ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00004743
Parties:
| Complainant | Respondent |
Anonymised Parties | A Retail Employee | A Retail Jewellery Business |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00006636-001 | 24/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00006636-005 | 24/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00006636-006 | 24/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00006636-007 | 24/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00006636-008 | 24/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00006636-009 | 24/08/2016 |
Date of Adjudication Hearing: 17/10/2017
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and/or Section 13 of the Industrial Relations Acts 1969following 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).
Background:
This case commenced against a named Respondent, however on the first date of hearing, in November 2016, a solicitor representing the son of the employer made an application to have the case dismissed. He said that the Complainant had been employed by a sole trader, but that sole trader has since died. The solicitor’s firm were appearing on behalf of the son of the deceased sole trader. The solicitor then made a number of preliminary argument on jurisdiction: 1. There is no jurisdiction to hear the complaint as the wrong Respondent is cited on the complaint 2. That the complaints were time barred as they were made outside the 6 months 3. In relation to the unfair dismissal complaint the Complainant had not worked continuously for the Respondent for 1 year prior to her employment ending. It was accepted by the Complainant at the hearing that she had been employed by a sole trader who was now deceased. However she said that the de facto employer was the son of the Respondent who managed the business and had engaged her as an employee. However, in the event that the wrong employer had been sued, the Complainant wished to amend the proceedings in order that the complaint could be heard. Evidence was then taken, without prejudice to the jurisdictional arguments raised by the Respondent, on the Complainant’s application to extend the time for service of the complaint to 12 months on the basis of reasonable cause. The matter was then adjourned. The Respondent was given time to file tax documentation to demonstrate that the de facto employer was not the son of the deceased sole trader As a result of the parties agreeing that the employer had been the sole trader, now deceased, the Adjudicator pursuant to her powers under Unfair Dismissals Act 1993 (as interpreted by the case of Hutton v. Philippi, now deceased and Major George Philippi, Personal Representative of the deceased 1982 ILRM 578) amended the name of the Respondent in the proceedings to be the Estate of the sole trader, now deceased. The complaint was then served on the executors of the Estate of the Sole Trader, one of which was upon the same solicitor’s firm that appeared at the first hearing day. Time Line of Case The first WRC hearing took place in Sligo on 9 November 2016 The name of the Respondent was amended by the Adjudicator in April 2017, after which all papers and correspondence was sent to the executors of the Estate of the Respondent The case was listed for re- hearing on 26 June 2017 in Sligo and a town agent representing the Estate of the Respondent, deceased, applied for an adjournment to obtain instructions, which was allowed. The case was again re-listed for 29 August 2017 in Sligo and there was no appearance by the Respondent. The case was adjourned by the Adjudicator to ensure that the Respondent were properly on notice of the hearing date. The case was finally listed on 17 October in Monaghan town and there was no appearance by the Respondent. Having been satisfied that the Respondent were properly on notice of the hearing (by letter dated 14 September2017) the Adjudicator proceeded to hear the complaint. |
Summary of Complainant’s Case:
Unfair Dismissal Complaint. 1. The Complainant worked as a retail employee in a jewellery shop in town in the north midlands. 2. Complainant had worked previously, for a brief period, for the Respondent’s husband, in the their jewellery business, ten years earlier. 3. At that stage, the jewellery business was being run by a wife and husband team. It was later run by the lady alone, as a sole trader, after her husband died. 4. In October 2014, the Complainant was contacted by the son of the Respondent, who was now running the business on behalf of his elderly mother. 5. The Complainant was asked to work 2 days per week in the shop. Her pay was to be €70.00 per day, therefore €140 per week. 6. At this stage the Complainant knew that the lady (the sole trader) was elderly and incapacitated. She was living above the shop and had little to do with the running of the business, which instead was being managed by her son. 7. The Complainant gave evidence that she commenced work as a retail assistant in the shop on 1 November 2014 8. She was employed to work 2 days per week in the shop 9. Soon after she started the son of the Respondent asked that instead she work one day per week in the shop and work 2 or 3 afternoons upstairs, as a carer for his mother 10. The Complainant had always liked the lady, as she had her husband when working there previously. They were people of good character. 11. The Complainant accepted what was described to her, by the son of her employer, as a temporary arrangement, that of a carer, until the family had made proper care provision for their mother. 12. From that point onwards she was paid €70 for working one day in the shop and she was paid cash for working, as a carer. She still was paid €140 per week as per the agreement reached in October 2014, but realised that only €70 was being paid “through the books” 13. However over time, the Complainant became unhappy with the terms of her employment. 14. She liked caring for the lady however she found that the lady’s children were disrespectful towards their mother and she did not wish to become engaged in what essentially was a family conflict. 15. The Complainant also found it difficult to work alongside the son of the employer. He was disrespectful towards his mother but also towards the Complainant. He acted inappropriately towards her and on more than one occasion he sexually harassed her and physically assaulted her. This took place both in the shop premises and upstairs in the mother’s living quarters. 16. The Complainant felt a moral obligation to remain caring for the old lady, as she believed that she would not be looked after properly by her own family, however the lady’s health started deteriorating around this time and the Complainant did not feel qualified to continue working as a carer. 17. In October 2015 she told the son/ manager, that she wished to return to her 2 day per week job working in the shop. She did not believe that this would be problematic as her position as a carer was always meant to be temporary but it had lasted longer than it should have and for the period that she had cared for the lady, she had done a good job. 18. The son/manager did not respond to the Complainant’s suggestion. The Complainant believed that she would revert to working the Friday and Saturdays as originally agreed. 19. On 17 October 2015, on a Saturday that she was due to work, she telephoned the shop to say that she could not work because her son was ill and there was no one else to look after him. 20. On the following Saturday 24 October 2015, the Complainant herself was sick and telephoned the shop to say that she would be unable to work that day. 21. The following Thursday 29 October 2015, the Complainant called into the shop. The purpose of her visit was to return the keys to the mother’s apartment upstairs, which she still held. 22. On arrival into the shop, she saw that a new girl was employed. 23. She asked the son/manager why was there someone else employed and was told that she was dismissed because she was unreliable and she had missed the previous two Saturdays. 24. The Complainant protested saying that she had been sick and her son had been sick. The son/ manager said that they had someone else now. 25. The Complainant said that she would go to the Gardai and tell them about the assaults that he had subjected her to. He asked her to stop talking and tried to get her to go upstairs into the mother’s apartment to discuss the matter but, in light of what had happened there previously, the Complainant would not go upstairs. She left the premises and reported the assaults to the local Gardai. Extension of Time for Reasonable Cause 26. The Complainant attended the local office of the Department of Social Protection after her dismissal and was told to obtain a number of documents from her former employer 27. She contacted the son/manager and requested a P.45. She requested it to be left in the shop premises as she did not wish to deal directly with the son/manager 28. He said that he would but failed to do so 29. After contacting him again he told her that he would not give her the P.45, but would deal directly with the Department of Social Protection himself. 30. She never received a P.45 and as a result of false records given by the son/manager she received less social security than she was entitled to. 31. During this time the Complainant became mentally very unwell. She decided to complete a WRC complaint form online in January 2016 and believed that she had filed it at the time. However, after not hearing back from the WRC in August 2016, she contacted them and no complaint had been received. 32. She repeated the process by using a handwritten form in August 2016, which was outside the 6 month time period. 33. The reason for the delay in completing the second form was due to ill health. She suffered from depression between December 2015 and in March 2015 which was connected to the experience in her workplace. 34. She had other medical concerns, at this time. She was referred to a neurology department in a Dublin hospital, due to acute migraines and she also had a cancer scare. 35. At this time, her priority was her son, but she worried that due to her poor health that she was not being as good a mother as he needed and deserved. 36. The periods of depression were ongoing and continue today but after instituting the WRC complaint in August 2016, she felt that she regained some control over her life. Her work experience with the Respondent flattened her and left her unable to take decisions. This lasted until she contacted the WRC and found out that the complaint that she had thought she filed, had not been filed. 37. She felt bereft because, having done everything that was asked of her by her employer including caring for the mother of the son/manager. However instead of receiving gratitude or respect, she was treated with contempt and disdain |
Summary of Respondent’s Case:
1. The Respondent did not appear at the hearing |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I am satisfied that the evidence provided by the Complainant to be credible and in many respects disturbing. CA-00006636-001 Unfair Dismissals Act 1977-93 Based on the uncontested evidence of the Complainant I find as follows: 1. Applying section 2 of the Unfair Dismissals Act (as interpreted by the EAT decision in the Philippi case) I amended the complaint so that it could proceed against the Estate of the Respondent 2. The Complainant suffered ill health which was contributed to by the treatment she received in her place of work. I am satisfied that this ill health was the cause for her failure to file the complaint within 6 months of the termination of her employment and that she has shown reasonable cause. Therefore I extend the time period of time to 12 months for her to proceed with her complaint under the Unfair Dismissals Act 1977-93 (and her claim for redress under the Industrial Relations Act 1969 see below) 3. I am satisfied that the Complainant worked for the Respondent for a period, in excess of 12 months in that she commenced work on 1 November 2014, she was dismissed on 29 October 2015 and she was entitled to one week of minimum notice. 4. I am satisfied that the Complainant was dismissed on 29 October 2015 and that this constituted an unfair dismissal 5. Accordingly, I award the Complainant the sum of €10, 000.00 which reflects the loss of income that she suffered as a result of the dismissal. 6. In assessing this award, I take account of the fact that part of the reason provided for her dismissal was that she was absent from work due to minding her son, who was sick. I find that she was entitled to take force majeure leave in these circumstances and that she should not have been penalised for so doing. CA-00006636-005 Industrial Relations Act 1969 1. I find that the complaint under the IR Act 1969 to be well founded. The Complainant agreed to take on a temporary post as a carer until alternative care arrangement were put in place. However the post lasted nearly a year during which the Complainant was exposed to unacceptable work conditions. 2. Under this heading I recommend that an award of compensation be made to the Complainant of €3000.00 Section 18 of the Parental Leave Act 1998 CA-00006636-006 CA-00006636-007 CA-00006636-008 CA-00006636-009 |
In respect of all the complaints under the Parental Leave Act 1998, I do not find these to be well founded. As the Complainant took a leave day on 17th October due to her son being ill, I do not find that a breach occurred under the 1998 Act. The fact that she was dismissed, as a result of taking this leave day, is a breach dealt with under the Unfair Dismissals complaint.
Dated: 21 February 2018
Workplace Relations Commission Adjudication Officer: Emile Daly
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