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An Employer’s Focus On Implementing A Collective Agreement Rather Than Fair Procedures Costs It €12,735.25

Facts: The Complainant worked as a Sales Assistant for the Respondent between 25th September 2017 and 1st September 2019.

The Respondent claimed that the Complainant was employed under several temporary contracts and in June 2019, she was offered a permanent contract which she declined. By way of a collective agreement negotiated with the union, the Respondent had agreed to limit the percentage of temporary contract amongst staff and permanent vacancies were offered first to the existing permanent staff and then to the temporary staff. The Complainant was offered a permanent contract involving twilight hours (which she worked before), but she declined to sign. The Complainant liaised with the manager regarding new hours which were not available. The store manager said that amending one employee’s hours would be unfair to others, especially those on twilight hours. On 24th August, the Complainant was invited to an informal meeting and asked to bring in a representative, which she refused and during that meeting, she was asked to sign the contract, and the Complainant refused. The Respondent stated that it has no choice but to end her contract employment on notice.

The Complainant however outlined that she had signed the permanent contract but did not return it to the Respondent and since signing the contract she had worked the twilight hours in line with her contract. The Complainant wrote to the Respondent on 25th August regarding how unfairly she was treated during the informal meeting and heard no response. She claimed that the action taken during the informal meeting was unilateral and did not follow any procedures. The Complainant also outlined that it was only the line manager who mentioned about the signing of contract, however, did not mention the implications of not signing it. The Complainant’s representative outlined that had the letter of 25th August been replied to, the issue would have been resolved and further pointed out that no minutes of meeting of 24th August were given to the Complainant. There was also no letter of termination and no right of appeal provided. The Complainant also provided details and evidence in relation to how she mitigated the losses.

Decision: The Adjudicating Officer (AO) noted that the Complainant’s employment ended because of a precipitous reaction to the application of a collective agreement and further noted that the Complainant had a difficulty as the twilight shift ended after the departure time of the last bus. The AO observed that the Complainant was informed of the change in her work hours in June 2019 and there was nothing communicated further until the meeting of 24th August 2019. The Complainant set out her position clearly in the letter of 25th August 2019 and clearly disputed the basis of her dismissal.

The AO found that the Respondent had not shown substantial grounds for the Complainant’s dismissal and hence did not dislodge the onus of showing that the dismissal was fair. The AO noted that the Respondent had no proof that it advised the Complainant of the consequences of not returning the signed contract.

In calculating the weekly remuneration, the AO held that in order to ensure that the weekly pay is calculated according to the employee’s normal working pattern, it must be calculated in line with Regulation 7 of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations S.I. 287/1977 i.e. the pay received during the 26 week period that ended 13 weeks before the termination date, which amounted to €472.53 per week.

The Adjudication Officer held that the Complainant was unfairly dismissed and awarded the Complainant a sum of €12,735.25, which reflected 25 weeks of unemployment and 2019 Christmas Bonus which she would have received had she not been dismissed.

Takeaway for the Employers: The Respondent in this case clearly focused on the implementation of the collective agreement and in doing so, fell foul of the application of fair procedures. It is also evident in this case that the Respondent’s failure to keep a written record of the meetings and other discussions with the Complainant went against it. While communication with all staff should be the key focus for all employers, it is of little benefit if such communications are not followed up by email, letter or some other written form.

Link  – https://www.workplacerelations.ie/en/cases/2021/june/adj-00025208.html

Authors –Chaitra Girish Mallya & Anne O’Connell

25th June 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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