Anonymised Parties

Complainant

Respondent

A Complainant

A Respondent

Representatives

 Solicitors

 Solicitors

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-00010645-001

05/04/2017

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

CA-00010645-002

05/04/2017

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 for the respondent. She was paid €465 net or €550 gross and worked 25 hours per week. She was paid until the 17th of February 2017 as noted on her P45 (date of cessation) enclosed in the respondent’s letter of 21st of February 2017.                                                                      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 has not been administered at date of hearing. She 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 way of solicitor’s letter in behalf of the complainant and her sister and the second signed by herself and her sister which also included 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 second or 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. On the 14th of November she received a warning 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 and three others 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 eh 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. The matter was further dealt in correspondence with the respondent’s current legal representative on the basis 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-00010645-001: The complainant submits that she was unfairly dismissed by respondent letter of the 21st of February 2017 which included her P45 with a noted cessation date of the 17th of February 2017. The letter noted that the employment was terminated on the 18th of November 2016 citing the date included under the heading “date employment ended (if applicable)” in the complainant’s original and earlier complaint form received by the WRC on the 12th of December 2016. Her solicitor immediately wrote to the respondent’s solicitor pointing out that the complainant was suspended with pay pending investigation by the respondent on the 18th of November 2016 and it could not now rely upon a WRC form to justify her dismissal.

CA-00010645-002: The complainant submits that she was unfairly and summarily dismissed and was not paid her entitlement to statutory minimum notice in the circumstances.

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 internal investigation of the incident. In response solicitor for the complainant stated that any such investigation would be vigorously defended.  

CA-00010645-001: The respondent submits that the complainant was not dismissed. She was suspended pending investigation following an incident on the 18th of November 2016 at the company’s premises. Thereafter she submitted complaints to the WRC (12th of December 2016) in which she stated that her employment had ended on the 18th of November 2016. In those circumstances it was reasonable to assume that the complainant had voluntarily resigned from her position on that date and it issued her P45 on the 21st of February 2017. It is denied that the complaint was constructively dismissed or that she had to leave her job for exercising her statutory rights. No complaint or grievance was received from either the complainant or her representative nor was the respondent on notice that she felt that she had no option but to resign. Furthermore, it is submitted that the herein complaint is at odds with the complaint previously submitted under the Protected Disclosures Act, 2014 (CA-00008739-004) alleging that the complainant was penalised by way of constructive dismissal.

CA-00010645-002: The respondent submits that it was reasonable to assume that the complainant resigned her position alleging constructive dismissal under the Protected Disclosures Act, 2014 and that in those circumstances no entitlement to the payment of statutory minimum notice arises.

I am satisfied that the earlier complaint under the Protected Disclosure Act, 2014 (CA-00008739-004)is not at odds with the herein complaint as upon clarification that complaint referred to suspension as the relevant penalisation.

Referring to CA-00010645-001 - while it can be argued that the complainant’s position was somewhat confusing as it relates to the WRC forms it was not reasonable or legitimate to assume that she had resigned her position as and of the 18th of November 2016 based upon the forms. It was open to or some would say incumbent upon the respondent from Mid-December onwards to clarify the issue with the complainant in circumstances where it had committed to an investigation of the incident of the previous 18th of November which resulted in her suspension. The letter of 21st of February 2017 enclosing the P45 amounts to a dismissal in my view. That dismissal was flawed in that it lacked any procedural fairness and therefore it was unfair.

Referring to CA-00010645-002 - it follows that the complainant is entitled to her statutory minimum notice where she has been unfairly dismissed.

CA-00010645-001: The complaint is well founded. The appropriate remedy in the circumstances is compensation in the amount of €30,000 (say thirty thousand euro).

CA-00010645-002: 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 €2,200 (say two thousand two hundred euro).