Complainant

Respondent

Anonymised Parties

An employee

A Creche

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020023-001

26/06/2018

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

CA-00020023-002

26/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00020023-004

26/06/2018

The case concerns an alleged Unfair Dismissal of an employee by a Creche with related Payment of Wages and Information claims.

1:1       Section 7 of the Terms of Employment (Information) Act, 1994 CA- 00020023-001

The Complainant was not provided with a written contract of employment nor a statement of the terms of employment.

1:2       Section 8 of the Unfair Dismissals Act, 1977, CA -00020023-002

As an opening point the Complainant maintained that she had been in continuous employment since August 2016 and more than qualifies under the 12-month rule to bring a claim. She may have been reclassified as a Full-Time worker in August 2017 but her Part Time service pre-this date was substantial and qualifies her service as reckonable as regards the UD Act, 1977.

In written and oral evidence, the Complainant presented a considerable volume of copy text messages demonstrating the nature of her close relationship with the Respondent. It was clear that she had been more than a casual odd day helper but a vital member of staff. Witness evidence was presented to support this employment contention as were a number of letters from former staff members and local persons of importance such as the Parish Priest. The Complainant’s mother gave oral evidence in support.

The Complainant resigned on the 28th February 2018. This was a Constructive dismissal brought about by the Unreasonable Behaviour of the Respondent by a climate of Bullying and Harassment/Belittlement and a Breach of Contract in not paying proper wages and or not providing an agreed level of work.

1:3         Section 6 of the Payment of Wages Act, 1991, CA-00020023-004

The Complainant alleged that she had not been paid for her last week of work and had in addition considerable outstanding holidays that remained unpaid.  

2:1       Section 7 of the Terms of Employment (Information) Act, 1994 CA- 00020023-001

The Respondent maintained that a written contract and statement of terms and conditions had been provided to the Complainant on the 28th August 2017. The Complainant had never signed or retuned the Documents, but the obligation of her Employer had been discharged. In addition, the Terms of Employment and Conditions were held in a large Reference Folder in the Crèche for consultation by all staff.

2:2       Section 8 of the Unfair Dismissals Act, 1977, CA -00020023-002

2:2:1         Preliminary Point regarding Time Limits.

The Complainant commenced employment with the Respondent on the 28th August 2017. The letter of contract was produced in evidence as was a letter from the Respondent Accountant attesting to the commencement date in August 2017. Several other supporting letters in favour of the Respondent were produced -such as the letter from the Building Caretaker.

Furthermore, in her letter of resignation the Complainant clearly states that her employment commenced in August 2017.

As regards the considerable oral and copy text messages provided by the Complainant in support of an earlier start date these were discounted as being of insufficient proof to support a claim of a formal or even informal verbal contract of employment. They represented a situation of a parent and a then close friend of the Respondent helping voluntarily from time to time and not an employment relationship.

Some of the letters allegedly in support to the Complainant were clarified by the Respondent’s Legal Advisor contacting the writers directly and securing clarification – the letter from the Parish Priest being the principal example. The Parish Priest could not, for example, supply any direct verifiable dates for employment.

All told and relying on the evidence presented the Respondent strongly maintained that the Employment Relationship had only begin in August 2017 and the Complainant, accordingly, did not have the required 12 months service to bring a claim under the UD Act,1977.

2:2:2         Constructive Dismissal claim.

Applying the two-stage test of Fundamental Breach of Contract and Unreasonable Behaviour by the Employer the Respondent in this case strongly contested that that they had any case to answer. There was no sustainable instance under either heading that could warrant the resignation of the 28th February 2018 being construed as a Constructive Dismissal.

Several instances pointed out by the Complainant were discussed such as the painting of a wall and the handling of a colleague’s resignation. Neither could be seen as anything out of the ordinary. There was certainly no climate of Bullying or Harassment & Belittling.

As required by all legal precedents and established procedures in Constructive Dismissal cases the Complainant did not raise any grievances or complaints with the Respondent regarding any of these alleged matters during the course of her employment.

2:3               Section 6 of the Payment of Wages Act, 1991, CA-00020023-004

The Complainant was fully paid for all outstanding wages and holidays. A supporting letter from the Accountant was presented in evidence.

3:1      

The Relevant Law

The Principal piece of Legislation in this case is the Unfair Dismissals Act, 1977 and the supporting SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures as well as the overriding need that all aspects of Natural Justice are observed. Considerable legal precedents are also relevant. These are well detailed in RedmondDismissal Law in Ireland 3rd Edition by Des Ryan BL -2017 Bloomsbury Professional.

In dealing with this case I propose to focus first on the Unfair Dismissal Act, 1977 claim. CA-00020023-002. This is at the core of this overall case.

3:2       CA -00020023-002 – Unfair Dismissals Act claim.

Time Limits /Preliminary Issue.

The Respondent maintained that the employment had only begun in August 2017 and therefore the claim dated the 26 June 2018 fails as the Complainant has not got the required 12 months service.

This issue was the subject of much contested Oral and Written (copy Text messages and written statements) evidence. It was clear to me that the Complainant and the Respondent Principal had once been close friends for at least a number of years. The Complainant had assisted with the Creche during 2016 and 2017 in a manner that went beyond a casual friendly relationship. The volume of Text Messages regarding child collections/ hours of opening of the Creche and other general matters was telling. Establishing employment clarity was complicated by the somewhat unclear relationship between the Complainant and the Department of Social Protection. Social Protection records were sought by and provided to the Adjudication Officer.

The oral evidence of the Complainant’s mother was I found quite credible and emphasised the close personal and family friendship links that had initially existed between the Parties

While it was impossible to determine exactly when this friendship had moved into a casual employment relationship, paid in cash, I was happy, having considered the evidence, that it existed for sufficient time from early in 2017 to allow the Complainant to claim a 12 months service period for the purposed of the Act. Accordingly, I allowed the claim to proceed and did not accept the Respondent’s arguments.

3:3       The Constructive Dismissal Claim.

A Constructive Dismissal claim must address the two standard legal tests involved-

Firstly, a Fundamental Breach of Contract by the Employer so grievous that the employee has no reasonable option but to resign

Secondly, Unreasonable Employer Behaviours such as to leave the employee with no realistic option but to resign.

Taking these in sequence

(a)    Fundamental Breach of Contract:

It was disputed if the Complainant had ever received a formal contract of employment but leaving this aside the Complainant was paid regularly during her service and there was no evidence I could see of any fundamental breaches of a standard contract of employment such as to warrant a Resignation.

(b)    Unreasonable Behaviours

The evidence cited here centred on the fallout from the ending of the employment of a Co-worker Ms. M, a good-bye card for Ms. M and presents for her, A Christmas concert and an electric piano and asking the Complainant on occasion to mind more children than governing/HSE regulations strictly allow.

A marked reduction of Complainant working hours was also alleged to have happened in late January/Early February.

Different interpretations were put on some of these incidents or they were denied by the Respondent.

In addition, there were the exchanges at a staff meeting in late February (on or about the 23rd) where it was alleged that a staff member had been fired. The minutes, presented in evidence, did not appear to support this contention or indeed of a bad relationship between the parties at this stage.

The Text Message of Resignation was business like and contained no allegations of untoward behaviour or breaches of contract by the Respondent. There was no evidence of any attempt by the Complainant to raise any formal grievance or even ask for a meeting to discuss issues of concern with the Respondent. Using internal procedures or in this case requesting a meeting to discuss issues is generally taken to be a major requirement in these types of cases.

Realistically and with a degree of common sense I could not see how any of these incidents separately or collectively amounted to Unreasonable Behaviour of a nature that warranted a Constructive Dismissal claim. A Personal falling out between an employer and an employee in a very small business may be unpleasant but it does not constitute grounds for a Constructive dismissal claim.

On a procedural basis there did not seem to have been any effort on the part of the Complainant to lodge or raise a formal or even informal Grievance prior to the Resignation. Legal precedents would point to the importance of this step in supporting a Constructive Dismissal claim

3:4       Conclusion – Unfair Dismissal Claim CA -00020023-002

On balance and having considered all the evidence I did not find that the Two required tests to support the claim of Constructive Dismissal had been satisfied.

The claim, while allowed to qualify (12 months rule) as regards the UD Act,1977, was not well founded and is dismissed.

3:5       Section 6 of the Payment of Wages Act, 1991, CA-00020023-004

In a much contested and personally bitter claim I had to accept the oral and written evidence of the Respondent’s professionally qualified Accountant that all monies properly due had been paid.

The claim is dismissed.

3:6       Terms of Employment (Information) Act, 1994 CA- 00020023-001

The evidence in this complaint was very unclear. It did appear that a Contract/Statement of Terms of Employment had been given to the Complainant – direct witness evidence was given to this effect by an oral witness – albeit the Respondent’s husband.

A written contract was produced in evidence which was not signed and was denied by the Complainant. The Creche Operating Book which contained the contract was produced in evidence. The Contract document appeared to me to be quite “post factum” and I had to doubt if it had ever been given to the Complainant.

The balance of probability was, I found, in the Complainant’s favour and the claim was deemed to be well founded and is endorsed.

I award the sum of €150 Euro in compensation to the Complainant

Act

Complaint/Dispute Reference No.

Summary Decision/ Please refer to Section Three above for detailed reasoning.

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

CA-00020023-001

On the balance of probability, I find the claim is well founded. Compensation of €150 is awarded to the Complainant.

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

CA-00020023-002

The claim is found to be in time (12 months rule) but on the legal Constructive Dismissal tests is not well founded. Claim is Dismissed.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00020023-004

Clam is not well founded based on Respondent's Professional Accountant’s evidence.