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-00023473-001

23/11/2018

The issues in contention concern the alleged Unfair Dismissal of an Optical Assistant by a Retail Optical Shop.

The Complainant began employment on the 1st April 2014. On the 15th November 2018 she received a Solicitor’s letter enclosing her P45. On the P45 her End of Employment Date was given as the 3rd October 2018. The letter contained a detailed series of questions concerning her employment status, who her employer was, details of her contract of employment etc. These were all details that were already or should have been, in her Employer’s possession.

The P45, while not a definite legal statement, was taken in this case as a formal notice of termination. No salary or remuneration was paid post his date.

No procedures of any description were followed, no Investigation or Disciplinary hearings or Appeal Hearings took place and the Dismissal was, accordingly, completely Unfair.

The Respondent business had been the subject of a Sales and Purchase agreement /proposal with a Third Party in April 2016. It was a complicated deal and the Respondents’ Representative had remained connected with the Business.

In September 2018 it became clear to the Respondent that the Business / Sales deal was not going as planned and he resumed an active executive position in the Company. He re-assumed control of Salaries and Banking. The Company had two active Branches, Dun Laoghaire and Nutgrove.

It became immediately clear to him that the business was paying salaries to people who were not actually physically present and working in the business. On checking the available records, he could find no concrete evidence of the Complainant having worked for the company since June 2018. It appeared that she was employed or may have been employed in another Optician business while being paid by the Respondent. This was a business that had a close commercial relationship with the Respondent business but was a separate legal entity.

On resuming control in September, he had made his views known to a Director’s meeting in early October. It was decided to make a number of staff Redundant and end any possible employment relationship with Personnel who were not actually employed in the business. The Complainant was one such person. He had taken the decision to “tidy up” the employment situation and the ending of the Complaint’s alleged employment was part of this process.

Put simply he could not justify her alleged Employee status and therefore she has no grounds for an Unfair Dismissal action as she was never a legally proper employee.

3:1        The Relevant Law

This case is covered by the Unfair Dismissals Act,1977 supported by SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures and the very considerable body of precedent law in these cases. The case law from the EAT, the Labour Court and the Higher Courts emphasises the paramount role of the Rules of Natural Justice in all employment cases.

However, all cases rest on their own facts and I will now consider these.

3:2        Consideration of the Facts and evidence presented.

The evidence in this case was mostly oral and came for the Respondent from the Director of the Respondent Company and largely for the Complainant from a Former Director.

This case was completely over shadowed by the commercial /ownership situation of the Business and the issues surrounding the sale/non-sale of the company. It appeared to me that there was much that the Commercial Courts might have a view on.

From evidence given it was clear that the Complainant had been an employee. Her physical & business location and the salary responsibility for same in the Summer of 2018 was a matter of considerable dispute between the Directors.

However, the Complainant was a low-ranking employee and she had in effect, to my view, become “collateral damage” in the main Commercial dispute between the Directors. It did not help that she appeared to be family related to one of the former Directors

Proper procedures of formal Investigation, Meetings to consider her status and the opportunity of an Appeal did not take place prior to any decision to Dismiss. The issuing of the P45 dated for the 3rd October was, without doubt, a Dismissal situation.

The Rules of Natural Justice were not observed.

Accordingly, her dismissal is Unfair.

Act

Complaint/Dispute Reference No.

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

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

CA-00023473-001

Complaint of Unfair Dismissal is upheld. Dismissal was Unfair.

Redress of One Years pay -€30,000 is awarded.