Complainant

Respondent

Parties

Helen  Shine

Dromcollogher Day Care Centre

Representatives

Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059622-001

26/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059622-002

26/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00059622-003

26/10/2023

The Complainant gave evidence on affirmation. Documentary evidence was furnished in advance of the hearing and relied upon by the Complainant.

Siobhan Coughlan, Centre Manager, gave evidence on affirmation on behalf of the Respondent.

Neither party choose to avail of the opportunity to cross examination.

CA-00059622-001

The Complainant could not remember her exact commencement date but believed it was 2 weeks before the start of the school year in 2022. She stated her termination date was 18 September 2023.

Her hours of work were between 9am – 1 pm for 2 days per week and 9am – 3.30pm 1 day a week. It was her evidence she was paid €15 per hour.

CA-00059622-002

It was the Complainant’s evidence that Ms Coughlan told her on 18 September 2023 she was getting paid too much where she was not working the hours. It was her evidence that there was an agreement in place that once she completed her work.

It was her evidence that she was told she was no longer needed by the Respondent.

Financial Loss

The Complainant gave evidence that she has not worked since and did not make any effort to seek alternative employment.

CA-00059622-003

It was the Complainant’s evidence that she was treated less favourably than her full-time colleagues where she was not given annual leave or paid public holidays with the exception of the “June or August” public holiday.

CA-00059622-001

It was Ms Coughlan’s evidence that a contract of employment was presented to the Complainant within 5 days of her commencement, but it was never returned signed.

CA-00059622-002

The Respondent denied the Complainant’s claim of unfair dismissal. In particular, Ms. Coughlan denied that the Complainant was no longer needed.

Ms. Coughlan stated in evidence that the Complainant contacted her on 14 September 2023, stating that she would not return to work until the matter was resolved. Ms. Coughlan was unsure what the issue was. While not pressured to attend to duties in the kitchen, the Chairperson and the Complainant sought to discuss matters with her on 18 September 2023, which she was unable to do.

Ms. Coughlan outlined that there had been errors in the payment of the Complainant’s wages on 8 September, and this was subsequently rectified.

It was Ms. Coughlan’s evidence that the Complainant was not dismissed on 18 September 2023. Instead, when the Complainant did not return to work, it was “assumed” she was not returning, and she was removed from the roster “a week or two later.”

Ms. Coughlan stated that she could not get through to the Complainant’s phone, so she sent a message on Facebook. She also requested that the Chairperson make contact with the Complainant.

CA-00059622-003

The Complainant’s complaint regarding public holidays was denied. It was Ms Coughlan’s evidence that the Centre is closed on public holidays, and it automatically is a paid day.

CA-00059622-001

I find that the Complainant was provided with a contract of employment, as a copy of same was produced, along with Ms. Coughlan’s credible evidence of having provided it to the Complainant in the kitchen during the early days of her employment.

Consequently, I find the complaint is not well founded.

CA-00059622-002

The only matter in dispute between the parties is whether the Complainant was dismissed or resigned on 18 September 2023.

It is not disputed that deductions were made from the Complainant’s wages in September 2023. Based on the evidence of the cheque received by the Complainant on 11 January 2024, it is accepted that the deduction was paid, albeit four months later.

Ms. Coughlan’s evidence of her attempts to contact the Complainant was not contested. No evidence of the Chairperson’s attempts to resolve the matter with the Complainant was presented at the hearing.

What is of concern is the evidence that, within a week or two, the Complainant was removed from the roster, and no further attempts were made to engage with her about her non-attendance in the workplace or to rectify the wage situation. While it may be considered unreasonable for an employee not to attend work where there is an ongoing wage dispute, it is equally unreasonable for an employer to simply remove her from the roster after a period of a week or two.

In conclusion, on the balance of probabilities, I find that the Complainant was dismissed by the Respondent within the meaning of Section 1 of the Unfair Dismissals Act 1977.

The next question to consider is whether the Respondent unfairly dismissed the Complainant.

The Unfair Dismissal Act 1977 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

“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.”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia,

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

McMahon J. in Khan v Health Service Executive 2009 E.L.R. 178, summarised the meaning and value of fair procedures as being:

“… at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good … What does [sic] fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant.”

The principles of natural justice require that the disciplinary investigation, the decision to impose a sanction (in this case, dismissal), and any subsequent appeal be conducted independently and objectively. An employee is entitled to a fair and impartial determination of the issues under investigation, as outlined in the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) and established case law.

In this case, no disciplinary procedure was followed, nor were fair procedures applied. Furthermore, I find the Respondent did not act fair and reasonably in its engagement with the Complainant.

Accepting the Complainant’s evidence, I find that she was unfairly dismissed by the Respondent on 18 September 2024.

Mitigation of Loss

The Complainant’s evidence was undisputed that she did not engage in seeking alternative employment.  

CA-00059622-003

Section 9 of the Protection of Employees (Part-Time Work) Act, 2001 prohibits the less favourable treatment of a part time employer compared to a comparable full time employee in respect of conditions of employment:-

“9.—(1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.”

It was the Complainant’s evidence that she did not receive payment for public holidays, in particular the June and August 2023 public holidays. However, the Respondent produced payslips to demonstrate that she was paid for these two days when the centre was closed.

The Complainant also gave evidence that she was not paid holiday pay, to which the Respondent stated that she had never requested any holidays. The Complainant’s evidence was that she took a total of three days off during her period of employment.

While no comparator was identified by the Complainant, it was not challenged by the Respondent that she was not paid annual leave as a part-time employee. Furthermore, there is no evidence in the payslips of annual leave payments either during her employment or upon cessation.

Consequently, I find the complaint is well founded in respect of annual leave.

CA-00059622-001

I find the complaint is not well founded.

CA-00059622-002

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In the circumstances where the Complainant chose not to seek alternative employment, I find she failed to mitigate her loss of earnings. Consequently, I find that the sum of four weeks renumeration of €840 as being just and equitable having regard to all of the circumstances.

CA-00059622-003

Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 sets out the redress where a complaint of a contravention of section 9 to be well founded.

I find that the sum of €840 as being just and equitable having regard to all of the circumstances.

Part Time Employees- Unfair Dismissal