ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004995

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 15/11/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

In her evidence the Complainant stated that she worked as the Office Manager in the Respondent's commercial business from 7 June 2016 to 2 September 2016. She stated that she worked two short days and three full days across the week, totalling 26.5 hours.

The Complainant stated that she received a contract of employment prior to commencement of her employment. However, as a result of negotiations with the Respondent certain terms and conditions of the contract were changed which required the issuing of a new contract. However, the Complainant stated that she was never presented with the revised contract or requested to sign it.

The Complainant stated that for the first three months of her employment the Complainant was on probation. The complainant provided the Hearing with a copy of the undersigned contract of employment and referred, in particular, to the clause in relation to Probation. The clause contained the following term:

"Your employment will be probationary for the first 3 months. If this agreement is terminated within the probationary period it shall be at the discretion of the company and in this case one week's notice will be given. The employee will be subject to review at regular intervals throughout the contract of employment."

The Complainant stated that she received a job offer on 24 August 2016 from another employer. As she considered this to be a better position than the one she held with the Respondent, the Complainant decided to accept this offer. On the understanding that she was only required to provide one week's notice, the Complainant informed the Respondent of the situation on 30 August 2016.

The Complainant informed the Hearing that she did not receive wages for her last week at work (29 August - 2 September 2016) amounting to €251.75. The Complainant also informed the hearing that she had not received any holiday pay for a time in the Respondents employment and that this amounted to some of €241.68. This brought the Complainant's total claim to €493.43.

According to the Complainant, the Respondent responded to an email which she (the Complainant's) sent on 15 September 2016 and set out the reasons she was withholding payment of the claimed amounts. The Complainant's evidence suggests those reasons were as follows: (1) the Complainant had not provided formal written notice of one month, as per the contract of employment, (2) the Respondent had incurred rehiring expenses as a result of the fact that she (the Respondent) was going on vacation the following week, (3) the Respondent had received a second formal complaint regarding aspects of the Complainant's work performance and (4) the Complainant had closed the office early on one occasion. The Complainant stated that the Respondent concluded her correspondence by threatening to counter sue for "expenses incurred by the Complainant's non-compliance", in the event that the Complainant pursues her claim for wages and holiday pay.

The Complainant responded to the issues raised by the Respondent as follows: (1) she believed she was only required to provide one week's notice and not the one month being demanded by the Respondent, (2) she stated that the Respondent did not outline what the rehiring expenses where or how they were the complainant's responsibility, (3) the Complainant acknowledged that there had been one incident where she made a mistake in sending out a group email. However, the Complainant stated that while the Respondent did speak to her about the incident it was not done as a reprimand and no disciplinary action was taken at the time. The Complainant also stated that she was unaware of the second formal complaint being referred to by the Respondent, (4) the Complainant did recall the day she closed the office early in order to attend a medical appointment. However, she stated it was only closed early by about two minutes.

In response to the Respondent's contention that she took two sick days for which she was paid and therefore owed those days to the Respondent, the Complainant stated that she only took two sick days in total while working for the Respondent, both of which were half days, one of which was worked back the following week. Consequently, the Complainant accepted that she owed the Respondent a half-day in relation to sickness absence.

In addition, the Respondent accepted that she did not work on the final day of her last week (2 September 2016) and therefore was only due four days for that week.

Respondent’s Submission and Presentation:

The Respondent did not attend the Hearing as she was out of the country on annual leave. However, the Respondent provided a written response in advance of the Hearing.

According to the Respondent's written evidence, the Complainant's period of employment was from 7 June 2016 to 1 September 2016. The Respondent stated that the Complainant did not show for work on the morning of 2 September 2016. The Respondent received a text confirming that the Complainant would not be presenting for work that day and she subsequently left the keys in the office in a nearby filling station for collection.

The Respondent stated in her written evidence that the Complainant agreed to the contractual arrangement for the position of Office Manager and was forwarded a copy of the employment contract by email. The Respondent stated that the complainant requested an amendment to the payment schedule on the contract and that this was accommodated. The Respondent stated that, apart from the payment schedule, the Complainant raised no further issues with the remainder of the contract which included the following clause in relation to notice period:

"In the event that either the company or you may wish to terminate the contract before its expiry date, one month notice must be given by both parties. Nothing in this agreement shall prevent the giving of a lesser period of notice by either party where it is mutually agreed."

The Respondent claimed that the Complainant advised her on 31 August 2016 that she had accepted a position with a new employer.

According to the Respondent's evidence, she had already outlined to the Complainant her dissatisfaction with her work by highlighting one of the complaints received from a long-standing client. The Respondent stated that the full extent and seriousness of the confidentiality breach which occurred on that occasion did not seem to register fully with the Complainant. The Respondent denied that she laughed off this episode, as contended by the Complainant. On the contrary, she suggested that the incident was so serious that it could have cost her business a lot of clients. The Respondent also contended that some lesser concerns were brought to her attention by other clients following the Complainant's departure from the office.

The Respondent stated that the Complainant had two outstanding sick days which were due to be deducted from her pay.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Decision:

Having carefully considered all of the evidence adduced, I set out below my findings in relation to the Complainant's claim for outstanding wages and holiday pay.

The first issue for consideration relates to the notice period required for termination of the contract of employment. Notwithstanding the fact that the contract of employment was not signed by either party, I am satisfied that, following the amendment to the contract in relation to the payment schedule, both parties operated on the basis of the terms contained therein.

The Respondent claims that the notice period is covered by the "Notice Clause" in the contract of employment, which provides that one month’s notice must be given by either party who may wish to terminate the contract and that a lesser period of notice will only apply in the event of this being mutually agreed by the parties.

The Complainant claims that the notice period is covered by the "Probation Clause" in the contract of employment, which states that during the probationary period (i.e. the first 3 months of employment) the notice period shall be one week.

With regard to the "Probation Clause", I note that it states "if this agreement is terminated within the probationary period it shall be at the discretion of the Company and in this case one week's notice will be given". This would suggest that it is only the Company who might terminate the agreement within the probationary period. The normally accepted understanding of the probationary period is that it gives both the employee and the employer an opportunity to assess each other. Consequently, I am of the view that it would be wholly unreasonable to suggest that an employee does not have the discretion to terminate the contract of employment within the probationary period should they so choose.

Based on the above, I am satisfied that the notice period applicable within the 3 months probationary period is that of one week. I am further satisfied that the Complainant was within the 3 month probationary period when she tendered her resignation. In addition, there is no evidence to suggest that the probationary period had been brought to a formal conclusion and/or that the Complainant had been officially informed that probation had concluded or that her permanent employment had been confirmed.

I am also strongly of the view that a period of one month's notice would be unreasonable within the first 3 months of the Respondent's employment. I am further confirmed in this view by the Minimum Notice and Terms of Employment Act, 1973, which stipulates, in Section 4(2) that the minimum notice for an employee who has been in continuous service for less than two years is one week.

Consequently, I reject the Respondent's contention that the period of notice of 3 months applies and find in favour of the Complainant, in this regard, on the basis that one week's notice is applicable in this case.

Taking all the above into consideration, I find the Complainant is entitled to payment of week's wages for her last working week with the Respondent, less the deduction of one day's pay for the day she did not work that week (Friday, 2 September 2016) and for a half day's pay in respect of sick leave which is due to the respondent. In the latter regard I am satisfied, from the Complainant's evidence, that she worked back the hours involved in the second of two sick days in dispute.

Applying the above to the Complainant's wage calculation for the week in question I find in her favour to the sum of €156.75 (€9.50 x 16.5 hours).

With regard to the Complainant's claim in relation to holiday pay, I am satisfied, from the evidence presented, that she did not receive any holiday pay for the period of her employment with the Respondent. Therefore, I find that the complainant is entitled to holiday pay for the period in question (7 June 2016 to 1 September 2016) with a further reduction of half-day in respect of sick leave due to the respondent. Applying the above calculations to the Complainant's calculation of her holiday pay I find in her favour to the sum of €234.08, based on total of 308 hours worked.

In summary, I find in the complainant's favour the total sum of €390.83. I direct that this amount be paid in full to the Complainant with the Respondent being responsible for PRSI and USC that relate to this sum. This is based on the "Remuneration Clause" in the Complainant's contract of employment which states: "the employee’s remuneration would be paid at a rate of €9.50 net per hour worked. The Respondent is liable as the employer for additional PRSI and USC charges on this salary."

That concludes my determination this case.

Dated:   19^th April 2017