Representatives

Ms Deborah Dwyer, Citizens Information Centre

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00018679-003

23/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018679-004

23/04/2018

The complainant referred the complaint and the dispute on 23 April 2018. On 18 October 2018, the Director General delegated the complaint and the dispute to me for hearing and decision, respectively recommendation.   I held a joint hearing into both matters on 15 November 2018, in Longford. The complainant and her representative were present. The respondent did not attend. The final piece of correspondence was received from the complainant on 26 November 2018, and concerned a query about the engine size of the complainant’s car.

CA-00018679-003 - Terms of Employment (Information) Act, 1994: The complainant credibly asserted that she had never received either a contract of employment or a statement of her terms of employment as set out in Section 3 of the Act. The complainant, in direct evidence, gave some stark examples of how the respondent owner appeared to impose some conditions of the complainant’s employment “on the hop”, as it were.   One such example, which the complainant was able to prove with printouts of text messages from her mobile phone, was that the respondent owner demanded 12 hours’ notice for sick absences.

CA-00018678-004 – Industrial Relations Act, 1969: The complainant’s complaint is essentially one of bullying. The complainant commenced working for the respondent in May 2015, but has been on sick leave since April 2018 due to the stress and anguish the respondent’s treatment has caused her. The complainant explained that this was a small flower shop with four staff and the owner and that it was the owner who bullied her. The complainant stated in evidence that she attempted repeatedly to raise the owner’s behaviour towards her with the owner, to very little avail. A few days later, the owner would slip back into her old behaviours. The complainant would usually be told that she was simply oversensitive. As against that, the complainant stated that both her co-workers and customers of the respondent business repeatedly told her that they found it appalling how the complainant was treated by the respondent.

When asked to provide examples of the respondent’s behaviour, the complainant described a time when her grandmother was very ill, and she was not able to work overtime for the respondent. Instead, she assisted her father in getting to the nursing home where her grandmother was being cared for. According to the complainant, the respondent responded with: “I have a business to run, it’s Valentine’s day!” The respondent then asked about the complainant’s grandmother, but not out of any empathy or human interest. The respondent was solely concerned as to whether the complainant would need time off for her grandmother’s funeral. The complainant became profoundly upset and distressed when recalling this experience in evidence.

In terms of days off, the complainant also asserted that the respondent at times did not permit her to take more than one week of unbroken annual leave.

The complainant also said that she had an unrealistic workload in terms of servicing weddings and funerals. Her colleagues worked much less, even though, in the complainant’s estimate, they were well able to perform the same duties as the complainant.     The complainant said that she was driving all over the midlands nearly every weekend, with floral arrangements in her own family car, and never received any mileage or contribution to the cleaning costs for her car.   The complainant also regularly visited trade shows and floral exhibitions, since, as she explained, trends in floral arranging change quickly, especially regarding weddings. The complainant did this in her own time and never received any support or contribution to travel costs, from the midlands to Dublin, from the respondent.  

The complainant also shared a story when she was on vacation in Italy with her husband, where she found 20 missed calls from the respondent on her phone. The respondent was seeking to borrow candle stands from the complainant which were the complainant’s private property. The complainant’s husband, a metal craft worker, had designed and made them, and they were in the complainant’s home.   The complainant stated that she had once offered to loan them to the respondent, in a general manner. The respondent was now instructing the complainant to alert a family member in Ireland, so that the family member could let the respondent’s driver into the complainant’s home to collect the candle stands. The respondent closed the call with “[the driver] is on his way”. It was then the complainant’s mother who performed this favour for the respondent. The respondent needed the stands for a wedding, but it took the complainant four months to get them back. Neither did the complainant receive any financial consideration for this, even though the respondent used them for business purposes.

As noted above, the respondent did not attend the hearing or engage otherwise with the process.

CA-00018679-003 - Terms of Employment (Information) Act, 1994: I find the complainant’s complaint well founded.   It also appears to me to be somewhat related to the complainant’s bullying complaint. The respondent owner imposed employment conditions on the complainant in a very situational manner, very much like moving goalposts, and the complainant did not have a contract or statement of her terms of employment to consult to assert her rights.

CA-00018678-004 – Industrial Relations Act, 1969: I found the complainant to be a credible witness and am satisfied from her evidence that she did indeed experience a prolonged period of bullying from the respondent owner, and that because of the small size of the respondent business and the position of the owner, there was no meaningful industrial relations procedure for her to engage with.   I am also satisfied that the complainant did make repeated efforts to get the respondent owner to change her ways, to no avail.

CA-00018679-003 - Terms of Employment (Information) Act, 1994: I find the complaint to be well founded and pursuant to my powers under Section 41 of the Workplace Relations Act, and as set out in Section 7 of the Terms of Employment (Information) Act, to

(a)    Provide the complainant with a complete statement of all her terms of employment as set out in Section 3 of the Act and

(b)   Pay the complainant four weeks’ wages, which according to the pay data given by the complainant amounts to €1800, in compensation, subject to lawful deductions.

CA-00018678-004 – Industrial Relations Act, 1969: Considering the very poor relationship between the complainant and the respondent, and the fact that the respondent did not participate in the hearing, it does not seem appropriate to recommend specific actions for implementation as regards their interpersonal relationship. I do find it fair, however, to recommend that the complainant is reimbursed for specific expenses she incurred in the employment of the respondent.

Based on the complainant’s evidence, I therefore recommend:

Mileage payments for floral deliveries performed for the respondent business: 12,000 km (40 weekends with an estimated mileage of 100 km for three years), with a 1.6 l engine car at the civil service rate of 44.79 cent per kilometre - €5,348.80

Contribution towards valeting costs for the complainant’s family car, due to the additional soiling caused by the floral arrangements transported, (€100 per year for three years): €300

Mileage payments for attendance at trade shows: 960 km (four trade show attendances per year over three years with an 80 km return trip), with a 1.6 l engine car at the civil service rate of 44.79 cent per kilometre - €429.98

Subsistence payments for attendance at trade shows: 12 five-hour subsistence rates of €14.01 (for the same trade show attendance as above) - €168.12

These sums, which amount to a total of €6,246.90, are payable in respect of past expenses incurred by the complainant and therefore not subject to income tax.

Terms of Employment (Information) Act, 1994 – complaint well founded – written statement to be provided – compensation – Industrial Relations Act, 1969 – bullying – complainant credible witness – recommendation for expense payments.