Worker

Employer

Anonymised Parties

Deli Assistant

Service Station

Representatives

Martin McSorley

Company Director

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

IR - SC - 00003379

04/11/2024

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 said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

I am satisfied that the hearing was conducted fairly though it was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant contradicting evidence provided by the other side.

The specific details of the dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 5th of April 2023.

The Complainant was not represented and made her own case through oral evidence.

The Complainant alleges that she was unfairly dismissed just as she was hoping to start her employment with the Respondent company. The Complainant’s complaint for reads as follows:-

I was unfairly dismissed and mistreated by AM over the grounds she had put me on 26 hours the week of the 24th and I rang to let her know I would not be able to that amount of hours in one week because  as they are fully aware I am diagnosed with autism spectrum disorder and I am on disability payment and I cannot do more than 21 hours a week to abide by my social welfare restrictions, yet during the call AM stated that I had to do the 26 hours which I told her I am unable to do. They had been informed of this before and during my interview process and since my prior employment with them in the previous year. She had been fully informed of my disability and so has any person in a higher position that it would be necessary to know in the workplace. During this phonecall AM hung up the phone multiple times during the phonecall while I was still talking and trying to explain my situation. After i proceeded to explain my situation she stated "we retract our offer" and hung the phone up on me for the 6th time in that call. During this time she has chosen WhatsApp to be the messaging platform for the shop employees and also timetable to be sent on that too. AM sent all of my work information and welcome back emails and account passwords to a different phone number and when i rang her to inform her of this she was very reluctant to answer my calls and when she did she seemed very aggravated to be hearing from me and during this call she denied sending my information to a different number and continued to raise her voice and said she would sent them to me yet she never did because she had for some reason had me blocked on whatsapp and didnt bother to unblock me when i started working there again.  I was never added to the groupchat and the timeportal said I was not scheduled for any shifts. I was supposedly scheduled for 2 shifts which i was never informed of and unaware of, I arrived in the next day to finish my induction exams along with another new employee. I arrived in my normal clothes only to be told that i was scheduled for a 7 hour shift and that i was supposed to come in in my uniform which had only given out the same day. AM spread around the shop that  i came in for my shift with dirty uniform, messy hair and uncut dirty fingernails when infact i did not arrive in that day for a shift whatsoever. Am  has spread my personal information be it misinformation around the service station shop about me as i have heard it back from floor staff and deli members about AM spreading rumours about me. She has no consideration for people with illnesses or mental illness in the work place whatsoever and it is a horrible thing to be around, live and work with.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

 The Respondent entity was represented by its own company Director Mr. McS. The Respondent provided me with a written submission dated June of 2025. Mr. McS also spoke on behalf of his company. The Complainant was given the opportunity to challenge the Respondent witness evidence.

The Respondent rejects that there has been an unfair dismissal and states that the employment was not viable when it was discovered that the Complainant was only available to work a limited number of hours in the week.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The dispute herein relates to an employment that never really got off the ground.

The Complainant applied to work at her local Service Station. This is a busy hub with a deli and other facilities running from early morning to late evening. There is always an ongoing need to hire and replace staff. The Complainant’s application was noteworthy as the Complainant had worked previously in the Station behind the deli counter. As I understand it, the Complainant had worked full time for a five-month period over the spring to summer months of 2023.

The Complainant gave evidence that she was at that time waiting to get approval for a disability benefit which would operate to limit the number of hours that she could work to 21 hours per week. When the Complainant left her employment, she was on the said disability benefit and whilst she says that the management and staff in the service station were aware of this fact, I am not inclined to accept that further up the Management chain this would have been known.

More than a year later, the Complainant applied for a role back at the same service station. The Complainant was interviewed by a Mr. CT the fresh food regional manager and I understand that the general assumption was that the Complainant was being interviewed to return to a deli role. The Complainant is adamant that she explained to CT that she would only be available for 21 hours in the working week. She said that this was emphasised again and again by her. However, it is clear that this was not noted by CT in the four pages of brief interview notes he took.

I was asked to look at the options open to new recruits in terms of employment which suggests three categories of employee. Those who work three in every seven days, those who work five in every seven days  and those who just do weekends.

It is not clear to me why the Complainant was not put in for weekends as being fully flexible with up to 21 hours available to a potential employer. Instead, the Complainant was put in as being available to work three out of every seven days. Nowhere is it noted that the Complainant needed to limit her hours in any way. I did not hear from CT who was unavailable at the hearing. It seems to me that had he been told as clearly as the Complainant had said she told him, then the onus rested with him to flag the limited availability with HR before ever this employment got off the ground. I would have thought that three days availability would suggest three 8-hour shifts at a minimum.

I am accepting that when HR invited the Complainant to start her induction back into the workplace, they (in the person of AM, the HR Officer) were not aware of the fact that the Complainant was requesting a bespoke pattern of work,  which would be in line with the rules around being in receipt of a disability benefit.

The Complainant seemingly commenced her induction on or about Friday the 20th of September. The Complainant’s induction was supervised by AM who knew the Complainant of old but was unaware that the Complainant was only available for the 21 hours referenced. It seems that the induction day went off smoothly and, in particular, the new online method of communication accessed via phone app was highlighted as being the single portal for all the workplace information.

The Complainant understood that she was due to return to the workplace on the Monday 23rd of September to complete the compliance end of her induction. Over the weekend information was sent to the Complainant’s portal concerning her shifts for the upcoming week. Unfortunately, due to an error the information was sent to the phone of the complainant’s next of kin and not to the Complainant herself. The Complainant never received the information before turning up for work on the Monday at which time she as advised that she was already late for her first shift due to start at 9am that morning. I was advised by the Respondent witness Mr. McS that the Complainant’s co-inductee had received the message and was working from 9am. I do not think that that much turns on this series of events. I would venture to suggest that the misdirecting of information and consequent lateness to work were teething problems that were well capable of being sorted.

This was however clearly a bad start for the Complainant. This was further compounded by the fact that the Complainant then found out that she had been rostered to work for more than the 21 hours she was allowed to work.

For the avoidance of doubt, I am accepting that the Complainant was unable by operation of law to work more than 21 hours per week. To do so might have resulted in the loss of her benefit. Understandably the Complainant rang AM to explain the situation. This all seemingly came out of the blue for AM who had conducted the induction on the Friday and had had no inkling of the limitation on the availability. Nor was there any signal in the paperwork completed by the complainant herself – concerning medical information- which might have flagged an issue.

I cannot know what was said on this phone call and who or what happened that escalated the situation between the parties. I am satisfied that the HR Officer AM did abruptly terminate the employment, citing the unavailability of the Complainant to work three full days as a reason. I do get the impression that this decision was borne out of annoyance rather than the result of a thoughtful decision-making process.

I did ask Mr. McS if there was scope in the workplace to engage an individual with the limited hours available to the Complainant and he indicated that the Complainant may well have been better suited to being placed on tills rather than in the deli. This option was never considered, and the Complainant never commenced her employment and has since found alternative employment in a café in her hometown. I am satisfied that the Complainant was paid for her two days for the induction.

On balance, I am finding that the Employer was not aware that the Complainant was only going to be available for 21 hours per week when she started her induction course. Whilst the Complainant may well have mentioned this time limitation, it was not picked up on and there is no note on file which suggests that this was a burning issue.

I have a sense that the Complainant, already flustered about arriving late, might have over-reacted to her roster when it was revealed. There is nothing to suggest that the HR Officer had she been approached in a calm manner might not have been able to work something out within a few days. AM was never given this option and was seemingly berated for the rostering.

That said, AM is the experienced HR Manager in this pairing. The Complainant is quite young and inexperienced. The HR Manager should have had and used the personnel tools to diffuse and control the situation and I think the flat withdrawal of the employment was heavy handed in all the circumstances. To this extent the Respondent is at fault.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.