Anonymised Parties

Complainant

Respondent

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 6 of the Payment of Wages Act, 1991

CA-00008739-001

12/12/2016

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

CA-00008739-002

12/12/2016

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

CA-00008739-003

12/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00008739-004

20/01/2017

The respondent has employed the complainant in various capacities (silver soldering, jewellery design, sales and tour guide) from October 2011 until the 18th of November 2016 which was the last day on which she worked. She was paid €465 net or €550 gross and worked 25 hours per week. She was suspended with pay pending investigation on that date. She was paid until the 17th of February 2017 as noted on her P45. The complaint made under the Payment of Wages Act, 1991 (CA-00008739-001) was settled prior to the 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. The estate had not been administered at date of hearing. The complainant learned in October 2016 that a significant amount of money may have been paid to the directors without shareholder approval in 2015 and 2014. This was put to the directors of the respondent on the 20th of October in two separate letters. The first by of solicitor’s letter in behalf of herself and her sister and the second form herself and her sister to the directors together with a request for access to all the company books and records.

She became aware in early October (she saw a pay slip) that her weekly net pay had been recorded as €465 net and not the €450 net she received. On enquiry she was informed by the MD that the reason for the same was that it was necessary to keep the cash up. He told her that she would not be receiving the additional amount and that she would regret it if she pursued the matter. He later stated that she had not been put on the books until 2015 although the company accountants confirmed to her that she was on the books since October 2011. Following her return from 2 weeks of sick leave on the 1st of November 2016 she refused to continue to use the cash till in the shop. She had expressed her reservations in this regard in April 2016 explaining that she did not want to work the till as she “did not want to be responsible for any fraudulent activities the Directors may have been conducting, such as the under declaration of company funds to the revenue commissioners.” She did not want to work the cash till “in her newly appointed position as shareholder”. The Directors said that they would not have a business if she did not work the till. She was subjected to intimidation by other members of the family after she stopped using the till. On the 3rd of November she was locked out of the office which was used by the MD and previously by her father. She had open access to this office since her childhood. On the 14th of November she received a letter of warning to the effect that she would be disciplined up to and including dismissal if she were to continue to refuse instruction (the letter referenced silver soldering).

Upon her arrival at work on the morning of the 18th of November 2016 she found herself locked out of her employment by her brother in law (the husband of the OD) when he informed her that she was not to work at her usual work station. She received a letter from the respondent’s solicitor on the same day advising that she would be suspended with pay with effect from that date on the basis that she together with her husband, her sister and her husband were attempting to shut down the business based on the events of that morning. It went on to say that an investigation of these matters would follow in due course. She received a further letter which was addressed to herself and her husband and her sister and her husband in relation to the same incident. In responding to the first letter on the 24th inst. the complainant’s representative pointed out that the real reason for the suspension in this case was that the complainant “had made a protected disclosure to the company directors regarding the inappropriate use of company funds.” No reply was furnished thereto.

A letter from the respondent to the complainant of the 21st of February 2017 encloses the complainant’s P45 and states that all outstanding payments due to date have been made. It sought to rely on the complainant’s WRC complaint form to suggest that she was taking it that the date of termination was the 18th of November 2016 despite, the fact that, the respondent itself had suspended her on pay on that date pending an investigation which never occurred. This matter was elaborated upon in correspondence with the respondent’s current legal representative. It argued that the respondent was not entitled to treat with the complainant as if she had dismissed herself on that date as she was suspended by the respondent itself at that time.

CA-00008939-002: 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 Holidays which occurred on the 1st of August 2016 and the 31st of October 2016 in breach of s. 21 of the Act.

CA-00008939-003: The complainant submits that she was not provided with a written statement of terms and conditions in contravention of s. 3 of the Act.

CA-00008939-004: The complainant submits that her suspension on the 18th of October 2016 arose from a protected disclosure she had made to the two directors of the company regarding the inappropriate use of company funds in April of that year. On the 1st of November 2016 she refused to use the cash till/drawer. She had previously expressed to the directors (April 2016) that she did not wish to work the cash till/drawer as she had recently become a shareholder in the business. She exhorted the MD at that time to desist from the practice of paying drivers a cash commission on sales. She was unilaterally locked out of her work on the morning of the 18th of November by her brother in law who informed her that she was not to work at her normal work station. She received the letter of suspension later that day.

The respondent became aware in October 2016 that the complainant and her sister were becoming disruptive in the workplace to the extent that they were unwilling to take direction from the respondent’s directors. On the 14th of November 2016 she refused to take instruction from the MD in relation to her principle duty of silver soldering. He wrote to her advising her that as an employee she was obliged to take instruction from the directors of the company and that further refusal to do so would expose her to the disciplinary procedure up to and including her dismissal. He took the opportunity to remind her of the company mobile phone policy and the meal and break times. He invited her to a meeting if she wished to discuss the warning.

On the morning of the 18th inst. the complainant and her sister together with their respective husbands orchestrated an attack/protest at the workplace targeting in the process the respondent’s largest customer with whom it does 40% of its business. Entrances to the premises which contain the showroom, factory, tea rooms and visitor centre were blocked. In the ensuing chaos the MD and other members of staff were physically and verbally assaulted. While the MD was assaulted by his sister the complainant urged her on. The attackers then forced their way onto the premises, continued the physical and verbal abuse, occupied the jewellery showroom and caused damage to merchandise. The police were called for assistance and as a result a tour scheduled for that morning had to be cancelled, the business had to be closed for the day and traumatised staff had to be sent home. A formal undertaking was sought and given by the claimant, her sister and their husbands that they would not attend at the premises or contact the directors directly. The respondent’s solicitor wrote to the complainant on the same day suspending her on pay pending an investigation of the incident. In response solicitor for the complainant stated that any such investigation would be vigorously defended.

CA-00008939-002: The respondent submits that the complainant received a day off in lieu of the Public Holiday falling on the 1st of August 2016 and that she was on sick leave on the 31st of October for which she was paid and that therefore no breach of the Act has occurred.

CA-00008939-003: The respondent accepts that no written terms and conditions of employment were provided in contravention of s. 3 of the Act. The nature of the business being a family run affair should be taken into consideration.

CA-00008939-004: The respondent submits that it was not provided with the details of the complaint in advance and has assumed that it refers to the letter sent by complainant and her sister on the 20th of October 2016 concerning director’s remuneration. There is nothing untoward in relation to these payments which have been certified by the respondent’s auditors. It can’t be construed as a relevant wrongdoing within the meaning of the Act. Concerning the alleged disclosure as outlined for the first time at hearing (fraudulent/inappropriate use of company funds from cash till) it is absolutely denied that any disclosure whatsoever in relation to the cash till was made to the respondent at any time. It is significant that it was not mentioned in the complainant’s solicitors letter to the respondent of the 20th of October 2016 or the abovementioned letter. The complainant has not suffered a penalisation. Her suspension with pay pending investigation arising from the events on the 18th of November 2016 was directly linked with those events.

The complainant gave evidence in support of her submission and the respondent relied on the evidence of the MD, two of the worker siblings and the complainant’s brother in law referred to above in relation to the events of the 18th of November 2016. Much of the evidence given on both sides relates to those events and the subsequent suspension with pay pending investigation. The details are relevant as it relates to the alleged penalisation and its justification or otherwise. A direct conflict arises in the evidence of the MD and the complainant in respect of the discussion re the inappropriate use of company funds and cash till in April 2016. The complainant stated that she had a discussion with the directors at that time in relation to the payment of 10% commission in cash to drivers for all sales and that the MD refused to put the cash through properly. The MD stated that no such discussion took place and that drivers received a 10% reduction in personal purchases only.     It was accepted that both directors were absent at the time the complainant states that she refused to continue to use the “cash till” (in the early part of November 2016).

Referring to CA-00008939-002 in the absence of record in respect of the time off in lieu I can’t accept the defence in relation to the public holiday of the 1st of August 2016. Furthermore, the fact that the complainant was sick on the date of the October public holiday and was paid while out sick does not preclude her from her entitlement to be paid for that day. In this regard the public holiday has the same value as a statutory annual leave day.

Referring to CA-00008939-003 I note that the respondent does not demur.

Referring to CA-00008939-004 the parties are at odds in relation to whether the alleged protected disclosure was made at all. Having heard the extensive witness testimony from the complainant herself and her siblings in relation to the existence or otherwise of a cash till and the alleged uses to which the cash was put I should make the point that it is not for me to make a judgement on that issue. I must decide in first instance whether the complainant based on the evidence adduced made a protected disclosure (in good faith) to the directors in April 2016 as alleged. Thereafter I must decide whether the complainant’s suspension from 18th of November 2016 until date of dismissal amounted to a penalisation under the Act arising directly from the above (“but for test” applies). It is notable that the letter written by the complainant and her sibling on the 20th of October 2016 to the Directors of the respondent makes no mention of the allegations relied upon in this case or that the letter of warning of the 14th of November 2016 from the MD to the complainant does not refer to a refusal to use the “cash till” or any other till or drawer but refers particularly to a specific area of refusal. The evidence of the respondent is preferred and I do not accept that the complainant made a protected disclosure within the meaning of the Act to the directors as alleged in April 2016.

I am satisfied that the events of the 18th of November 2016 despite the conflict of the evidence between the complainant and her brother in law in respect of their direct confrontation the suspension with pay pending investigation was objectively justified. This should not be construed as a judgement of the complainant’s behaviour.

CA-00008939-002: The complaint is well founded and I hereby require the respondent to pay the complaint €720 (say seven hundred and twenty euro inclusive of two day’s pay of €220) in compensation for breach of s. 21 of the Act.

CA-00008939-003: The complaint is well founded and I hereby require the respondent to pay the complainant compensation in the amount of €1,100 (say eleven hundred euro) for breach of s. 3 of the Act.

CA-00008939-004: The complaint is not well founded.