This matter came before the Labour Court as appeal by the Respondent employer against a decision by an Adjudication Officer who found that the Appellant (McDowell) had been unfairly dismissed and awarded the sum of €15,000 in compensation.

The Appellant was employed by the Respondent since 2018 and contended that she was dismissed without notice between the 27th of February 2020 and the 2nd of March 2020. However, the Respondent contended that she was not dismissed as alleged and contended that the Appellant left the premises on the 27th of February 2020 and did not return and as a consequence remains a ‘live’ relief employee with the Respondent.

The Appellant submitted that in January 2020 she sought permission from her manager for her daughter to undertake work experience in the Respondent’s premises in the context of her undergoing a course to become a qualified medical secretary. Permission was granted by her manager.

The Appellant’s daughter commenced her work experience on the 17th of February 2020 and on the 24th of February 2020 the Appellant received a phone call from the Respondent wherein he told the Appellant that her daughter had to leave the premises immediately as she had not been Garda vetted. The Appellant’s daughter subsequently left the premises.

On the evening of 27th February 2020, the Appellant was invited to a work-related book launch in the city centre which she intended to attend along with her daughter. The Appellant’s daughter attended the Respondent’s premises on that afternoon to wait in an office for the Appellant.

The Respondent phoned the Appellant and demanded that her daughter be taken off the premises. He then asked the Appellant to attend a meeting in his office where he advised her that her daughter should not be on the premises. The Appellant left the premises and was phoned shortly afterwards by a colleague, Mr Kelly, who advised her that she should not attend the following day. The Respondent then called to advise the Appellant that she should not attend for work on the following Monday or Tuesday. Subsequently, the Appellant was contacted by Ms O’Sullivan to inform her that she would not be required for work with the Respondent any longer.

The Appellant had not been contacted by the Respondent since with an offer of work. She maintained that, on the facts, she was undoubtedly dismissed by the Respondent.

The Respondent submitted that the Appellant was employed on an ‘as and when’ contract of employment and was not entitled to be provided with hours of work if the employer did not require her to ‘cover’. It is common practice that when staff are not required for ‘cover’, they are contacted by the Respondent by way of e-mail, call or text to so advise them.

The Respondent maintained that the Appellant was not employed for 37 hours per week as alleged by her and submitted that no disciplinary action was initiated against the Appellant in respect of events involving her daughter.

On the 6th of March 2020, the Respondent received a Solicitor’s letter written on behalf of the Appellant stating that the Appellant had been dismissed. The Respondent replied to that letter asserting that the Appellant had not been dismissed from her employment.

The Respondent clarified that the Appellant had not been contacted with an offer of work in the period since early March 2020 and submitted that limited work had been available because of the global health emergency and that another employee had been allocated all of the work which was required in that interim period.

The Court noted that, as contended for by the Respondent, the global pandemic had an impact on the operations of the Respondent. The Court also noted however that across the period of the pandemic, work of the nature which had been carried out by the Appellant was still required by the Respondent. The Court also noted that the Appellant, who according to the submission or the Respondent remained an employee throughout, was not contacted at all in that period by the Respondent with an offer of work or at all. Instead, all available work of the type carried out by the Appellant was, according to the Respondent, provided to another employee.

The Court, having considered the factual matrix of the matter before it, concluded that the Respondent could have afforded work to the Appellant in the period since March 2020 but chose not to do so.

In all of the circumstances and notwithstanding the contradiction as between witness evidence as to whether she was ever actually informed that she would not be required for any work into the future, the court decided that it was reasonable, on the facts, to conclude that the Appellant was in fact dismissed by the Respondent in early March 2020. The Court also concluded that the dismissal was unfair as there were no reasons to justify the Appellant’s dismissal.

The Court, having accepted that the financial loss suffered by the Appellant is in the amount of €55,000, determined that the Appellant failed to meet the standard of effort required to mitigate that loss and decided to reflect that failure in the amount of compensation to be awarded. The Court therefore considered that a reduction of 55% was just and equitable, which equated to the sum of €25,000.

Guidance for Employers

Often when there is a dispute around whether a dismissal took place or not the courts will focus on the actions of the parties at dispute to determine whether what was being claimed took place, did in fact take place.  In this case the Respondent’s argument that the Complainant had not been dismissed was not borne out by the fact that she had not subsequently been offered any shifts following the incident leading to the alleged dismissal giving rise to this claim.
https://www.workplacerelations.ie/en/cases/2022/june/udd2238.html

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