Complainant

Respondent

Anonymised Parties

An Employee

A Beauty Salon

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00012376-001

09/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00012376-002

09/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012376-003

09/07/2017

The Complainant's legal representative stated that she started work with the Respondent in 2014, initially on a Jobbridge contract, which the Respondent topped up by €100 cash. It was stated that the Complainant subsequently became a permanent employee of the Respondent, following completion of the Jobbridge contract. It was further stated that the Complainant started as a receptionist but was promoted to Salon Manager.

According to the Complainant's representative, when she became a permanent employee, her wages were paid, on a weekly basis, by a combination of cheque/bank transfer (rising ultimately €400) and cash in hand (€150).

It was stated that the Complainant went on maternity leave on 24 October 2016. It was further stated that, while on maternity leave, the Complainant was notified that she would be returning to a lesser status and at a reduced wage, in the sum of €150 (nett) less per week.

According to her legal representative, the Complainant refused to return to work under these changed conditions. It was further stated that the Complainant was notified by the Respondent that, in the event of her not returning under the changed conditions by 18 June 2017, she would be deemed to have resigned.

The Complainant stated that, in those circumstances, she had been discriminatorily dismissed and was seeking compensation for discriminatory dismissal, victimisation by being demoted and outstanding holiday pay, commission and staff bonus.

In support of her complaint as set out above, the Complainant provided a detailed account of the events pertaining to her employment and, in particular, those leading to her alleged discriminatory dismissal.

CA-00012376-001: Maternity Protection Act, 1994

The Complainant stated that, prior to going on maternity leave, on 24 October 2016, she held the position of Manager and was in receipt of a net wage of €400 by cheque/bank transfer and €150 in cash every week. The Complainant stated that while she was on maternity leave a replacement was hired.

According to the Complainant, she was told that, following her return from maternity leave, she could only return to work in the lesser position of receptionist and on a salary of €150 per week less than she was receiving of prior to her leave. The Complainant further stated that the person who was hired to replace her, while she was on maternity leave, would be carrying out her duties.

CA-00012376-002: Employment Equality Act, 1998

The Complainant stated that she was victimised for taking maternity leave. According to the Complainant this victimisation took the form of demotion from her role as manager to that of receptionist and a reduction of €150 per week in her wages.

According to the Complainant, the person who replaced her while she was on maternity leave and who was taking her job following her return to work, was single and had no children.

The Complainant stated that the Respondent, through her solicitor, set a deadline of 18 June 2017 as the return to work date and that if she (the Complainant) did not return by that date her job was gone. Stated that she did not return to work as her pay and conditions were less than those she enjoyed prior to her maternity leave.

The Complainant also stated that as she has not returned to work, she presumed she has been dismissed and, in any event, given that the Respondent's conduct was so unreasonable, she could not continue to work with her.

CA-00012376-003: Payment of Wages About, 1991

The Complainant stated that, from 2 May 2017, she was prevented from returning to work and was advised her job was gone since 18 June 2017.

Accordingly, the Complainant states that she is owed six weeks wages at €550 per week. In addition, the Complainant states that she is due her Christmas bonus of €250 for 2016.

The Complainant also claims that she is due an amount in sales commission. However, the Complainant stated that, as this was only paid on one occasion, despite been agreed with the Respondent, she was not in a position to calculate the amount she is claiming.

Finally, the Complainant is claiming 24 days annual leave which, she claims the Respondent agreed she could carry over from the previous year.

Background:

The Complainant commenced working for the Respondent in July 2014, as a receptionist, through a jobbridge scheme. The Complainant worked 37.5 hours per week. During this time the Complainant was paid by the Department of Social Welfare. The Respondent stated that, as a token of goodwill, she started paying the Complainant €100 cash on top of the payments from the Department.

The Respondent stated that, on the conclusion of the Complainant's nine-month jobbridge in April 2015, she was directly employed. According to the Respondent, all cash payments ceased at this point and the Complainant was paid through bank transfer. It was further stated by the Respondent that, once the Complainant was placed on the payroll, she never received any further cash payments.

According to the Respondent, from January 2015, the Complainant could earn commission of 10% on product sales of over €500 per week. The Respondent stated that the Complainant only met this target on two occasions.

The Respondent stated that the Complainant went on maternity leave on 24 October 2016. According to the Respondent, in January/February 2017, while still on maternity leave, the Complainant raised concerns about issues with other staff members. The Respondent stated that, in order to investigate the issues being raised by the Complainant, a meeting was organised for 7 March 2017. However, the Respondent stated that while initially agreeing to the meeting, the Complainant emailed the Respondent on 7 March 2017 stating that she no longer wished to proceed with her complaint. The Respondent responded on 10 March 2017 and requested the Complainant let her know when she would be in a position to attend a meeting as she (the Respondent) wished to investigate the issues being raised.

According to the Respondent, she met with the Complainant, on 3 April 2017, in relation to her returning to work after maternity leave. The Respondent stated that, at this meeting, she informed the Complainant of planned changes to the business. These changes included the creation of a new position which would focus on marketing and helping the Respondent to manage the business. The Respondent further stated that the person who had covered the Complainant’s maternity leave was going to fill this new post. According to the Complainant, this new position was entirely separate from and different to the receptionist role which the Complainant held prior to her maternity leave.

The Respondent stated that the Complainant was informed that, following her return from maternity leave she would be returning to her position as receptionist, with the same terms and conditions as prior to her going on leave. The Respondent stated in evidence that, at no point in the meeting of 3 April 2017, or at any other time, was the Complainant demoted or advised that she was returning to a position with terms and conditions any different from those which applied prior to her leave.

According to the Respondent, later that afternoon, the Complainant sent an email stating that she did not accept what had occurred at the meeting and that she expected to return to the same job, the same rules and same pay as before. The Respondent stated that she confirmed, by return, that the Complainant would be returning to her position with terms and conditions no less favourable than when she left and with no reduction in remuneration.

The Respondent stated in evidence that, around this time, she became aware that the Complainant's contract of employment had been unilaterally amended, without the Respondent's knowledge. According to the Respondent, the amended contract stated that the Complainant was the manager of the Respondent’s company. According to the Respondent this was not and never had been the case, as the owner/proprietor had always been the manager of the company. According to the Respondent the Gardaí were called to investigate this matter.

According to the Respondent's evidence, a letter from the Complainant's solicitor, dated 7 April 2017, was received, stating that the Respondent had demoted the Complainant to receptionist and was reducing her salary by €150 per week. The Respondent stated that the correspondence concluded by stating that any demotion would result in a claim to the Workplace Relations Commission (WRC).

The Respondent stated that, on 11 April 2017, their solicitors wrote to the Complainant's solicitors setting out that the Complainant would be returning to the role as that held prior to maternity leave and that the terms and conditions were no less favourable than those in place prior to her leave. According to the Respondent, this correspondence also highlighted that the Complainant was never advised she was demoted or expected to work at a lower level and that there would be no reduction in her salary.

According to the Respondent, further correspondence, dated 28 April 2017, was received from the Complainant's solicitor stating that, unless she was given assurances that she would be returning to her previous post as manager, or a comparable post, with no lesser pay or terms and conditions, she would not be returning to work and would lodge a complaint with the WRC.

The Respondent stated that, on 8 May 2017, she received a letter from Intreo (Social Welfare) in relation to an application from the Complainant for social welfare, on the basis that she had last worked with the Respondent on 2 May 2017.

According to the Respondent, their solicitor issued a detailed response, dated 10 May 2017, to the Complainant's solicitor. The Respondent stated that this response provided specific detail in relation to the Complainant's terms and conditions of employment which clearly showed that they were similar to those she enjoyed prior to her maternity leave. The Respondent also stated that the correspondence pointed out that there was a grievance procedure in place for dealing with such issues, if the Complainant wish to pursue the matter.

The Respondent stated that, as a result of having received the correspondence from Intreo, they queried whether or not the Complainant had left the job voluntarily.

According to the Respondent, having received no reply to their correspondence of 10 May 2017, they wrote again to the Complainant's solicitor, on 18 May 2017, setting out that while the Complainant's position remained open it was not possible to keep it open indefinitely. The Respondent stated that there was no response to this correspondence.

The Respondent stated that further correspondence issued to the Complainant's solicitor, on 13 June 2017. According to the Respondent, this correspondence set out that the Complainant's job remained open, but that given the time that had elapsed, the Respondent would need to make alternative arrangements if the Complainant was not willing to return to work by 16 June 2017.

According to the Respondent's evidence, a new member of staff was hired in late June 2017 to take over the Complainant's position of receptionist.

The Respondent stated that, they received a letter, dated 13 July 2017, from the Complainant's solicitor enclosing her WRC complaint form.

Against the above background, the Respondent replied to the individual elements of the Complainant's complaint, as follows:

CA-00012376-001: Maternity Protection Act, 1994

In response to this element of the Complainant's complaint, the Respondent's representative referred to Section 26 (ii) and (iii) of the Maternity Protection Act. By reference to a case in the English EAT (Blundell v St. Andrew’s Catholic Primary School [2007] IRLR 625), the Respondent's representative stated that the interpretation of Section 26 was not simply a contractual test, but a question of fact.

According to the Respondent's representative, it was made expressly clear to the Complainant, both in person and in correspondence, that the position remained exactly the same as when she went on maternity leave. It was also stated that the Complainant's contention that she was not allowed to return to work was a complete misrepresentation of facts.

The Respondent stated that, following the Complainant's return from maternity leave, the person who covered for the her during her leave, was retained in the business in an entirely new position, focusing on the marketing of the business. It was further stated that this new role did not include any of the duties carried out in the Complainant's role of receptionist.

In conclusion, on this aspect of the complaint, the Respondent pointed out that, as she had never returned to work following her maternity leave, the Complainant could not allege that the terms and conditions were less favourable than those that applied previously, as she had no knowledge of what the terms and conditions would have been had she returned.

CA-00012376-002: Employment Equality Act, 1998

With regard to the Complainant's complaint of discrimination under the Employment Equality Acts, the Respondent's representative again emphasised the fact that (a) as the Complainant had not returned to work, she could not give evidence that there was a reduction in the level of responsibility and range of work she previously undertook and (b) it had been expressly guaranteed to the Complainant, on numerous occasions, that her position and terms and conditions, including pay, were the same as she previously enjoyed prior to her maternity leave.

The Respondent's legal representative, referred to three relevant cases: Gardiner v Mercer Human Resources Consulting [Dec-E206-007], Wach v Travelodge Management t/a Travelodge Waterford [DEC-E2014-055] and O’Flaherty v Univenture Ireland Ltd [DEC-E2010-094]

It was stated that, based on the facts of the current case, the findings in the aforementioned cases do not apply in this case, as the claimants in those cases had all returned to work following maternity leave and were, therefore, in a position to provide evidence respectively in relation to reduction in the level of responsibility/range of work, less favourable working conditions and discriminatory treatment on return.

The Respondent stated that the Complainant never returned to work, despite numerous reassurances that terms and conditions were no less favourable than those she previously enjoyed. Consequently, it was contended on behalf of the Respondent that the Claimant cannot, therefore, provide any evidence with regard to her potential return to work position.

CA-00012376-003: Payment of Wages About, 1991

With regard to the claim under the Payment of Wages Act, 1991, the Respondent accepted that, while she was entitled to her holiday pay, the Complainant was not entitled to any other payments.

The Respondent denied that the Complainant was not owed any money for the period her job was available but for which she did not attend work.

With regard to the issue of sales commission, the Respondent stated that this was based on sales of over €500 per week. It is contended that, as the Complainant only reached this target twice in the three years she worked with the Respondent, no liability arises.

Conclusion:

The Respondent representative stated that, in the light of the responses set out above, they were seeking a finding that the Complainant was not unfairly dismissed.

However, notwithstanding this position, the Respondent's representative went on to say that as there was a fundamental breach of the employer-employee relationship, reinstatement was not an appropriate form of redress and, therefore, only compensation should be considered.

A considerable volume of evidence, both oral and documentary, was provided by and on behalf of the Complainant and Respondent in support of their respective positions. Having carefully reviewed all of this, I noted that it contained a significant level of contradictory and conflicting evidence, which in many cases it is also found to be lacking in credibility.

However, notwithstanding the above, it was possible to discern a chronology of events/issues which provided a context in which to consider the substantive elements of the complaints and responses.

It is clear that the working relationship between the Complainant and the Respondent was good and incident free up to October 2016, at which point the former was due to go on maternity leave. It appears that in the weeks prior to the Complainant's departure on maternity leave, an issue arose between the Complainant and the Respondent arising out of the completion of contracts of employment for all staff.

According to the Complainant's evidence, the Respondent informed another member of staff (Ms A), that she (the Complainant), by challenging some of the terms of the contracts of employment, was responsible for holding up the signing process for the rest of the staff. The Complainant stated in evidence that, having been confronted by Ms A in relation to this matter, she approached the Respondent and requested that she rectify the situation without delay.

According to the Complainant, not only did the Respondent fail to address the situation but, in fact, avoided her (the Complainant) for the remainder of the day. The Complainant stated that, as a result of this, she availed of outstanding annual leave for the rest of the week, thereby only working one day of her last week before going on maternity leave.

In her evidence to the Hearing, the Respondent confirmed that she made the comment to Ms A and agreed that it was unfair of her to have done so. However, the Respondent stated that she apologised to the Complainant and spoke to Ms A in order to clarify the situation.

It is difficult to understand the Respondent's motivation in making the comments to Ms A about the contract of employment and implicating the Complainant in the manner in which she did. However, it is equally difficult to accept the Complainant's interpretation of the Respondent's actions in this regard.

In her evidence to the Hearing, the Complainant stated that the Respondent’s motivation in this regard was to orchestrate a falling out between her (the Complainant) and the rest of the staff because she (the Respondent) did not want her returning to work after maternity leave. Having carefully considered the Complainant's contentions in this regard, I do not find them to be credible.

Firstly, the evidence clearly indicates that the Respondent only spoke to one staff member, who in turn, raised the issue on an individual basis with the Complainant. While the Complainant contends that she was ignored by her colleagues, it must be noted that she was not at work throughout the time she alleged this behaviour took place. This clearly must cast some doubt on the credibility of the allegations being made in this regard.

Secondly, I am clearly of the view that, on the balance of probability, it is highly unlikely that the Respondent's comment to Ms A could have led to the Complainant not returning to work, following her maternity leave some eight months later. This view is further supported by the fact that when the Respondent, having received a formal written complaint in relation to these allegations on 27 February 2017, the Complainant was clearly resistant to the Respondent's attempts to have the matter dealt with appropriately.

The evidence shows that a series of correspondence, by email and text, then ensued between the Complainant and Respondent in relation to how the former's written complaint of 27 February 2017 should be dealt with. The complaint document of 27 February 2017 was opened in evidence at the Hearing. It clearly shows that (a) the issues were broader than just the October 2016 contract incident, (b) it related to all the staff, but with particular reference being made to one colleague (not Ms A), who was described in the document as the "gang leader" and (b) was having a significant impact on the Complainant, who described herself as being consumed by the matter to the extent that it was making her ill.

Given the seriousness of the content of the complaint document of 27 February, I am satisfied that the Respondent had a responsibility to ensure that the matter was properly and comprehensively addressed. I am also of the view that, in such circumstances, it was both reasonable and sensible for the Respondent to seek professional assistance in dealing with the matter. Consequently, I am satisfied that the position adopted by the Respondent in relation to the Complainant's complaint of 27 February 2017 was reasonable and appropriate in the circumstances.

In that context then, I am of the view that the Complainant's attempts to withdraw her complaint and/or prevent the Respondent from dealing with it appropriately was unreasonable in the circumstances. In addition, I am satisfied that the interactions that took place between the Complainant and the Respondent in relation to this matter, which was primarily played out in communications between the parties during March 2017, led to a serious deterioration in the relationship between them. This, in turn, created an unfortunate backdrop for the issues that arose during April 2017 in relation to the Complainant's return to work after her maternity leave.

At a meeting, attended by both the Respondent and the Complainant on 3 April 2017, the former set out her plans to make changes to the running/staffing of the business. The evidence presented suggests that the Respondent stated that she was creating a new role within the business and was retaining the individual, who had replaced the Complainant while she was on maternity leave, to carry out that role. The Complainant contends, in her evidence, that elements of the new role had been part of her responsibilities as Salon Manager, prior to her departure on maternity leave.

The Complainant also contends that, as the meeting of 3 April 2017 concluded, the Respondent informed her that there would be a reduction of €150 per week in her wages, on her return from maternity leave. The Respondent, in evidence, strongly denied that she made any reference to a reduction in wages at this meeting. The Respondent evidence in this regard is further supported by her subsequent email response to the Complainant in which she states: "you will be returning to your position with terms and conditions no less favourable than when you left with no reduction in remuneration”.

Following the meeting of 3 April 2017, a stand-off developed between the parties in relation to the Complainant's return to work terms. The Complainant was insistent that she was being demoted and would be coming back on reduced wages. According to the Respondent's evidence, the Complainant would be returning to work on no less favourable terms then when she left and with no reduction in wages.

A letter dated 7 April 2017 to the Respondent, from the Complainant's solicitor, initiated a chain of legal correspondence between the parties, which culminated in a letter dated 13 June 2017, from the Respondent's solicitor. This correspondence, stated, inter alia, that while the Complainant's job was open and available on: "terms and conditions including pay as existed before she went on maternity leave", a failure to return to work by 16 June 2017, would leave the Respondent with no option but to make alternative arrangements.

The Complainant did not return to work and submitted her complaint to the Workplace Relations Permission on 9 July 2017.

Against the background as set out above, I proceeded to consider the substantive elements of the Complainant's complaints, as follow:

CA-00012376-001: Maternity Protection Act, 1994:

In her complaint form, the Complainant contends that she was not allowed to return to work on the expiry of her maternity leave. Having carefully considered all of the evidence presented, I am satisfied that the Complainant decided not to return to work based on the understanding that she had been demoted and would be coming back on a reduced salary.

The issue pertaining to the reduced salary is the more straightforward of the two elements of the Complainant's complaint. She contends that, at the conclusion of her meeting with the Respondent on 3 April 2017, the latter told her that her wages would be reduced by €150 per week. The Respondent strenuously denies that she made this comment and was adamant and consistent in her evidence that the Complainant would be returning to work following her maternity leave on the same remuneration as she had prior to her departure.

Having carefully reviewed the documentary evidence presented, I note several references both in email communication between the Respondent and the Complainant and in the correspondence from the Respondent's solicitor to the Complainant's solicitor, to the fact that the Complainant would be returning on the same remuneration as she enjoyed prior to departure.

Consequently, I find that the Complainant's contention in relation to reduction in wages on her return from maternity leave is not supported by the evidence.

The issue in relation to the Complainant's proposed position/job on her return from maternity leave is less clear-cut.

Section 26 (1) (b) and (c) of the Maternity Protection Act, 1994 states, inter alia, that:

“Subject to this Part, on the expiry of the period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work –

(b) in the job which the employee held immediately before the start of that period, and

(c) under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to in paragraphs (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period, and (in either case) under terms or conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work.”

The Act further states at Section 26 (3) that:

"In this section "job", in relation to an employee, means the nature of the work which she is employed to do in accordance with the contract of employment and the capacity and place in which she is so employed".

It appears to me that the kernel of the issue here revolves around the title of the Complainant's role prior to her departure on maternity leave. The Complainant described herself as the "Salon Manager”, a title the Respondent denies was ever bestowed on the Complainant.

The only evidence available to assist in the consideration of this aspect of the complaint, are two photocopies of a contract of employment pertaining to relate to the Complainant's position prior to her maternity leave. Both copies of the contract are signed by the Complainant and dated 20 October 2016. With regard to the Job Title, both contracts appear to have the words "Senior Therapist" inserted as the relevant position/job.

However, in both contracts the words "Senior Therapist" are crossed out manually. In one of the copies, the word "Manager" is inserted by hand over the crossed-out words. In the second contract there is nothing written in over the crossed-out words. The Complainant contends that she was pressurised by the Respondent to sign her contract, prior to going on maternity leave, even though it contained an incorrect job title of "Senior Therapist".

According to the Respondent, the contract which has the word "Manager" inserted was unilaterally amended, without the Respondent's knowledge, after it had been originally signed by the Complainant. It appears that the Respondent referred the matter to the Gardaí for investigation.

No evidence was provided in relation to the outcome of the Garda investigation. However, having carefully examined the evidence presented, it is quite clear that there was one original document and that the second is a copy of the first. It also follows that the version with the word “Manager” inserted has to be the copy, as opposed to the original.

Other than her personal assertion in this regard, the only evidence presented by the Complainant in support of her contention that she was the "Manager" prior to her maternity leave was the contract with the word "Manager" handwritten over "Senior Therapist". Given the large question marks surrounding this evidence, I find it to be unreliable in terms of determining the facts on this aspect.

Consequently, based on the above, I find that the Complainant's complaint that the role she was returning to, following maternity leave, amounted to a demotion is not well founded. While it appears that certain tasks which were allocated to the Complainant prior to her departure on maternity leave may have been transferred to the new role, which the Respondent was creating, I am satisfied that these tasks only formed a relatively small proportion of both jobs.

I am further satisfied that the new role being created was much broader in terms of marketing/business development than had been included in the Complainant's role prior to her departure on maternity leave. I am also of the view that the Complainant's proposed role on her return and the nature of that work was generally consistent with what she had been carrying out prior to going on maternity leave.

Based on the evidence presented, I am satisfied that the position to which the Complainant was returning was no less favourable with regard to terms and conditions, including remuneration, than that which she enjoyed prior to departure.

Therefore, I find that the Complainant’s decision not to take up the position which was an offer to her, on her return from maternity leave, was unreasonable in the circumstances and could not be considered to constitute a breach of the Maternity Protection Act.

CA-00012376-002: Employment Equality Act, 1998:

With regard to this complaint, the Complainant is contending that she was dismissed for discriminatory reasons on the grounds of her Civil Status and her Family Status. In elaborating on her complaint in this regard, the Complainant stated that the person who replaced while she was on maternity leave and who was taking over her job on her return, was single and had no children.

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This means that:

(1) the claimant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

(2) the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

Based on the considerations/findings in relation to the Complainant's complaint under the Maternity Protection Act, I am satisfied that the person who replaced her while she was on maternity leave did not take the Complainant's job on her return to work. The individual concerned was appointed to a new position which was being created by the Respondent and, while that position may have encapsulated some tasks/responsibilities previously carried out by the Complainant, I found, as previously set out, that the Complainant was due to return to work on terms that were no less favourable then she previously enjoyed.

Consequently, taking all of the above into consideration I find that the Complainant has failed to establish a prima facie case of discrimination and, as a result, her complaint in this regard is not upheld.

In addition, the Complainant clearly decided not to return to work in a scenario where her employer was on record stating that she was returning on terms and conditions which were no less favourable than those she had prior to her maternity leave. Consequently, I am of the view that to terminate her employment without testing the Respondent’s assurances in this regard was unreasonable and, therefore, could not form the basis for a successful complaint of constructive dismissal.

CA-00012376-003: Payment of Wages Act, 1991

There are four elements to the Complainant's complaint under the Payment of Wages Act, 1991.

The first of these related to a claim for six weeks wages based on the contention that the Complainant was prevented from returning to work between 2 May 2017, which was the date she was originally due to return from maternity leave and 18 June 2017, the date from which she contends she was advised her job was gone.

As can be seen from the findings/considerations with regard to the complaint under the Maternity Protection Act, 1994, the Complainant clearly decided not to return to work despite confirmation from the Respondent that no reduction in salary would apply. Consequently, in that context, I find that the Complainant can have no claim to payment for the period in question.

The next two elements of the Complainant’s complaint relate to the non-payment of a Christmas Bonus and Sales Commission. No evidence was presented to support the claims that the Complainant was entitled to these payments. In fact, the Complainant stated, in evidence, that she could not even calculate the amount of sales commission she contended she was due. Consequently, I find no basis on which to uphold the claims on either of these elements.

The Complainant’s final complaint under the Payment of Wages Act related to outstanding annual leave. In her complaint, the Complainant sets out that she was due 24 days leave. The Respondent’s legal representative confirmed that the Complainant was entitled to a payment for outstanding leave.

Based on the above I am satisfied that the Complainant has an entitlement to payment for outstanding leave of 24 days. Based on the stated net weekly salary of €550.00, I calculate the amount outstanding to the Complainant at €2,640.00 net.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my decisions in relation to the various elements of the Complainant’s complaints as follows:

CA-00012376-001: Maternity Protection Act, 1994

I find that the Complainant’s claim under this Act is not well founded and, therefore, her complaint is not upheld.

CA-00012376-002: Employment Equality Act, 1998

I find that the Complainant was not dismissed and had no grounds to contend constructive dismissal or discriminatory dismissal. Consequently, her complaint under this Act is not upheld.

CA-00012376-003: Payment of Wages About, 1991

I find that the Complainant’s claims in relation to outstanding wages, Christmas Bonus and Sales commission are not well founded and, therefore, these elements of her complaint are not upheld.

With regard to outstanding annual leave, I find that the Complainant’s complaint in this regard is well founded. Consequently, her complaint is upheld and I award her the sum of €2,640.00 net, in respect of outstanding annual leave.

Maternity Protection Act

Employment Equality Act

Discriminatory Dismissal

Payment of Wages Act