seek to find alternative employment. Redress arising from an unfair dismissal can be awarded for economic loss and the award must be just and equitable. For completeness, economic loss includes any bonus payable from the employment, such as the Christmas bonus the complainant would have been entitled to, had her employment continued into December 2019.
Here, the complainant applied for roles in retail but was not successful. There was documentary evidence of this. She gave evidence of applying for other roles via portals. While there was no documentary corroboration of these additional applications, the complainant demonstrated her work ethic while working for the respondent, so it can be inferred she would apply the same ethic to finding new employment. I, therefore, accept her evidence regarding using her best efforts to find alternative employment. The complainant worked as a substitute teacher from the 21st February to the 29th May 2020. The complainant had then intended to pursue an opportunity in Italy, but this unfortunately fell through because of the Covid-19 pandemic. This loss is too remote from the unfair dismissal to be included in the calculation of economic loss arising from the dismissal.
The complainant was unemployed from the ending of her employment to the start of the role at the school. This is a period of 25 weeks. This is the reckonable period for the calculation of redress, on the basis of weekly remuneration of €472.53. Redress includes the Christmas 2019 bonus (€922). This is 25 x €472.53, plus €922, leaving a sum of €12,735.25. Had the complainant not been unfairly dismissed, she would have been in employment on the relevant date for the bonus, so its non-payment falls within loss.
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 decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant redress of €12,735.25.
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissals Act / Unfair Dismissals (Calculation of Weekly Remuneration) Regulations (S.I. 287/1977) / calculation of weekly remuneration / economic loss / Christmas bonus / Covid-19 pandemic