Anonymised Parties

A Claimant

An Employer

Representatives

Purdy Fitzgerald & Co Solicitors

Beauchamps Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008737-001

12/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00008737-002

12/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008737-003

12/12/2016

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

CA-00008737-004

12/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008737-005

12/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00008737-006

12/12/2016

The respondent has employed the complainant as a sales manager, tour guide and café manager. She commenced working on the 1st of January 1988 (in complainant’s submission) or March 1993 (in the respondent’s submission) and the employment ended on the 19th of October 2016. She was paid €550 gross and works 40 hours per week. The complaint made under the National Minimum Wage Act, 2000 (CA-00008738-002) was withdrawn at hearing.                                                                          The parties made written and oral submission to the hearing.

It is submitted by way of general background that the respondent is a family business (there were six siblings working in the business including the complainant, two of whom were directors) which has been bequeathed to the six children of the original owner (their father) in equal part (one sixth shareholding). There are two boys (one is the managing director - MD) and four girls (one of whom is the operations director – OD) in the family.                                                                                                 Part of the complainant’s original job was to add up the lodgements although since her father’s death the OD has taken this duty upon herself. Furthermore, since that time she has been kept in the dark in relation to how the company is doing. On the 17th of October 2016 she went into the office as she wanted to check the lodgements and as she was doing so she was approached by her brother who enquired as to what she was doing. She informed him that she was concerned in relation to the company finances after which he left. He returned shortly thereafter and shouted at her that she was going to ruin the company. The OD arrived and spoke with her brother. She then approached the complainant “full of rage demanding to know what she was doing in the office”.In response the complainant informed her that “she had seen financial reports indicating director remunerations for over €90,000 each year.” She was directed to get herself a good solicitor and to “get out and never come back”, informed by the OD when she reminded her that she was an equal shareholder that “I am a director and you are nothing but an employee – you’re fired, you’re fired, get out.” The complainant attended a doctor’s appointment on the following day. The MD was in the tea house when she returned to work on the following day (19th inst.) and both were friendly towards each other. She showed another sister the financial report on the day and said that she hoped she wasn’t part of this mess. Her sister took the report to the MD who approached the complainant and said that her problem was that she had such a low IQ and was so stupid that she didn’t understand what she was looking at. He said that he’d get the accountants to explain. He then screamed with rage and anger at her and told her to get out and that she was fired. She left through the factory which was not her normal route as she was so scared of him.                              Subsequent attempts by the complainant through her solicitors to gain access to the books and records of the company and ameliorate the matter through mediation were spurned by the respondent.

CA-00008738-001: The complainant submits that she was not paid, nor was she provided with a day off in lieu or an additional day of annual leave for the Public Holiday which occurred on the 1st of August 2016 in breach of s. 21 of the Act.

CA-00008738-003: The complainant submits that she was not paid her entitlement to a 15minute break in breach of s. 12 of the Act. She was only afforded a 10minute break working during her normal 5.5 hours per day. In the absence of any prescribed record the complaint must succeed.

CA-00008738-004: The complainant submits that she was not provided with written terms and conditions of employment in contravention of s. 3 of the Act. She seeks maximum compensation of 4weeks pay.

CA-00008738-005: The complainant submits that she was unfairly dismissed by the respondent. On the 17th of October 2016 her sister who is a director shouted at her “I am a director and you are nothing but an employee, you’re fired, you’re fired, get out” and on the 19th of October her brother who is the Managing Director dismissed her by screaming at her to get out and informing her that she was fired. There was no reason proffered or fair procedure afforded which is a minimum requirement in dismissal law. In any event there was no substantive justification available and therefore the dismissal must be deemed to be an unfair one.

CA-00008738-006: The complainant submits that she was not paid her statutory entitlement to minimum notice and is entitled in the circumstances described to the payment of eight weeks statutory minimum notice.  

It is submitted by way of general background that it became apparent in October 2016 that the complainant was becoming “extremely disruptive in the workplace.” The OD was admitted to hospital on the 7th of October 2016 following an argument with another sister. When the MD returned from the hospital on the day he informed the complainant and another sibling/sister that the OD was very unwell. The complainant retorted that “she deserves everything she gets”. She followed him into his office and continued the foul and abusive tirade towards the OD. Her other brother was a witness to the events in the office and it was the first occasion on which both brothers became aware of the complainant’s dissatisfaction with her siblings and the business. On the 17th of October during the MD’s absence her brother came across the complainant taking photographs of the company accounts on her mobile phone. By way of explanation she said “I’m copying the company accounts. I found out that [OD and MD] have stolen €100,000 each out of the company.” She requested him not to inform them but that if he stuck by her she’d get him his inheritance. On the same day the OD confronted the complainant. She was told that she and the MD were stealing from the company, that they were corrupt and that they would be going to jail. The complainant admitted that she had taken, copied and photographed confidential company documents and had proof. The OD said, “you can’t be doing that” and the complainant replied, “I can do what I want, I am a director”. The OD pointed out that she was not a director and said, “you cannot continue to behave this way in work”. The complainant left and as she did so the OD said, “if you walk out through that door don’t come back” to which she retorted “you’re going down, down, down, you’re going to jail.” Their brother witnessed these events. On the 19th of October the complainant showed a copy of the company accounts to her other sister at work. She stated that the OD and MD had stolen large bonuses and advised her that she should choose her side, that the OD would be removed as executor of their father’s will and that the process was being delayed, to facilitate the theft. The sister informed the MD of this conversation and when he approached the complainant at 9.20am she became abusive towards him. He attempted to explain to her that the document she was waiving at him referred to the combined annual salaries of the three directors (one of whom was their late father). He said, “I swear on our parent’s graves that the figures you have there are director’s salaries. You’re totally wrong.” She refused to listen and said he would be going to jail and that she was going to destroy him. This interaction took place in the presence of other staff members and customers. He told the complainant to leave and in the heat of the moment he terminated her employment on the day. He subsequently learned from his sister that the complainant had gone into his office where he had left his own wages in a bag in a drawer (€600 cash) prior to her departure. When he went back to his office the cash was missing from the bag although it had been there earlier. The dismissal was a heat of the moment response to a hugely stressful interaction and it was expected that the complainant would return to work when she had reflected upon the situation. Despite an e-mail from the company accountants verifying the amounts as relating to the remuneration being the total of the director’s salaries and bonuses and correspondence between the parties in the aftermath, nothing changed.

CA-00008738-001: The respondent submits that the complainant received a day off in lieu of the Public Holiday falling on the 1st of August 2016 on the 15th inst. and that therefore no breach of the Act has occurred.

CA-00008738-003: The respondent submits that there was no breach of the Act as alleged and that the complainant as a family member was responsible for taking her own breaks in accordance with the provisions of s. 3 (2) (c)“a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment”. The complainant was afforded considerable flexibility as it relates to working hours. Her original working hours were 40 hours per week. These were reduced when she became a mother to facilitate the care of her children. In the 6month period prior to 12th of December 2016 she worked an average of 25-30 hours per week and determined her own rest breaks. Additionally, as part of a long standing mutually agreeable arrangement she would leave her workplace when the tea rooms/shop were quiet and would be contacted to return during busy periods.

CA-00008738-004: The respondent submits that there was no breach of the Act as alleged in that the complainant was employed prior to the commencement of the Act (see above) and did not request a statement under s. 3 in accordance with the requirement set out at s. 6 (1) of the Act.

CA-00008738-005: The respondent submits that the events leading up to the termination have been highlighted in the general background. It was intended that the complainant would return to work when she had reflected upon the explanation given by the MD. It was not out of the ordinary for disagreements to arise and for siblings to return to work after a period of reflection. As matters progressed however it became apparent that the complainant herself did not wish to do so. Subsequent events made it abundantly clear that she had no intention of returning to work. The complainant’s behaviour on the 7th, 17th and 19th of October 2016 was nothing less than outrageous and amounted to gross misconduct justifying summary dismissal. She contributed to her own dismissal and she left the respondent with no choice but to issue her with her P45 which was also at her own request.

CA-00008738-006: The respondent submits that the complainant was not entitled to notice or payment therefor as she was dismissed for gross misconduct.

I have not recorded the part of the submission of the respondent detailing the events post 19th of October 2016 as they are not relevant to the herein proceedings in my opinion and I have given them no weight. I have referred to the witness evidence adduced where relevant.

Referring to the complaints under the Organisation of Working Time Act, 1997 I note that it was agreed by the respondent in cross examination that there was no record kept of family working time but that the complainant was paid whether she worked or not. In these circumstances it is difficult to sustain an argument that payment for the 15th of August amounts to compliance within the provisions of s. 21 (1) (b) of the Act (day off in lieu within one month), in circumstances where no specific record relating to the payment exists. Accordingly, the complaint must succeed.                                                   Concerning the second complaint under s. 12 of the Act, once again in the absence of specific record the complaint must succeed, however I note that the respondent operated a lax regime in respect of the complainant’s attendance on site and will take the same into account in addressing the issue of compensation.

Referring to the complaint under the Terms of Employment (Information) Act, 1994 I note that the employment commenced prior to the commencement of the Act and accept that there was no request for a statement under s. 3 in accordance with the provisions set out at s. 6 (1) of the Act.

Referring to the complaint under the Unfair Dismissals Act, 1977-2015 and noting that the MD in evidence accepted that he dismissed the complainant summarily on the dayalbeit to protect the business, I am satisfied that the herein dismissal was unfair. It was devoid of process and no reason was provided. I accept that there were incidents leading up to the dismissal wherein the behaviour of the complainant was judged to be unacceptable and deemed to amount to gross misconduct. It was nevertheless open to the respondent (despite family and sibling dynamics) to deal with the same through the normal employer/employee channels. The level of conflict between the parties it would seem to me had been increasing exponentially in the month or so leading up to the dismissal to the extent that a totally different approach was required. I also accept that the MD did expect that the matter could be ameliorated at a later stage. Events however have dictated otherwise. Sadly, the parties have become even more entrenched since. That said I would make the point that the complainant has by her behaviour significantly contributed to her own dismissal. I note also that she alleges that she was dismissed by the OD on the 17th of October 2016 but she obviously felt confident enough to return to work on the 19th inst. and was indeed per her own submission well received by the MD initially.                                                                                                                       Referring to the issues of mitigation/loss and redress I note that compensation is the preferred remedy and that the complainant has mitigated her loss after a six-week period of full loss by €99 per week to date. I would expect that the complainant would be able to further mitigate her loss in the short term.

Referring to the complaint under the Minimum Notice and Terms of Employment Act, 1973 it follows that if the dismissal was an unfair one then this complaint must succeed.

CA-00008738-001: The complaint is well founded and I hereby require that the respondent pay the complainant compensation in the amount of €220 (say two hundred and twenty euro inclusive of one day of gross pay) for breach of s. 21 of the Act.

CA-00008738-003: The complaint is well founded and I hereby require that the respondent pay the complainant €100 for breach of s. 12 of the Act.

CA-00008738-004: The complaint is not well founded.

CA-00008738-005: The complaint is well founded. The appropriate redress is one of compensation in the amount of €19,000 (say nineteen thousand euro).

CA-00008738-006: The complaint is well founded and I hereby require that the respondent pay the complainant her entitlement to statutory minimum notice in the amount of €4,400 (say four thousand four hundred euro) in accordance with the schedule set out in the Act.