ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035373
Parties:
| Complainant | Respondent |
Parties | Jelena Lune | We Clean It Cleaning Solutions Limited |
Representatives | Vadim Karpenko First National Consulting and Legal Service | Lisa Conroy Peninsula Group Limited |
Complaint(s):
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-00046502-001 | 03/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00046502-002 | 03/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00046502-003 | 03/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00046502-004 | 03/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00046502-005 | 03/10/2021 |
Date of Adjudication Hearing: 29/08/2022
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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
Background:
The Complainant withdrew CA 00046502-003 and 004 and 005. |
Summary of Complainant’s Case:
The Complainant after taking the affirmation gave her evidence as follows: She was employed by the Respondent as an Office Administrator. She commenced her role on the 17.08.2020. She was originally on six months’ probation. She disagrees with the Respondent that the probationary period was extended. She further denied that she ever attended a meeting on the 02.03.2021 in relation to the extension of her probationary period. The Complainant argued that the only meeting she ever attended was on the 02.09.2021. She denied ever seeing the letters or the minutes of the meeting extending her probation. She accepted that they were in her booklet of documents that are before the adjudicator today. She was supposed to work Monday to Friday only, but she ended up having to work at the weekends too. Her claim form states that she had to work on a “few” Sundays however in evidence she stated that it amounted to 48 Sundays. She was never paid a Sunday Supplement. She did not raise a grievance about that during the course of her employment. She accepted during cross examination that she received her contract when she started her employment and therein it stated that “ in some cases, you will be required to work Sundays. Sundays hours will be paid on your normal hourly rate”. After the Complainant was dismissed from her employment she filed an Appeal. That Appeal was never acknowledged by the Respondent. The Complainant accepted under cross examination that the Appeal letter she received was dated the 11.10.2021 however, she had already filed a claim with the WRC on the 03.10.2021. The appeal hearing never when ahead. The Complainant contracted the Covid Virus. While she was out on sick leave the Respondent used two weeks of her holidays to cover her sick leave. Under cross examination the Complainant stated that she had requested annual leave in July. She was paid that annual leave. When she took sick leave in August she was also paid in full but using her holidays as her contract does not provide for sick leave and she requested that it be paid out of her holiday entitlements. The Complainant also conceded that it was she who processed the payments to herself, as it was one of her duties. The Complainant following cross examination stated that she would be happy to pay two weeks back to the Respondent in relation to the two weeks sick/annual leave pay she paid herself. The Complainant was given a loan by the Respondent so that she could purchase a car. She agreed to pay the loan back with monthly instalments. She continues to do that. The Complainant secured employment twelve weeks following her dismissal. The Respondent stated that first job she applied for had the date 09.03.2021. That date is prior to her dismissal. The Complainant denied she had applied for role on the 09.03.2021. |
Summary of Respondent’s Case:
Ms. Aliz Nagykerafter taking the affirmation gave evidence as follows: The Complainant was employed as an Office Administrator from the 17th of August 2020. The Complainants role was subject to a six-month probationary period. On the 2nd of March 2021, the Respondent held a probationary meeting with the Complainant. In this meeting the Respondent extended the Complainant’s probationary period by a further six months. The Complainant went on sick leave from the 6th of August to the 23rd of August 2021. She informed the Respondent that she was unwell with COVID19. The Complainant did not provide the Respondent with a sick certificate pertaining to this. She had sought to return to work on the 20th of August. However, instead returned to work on the 23rd of August, following a conversation with the Respondent in which they had urged her to take a further three days off. The Complainant did not take issue with this as the Respondent will say she agreed that she was still unwell. Upon her return to work, the Complainant brought in her young son to the office as she was facing childcare issues. The Complainant was called into a meeting on the 2nd of September 2021. This meeting was held with Istvan Szabo and another employee who was there to take notes and record the meeting. The Respondent stated that this meeting was delayed due the Complainant’s illness. The Respondent will also give evidence that the Complainant had childcare issues. The Complainant frequently brought her son to the office without notice. The Respondent also had a sexual harassment case on one of their sites and felt it was not appropriate to have a child on the premises. Mr Szabo dismissed the Complainant at this meeting due to poor work performance following the extension of her probation. The Respondent then issued the Complainant with a letter summarily dismissing her on the 2nd of September 2021, giving the Complainant the chance to appeal. The Complainant appealed the dismissal on this date. The Respondent wrote to the Complainant on 11th October 2021 offering her a date of the 2nd of November 2021. The Complainant did not turn up to this appeal hearing. In relation to the Organisation of Working Time Act claim, the Complainant stated “I worked a few Sundays, but the Employer did not pay me for Sunday work.”. In her evidence she stated that she work a total of 48 Sundays. The Claimant signed a contract of employment on the 3rd of March 2021 which stated, “In some cases, you will be required to work Sundays, Sunday hours will be paid on your normal hourly rate.”The Claimant was paid €12.00 per hour. The Ms. Naykeri stated that the Claimant did not work on Sundays. She originally worked full time and then part of the way through the her employment she requested to work part time only. She was never asked to work on a Sunday. |
Findings and Conclusions:
The Complainant commenced working for the Respondent on 17th August 2020. She was originally given a probationary period of six months. However, that was extended on 02nd March 2021 for a further period of six months. The Complainant stated in evidence that she never had a meeting on 02nd March and never received the letter extending her probationary period. She stated the meeting of the 2nd October was her “ first and last meeting” with the Respondent. However, I note that the minutes of the 2nd March meeting are contained in her booklet and furthermore, later in the Complainant’s cross examination she referred to a meeting stating that her “weaknesses” were outlined to her. That was on 2nd March. On an analysis of the evidence given by both the Complainant and the Respondent, I am satisfied that the Complainant did attend the meeting of the 2nd March and was furnished with a letter thereafter extending her probationary period for a period of six months. In the meeting of 02nd October, the Complainant’s employment was terminated due to her poor performance during the probationary period. She was given a right to appeal that decision however prior to appealing, she filed her claims with the WRC. The contract of employment allows the Respondent six weeks to organise the appeal. That is an unusually long timeframe. When the Respondent wrote to the Complainant with an appeal date, the Complainant had already filed her claims with the WRC. She did not attend for the appeal hearing. There is an obligation on the Complainant to exhaust the internal process prior to filing a claim with an external body such as the WRC. She did not do so. I found the Complainant’s evidence to be lacking in credibility. She contradicted herself on numerous occasions. Having carefully considered all of the documentary evidence together with the oral testimony of the Complainant and the evidence of Ms Nagykeri and Mr. Szabo for the Respondent I find that the Respondent followed its contractual procedures, informed the Complainant that there were short comings in her performance in March, 2021, extended her probationary period on notice to her for ix moths, following that six month period dismissed her for poor performance and allowed her exercise her right of appeal. I can find no flaw in the process that could render the dismissal unfair. The complaint fails. CA 46502 -002 The Complainant’s complaint form states “I worked a few Sundays but the Employer did not pay me for Sunday Work”. During cross examination of the Respondent’s witnesses the Complainant’s representative did not deal with the issue of Sunday work. However, in her evidence the Complainant stated that she had worked a total of 48 Sundays whilst employed with the Respondent. When questioned on the issue her representative stated that the complaint on the from was not calculated correctly due the pressure they were under to file the complaint within the six months allowed. That simply cannot be the case. The complaint was filed one month after her employment was terminated leaving five months before the statute expired. The Complainant’s contract of employment states “In some cases you will be required to work Sundays. Sunday hours will be aid on your normal hourly rate”. The Complainant provided no information whatsoever about the Sunday work other than to say she worked 48 Sundays. Based on the lack of information to ground the claim and on the contractual clause as set out above, I find that the complaint is not well founded and accordingly fails. The complaint fails. |
Decision:
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.
CA 00046502-001 The complaint fails CA 000 46502 -002 The complaint fails. |
Dated: 02/03/2023
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll
Key Words:
Unfair Dismissal. Probationary Period. Sunday Supplement. Lack of Evidence. |