ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034186
Parties:
| Complainant | Respondent |
Parties | Agnieszka Siudalska | Top Green Mile Stores Limited |
Representatives | Boino Solicitors | Rachel Duffy BL instructed by Kilfeather & Company Solicitors |
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-00045051-001 | 06/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00045051-002 | 06/07/2021 |
Date of Adjudication Hearing: 16/01/2024
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
This complaint was heard in person. The parties gave evidence on oath /affirmation. Cross examination was allowed.
I heard a considerable amount of evidence during the hearing. The parties were very capably represented on both sides and the witnesses were all courteous to me and the process.
A translator was provided by the WRC to give assistance to the parties in giving evidence.
I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings. I am required to set out ‘such evidential material which is fundamentally relevant to the decision’ per MacMenamin J. in Nano Nagle School v Daly [2019] 3 I.R. 369. I do think it was important that the emails between the parties were set out in full in my decision and I set them out as they were presented to me with minor redaction.
Background:
The Complainant commenced working for the Respondent in 2018. She worked between 30 and 35 hours per week for the Respondent as a shop assistant. She was paid €10.80 per hour. On 26 January 2021, the Complainant emailed the Respondent to advise that her son’s school had closed that she was applying for a Covid 19 payment and would return to work when the school opened. The employment relationship ended on the 8 February 2021. |
Summary of Complainant’s Case:
The Complainant is a single mother with a minor son. He was of school going age and when they Complainant was working outside of school hours, he was cared for by the Complainant's friends and neighbours. The Complainant had difficulties in arranging childcare from the commencement of the Covid 19 pandemic, however she managed until the start of 2021. At the end of December 2020, Covid restrictions were again imposed and the schools were closed. The Complainant lost her childcare arrangements due to her neighbour returning to Poland. The Complainant advised the Respondent of her difficulties with childminding and declined additional work hours that were offered to her. The Complainant was on annual leave in mid-January 2021. She discovered that her son was not properly logging on remotely and attending his remote school classes. Following advice from a friend, she explored the Citizens Information website to seek assistance in her circumstances. She applied to the Department of Social Protection for a Covid PUP payment on 19 January 2021. She was already in receipt of a single parent payment from Social Welfare. She was unsure if she would be successful in her application. She gave evidence that it was very difficult to find anybody to look after her child once at the time. The Complainant was successful in her application and was advised on 26 January 2021. She emailed the Respondent at 17.36p.m that day. NOTE: I have inserted the exact wording of the emails exchanged between the parties as provided to me in the paragraphs below. "Hello I would like to inform you that due to the pandemic Covid 19 and schools closed as a single person on 26/01/2021, I am switching to the governments Covid Payment scheme. I declare that I will return to work on the day my child's school will reopens. Best regards Agnieszka Siudalska”. The Complainant's case was that the Respondent had four days to arrange a replacement for her next shift which was on the 30 January 2021. She explained that she was always flexible with her employer and agreed to work shifts at short notice. She explained she had also been clear in her email that she would come back to work once the schools reopened. On the 29 January 2021 the Respondent emailed the Complainant: "Dear Agnieszka, I am surprised and disappointed that on 26 January 2021 you emailed me to say that you have decided to stop working and switch to the government Covid 19 Pandemic Unemployment Payment. I remind you it is a fundamental requirement of your contract of employment that you turn up to work according to the roster. Our shop can only open and trade if all our employees turn up for work when rostered. If any employee fails or refuses to come to work it affects our ability to trade and jeopardises our business. Your unauthorised absence is not acceptable behaviour, it is a fundamental breach of the terms of your contract of employment if you are found to have refused to turn up for work. I remind you that in your contract of employment it is acknowledged that you have an entitlement to parental leave under Parental Leave Act but I note you have never asked for unpaid parental leave. You have taken on authorised time off/refused to come to work giving us no notice of your intentions, only emailing me to say you were no longer turning up to work. Please note that you are obliged to attend work on the 30 January 2021 at 15;30. Your continued unauthorised absence/refusal to turn up for work can be considered serious misconduct and in breach of the terms of your contract of employment. Such an act of serious misconduct will result in the commencement of a disciplinary process and possible sanction up to and including your immediate termination of your employment pursuant to the terms of your contract of employment and our companies disciplinary procedures which states if necessary "the company reserves the right to terminate your employment with immediate effect without compensation if you fail to perform or discharge your duties as have been assigned to you". To avoid the commencement of the disciplinary process and the possible termination of your employment, you are required to attend work on your rostered days and you must return on the 30 January 2021. I look forward to seeing you on your return. Regards Anita Jezuit " The Complainant emailed the Respondent on the 30 January 2021 at 10;54 AM "Related to your last email I would like to inform you that I am not doing anything against company contract or good business to put me in disciplinary action, if I'm not show at work the 30 January 2021 at 3:30 PM. By the law I have right to apply for PUP (Pandemic unemployment payment) offered by government if I cannot work because I have to look after my kids during school closures in pandemic situation. As you know all those information is available for public using website citizensinformation.ie or under phone service operated Monday to Friday between 9 AM-8 PM. After discussing with one of the Citizens employee I was informed that there is no specific period time to let my employer know about above as is pandemic time and under control unexpected life situation. For the good of business I see new email 26.01.20 21.to inform you that I won't be able attend to work until school open. That should give you enough time to cover my shift. I am looking forward to back to work after school opens. Regards Agnieszka Siudalska”. On the 2 February 2021, the Respondent emailed the Complainant as follows: Dear Agnieska, Unfortunately I must write to you again because you have failed to turn up to work on four days. You are recorded as been absent without authorisation from work on the following dates: 1. Thursday, 28 January 2021 2. Saturday, 30 January 2021 3. Sunday, 31 January 2021 4. Monday, 1 February 2021 Any unauthorised absence from work is a breach of your contract of employment and is considered serious misconduct because it causes unacceptable disruption to the operation of our store and our ability to trade. Any refusal to attend work is considered serious misconduct where this sanction is summary dismissal. You are immediately suspended from work with pay pending the outcome of this disciplinary process. You are not to attend at the store. I attach a copy of our disciplinary procedures and I refer you to our policy where it states misconduct warrants summary dismissal. Please note your refusal to attend work on four days is misconduct that warrants consideration of your summary dismissal. I invite you to explain your position and email RENATA JEZUIT polskastrefa@ymail.com who will make the final decision on the question of your misconduct and the possible sanction. Please email before 3.00 PM on Friday, 5 February 2021 with your response to the serious allegation of misconduct because of your refusal to attend work on Thursday, 28 January 2021, Saturday, 30 January 2021, Monday, 31 January 2021 and Monday, 1 February 2021. A copy of your emailed response, this letter together with the following correspondence will be delivered to RENATA JEZUIT for her to decide outcome of this disciplinary process, 1. Your email to me dated 26 January 2021 2. My email to you dated 27 January 2021 3. Your email to me dated 30 January 2021 For the avoidance of any doubt your eligibility for the PUP payment has nothing whatsoever to do with your contract of employment and because our business is a retail business I cannot offer you alternative employment arrangements that will enable you to work from home. Please note that if you fail to reply by 3:00 PM next Friday, 5 February 2021, RENATA JEZUIT polskastrefa@ymail.com will proceed to deal with this matter in the absence of your response and based on the correspondence described in this letter. Yours Sincerely Anita Jezuit " On the 5 February 2021, the Complainant responded: Good morning Renata Jezuit Related to your last email I would like to point that there is a mistake in dates. I've sent email 26 January 2021 to Anita Jezuit- Derector of Polska Strefa Mullingar - grocery shop to inform her about my decision. I got an answer 29 of January 2032 true email, not 27 January 2021 as you pointed Anne same letter by post I received 1 February 2021. In fact I have to apologise that I didn't give Anita Jezuit more information about my current life situation as I was told in Citizen information that two sentences is enough. As you know now, I'm single parent. Because of world pandemic situation all schools was close down and because of Level 5 restrictions my childminder given up to mind my son during my working hours. In current pandemic situation that is miracle find childminder next day. During my holiday where I was sent by Anita Jezuit from 18.01.2021 to 24.01.2021 I realised that my son have troubles with online school lessons. 11 hour shifts, 3-4 times per week with I work for your daughter Anita and school closed don't let me to make sure that my son have properly education and social care. Also to work out with roster working hours we was told by Anita that we are not allowed to put request for days off unless that is planned medical appointment. Obteined situation need to me to make a decision to apply offered by government PUP. Jezuit I do not agree with the fact that I was charged by Anita Jezuit for unauthorised absence/refusal to turn up for work as my email sent 26 of January had information that I won't be able to back to work until school opens. Two days before my roster hours is enough time to cover my shift. I can't even count many times, since I started work for Anita I cover other shifts with same day notice. There was never a problem from my side to help run your business. As you can see there is unexpected life situation that we can't deal, especially during Pandemic. I have hope, that situation and misunderstanding will have happy end and I still will be part of Anita's team. Regards The Respondent proceeded with their disciplinary process. The owner/director’s mother was the decision maker. She was also a director of the company but did not have any day-to-day involvement in the running of the shop where the Complainant worked. The decision maker did not meet with the Complainant as part of the disciplinary process. Her decision was based on written submissions from the Complainant. The decision maker under cross examination accepted that her daughter had dismissed the Complainant and at one stage under cross examination stated that "it was our decision". When asked why a remote hearing was not provided to the Complainant, the decision maker stated that she had video link technical difficulties. The dismissal decision issued on the 8 February 2021. The Complainant's case was that it did not engage with the Complainant's explanation but focused solely on her unauthorised absence and that information was not provided prior to the 26 January 2021. The decision outcome letter was as follows: Dear Agnieska, I am writing to advise you of my decision regarding the allegation that you have failed to turn up to work on 4 days and were recorded as been absent without authorisation from work on the following dates: 1. Thursday, 28 January 2021 2. Saturday, 30 January 2021 3. Sunday, 31 January 2021 4. Monday, 1 February 2021 In reaching my decision I have considered the following documentation: 1. Your email dated 26 January 2021 2. Anita's email to you dated 29 January 2021 3. Your email 20 sent dated 30 January 2021 4. Anita's email to you dated 1 February 2021 5. Your email to Anita dated 5 February 2021 I have looked at all the emails and checked the records to confirm that you did not attend work on your rostered days, 28 January 2021, 30 January 2021, Sunday, 31 January 2021 or Monday, 1 February 2021 After considering all the evidence and your comments, I am satisfied that you are guilty of serious misconduct because of your unauthorised absence from work on four days which is a breach of your contract of employment that caused unacceptable disruption to the operation of the store, affected the entire team and the store's ability to trade. You refused to come to work and simply informed Anita by email that you were applying for the PUP Covid 19 payment. I am aware that you never engaged with Anita to discuss your personal circumstances, you never made any complaints about your work, you never applied for or asked for alternative arrangements before you made your decision to refuse to come to work. You alone with any discussion with your employer decided not to come to work but apply for the PUP Covid 19 payment. Your behaviour has been unacceptable where you refused to abide by your contract of employment and refused to work your rostered hours, which is a major breach of trust and confidence of the company's relationship with you. A refusal to attend work is serious misconduct where this sanction is summary dismissal as described in your contract of employment. Having considered the situation and your emails it is with regret that I find that you were guilty of serious misconduct where this sanction must be your immediate dismissal and termination of your employment, effective immediately. Anita will write to you in a separate letter confirming your final payment of monies that you are owed to include any holiday pay. Please return any company belongings, I wish you good luck for your future. Yours ... Renata Jezuit. The Complainant appealed the decision and provided further explanation as to her position. The email was in Polish with an English translation provided to me. The Complainant set out as follows: Subject: appeal against a decision to dismiss immediately. Ladies and gentlemen, At the very beginning, I would like to apologise for using the Polish language in this appeal, however, after our previous correspondence in English, I consider it to be easier for both parties. My English is very basic and I am unable to write a reference in that language. Earlier correspondence provided by me in English was created with the help of third parties, however I have doubts and concerns as to whether it reflects the information I wanted to provide. Unfortunately I cannot afford a professional translator and I do not consider it appropriate to force me - given the circumstances-to generate correspondence in English. I am appealing against my immediate dismissal and wish to explain once again the following: Switching to Covid 19 from 26/01/2021, I informed the head of Anita Jezuit by email. My decision to switch to Covid 19 was dictated by my son [ redacted by Adjudicator ], age 11, as schools were closed and unfortunately [ redacted by Adjudicator]. My friend's father was the person who helped me most in selfless care, because he also looked after his grandson. From the moment he left for Poland on 15/01/2021, I lost this help and, unfortunately, despite my attempts and efforts, I was not able to organise any other help. Additionally, from January 2021, the way my sons distance learning is implemented has changed. My son needs my control during the lesson. Logging and teaching is now a different system than it was in the previous year 2020, when the first lockdown was introduced. At the moment it is like this: 1. Logging in for a specific time from 11/01/2021 2. He is assigned homework every day and he has tests every Friday. 3. Every three weeks an envelope is sent by email by the school with homework for the next three weeks. In all tasks, I have to help my son do his homework, take care of him, because my son currently needs my support in this system. It is difficult for me to arrange care for my son, my friends refuse me due to the fact that they have their own children and the pump pandemic situation. As a single mother living with her son on one salary, I cannot afford a paid babysitter for a son. As can been seen from the above, many problems accumulated in January, which forced me to decide about the need to stay at home in order to provide care for my son, the person helping me with supervision left on 15/01 to Poland, the way of fulfilling the distance teaching obligation has changed requiring more control. In addition, in January, during my leave, I was informed by the school that, unfortunately, my son did not fulfil this obligation correctly - it was because he was not properly controlled, despite the attempts I had made, I was not able to find childcare. Throughout my time working in the store, I was a responsible person with a heart in my work. I was always available when there were not enough employees in the store and when I was asked for additional hours or additional work or some shifts. I believe that I am very liked by my colleagues. At the moment, I still don't have anyone to leave my son with for the period of work. Working hours in the store make it difficult for me to properly care for my son, and due to his age, it is illegal to leave him at home alone. The option of switching to parental leave, which is unpaid leave, would deprive me of my livelihood. The current situation is absolutely unique for me and for everyone. It is Covid 19 that makes me make such a decision. Had it not been for the pandemic, I would have been able to organise childcare without any problems. I think that as a single mother I made the right decision and the only one possible in the present circumstances. I would like to mention that I regret the lack of understanding on the part of the store management and that my intention was not any disorganisation of the store's operations. Until the very end I was looking for help and a solution to this situation, but due to the lack of an alternative, I had to inform in this way that I was not able to come to work due to the legal obligation to look after my son, because I simply had no one to leave him with. I did not think it would lead to such a negative effect in the form of immediate dismissal with which I disagree. I kindly ask you to recognise this appeal positively and to take into account the uniqueness of the situation caused by Covid 19 and my personal situation as a single mother. Yours sincerely The Complainant's appeal was heard by the Company directors brother. He considered the decision made by his mother at first instance. The appeal hearing took place on the 19 March 2021. The appeal hearing was held by Zoom and was a 20 minute hearing. The hearing was conducted in Polish and the Complainant answered questions put to her. The appeal decision issued on the 31 March 2021. Her appeal was not upheld. The Complainant submitted that by the time of the appeal hearing, her son had returned to school and she was available to work. Despite same, the decision maker focused on events at the end of January 2021 and confirmed the decision to dismiss the Complainant. Under cross examination she stated that she kept believing that the disciplinary process would stop and she would be allowed to come back to work. |
Summary of Respondent’s Case:
The owner/Director of the Respondent gave evidence, the decision maker gave evidence and the appeal decision maker gave evidence. The Respondents case was that it was a small company that operated a retail grocery shop trading seven days a week 9:30 AM to 3:30 PM. Monday to Saturday and 11:30 AM to 6:30 PM on Sunday. The Respondent employed five people together with the company director in the shop. The rota required three employees to be present in the shop on Monday to Saturday and two employees to be present on Sunday. The business was deemed an essential retail outlet and the employees were deemed essential workers under the Covid 19 Level 5 restrictions. The owner director stated that the Complainant was on a year-to-year contract. The work rota was a 10 hour shift with a one hour break. The Complainant was on annual leave from 18 January 2021 to 24 January 2021. This was scheduled holidays that were left over from 2020. The Complainant returned to work on 25 January 2021. At that stage, one of the Complainant's co-workers was on maternity leave and a second part-time co-worker had notified the Respondent that he was starting a new job and that he would be leaving the workplace at the end of January 2021. The Respondent had recruited a new part-time employee to replace the departing employee. The Complainant's application for a Covid 19 payment came as a complete surprise to the Respondent. The Complainant had never informed the Respondent of her intentions or her family situation. She had never asked for a change of the roster or advised on the problems she had with caring for her son. The Respondents submission was that the Covid 19 Pandemic Unemployment Payment was a social welfare payment for employees and self-employed people who lost all of their employment due to the public health emergency. It submitted that an employee could not qualify for this payment if an employee had voluntarily left her employment. The Complainant did not attend for work on the 28 January 2021 or subsequent days as per her roster. This resulted in significant disruption caused to the Respondent, that affected its ability to trade, its profitability and it necessitated her co-workers to take on additional duties. The company director had to work up to 60 hours per week to cover the Complainant's hours while she was absent. At times, the Respondent was forced to operate the shop with only two members of staff because no other staff were available. This reduction in staff numbers significantly inhibited the service they Respondent provided to its customers to its detriment. To fully operate, the shop required 1 to 2 staff members working on the tills with the second person dividing his/her time between the meat/cheese counter and the till. The third staff members function was managing stock and deliveries as well as helping at the tills and assisting customers on the shop floor. It submitted that the Complainant was aware that her refusal to attend work would significantly inhibit and disrupt the Respondent's ability to trade and provide a service to its customers. Because the Complainant refused to work, the Respondent was compelled to ask a member of staff to voluntarily return from annual leave early. The Complainant’s unauthorised absence denied the Respondent the ability to grant annual leave or sick leave to co-workers without adversely affecting the Respondents ability to trade. It submitted that the Complainant was in breach of the Respondents trust and confidence by wilfully refusing to attend work and make an application for a PUP payment without notice to the Respondent. It submitted that she deliberately misdescribed her status of employment to ensure her application was successful. The Complainant admitted that she had not engaged with the Respondent before she took this unilateral action to negotiate a more flexible role. On the basis of the above, the decision maker in the disciplinary process found that she was guilty of serious misconduct for refusing to come to work and apply for a PUP Covid 19 payment. The decision maker found that her behaviour was unacceptable when she refused to abide by her contract of employment was a major breach of trust and confidence. The sanction imposed was immediate dismissal and termination of her employment. The Respondent relied on section 6 (4) (b) of the Unfair Dismissal Act 1977 which relates to conduct of the employee to deem the dismissal fair. It suggested that the Complainant informed the Department of Social Protection that she had lost her job or was temporarily laid off in her application for the PUP payment. The Respondent also relied on section 6 (4) (d) of the Unfair Dismissal Act 1977. It submitted that its decision was within the band of reasonable responses and other potential sanctions were considered. It submitted that the Complainant was afforded fair procedures and natural justice. It further submitted that the outcome of the disciplinary process was fair and proportionate. It also submitted that it was the Complainant's own behaviour that resulted in the serious breach of the terms of her contract of employment and this was serious misconduct. It submitted that the Respondent acted as any reasonable employer would. The Respondent submitted that it was not obliged to pay any notice to the Complainant because of the circumstances justifying the termination of her employment. |
Findings and Conclusions:
CA-00045051-001 I am conscious that the events of this complaint took place over three years ago, during the height of the Covid Pandemic. It is generally accepted that this was a difficult time for everyone. A briefing on the government's response to COVID-19 in September 2020 from the Department of the Taoiseach set out Firstly, everyone knows at this stage the extraordinary demands COVID-19 has placed on every one of us as individuals, as parents, as families, as workers and as business owners. We have never before had to deal with such a range of challenges and all the complexities it brings to every area of our lives. An underlying element to this complaint was whether the Complainant was or was not entitled to a Covid PUP payment for the circumstances she found herself in. I have reviewed an Operational Guideline Covid 19 Pandemic Unemployment payment publication provided at the hearing by the Complainant. This was dated 26 April 2021. Under the heading Lost employment as a direct consequence of Covid 19 it set out "where schools and childcare facilities were closed under Covid 19 restrictions and parents were unable to secure childcare or other flexible employment options they were advised to apply for PUP. However, as schools and the childcare sector have since reopened, the appropriate financial support is available to eligible parents in the circumstances is under the means tested Supplementary Welfare Allowance Scheme.” I have also reviewed a Twitter tweet from the Department of Social Protection dated 11 January 2021 at 4.51 pm. It set out "workers affected by lack of childcare should engage with their employer which a view to exploring all options available to them to return to or continue with work where possible. Where there are no options possible, they are eligible to apply for PUP.” I have also reviewed the RTE website 11 January 2021 at 17.59 p.m. where an article was posted by Ingrid Miley, Industry and Employment Correspondent headed "People unable to work due to childcare may be eligible for PUP". This article referred to the Department of Social Protection tweet earlier that day. The Respondent maintained its position at the hearing was that the Complainant was not entitled to apply for the Covid PUP payment. Section 6 (1) of the Unfair Dismissal Act 1977 contains the general overriding proposition that the dismissal of an employee is deemed to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying dismissal. Subsection (6) further provides that, in determining whether the dismissal was unfair or not, it will be for the employer to show that there were substantial grounds justifying the dismissal. The burden of proof is on the employer. Section 6(7) sets out 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. Ms. Justice Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, set out (at p. 4): ‘Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93: “The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.” Having considered the evidence presented to me, while I can recognise the stressful situation the Respondent found itself in with a number of changes to its staff cohort, I find that the dismissal of the Complainant to be a disproportionate response by the Respondent. The Respondent instigated a disciplinary procedure citing serious misconduct after just four days of absence when the Complainant had advised the Respondent that she was a lone parent with childcare issues. I note that the Complainant had worked through the first school closures of the Covid pandemic in 2020. While I accept that the changes introduced to the Department of Social Protection and Revenue at the time whether it was PUP or TWSS were at times overwhelming and a source of confusion for many employers, I find that the Respondent did not take specific advice on the Complainant’s ability to apply for the Covid PUP payment and incorrectly surmised that she made a false application for same. The world of work changed greatly during the Covid Pandemic and a great number of businesses had to close their doors completely due to the various restrictions. The Respondent’s business remained open and able to trade, but this did not justify the hard line taken by the Respondent to the situation the Complainant found herself in. It may have been the last straw in terms of the staffing changes that the Respondent experienced, but none the less, the decision to dismiss the Complainant for taking up a payment introduced by the Government in the most unusual of circumstances cannot be considered to be within the band of reasonable responses. Furthermore, I find that the Respondent did not follow fair procedures and made the decision to dismiss by correspondence only. The Complainant was not working in a unionised environment and did not have representation. It could not be said that the process undertaken was in compliance with SI 146 of 2000. I note that the decision maker did not consider alternatives to dismissal. Accordingly, I find that the Dismissal was unfair. The Complainant was absent from the workplace for 25 weeks after her dismissal. At the hearing she gave evidence that she could only work on a part time basis. She acknowledged that she received the Covid PUP payment during her time out of work. She was successful in obtaining work in a local hotel at the start of August 2021. Section 7(2A) of the Unfair Dismissal Act (as amended) sets out In calculating financial loss for the purposes of subsection (1), payments to the employee— (a) under the [Social Welfare (Consolidation) Act 2005] in respect of any period following the dismissal concerned, or (b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded. The COVID-19 Pandemic Unemployment Payment was provided for by section 11 of the Social Welfare (COVID-19) (Amendment) Act 2020 (No. 12 of 2020) which inserted Chapter 12B in the Social Welfare Consolidation Act 2005 as amended. Therefore, the Covid PUP payment that the Complainant received is disregarded in the calculation of the Complainant’s financial loss. I award the Complainant €8,775.00 being the financial loss as set out in the Complainant’s submission filed June 2022. The Minimum Notice Complaint: CA-00045051-002 As the Dismissal was deemed to be unfair the Minimum notice claim is well founded. Under Section 4(1) Minimum Notice and Terms of Employment Act 1973 the period of notice required by the Act is a minimum period of notice. Under the terms, express or implied, of the contract of employment an employee may be entitled to more. In Jameson v MCW Ltd M 878/1983 the employee was entitled under his contract of employment to four weeks notice. His statutory minimum entitlement, however, was only two weeks notice. The company gave him four weeks notice of termination but his employment came to an end when only a little over two weeks of contractual notice had expired. The question arose as to whether the company had complied with the Act. The Tribunal unanimously ruled that “the statutory notice period should occupy the last appropriate number of weeks of the contractual notice” and awarded the claimant 1.4 weeks compensation. In this case, the Complainant has submitted that her contract of employment set out that the Respondent would give her one month’s notice in writing. I have reviewed the contract and note same on page 2. I award the Complainant the notice she was due under her contract of 4 weeks. This amounts to €1,404.00. |
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-00045051-001: This complaint is well founded. I award the Complainant €8,775.00 CA-00045051-002: This complaint is well founded. I award the Complainant €1,404.00 |
Dated: 4th April 2024
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Unfair Dismissal. Band of Reasonable responses. Covid 19 PUP social welfare payment. |