Complainant

Respondent

Parties

Sandra  Concannon

Medow Court Hotel

Complainant

Respondent

Anonymised Parties

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Representatives

Emer Feeney BL instructed by Ryan and Company Solicitors

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-00063639-001

22/05/2024

The complainant submits that she was dismissed unfairly and the respondent refutes the allegations.

The complainant commenced employment on 09/03/2018, her employment ended on 13/02/2024 and her complaint was received by the WRC on 22/05/2024.  Her hours varied as mostly a restaurant worker and her hourly rate was €14 per hour.

She submitted that she received terms of employment and was left off the schedule without notice and without reason given to her in February 2024.  She had no work, no pay and no explanation for the removal of her from the roster. She was last rostered on 02/02/2024 but did work on 06/02/2024 following a text message from Mr Clement looking for her to cover reception.  She text the respondent to find out why she was not rostered but did not receive a response.  Messages sent included on 29/02/2024 looking or a meeting with management and Mr Flanagan replied that “I will not be attending any meeting…as I have been threatened with legal action”.  The complainant replied that she had been treated unfairly and “would just like clarity on my employment status”.  On 02/03/2024, again on 11/03/2024 and again on 14/03/2024 she contacted a director Mr A seeking clarity of her employment status.  She requested on 04/03/2024 a copy of the grievance procedure and again on 14/03/2024 she asked for clarity on her status and on 05/04/2024 she again asked for clarity and asked for her annual leave to be paid and received no response.  She submitted that her husband who worked at the hotel asked the manager about the complainant’s hours and was told that the complainant had been rostered for 4 hours but left after 2.  The complainant was not advised that this was why she was no longer rostered.  On 27/02/2024 the complainant made contact with Mr Flanagan and he told her that she was occupied with her child and was therefore not able to commit to work.  The complainant had mostly worked in the restaurant but did on occasion cover reception and reminded the respondent that she had always worked and was told that she had been paid to work.  The complainant asked during this call if she had a job and was told that he did not know and hung up the phone.

Evidence of Ms Concannon

The evidence of Ms Concannon was that she commenced employment on 09/03/2018 and had a flexible contract and worked generally on average 20 hours and in February 2024 she was removed from the roster but asked to come in on occasion.  She asked about her hours and there were emails that she sent asking for clarification of her hours and it could have been resolved if the respondent had replied to her.  She raised a grievance and the respondent did not respond and she asked for a meeting and was trying to determine her status and felt people were talking about her.  There was no process and no procedures and she was 11 weeks without knowing what was happening.  On 14/03/2024 she again asked for clarification and was ghosted and there was loss of earnings totaling €3,360 and that she made efforts to get other employment and secured employment on 29/04/2024.  Her evidence on efforts to mitigate her loss was that she had sought employment from approximately 4 other companies.

Under cross examination she said that towards end 2023 she worked 8 hours on average and she had accrued annual leave and her husband sometimes did payroll.  She said there were occasions where she had to leave to attend to her son and that she is currently working and the respondent did not put her on the roster.

The respondent submitted that the complainant worked 323.78 hours in 2023 and therefore accrued annual leave of 25.90 hours and had worked the previous year 195.86 hours and had been overpaid for 446.26 hours and that in 2024 she had worked 45.52 hours and she had accrued 3.64 hours.

Evidence of Mr Flanagan General Manager

The evidence of Mr Flanagan was that the the complainant worked from March 2018 and got a large discount for her wedding  which was held at the respondent’s hotel and that nothing malicious was done to her.  The respondent needed more help than the complainant could give and she was therefore left off the roster.  He told her he would not communicate anymore to her and she should have respected that as if a woman says no, she means no and he wanted to know why he was harassed by her with repeated emails asking about her employment.

Under cross examination he said that there were conversations between him and the complainant and they were going nowhere and he would have preferred to have communicated with her legal team than to communicate with her.  He told her verbally on many occasions that there were hours available to her and he did not have to communicate that to her in writing.  He told her he would no longer engage with her and she was offered hours and did not take up these hours.  He said that the roster is communicated by WhatsApp weekly based on volume and that she was indirectly dismissed and that a person could assume that if they were left off the roster for more than four weeks that they were dismissed and she had been left off the roster for more than four weeks.

The complainant submits that she was dismissed, and that the respondent submits that she was not placed on the roster.  It would appear that dismissal was in dispute.  Where the fact of dismissal is in dispute a Complainant must establish that her employment came to an end in circumstances amounting to a dismissal as defined by the Act. 

The Labour Court set out in UDD2338 Parkboro Development Ltd v Mariusz Witkowski that

“There can be no absolute rules about (what) is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.”

The complainant’s evidence was that she normally worked on average 20 hours and was last rostered on 02/02/2024 but did work on 06/02/2024 following a request to do and she was not placed on a roster thereafter and she contacted the respondent numerous on occasions asking why she was not rostered and that she had to assume that she had been dismissed.  Mr Flanagan’s earlier evidence had been that the complainant was not dismissed and later clarified that if an employee was not on the roster for a period of four weeks, they could assume that they were dismissed, and the complainant had not been on the roster for a period of 4 weeks and therefore it could be assumed she had been dismissed.  He also confirmed that this is what happened with the complainant.  I find therefore that there was a dismissal.

Section 1 of the Act defines

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,,

and the burden of proof is firmly on the Respondent.  The test for unfair dismissal under s.6 of the Unfair Dismissals Act, 1977 (as amended) includes whether the decision is within the range of responses open to a reasonable employer.

“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.”

The importance of fair procedures has been set out in inter aliaCassidy v Shannon Castle Banquets and Heritage Ltd [2000] ELR 248 and Mooney v An Post 4 IR 288 as well in Bunyan v. United Dominions Trust (1982) IRLM 404, where the Employment Appeals Tribunal re-stated the well-established principle that

 “..fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.”’

As British Leyland UK Ltd v Swift [1981] IRLR 91 sets out

“If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair”.

The respondent failed to engage in any procedures prior to dismissal, failed to provide the complainant with a reason for the dismissal, failed to provide an appeals process, failed to provide a grievance procedure and failed to respond to the complainant’s repeated correspondence.  I find it extraordinary that Mr Flanagan appeared aggrieved that the complainant sent repeated communication to him enquiring as to the status of her employment.  It is difficult to understand how in the absence of any communication from the respondent the complainant could ascertain the status of her employment.   I note that the respondent suggested that the complainant appeared to be overpaid annual leave, but nothing was ever put to the complainant during her employment with regards to such matters.  Taking into consideration all the circumstances of the complaint I find that this is not how a reasonable employer would have behaved and I find that the dismissal was unfair.

The complainant’s evidence was that she secured employment approximately 11 weeks after her employment ended and Sheehan v Continental Administration Co Ltd. 858/1999 outlined that

“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work”

The complainant provided limited evidence of efforts to secure alternative employment in the intervening period.  Having considered the remedies available I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case. 

SI 287/77 Unfair Dismissals (Calculation of Weekly Remuneration)) Regulations 1977 outlines how weekly earnings should be calculated. I note that the complainant’s hours varied and therefore, under S11

”Where, in respect of the relevant employment, there is no number of hours for which employees work in each week that is normal for the employment, the weekly remuneration of each such employee shall be taken, for the purposes of these Regulations, to be the average amount of the remuneration paid to each such employee in the 52 weeks in each of which he was working in the employment immediately before the date of the relevant dismissal. “

Having reviewed the submissions I calculate the complainant’s average weekly hours under SI 287/77 Unfair Dismissals (Calculation of Weekly Remuneration)) Regulations 1977 at an average of 16.9 hours at the hourly rate of €14 and award the complainant 11 weeks totalling €2,602 which I reduce by 10% owing to limited efforts by the complainant to mitigate her loss and therefore, the award is €2,350.

I find that the dismissal was unfair and award the complainant €2,602 which I reduce by 10% owing to limited efforts by the complainant to mitigate her loss and therefore, the award is €2,350.

Unfair dismissal, fair procedures, calculation of weekly remuneration, roster