Termination of employment - Dismissal - Applicant worked two different periods of the day - Each period funded separately - Whether arrangement permissible at law - Respondent acted on advice from Government Departments - Applicant restricted to working only one period - Whether procedural fairness applied by respondent - S.31 Industrial Conciliation and Arbitration Act, 1972.

The applicant was employed to work two different periods of the day. Each period was subject to separate funding arrangements and was viewed as a separate contract of employment.

The respondent said that on advice received from a Government Department regarding funding arrangements, and subsequent contact with the Department of Labour, it appeared that it was not permissible for the applicant to be employed under two contracts. The applicant was then advised by the respondent that she could no longer work under both contracts and would have to chose one or the other.

_T_he Commission did not rule on the issue of the applicant working under two separate contracts, but found that there was no procedural fairness in the manner in which the matter was handled by the respondent.

**The dismissal was harsh, unjust and unreasonable.

This is an application by Mariola Mrozinski for a determination by the Commission that her dismissal from employment by the Enfield Polish Child Care Centre was harsh, unjust or unreasonable.

At the time of her dismissal, the applicant was employed as a Child Care Worker pursuant to the terms and conditions of the Child Care Workers Award.

The basis of the employment contract, as can be drawn from Exhibit A1, appears to be twenty five hours per week at one rate of pay. This situation arises due to work being performed at different times of the day and being subject to different funding arrangement.

The essence of this matter is that, the applicant alleges that she was advised by the employer that as a consequence of the employer receiving certain advice from two State Government Departments, that she would have to choose between the two contracts of employment. That is to say, she could have one or the other, not both. It is this advice that the applicant says amounts to a dismissal or a constructive dismissal. Again it is that dismissal which the applicant says is harsh, unjust or unreasonable.

There was a large amount of evidence in this matter. The Commission received evidence from the following:-

Mr. T.K. Snelson - Organiser - Federated Miscellaneous Workers Union

Ms. E.I. Podsiadlowska - Director - Child Care Centre

Mr. S. Odorsic - Senior Project Officer - Department of Community Services and Health

Not all of the evidence was specific to the issue at hand. For example, the Commission sees no need to make findings as to whether the applicant's membership of the Union was a factor in this matter, nor for that matter, the detailed nature of advice received from the Government Departments.

The Commission has some sympathy for both parties in these proceedings. It is clear that they were not wellversed in industrial relations or the finer points of employment contract law.

The Commission accepts that by and large they acted in good faith towards one another during the employment. The reality of the situation is that, the employer received certain advice as to funding arrangements from the Department of Community Services and Health. As a consequence of that advice, the employer contacted the Department of Labour. That Department advised that the current employment contracts with the applicant may not be permissible. The Commission does not choose to rule on that issue as it involves the interpretation of an Award, a role of the Industrial Court. However, the Commission is of the view that the Department may well have been correct. The employer upon receipt of that advice, put the options to the applicant. In reality, what the respondent was faced with at this stage, was the need to re-organise or re-schedule its staffing in the same way as is envisaged in the definition of 'significant change' contained in the Termination Change and Redundancy prescription of this Commission. The respondent here needed to review what was going on, consult, and implement the necessary changes in as fair a manner as possible. That did not happen. The applicant was faced with what amounted to an ultimatum and it is that ultimatum that categorises the respondent's action as a dismissal. There was no procedural fairness in the manner in which the issue was handled.

Accordingly, the Commission is of the opinion that the dismissal was harsh, unjust and unreasonable.

The Commission makes no particular criticism of the respondent as to that outcome. The situation here, is a small community group grappling with the complexities of industrial law and funding issues, in an activity with varying demands as to its services.

The Commission does not at this stage propose to deal with any consequent relief due to the submissions of Mr. Murray at p.182 of transcript. The Commission will re-list this matter at short notice upon the request of either party.

By way of giving some guidance to the parties, the current view of the Commission as to relief would be to take the approach of remedying the defect in the dismissal process, by way of the provision of proper notice.

That is not to say the Commission is unwilling to hear further submissions on the issue of relief.