Complainant

Respondent

Anonymised Parties

An Administrator

A Manufacturing Company

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-00019323-001

21/05/2018

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

CA-00019323-002

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00019323-006

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015

CA-00019323-007

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act, 1998

CA-00019323-008

21/05/2018

The complainant was employed by the respondent from 14th December 2017 until 13th February 2018. The complaints were submitted to the Workplace Relations Commission on 21st May 2018 and relate to alleged breaches of the Payment of Wages Act, 1991, the Terms of Employment (Information) Act, 1994, the Workplace Relations Act, 2015 and the Parental Leave Act, 1998.

Preliminary Issue

Counsel for the respondent raised a preliminary issue that the complainant was not an employee of the respondent as there was no contract of employment in place. The respondent’s representative contends that the complainant was employed by the agency which placed her with the respondent.

CA-00019323-001 – Payment of Wages Act, 1991

The complainant stated that the respondent made unlawful deductions from her salary payments amounting to approximately €20.42. The complainant confirmed that the deductions were a combination of bank charges (€12.70) and a further deduction of €7.72.

CA-00019323-002 – Terms of Employment (Information) Act, 1994

The complainant contends that the respondent breached the provisions of Section 3 of the Terms of Employment (Information) Act, 1994 when it failed to provide her with written terms and conditions of employment within two months of the commencement of employment.

CA-00019323-006 – Parental Leave Act, 1998

The complainant stated that she was dismissed from her employment following her absence from work in relation to her Mother’s ill health. The complainant outlined that she was absent from work from 13th February 2018 and had been informed by the respondent to take all the time she needed. The complainant outlined that she remained absent from work for a number of weeks and was not in a position to return to work until on or about the 11th March 2018 by which time she had been dismissed and was awaiting an appeal meeting which was to be heard on 13th March 2018. The complainant outlined that her dismissal was upheld, and she was notified of this on 14th March 2018. The complainant contends that her dismissal constitutes penalisation within the meaning of the Parental Leave Act, 1998.

CA-00019323-007. – Workplace Relations Act, 2015

This complaint was withdrawn at the adjudication hearing.

CA-00019323-008 – Parental Leave Act, 1998

The complainant acknowledged that this was a duplication of Complaint Application CA-00019323-006.

CA-00019323-001 – Payment of Wages Act, 1991

The respondent stated that the bank charges (€12.70) were deducted from the complainant’s bank account as a result of receiving payments from an American Bank account. The respondent stated that an amount of €25 was repaid to the complainant on 13th March 2018 in respect of the charges that had been applied to her. The respondent refutes that the charges were unlawful deductions within the meaning of the Payment of Wages Act, 1991.

CA-00019323-002 – Terms of Employment (Information) Act, 1994

The respondent stated that the complainant was employed for two months only to complete a three-month contract following the resignation of another employee after one month in the organisation. The respondent stated that the complainant actually worked for less than two months and in those circumstances no breach of the legislation occurred.

CA-00019323-006 – Parental Leave Act, 1998

The respondent stated that the complainant never applied for and was never absent on Force Majeure Leave. As the complainant never sought to exercise her right to apply for Force Majeure Leave, the respondent contends that her termination was not penalisation within the meaning of the Act. The respondent confirmed that the complainant was paid three days’ compassionate leave at the time of her Mother’s illness but did not engage with or contact the respondent in relation to the type of leave she wished to take for her continued absence. The respondent outlined that in all of the circumstances of the complainant’s period of employment, it exercised its right not to offer the complainant a permanent position.

CA-00019323-007 – Workplace Relations Act, 2015

Complaint withdrawn. No response required.

CA-00019323-008 – Parental Leave Act, 1998

The respondent contends that this is a duplication of Complaint Application CA-00019323-006 and should be dismissed accordingly.

Preliminary Issue

In relation to the respondent’s preliminary point, I do not accept that the complainant was an employee of the Employment Agency. There was no contract of employment in place between the Agency and the complainant. The complainant was placed in the employment of the respondent and was paid directly by them. The Employment Agency confirmed this in correspondence to the respondent in March 2018 that the complainant had been placed with the respondent directly and was not a temporary worker employed by the Agency. For all of the above reasons, I find that the complainant was in the direct employment of the respondent for the period in question.

The complainant’s employment

The parties are in dispute in relation to the complainant’s employment. The respondent’s position is that the complainant was employed on a temporary contract for two months from 14th December 2017 to complete a temporary three-month role after the previous job holder had resigned after one month in the organisation. In those circumstances, the complainant’s temporary role would have been due to end on or about the 13th February 2018.

The complainant contended that her position in the respondent organisation, albeit for an initial period of two months, was to be made permanent thereafter and that it was always her understanding that after the 13th February 2018 she would become a permanent employee. The complainant outlined that this had been conveyed to her and she had also been told that the respondent was in the process of preparing her permanent contract.

As it happened, the complainant did not attend work after the 13th February 2018 due to her mother’s ill health and received a letter dated 23rd February 2018 giving one week’s notice of the termination of her employment as she had been unable to attend work and fulfil her duties. The complainant was given the opportunity to appeal this decision. The complainant appealed the decision to terminate her employment, but the appeal was unsuccessful.

In relation to the complainant’s contention that she was a permanent employee, the respondent stated in evidence that the complainant’s employment was temporary and for two months only, and in any event, any offer of permanency would still have required sanction from the respondent’s Head Office in the USA. The respondent outlined that in its appeal decision to the complainant, it confirmed that it had made the decision not to offer the complainant a permanent position.

On this issue, I find that as of the 23rd February 2018 the respondent still considered the complainant to be an employee as the timeframe for the end of the “temporary” contract had passed and the employment had not already been terminated at that point in time. In addition, the opportunity to appeal the decision to terminate the employment also suggests that the respondent did not consider the complainant to have been an employee whose contract had already come to an end.

Having reached this conclusion, I must consider the reasons for the termination of the complainant’s employment and must decide if the termination of the complainant’s employment constitutes penalisation in contravention of the provisions of the Parental Leave Act, 1998 as claimed. I will address this issue in Complaint Application CA-00019323-006 below.

Substantive complaints

CA-00019323-001 – Payment of Wages Act, 1991

Having considered the submissions of both parties to this complaint, I find that the alleged deductions of approximately €20.42 were not unlawful deductions in contravention of the Payment of Wages Act, 1991. I note that the deductions in question were a combination of bank charges and the payment of the Universal Social Charge in a particular week where the complainant received additional payments from the respondent. I also note the respondent’s position that it repaid the complainant in respect of the bank charges that she incurred. Having considered the submissions of both parties to this complaint, I do not find that the respondent breached the legislation as claimed.

CA-00019323-002 – Terms of Employment (Information) Act, 1994

On this issue I find that the complainant, as an employee of the respondent should have received written terms and conditions of employment in compliance with Section 3 of the Terms of Employment (Information) Act, 1994 within two months of her commencement date of 14th December 2017. In my view, the respondent did not comply with the provisions of the legislation as required. Accordingly, I find that the complaint is well founded.

CA-00019323-006 – Parental Leave Act, 1998

The complainant contends that her dismissal amounts to penalisation in contravention of the provisions of the Parental Leave Act, 1998. The complainant outlined that she was unable to attend work from the 13th February 2018 due to her mother’s ill health and notified this to the respondent at the time. The complainant stated that the respondent informed her to take all the time she needed. The complainant outlined that due to the uncertainty of her Mother’s condition, she remained unable to attend work until approximately 11th March 2018 following her mother’s passing on 28th February 2018 and delayed funeral due to adverse weather conditions.

The complainant outlined that there was correspondence from the employer dated 23rd February 2018 notifying the complainant of the termination of her employment and other correspondence dated 27th February 2018 offering the complainant an appeal of the decision to dismiss her.

I note that the respondent was aware of the difficult situation facing the complainant at that time and while its correspondence of the 23rd and 27th February 2018, was insensitive and ill timed in my view, my decision on this complaint relates only to the complainant’s assertion that she was penalised by dismissal for exercising her rights to take Force Majeure Leave during her Mother’s illness.

On this point I note that the complainant’s absence far exceeded any entitlements to Force Majeure leave that she may have had under the Act and in any event, she did not comply with the application process in relation to such leave as is required and did not clarify her intention to the respondent in relation to her continued absence. In all of the circumstances of this complaint, I conclude that the complainant was not penalised within the meaning of the Act when her employment with the respondent was terminated.

CA-00019323-007 – Workplace Relations Act, 2015

Complaint withdrawn. No Finding required.

CA-00019323-008 – Parental Leave Act, 1998

This complaint is a duplication of Complaint Application CA-00019323-006.

Having considered the submissions of both parties, my Decisions are as follows:

CA-00019323-001 – Payment of Wages Act, 1991

This complaint is not well founded.

CA-00019323-002 – Terms of Employment (Information) Act, 1994

The complaint is well founded. The respondent is directed to pay the complainant €1,041.67 (Two weeks gross pay) in compensation.

CA-00019323-006 – Parental Leave Act, 1998

This complaint is not well founded.

CA-00019323-007 – Workplace Relations Act, 2015

This complaint is withdrawn.

CA-00019323-008 – Parental Leave Act, 1998

As this complaint is a duplication of Complaint Application CA-00019323-006, I find that the complaint is not well founded.

Unlawful Deductions, Written terms and conditions of employment, Force Majeure Leave, Penalisation, Notice entitlements.