Complainant

Respondent

Anonymised Parties

An Employee

A Boutique

Representatives

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-00023232-003

15/11/2018

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

CA-00023232-004

15/11/2018

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

CA-00023232-005

15/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00023232-006

15/11/2018

The Respondent runs a boutique and a vapour shop, which operate out of separate premises. The Complainant commenced employment with the Respondent on 13 September 2018 and worked between the two premises on specific days and at specific times. The Complainant’s employment was terminated on 3 October 2018.

On 15 November 2018, the Complainant submitted four complaints to the Workplace Relations Commission. These complaints consisted of two under the Payment of Wages Act, 1991, one under the Terms of Employment (Information) Act, 1994 and a complaint of unfair dismissal submitted under the Industrial Relations Acts, on the basis that the Complainant did not have 12 months service with the Respondent.

CA-00023232-003 – Payment of Wages Act, 1991,

In her written submission to the WRC, the Complainant submitted that her fortnightly gross pay was €401.10. However, the Complainant stated that, when she was paid for her first two weeks, on 22 September 2018, she only received €330. Consequently, the Complainant is seeking redress for the outstanding €71.

According to the Complainant’s evidence, she is also owed €19 in respect of two hours for which she did not receive payment.

CA-00023232-004 – Payment of Wages complaint

Again, in her written submission to the WRC, the Complainant submitted that she had not received payment for her third and final week of employment. As a result, the Complainant was seeking one week’s pay in the amount of €200.55.

CA-00023232-005 – Terms of Employment (Information) Act, 1994

The Complainant submitted that, upon the commencement of her employment with the Respondent she was never provided with written Terms and Conditions of her employment.

CA-00023232-006 – Industrial Relations Acts (Unfair Dismissal claim)

According to the Complainant’s submission, she was dismissed by the Respondent on 3 September 2018.

In her complaint of unfair dismissal, the Complainant stated that she was ill the day before she was dismissed. She also stated that she had her phone turned off because she was not working that day. The Complainant submitted that, when she turned her phone back on, she noticed that she had a missed call from the Respondent.   According to the Complainant, when she called back, within an hour of the missed call, the Respondent told her that she should not have had her phone off or on silent, as she (the Respondent) had been trying to contact her as she needed her to attend at the boutique. The Complainant stated that she had no prior notice of disappointment.

The Complainant submitted that the following day, after attending to a customer, she was called aside and told that she was to leave the company as she had been late the previous Saturday.   The Complainant disputed that she was late for work on the date in question and that she had bought an alibi and CCTV footage to support her contention in this regard.

The Complainant further submitted that she was informed she had been fired because she was not making enough profit in the vaping department. However, the Complainant stated that the shop was only open from Thursday – Saturday, from 12:00pm to 6:00pm each day.

Finally, the Complainant submitted that the Respondent told her she was not doing enough during quiet times in the business. In response to this, the Complainant submitted that she did a lot of work trying to promote the shop. According to the Complainant, she spent time studying how each individual vaping product worked so that she could demonstrate this to customers. She also stated that she was working on social media advertisement for the Respondent’s business and had designed posters for the shop, for which she was not compensated.

CA-00023232-003/004 – Payment of Wages Act, 1991,

In response to the complaints under the Payment of Wages Act, the Respondent submitted that the employment arrangement with the Complainant was informal in nature. The Respondent further stated that, on that basis, there was no contract and no set hours of work. However, the Respondent submitted that she agreed to give the Complainant some hours on Mondays/Tuesdays.

According to the Respondent’s submission, the Complainant did not work after 22 September 2018.

The Respondent submitted that, subsequent to the Respondent submitting her complaints to the WRC, the business was investigated by the Compliance and Investigation Service of the WRC. The Respondent further submitted that arising from the discussions with the Investigation Officer, two payments of €50 each were made to the Respondent.   In addition, the Respondent acknowledged that while there were some payments still outstanding, these would be made at some time in the future when the business was in a position to do so.

CA-00023232-005 – Terms of Employment (Information) Act, 1994

In response to the complaint under the Terms of Employment (Information) Act, the Respondent submitted that the arrangement with the Complainant was informal in nature and, as a result, no contract issued until it was established that there was a future role and that the Complainant was suitable for it.

However, according to the Respondent’s submission, there were significant issues with the Complainant’s performance to the extent that she (the Respondent) she had no option but to terminate the employment.

CA-00023232-006 – Industrial Relations Acts (Unfair Dismissal claim)

In response to the complaint of unfair dismissal, the Respondent submitted that the decision to terminate the arrangement with the Complainant resulted from a number of factors, including two serious incidents which took place during her period of employment.

The first incident related to a complaint which the Respondent received from a client, who had taken offence at comment about her dress size, which the Complainant made to her during a fitting appointment. According to the Respondent’s submission, the Complainant was very flippant and dismissive when she brought the matter to her attention.

The second incident related to the purchase of a vaping product by a business associate of the Respondent.   According to the Respondent’s evidence, the Complainant initially indicated to the customer that they did not have the particular product in stock. However, the customer was able to point out to the Complainant that there were some in a display cabinet. The Respondent stated that the Complainant merely laughed off her mistake when it occurred.

The Respondent went on to state that the Complainant then advised the customer that, as the till was not working, she required the exact price in cash. According to the Respondent, the customer then requested a receipt for the purchase, but, despite the fact that it is policy to give receipts when the till is not working, the Complainant did not do so on this occasion.

The Respondent further submitted that the Customer subsequently alerted her to the fact that there was something suspicious about the transaction. According to the Respondent, she then checked the till record and the sales report sheet, but neither had recorded a sale of an amount equivalent to the price of the product purchased by the customer in question.

However, the Respondent submitted that she did not raise the issue with the Complainant, as she wished to check the CCTV footage, to satisfy herself as to what had happened.   According to the Respondent when she checked the CCTV it showed the customer handing the money to the Complainant, but the money was left of the counter rather than being put in the till.

In addition to the two incidents set out above, the Respondent also submitted that other factors, including the Complainant’s punctuality, her lack of the basic/general work ethic and a dismissive response when given direction, also contributed to the decision to dismiss. The Respondent also referred to occasions when the Complainant fell asleep at work and also collapsed at work. However, the Respondent submitted that these did not form any part of the decision to dismiss the Complainant.

In conclusion, the Respondent submitted that, having considered all of the facts, including the possibility of reputational damage to the business, she decided to terminate the Complainant’s employment. According to the Respondent’s submission, when she advised the Complainant of her dismissal, the latter stated that she didn’t like the job anyway.

CA-00023232-003/004 – Payment of Wages Act, 1991,

The issue of outstanding wages was dealt with as part of the review carried out by the Compliance and Investigation Service of the WRC and, as a result of that, some payments had been made to the Complainant by the Respondent.

At the date of the Oral Hearing, it was established that an amount of €150 was still due to the Complainant.   Having carefully considered the evidence adduced, I am satisfied that this amount is properly due to the Complainant. In the event that payment of such an amount has not been made in the meantime, I find in the Complainant’s favour and order the Respondent to make a payment of €150 in relation to this outstanding amount.

CA-00023232-005 – Terms of Employment (Information) Act, 1994

Section 3 (1) of the Terms of Employment (Information) Act, 1994, places a requirement on an employer to provide an employee with a statement in writing containing details, as specified in that section of the Act, of the employee’s terms of employment.   The employer is required to meet this obligation not later than two months after the commencement of the employee’s employment.

Given that the Complainant’s employment only lasted three weeks, I find that the Respondent is not, therefore, in breach of the Act and the Complainant’s claim in this regard is not well founded.

CA-00023232-006 – Industrial Relations Acts (Unfair Dismissal claim)

The Complainant was dismissed by the Respondent on the basis of a number of incidents which took place during her period of employment and on other general performance issues. While the Complainant’s complaint is submitted under the Industrial Relations Acts, as a result of her not having the required service to avail of the provisions of the Unfair Dismissal Act, I believe it is reasonable to consider the requirements placed by the latter Act in relation to what constitutes a fair dismissal.

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“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 the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose 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….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show the fair process and procedures were applied when conducting the disciplinary process.

In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

Having carefully considered all of the submissions made by the respective parties, I find there to be a significant conflict of evidence in relation to the key events and issues which led to the Complainant’s dismissal. It is also clear from the evidence that the working relationship between the Complainant and the Respondent rapidly deteriorated during the short duration of the employment.

The degree of breakdown in the relationship between the parties was clearly illustrated in evidence provided in relation to altercations which took place between them after the Complainant’s dismissal. Given that these altercations took place post dismissal and, as a result, could not have played any role in the Respondent’s decision to terminate the employment, they were not considered as part of the assessment of that dismissal. However, they did serve to illustrate, in a graphic way, the depth to which the relationship between the parties had descended.

Given the level of distrust and acrimony that now exists between the parties, it was very difficult to discern which version of events is the more accurate. Consequently, it is not possible to properly assess the facts leading up to the dismissal or the rationale submitted by the Respondent as underpinning the decision to dismiss. Notwithstanding this, it is clear, from the evidence adduced, that the dismissal of the Complainant was devoid of any sense of process or fair procedure. In that context, I can only conclude that the dismissal was unfair.

Given the earlier comments in relation to the deterioration in the relationship between the parties, I am satisfied that compensation is the only appropriate   form of redress in this case. However, given the significant conflicts in evidence surrounding this complaint and the extremely short duration of the employment, I believe that any such award should be nominal. Consequently, having given careful consideration to the matter I recommend that the Respondent pay the Complainant an amount of €200, which is the equivalent of one week’s wages, as fair and appropriate compensation for the lack of fair process and procedure in the termination of her employment.

Decisions:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out hereunder my decisions in relation to the following complaints raised by the Complainant:

CA-00023232-003/004 – Payment of Wages Act, 1991,

I find in the Complainant’s favour in the amount of €150, in relation to outstanding wages due to her. This amount represents the total sum outstanding as of the date of the Oral Hearing. In the event that any payments, in this regard, have been made by the Respondent to the Complainant in the interim, then the award should be reduced accordingly.

Any payment made on foot of this decision represents payment of wages and, as such, is subject to the normal statutory deductions applying to such payments.

CA-00023232-005 – Terms of Employment (Information) Act, 1994

I find that the Complainant’s complaint in this regard is not well founded and is therefore rejected.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out hereunder my recommendation in relation to the following dispute as raised by the Complainant:

CA-00023232-006 – Industrial Relations Acts (Unfair Dismissal claim)

I find that the Complainant’s claim for unfair dismissal, as submitted under the Industrial Relations Acts, is well founded and, as a result, I recommend that the Respondent make a payment of €200 to the Complainant as fair and reasonable compensation in the circumstances.

Any payment made on foot of this recommendation represents compensation and, as such, is not subject to the normal statutory deductions that apply to wages/salary.

Payment of Wages Act

Terms of Employment (Information Act)

Industrial Relations Act

Unfair Dismissal