A care centre which took the “extraordinary” decision to dismiss a worker who told an employment tribunal in a separate rights dispute that she intended to quit has been ordered to pay her €6,500 for unfair dismissal.
Mairead Hanlon secured the award at the Workplace Relations Commission on foot of a complaint under the Unfair Dismissals Act 1977 against North Kerry Day Centre Ltd in Listowel.
Last year, the WRC heard Ms Hanlon, a physical activity project worker earning €15 an hour for a 20-hour week, was dismissed after giving evidence during an earlier employment rights dispute on October 17, 2023, that she didn’t plan to come back to work.
At the time, she had been out of work on sick leave for “significant stress”, the tribunal heard.
In her previous WRC case, Ms Hanlon alleged that the company had breached the Terms of Employment (Information) Act by failing to give her proper notice of an instruction that she transfer to working at a care home for the elderly dementia patients.
The WRC was told that Ms Hanlon was asked to go into the Fuchsia Centre in Listowel, Co Kerry. The company’s position was that this was just for two weeks, in order to cover staff absences – the WRC being told that it was short on staff because of Covid-19.
Ms Hanlon’s position was that her contractual duties involved being “out in the community all the time” rather than being assigned to a single care home and that the instruction amounted to a “fundamental change” to her terms of employment.
A formal grievance process found against Ms Hanlon’s complaint and was upheld on appeal, the tribunal noted.
WRC adjudicator Moya de Paor, who heard that case, made no findings on the substance of Ms Hanlons’s terms of employment case, after concluding that the complainant filed her complaint form too late, and rejected it on preliminary grounds.
In Ms Hanlon’s second WRC case, Mairead Carey of Carey Solicitors, for North Kerry Day Centre, submitted that the complainant had “stated under oath” during the October 17 “that it was not her intention to return to her employment”.
After the firm wrote to the worker “accepting her resignation”, Ms Hanlon replied that she intended to resign but “would not put it in writing until it suited”, it was submitted.
Ms Carey said the firm was “entitled to conclude [Ms Hanlon] had abandoned her employment”.
Ms Hanlon’s position was that she had not resigned.
Adjudicator Breiffni O’Neill called the case “extraordinary”.
“There was no termination of the contract by the complainant, only an indication at a WRC hearing on 17 October 2023 that she intended to resign at an unspecified date in the future,” he wrote.
He concluded that a reasonable employer would have looked for clarification on the remark before accepting it as a resignation. “Incredibly, the respondent in this case did not do so,” he wrote. Instead, he wrote, the company had told him they waited to see if Ms Hanlon would “resile from her intention”.
“When she did not do so, they effectively took advantage of her indication to do so and wrote to her accepting her ‘resignation’,” Mr O’Neill wrote. He ruled that the employer had terminated Ms Hanlon’s position and that it was an unfair dismissal.
However, he wrote that although the employer’s conduct in respect of the dismissal was “egregious”, Ms Hanlon had made “insufficient efforts to mitigate her financial loss”.
He awarded the worker €6,500 for the dismissal.
Reporting by Stephen Bourke
