FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : BLACKROCK LEISURE LIMITED T/A BLACKROCK LEISURE (REPRESENTED BY MS. SARAH JANE JUDGE B.L. INSTRUCTED BY TIERNANS SOLICITORS) - AND - ANN-MARIE NULTY (REPRESENTED BY RICHARD H MC DONNELL SOLICITORS) DIVISION : Chairman: Mr Geraghty Employer Member: Ms Doyle Worker Member: Mr Hall |
1. Appeal Of Adjudication Officer Decision No. ADJ-00008267.
BACKGROUND:
2. The Company appealed the Recommendation of the Adjudication Officerto the Labour Court on 17th October 2018 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 23rd July 2019. The following is the Determination of the Court:
DETERMINATION:
Background
Ms. Nulty, ‘the Complainant’, stated that she worked for Blackrock Leisure Ltd., ‘the Respondent’ from 2 September 2015 until 3 February 2017. This was disputed by the Respondent, who claimed that she was employed from 26 September 2016 and, as a result, did not have the required service to bring a claim under the Unfair Dismissals Act, ‘the Act’.
It is not in dispute that the Complainant was dismissed on 3 February 2017. She referred a case under the Act to the Workplace Relations Commission, (WRC). The Respondent did not attend the WRC hearing and the Adjudication Officer, (AO), found in favour of the Complainant and awarded her €4000 in compensation for an unfair dismissal.
The Respondent appealed this decision to the Court.
Respondent arguments
The Complainant was employed from 26 September 2016 to 3 February 2017. She does not have the requisite service with the Respondent to be covered by the Act.
The Complainant was dismissed for fraud, gross misconduct, dishonesty and for obtaining payment for hours not worked. She was also obstructive and incompetent in the weeks leading up to her dismissal.
Even if the Court determines that the Claimant has the requisite service there must be a legal contract of employment between the parties if the Complainant is to be entitled to redress. The available pay slips do not support the Complainant’s claim as to when she started work. If the Complainant’s version of events is favoured by the Court then the Complainant was aware that she would receive her wages in cash without deduction of income tax and was fully complicit in the arrangement. In the case of a contract which is neither entered into for an illegal purpose nor prohibited by statute, its non-enforceability requires not only the illegal performance of the contract but also active participation by the employee in the illegality.
The case ofHayden v. Sean Quinn Properties Limited (1994) ELR 54is authority for the above proposition, (reference was made also to the ruling inHussein v The Labour Court (HC) (2014)).
The Complainant knowingly participated in the illegality.
Complainant arguments
The Complainant was employed as a cashier from 2 September 2015 until 3 February 2017. She was paid an hourly rate of €10.50 per hour, which was reduced unilaterally to €9.50 per hour from 9 January 2017. She worked 42 hours per week.
On 9 January 2017, the Complainant was called to a meeting with her Supervisor, Ms. Ann Connolly. Mr. Gary Mullen, Director of the Respondent, attended also. The Complainant had been on 2 weeks’ sick leave. She tried to show them her sick certificate but she was told that they did not want to see it. They accused her of being unreliable in her work, demoted her and reduced her pay from €10.50 per hour to €9.50 per hour. She was not advised that this was a disciplinary meeting or told of her right to be represented or advised of a right to appeal.
On 19 January 2017, the Complainant was told by Ms. Connolly that she was not liked by staff and that she treated others badly.
A new manager, Ms. Rita Savikiete, was appointed on 1 February.
On 3 February 2017, this new manager and Ms. Connolly called the Complainant into a backroom. They told her she was late for shifts and that she had claimed for hours not worked. Despite her denials, the Complainant was told that she was being let go. She was not offered the right to appeal and the decision was never conveyed to her in writing.
The following week, the Complainant received a cheque for €193 and €73 in cash. She understood this to be payment for hours worked that week plus 11 hours’ holiday pay.
Witness evidence
Ms. Ann Connolly.
Ms. Connolly stated that she was the Office Manager for the Respondent.
The witness stated that the Complainant worked 10 hours per week for the Respondent and that she commenced working for the Respondent in September 2016. She stated that the Complainant had started as a cashier and had helped out by emptying the machines and assisted with events.
The witness stated that the Complainant had started as a popular, bubbly employee but there had been a deterioration after Christmas 2016 when she began to arrive late, sometimes not wearing the staff uniform and, despite instructions, she had given the CCTV password to other staff.
The witness said that on 9 January 2017 the Complainant handed in her notice. However, she subsequently asked to be put back on the rota and this was facilitated but, she said, the problems of late attendance and not wearing her uniform continued. In addition, the Complainant had hidden the keys and had told staff not to tell where they were, claimed for hours that she had not worked and left the side door in poor repair. At a meeting on 3 February 2017, attended by the witness and Ms. Rita Savikiete, another manager, these problems were put to the Complainant and it was decided to ‘let her go’.
Cross -examination
Under cross-examination and questions from the Court, the witness stated that the Respondent employed 3 cashiers for 10 hours each per week. When it was put to her that the premises were open from at least 10 am until up to 4am and that it would require up to 20 cashiers to staff the premises, the witness stated that the Director, Ms. Sonia McGarrity, made up the remaining hours.
The witness did not have a copy of the Complainant’s contract and could not explain why the Respondent had failed to provide the Complainant with all relevant HR documents when requested to do so. The witness said that other cashiers had signed their contracts.
The witness confirmed that no disciplinary or grievance procedures were given to the Complainant.
The witness denied not accepting a sick note from the Complainant after she returned to work following a bout of Pneumonia after Christmas 2016.
The witness was shown 2 photographs, one from 1 November 2015 and one from August 2016 from the Respondent’s Facebook page. Both showed the Complainant. The first showed a ‘Happy Halloween’ message from the Respondent and the second showed a ‘Thank you’ message from all the staff of the Respondent to all who came to the Respondent’s party. The witness confirmed that the Complainant was not in the photographs as a regular customer but she was unable to explain her presence. The witness also claimed not to recognise a number of those in the second photograph.
The witness could show no evidence to support the assertion that the Complainant had claimed for hours not worked. She said that there was CCTV evidence but this was not made available to the Court. She claimed that this had arisen 7 times in 2 weeks. The witness referred to the Complainant being due in to work from 7am until 7pm. When this was challenge as being inconsistent with the witness’s earlier evidence to the effect the Complainant worked only 10 hours per week, the witness stated that she was referring to different days.
The witness confirmed that the Complainant had not been told in advance about the subject matter of the meeting on 3 February 2017, that she had not been advised of her right to representation nor told of a right to appeal. She confirmed that the Complainant had not been told in advance that her job was at risk nor had she been provided with a disciplinary policy in advance.
The witness denied that she had been told to get rid of the Complainant. She stated that she had not considered alternatives to dismissal but she denied that she had decided on dismissal prior to the meeting. She stated that the dismissal was her decision and she believed that the Director had given her authority to take that decision. She accepted, with the benefit of hindsight, that she could have done things differently.
In response to a query on the attendance of the Director at the premises, the witness stated that the Director, Ms. McGarrity, was frequently on the premises alone.
Ms. Ann-Marie Nulty
Ms. Nulty is the Complainant.
The witness gave evidence that she was employed by the Respondent from September 2015 to February 2017. She said that she was appointed as a manager from August 2016. This involved, among other duties, putting a roster together. At all times there would be 2 or 3 cashiers on the premises.
The witness stated that she knew Mr. Gary Mullen to be the owner of the Respondent, who also owned similar businesses in Dublin, Newry and Dundalk. In all her time working there, the witness said that, at most, she had met Ms. McGarrity about three times. She noted that Ms. McGarrity had young children and would not have been in a position to attend as suggested by Ms. Connolly.
The witness denied that she had only ever worked 10 hours per week. On the contrary, she stated that she worked 4 to 5 days per week with work days of up to 10 hours per day. She stated that the casino stayed open past midnight every night, with a cut off time of 4am.
The witness described how she had been called out one night to turn off the alarm after a break in.
The witness described how party events were held on Bank Holiday week-ends, Christmas and Halloween and that the photographs showing the staff in costume were photographs of these events.
The witness described how in the week after Christmas 2016 she was ill with Pneumonia but despite this, because Ms. Connolly could not organise cover, she had to turn up for work on one occasion. She then had no option but to close the casino at midnight. On 9 January 2017, she returned to work with a medical certificate. Ms. Connolly and Mr. Mullen were not interested in her explanation for her absence. Mr. Mullen told her that he had ‘the flu’ but he still had to turn up. The witness said that her pay was then reduced from €10.50 per hour to €9.50 per hour.
With regard to allegations made against her, the witness denied that she had claimed for hours not worked and stated that others were aware of the CCTV passwords. She denied any disimprovement in her attitude.
The witness stated that she had not claimed social welfare payments while working for the Respondent. She stated that she had repeatedly requested a contract of employment but had never received one. She stated also that she had been requesting pay slips for some time until they were provided for part of her earnings from September 2016.
On being questioned about her attempts to mitigate her losses, the witness said that she had been unemployed for two months following her dismissal. She had then registered with a jobs web-site, following which she secured 15 hours’ work at week-ends in a bar at €9.50 per hour. She had then started an educational course in September 2017 until September 2018, following which she had secured employment at €650 per week. She had since left that job and was working for €11.50 per hour.
Under cross examination, it was put to the Complainant that if, as she claimed, she was working full time from September 2015, she had paid no tax on her earnings until September 2016, after which only part of her income was declared for tax, which also benefitted her. The Complainant agreed that she knew that she was liable to pay tax and said that she had sought pay-slips.
It was put to the witness that if, as she claimed, she worked full-time then her P60, which reflects her pay-slips, must be wrong. She was asked why, if this was so, she had not contacted her employer? She replied that she had not done so as she had left her employment.
It was put to the witness, and accepted by her, that she had no documentary evidence to support her claims. The witness stated that, after pay-slips were introduced, she was given cheques for the amounts shown on the pay-slips and the remainder of her wages was paid in cash. Prior to that, all her wages had been paid in cash, which had been left in an envelope in the safe.
The Applicable Law
Unfair Dismissals Act
“dismissal”, in relation to an employee, means—
- (a)the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,(b)[not relevant]
- 2. Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:
- (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him
- 6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
- 6. (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
- (b) the conduct of the employee,
- 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
- 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
- (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or
and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
8. (11) Where the dismissal of an employee is an unfair dismissal and a term or condition of the contract of employment concerned contravened any provision of or made under the Income Tax Acts or the Social Welfare Acts, 1981 to 1993, the employee shall, notwithstanding the contravention, be entitled to redress under this Act, in respect of the dismissal
8 (12) Where, in proceedings under this Act, it is shown that a term or condition of a contract of employment contravened any such provision as aforesaid, the adjudication officer or the Labour Court, as may be appropriate shall notify the Revenue Commissioners or the Minister for Social Welfare, as may be appropriate, of the matter.
- (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or
Deliberation
The first issue for decision is whether the Complainant has the requisite service within the meaning of section 2(a) of the Act. The commencement date for the employment is in dispute. The Court prefers the evidence of the Complainant as to her commencement date. The Court was persuaded by the demeanour of the Complainant when giving her evidence and by the November 2015 Facebook picture.
Having satisfied itself that the Complainant has the necessary service, the Court has to consider whether the fact of dismissal was fair. There is no dispute as to the circumstances in which the Complainant was dismissed. It is a fact that she was denied her rights under natural justice. No investigation was undertaken into any perceived or alleged shortcomings. The Complainant was not advised in advance of the meeting at which she was dismissed that her dismissal was being considered. The Complainant was given no opportunity to prepare any defence against allegations, she was not afforded the right of representation, no alternatives to dismissal were considered and no appeal was offered. There is no doubt, therefore, that the dismissal was unfair.
The other issue for the Court is to come to a finding of fact as to the hourly rate and how many hours the Complainant worked per week.
The evidence of the Respondent witness was not persuasive. The suggestion that this company opened its premises every day for anything between 14 and 18 hours per day with so few staff, all of whom worked a mere 10 hours per week, is not logical or believable. Indeed, the witness for the Respondent gave evidence which suggested to the Court that for a period of time the Complainant was expected to work from 7am until 7pm.
The Court finds that the Complainant worked 42 hours per week at an hourly rate of €10.50 up until 9 January 2017 when her hourly rate was reduced to €9.50.
The Respondent argues that because of the tax contraventions the Complainant is not entitled to redress
- Section 8 (11) of the Act, makes provision for such instances and allows the Court to make redress if, as the Court determines in the instant case, there has been an unfair dismissal.
In this regard, the Complainant was frank and honest and she detailed to the Court her employment and student history since her dismissal. Based on this, as set out above, in accordance with s. 7 (1)(c) of the Act, the Court assesses losses at €5,000 and determines that this amount should be paid to the Complainant for the breach of her rights under the Act.
In compliance with its statutory obligation under section 8 (12) the Court will send a copy of this decision to the Revenue Commissioners.
Determination
The decision of the AO is varied accordingly.
Signed on behalf of the Labour Court
Tom Geraghty
FMcC______________________
30 August 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.