Worker

Employer

Anonymised Parties

An Employee

An Employer

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969

CA-00063640

22/05/2024

The Worker commenced employment with the Employer in July 2023 as a Guest Relations Agent. The employment arose on foot of a written offer dated 29 June 2023 which provided for remuneration at the rate of €14 per hour and stated that the “expected hours of work” would be 40 hours per week.

The Worker’s employment terminated with effect from 28 January 2024.

As the Worker did not have the requisite service to pursue a claim under the Unfair Dismissals Acts 1977 (as amended), the dispute was referred pursuant to section 13 of the Industrial Relations Act 1969.

The central issue in dispute concerns the circumstances surrounding the termination of the Worker’s employment and whether the manner in which that termination was effected was fair and reasonable.

The Worker submitted that she commenced employment in July 2023 as a Guest Relations Agent on foot of a written offer dated 29 June 2023. She stated that the offer provided for a rate of pay of €14 per hour and “expected hours of work” of 40 hours per week.

The Worker gave evidence that she initially worked full-time hours. However, after a period, her weekly hours were progressively reduced. She stated that no clear explanation was provided to her for this reduction.

She outlined that she had a positive working relationship with the owner of the business and that discussions had taken place regarding potential progression within the organisation.

The Worker stated that, in January 2024, she was informed by another employee that she was required to attend a meeting. At that meeting, she was informed by an individual, whose name she could not recall, that her employment was being terminated. She gave evidence that she repeatedly sought an explanation for the decision but was informed that the owner was taking legal advice and that the reason would be confirmed in writing.

The Worker stated that she did not have any direct discussion with the owner in relation to the termination of her employment.

She was subsequently furnished with a letter signed by the owner confirming that, “further to our discussions”, there was no work available for her going forward and that her employment would terminate on 28 January 2024. The Worker disputed that any such discussion had taken place.

The Worker further gave evidence that the Employer continued to recruit for full-time roles, including shortly after the termination of her employment.

She secured alternative employment in or around May 2024. I am satisfied that the Worker made efforts to secure alternative employment following the termination of her employment.

In cross-examination, the Worker stated that she received a written contract in or around January 2024, approximately two weeks prior to the termination of her employment. She stated that she did not sign this document as she did not consider that it reflected the terms upon which she had agreed to commence employment.

The Worker also stated that, following the termination of her employment, she encountered the owner of the business in a supermarket and there was some reference to the possibility of work in the future. The Worker stated that this was a brief and informal interaction and that she did not hear anything further from the Employer thereafter.

The Employer did not call any witness to give evidence at the hearing.

The Employer’s position, as advanced through its legal representative, was that the termination of the Worker’s employment arose due to a reduction in available hours. It was submitted that the circumstances were not unfair and were akin to a redundancy situation.

It was further submitted that the Worker did not have a contractual entitlement to 40 hours per week. In that regard, Counsel relied upon a written contract furnished to the Worker in January 2024 which provided that the Worker’s hours were “variable”.

The Employer’s legal representative stated that there had been a diminution in available work which necessitated the termination of the Worker’s employment.

It was submitted that, as the termination did not arise from misconduct, the principles of natural justice did not arise in the same manner.

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

It is not in dispute that the Worker’s employment commenced on foot of a written offer dated 29 June 2023 which stated that the “expected hours of work” would be 40 hours per week. I am satisfied that this formed the basis upon which the Worker entered into the employment relationship and reflected the understanding between the parties at the commencement of the employment.

I accept the Worker’s evidence that, following an initial period, her working hours were reduced. No evidence was adduced by the Employer to explain the basis upon which those reductions occurred.

I note that a written contract said to provide for variable working hours was furnished to the Worker in January 2024, shortly prior to the termination of her employment. I accept the Worker’s evidence that she did not sign this document as she did not consider it reflected the terms upon which she had been engaged. There is no evidence before me that the Worker agreed to any variation of her earlier working arrangements. In those circumstances, I do not consider that the later document materially alters the position as originally agreed between the parties.

Turning to the termination itself, I accept the Worker’s evidence that she did not have any direct discussion with the owner of the business regarding the ending of her employment. In that context, I attach significance to the wording of the termination letter which refers to “discussions” said to have taken place. I am satisfied, on the balance of probabilities, that this does not accurately reflect the manner in which the termination was communicated to the Worker.

I further note that no witness attended on behalf of the Employer to give direct evidence regarding the decision to terminate the Worker’s employment. While the Employer was represented by Counsel and I permitted Counsel to test the Worker’s evidence by way of cross-examination, the absence of any witness with direct knowledge of the relevant events necessarily limits the weight that can be attached to the Employer’s position where factual matters are in dispute.

The explanation advanced at the hearing was that the termination arose due to a reduction in available hours and was akin to a redundancy situation. It was further submitted that the principles of natural justice did not arise in the same manner as they would in a dismissal for misconduct.

I am not persuaded by that submission. Regardless of how a termination is characterised, an employer is required to act fairly and reasonably in the manner in which a decision to terminate employment is effected. This includes informing the employee of the situation, engaging with them in advance of any decision being made, and affording them an opportunity to respond. In the present case, I am satisfied that the Worker was not afforded any such opportunity.

I further note that the characterisation of the termination as a redundancy situation arose only in the course of the hearing and is not reflected in the contemporaneous documentation. The termination letter simply states that there was no work available going forward.

I also accept the Worker’s uncontradicted evidence that the Employer continued to recruit for full-time roles in or around the time of, and shortly after, the termination of her employment. No evidence was adduced by the Employer to rebut this evidence.

In those circumstances, I do not find that the explanation advanced at the hearing is consistent with the factual matrix as it existed at the time of the termination.

I am satisfied that the Worker’s employment was terminated without warning, without any meaningful explanation, and in the absence of any fair or transparent procedure.

While the Worker did not have the requisite service to pursue a claim under the Unfair Dismissals Acts 1977 (as amended), it does not follow that the manner in which her employment was terminated was fair or reasonable.

In all of the circumstances, I am satisfied that the Worker was treated in a manner which fell short of the standards of fairness and reasonableness that ought to apply to the termination of an employment relationship.