ADJUDICATION OFFICER DECISION & RECOMMENDATION
Adjudication Reference: ADJ-00016397
Parties
Anonymised Parties Childcare Worker Childcare Facility
Representatives Edel Powell Powell & Co Solicitors Michael O'Sullivan – Arra HRD Ltd.,
Complaint(s):
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-00021029-001 07/08/2018
Complaint seeking adjudication by the Workplace
Relations Commission under section 6 of the Payment
of Wages Act, 1991
CA-00021029-002 07/08/2018
Complaint seeking adjudication by the Workplace
Relations Commission under the Industrial Relations
Acts
CA-00021029-003 07/08/2018
Complaint seeking adjudication by the Workplace
Relations Commission under section 13 of the Industrial
Relations Act, 1969
CA-00021029-004 07/08/2018
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Complaint seeking adjudication by the Workplace
Relations Commission under Schedule 2 of the
Protected Disclosures Act, 2014
CA-00021029-005 07/08/2018
Complaint seeking adjudication by the Workplace
Relations Commission under Section 4 of the Protection
of Persons Reporting Child Abuse Act, 1998
CA-00021029-006 07/08/2018
Complaint seeking adjudication by the Workplace
Relations Commission under Section 11 of the
Minimum Notice & Terms of Employment Act, 1973
CA-00021029-007 07/08/2018
Date of Adjudication Hearing: 25/09/2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the
Industrial Relations Acts 1969 following the referral of the complaint(s) to me by the Director
General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and
to present to me any evidence relevant to the complaint(s).
Background:
The complainant was employed by the Respondent as a childcare assistant from 28th August 2017
until 20th July 2018.
This complaint was received by the Workplace Relations Commission on 7th August 2018.
The file contains seven separate complaints, these are as follows:
CA-00021029-001: Unlawful deduction under the Payment of Wages Act
CA-00021029-002: Paid less than what she claims she should have been paid under the Payment of
Wages Act
CA-00021029-003: Unfair dismissal claim under the Industrial Relations Acts
CA-00021029-004: Bullying/Harassment claim under the Industrial Relations Acts
CA-00021029-005: Penalisation claim under the Protected Disclosures Act, 2014
CA-00021029-006: Penalisation claim under the Protection of Persons Reporting Child Abuse Act,
1998
CA-00021029-007: Claim for Minimum Notice under the Minimum Notice & Terms of Employment
Act, 1993
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Summary of Complainant’s Case:
CA-00021029-001: Unlawful deduction under the Payment of Wages Act, 1991.
The Complainant contends that the Respondent reduced her hourly rate of pay from €11.50 to
€10.50 on Friday 9th February 2018.
The Complainant alleges that in total the amount owed to her is €766.75.
CA-00021029-002: Paid less than what she claims she should have been paid under the Payment of
Wages Act
From the information supplied on the complaint form and stated at the hearing I believe this
complaint is the same as the complaint referenced CA – 00021029 – 001.
CA-00021029-003 – Complainant referred under section 13 of the Industrial Relations Act 1969
alleging that she was unfairly dismissed.
The Complainant alleges that she was dismissed by the Respondent on 20th July 2018 because she
was lacking in both concentration skill and organisation skills and also that she was tired.
CA-00021029-004: Bullying/Harassment claim under the Industrial Relations Acts.
The Complainant alleges that the Respondent was giving her ‘dogs abuse’
CA-00021029-005: Penalisation claim under the Protected Disclosures Act, 2014
The Complainant (as per complaint form) ‘reckons’ that the Respondent manager met her former
manager from a previous employment whom she had reported to a State agency and the former
manager told the Respondent all about the Complainant reporting her.
CA-00021029-006: Penalisation claim under the Protection of Persons Reporting Child Abuse Act,
1998
I believe the details of this complaint are a duplicate of the previous complaint.
CA-00021029-007: Claim for Minimum Notice under the Minimum Notice & Terms of Employment
Act, 1993
The Complainant alleges that she was not paid for 1 weeks’ notice as per her contract of
employment.
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Summary of Respondent’s Case:
Preliminary Issue
By letter dated 14 February 2019, Solicitors on behalf of the Complainant sought to amend the
employer name to (the original name) Limited. Subsequently on the same date Solicitors sought to
amend the claim forms to name two employers, namely;
• XXXXX XXXXX XXXXX
• XXXXX XXXXXX XXXXX Limited
The complainant in seeking to include a further employer name through legal correspondence on 14
February 2019, over 6 months after the end of employment to which the claims relate, failed to
submit any points of reasonable cause to extend the time limits provided. Further it is for a
complainant to submit an updated form.
In any event the established test for deciding if an extension should be granted for reasonable cause
shown is that formulated by the Labour Court in DWT0338, Cementation Skanska (Formerly
Kvaerner Cementation) v Carroll. In that case the Court set out the test in the following terms:
“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that
there are reasons which both explain the delay and afford an excuse for the delay. The explanation
must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational
or absurd. In the context in which the expression reasonable cause appears in the statute it suggests
an objective standard, but it must be applied to the facts and circumstances known to the claimant
at the material time. The claimant’s failure to present the claim within the six-month time limit must
have been due to the reasonable cause relied upon. Hence there must be a causal link between the
circumstances cited and the delay and the claimant should satisfy the Court, as a matter of
probability, that had those circumstances not been present he would have initiated the claim in
time.”
The Adjudicator’s attention is further drawn to a letter from WRC to the complainant dated 8 August
2018, where it stated that “the complaint cannot be further processed until these issues have been
addressed/clarified.” One of the issues raised by the Commission was;
• Please state the name of the Respondent/Employer ‘s Full Legal Details (see enclosed form)
In her response dated 16/08/2018 to the WRC, the complainant stated that “she had to seek advice
concerning “adjudication and inspection”. It should be further noted that she names a Solicitor firm
in the representation section of the complaint form.
In circumstances where no submission on reasonable cause has been provided and no amended
claim form has been presented with the 2 employer names included, as well as in consideration of
the test as set out above, the Adjudicator is asked to rule that the claims can only be dealt with in
relation to those against the first named Respondent i.e. XXXXX XXXXX XXXXX.
Claims Submitted
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The Complainant submits claims in relation to the following matters:
CA-00021029-001: Unlawful deduction under the Payment of Wages Act
CA-00021029-002: Paid less than what she claims she should have been paid under the Payment of
Wages Act
CA-00021029-003: Unfair dismissal claim under the Industrial Relations Acts
CA-00021029-004: Bullying/Harassment claim under the Industrial Relations Acts
CA-00021029-005: Penalisation claim under the Protected Disclosures Act, 2014
CA-00021029-006: Penalisation claim under the Protection of Persons Reporting Child Abuse Act,
1998
CA-00021029-007: Claim for Minimum Notice under the Minimum Notice & Terms of Employment
Act, 1993
The employer entirely reject the claims put forward.
Employment and payment
The Complainant was employed by the Respondent from the 28 August 2017. She was paid €10.50
per hour at the time of her dismissal from employment on 20th July 2018. She was paid one weeks’
notice in lieu of working and her outstanding holiday pay. The date of termination of employment is
27 July 2018 as was set out in her p45. Her average weekly hours of work during 2018 was 31.06
hours with her weekly hours varying between 24 and 34 hours. This resulted in an average weekly
payment of €326.13.
Employment Relationship
The Complainant was employed as a Childcare Assistant and throughout the employment from
August 2017 her Manager, had reason to correct her on regular occasions. Initially her manager
dealt informally with the Complainant seeking to deal with matters. Following from a formal
complaint on 15 December 2017 by a member of staff, the Complainant was spoken to on 16
January 2018. She was not happy about the conversation and displayed anger while seeking to
know who made the complaint. Further complaints were received on 7 February 2018. Arising from
this and following observations by herself, the manager made a decision to reduce her hourly
payment by €1. This was as a result of continuing difficulties with her performance. This deduction
is provided for in her contract of employment that has been signed by the Complainant.
The reason for this deduction was to deal with the poor performance and difficultly experience by
the Respondent Manager in getting the Complainant to carry out her functions fully in a safe manner
and with due care and attention to the children in her care.
On several occasions in the period from February up to July 2018, the Respondent Manager has had
occasion to have discussions with the Complainant, specifically about her lack of concentration and
obvious observations of her being tired and unable to perform her work fully. This included
instructing the Complainant on 2 March 2018 that she was not to have discussions with parents
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about their private lives, which arose following a complaint from a parent to her concerning such a
conversation which had arisen between the Complainant and that parent. Further corrections were
necessary on 9 April and 10 April from the Respondent Manager relating to the manner in which the
Complainant was poorly performing her job role.
On the 20 July, the Respondent Manager during the course of a meeting with the Complainant
indicated to her that it was not possible to allow her to continue working due to these difficulties.
She was paid her full entitlement to that day and also her outstanding holidays and her notice period
in accordance with her employment contract.
Claims under the Payments of Wages Act, the Industrial Relations Acts and the Minimum Notice &
Terms of Employment Act
The Complainant has set out 5 claims under the above 3 Acts as follows:
• CA-00021029-001: Unlawful deduction under the Payment of Wages Act
• CA-00021029-002: Paid less than what she claims she should have been paid under the
Payment of Wages Act
• CA-00021029-003: Unfair dismissal claim under the Industrial Relations Acts
• CA-00021029-004: Bullying/Harassment claim under the Industrial Relations Acts
• CA-00021029-007: Claim for Minimum Notice under the Minimum Notice & Terms of
Employment Act, 1993
It is submitted that her claims under the Payment of Wages Act must fail, given the clause in her
contract allowing for such deductions. The reduction by €1 per hour was to deal with performance
issues which were ongoing and this deduction was accepted at the time by the Complainant and she
continued to work from the time of the deduction in February 2018 up to July 2018 without
complaint on this matter.
The Complainant goes on to state that she was paid less than her entitlement under the National
Minimum Wage in the period 25 July 2018 to the 15 August 2018. This again is denied by the
employer and attached to the statement in the final payslip of the Complainant (a copy of the final
pay slip was produced at hearing). This shows her being paid a total of 43.5 hours being two weeks
including her last work week and one week notice in accordance with her contract and outstanding
holidays of 42 hours. Further as has been seen she had average hours in 2018 of 31.06 hours which
is in excess of the 30 hours contracted to receive under job plus.
The employer also attached a copy of the contract of employment and brings the attention of the
WRC to the clause of Rate of Pay on page 13. This clause sets out the rate of pay as being €11.50 per
hour. It goes on to state as follows; ‘alterations to your rate of pay will be discussed with you should
business needs arise to require changes to current terms including reduction in salary’. It is
submitted that the reduction from €11.50 per hour to €10.50 which was put in place in February
2018 is in accordance with the contract of employment which has been signed by the Complainant.
It is submitted that her Industrial Relations Act claim of unfair dismissal must fail in that the
employer dealt with her most reasonably over an extended period from December 2017 in particular
with regard to poor performance of her duties. The Complainant as an employee with less than 12
months service did not enjoy the protections of Unfair Dismissal legislation. However, and in
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accordance with the requirements under the Industrial Relations Acts to act reasonably, it is
submitted that the Respondent was very supportive towards and offered numerous opportunities to
the Complainant to correct her failings over an extended period of time. Ultimately the continuing
failure to perform her role adequately left the Respondent with no choice but to dismiss her with
one week’s pay in lieu of notice as provided for in her contract of employment.
In relation to her complaint under the Industrial Relations Acts of Bullying/Harassment, no specific
allegation has been put forward by the Complainant. No complaint was ever made during the course
of her employment in relation to this matter. At no stage up to the time of the receipt of the
complaint form did the Complainant make any such allegation either verbally or in writing to her
employer. The Complainant was corrected over poor performance by her Manager and to infer that
this was bullying/harassment is not sustainable as a claim.
In addition, any suggestions that the Respondent operated below the required standards are
strenuously denied. Evidence will be produced to the Hearing, that a State agency on foot of an
inspection arising from receipt of Unsolicited Information in December 2018, found no issues, or
deviation from standards in relation to the concerns raised.
The Complainant goes on to claim that she did not receive her Minimum Notice in accordance with
the Minimum Notice & Terms of Employment Act. The attention of the WRC is brought to the last
pay slip which shows her paid for two weeks, one being her last work week and the other being her
weeks’ notice as well as outstanding holidays.
In addition, the WRC attention is drawn to the termination clause of the contract. This sets out one
weeks’ notice as being the notice entitlement. This payment was made to the Complainant and
therefore the Respondent rejects this claim that pay in lieu of notice was in actual fact made.
Claims under the Protected Disclosures Act, 2014 and the Protection of Persons Reporting Child
Abuse Act, 1998
The Complainant has set out 2 claims under the above 2 Acts as follows:
• CA-00021029-005: Penalisation claim under the Protected Disclosures Act, 2014
• CA-00021029-006: Penalisation claim under the Protection of Persons Reporting Child Abuse
Act, 1998
In regard to these complaints, they refer to an entity unknown to the respondent. The respondent in
this case is not the employer to which the alleged Protected Disclosure refers. Hence in according
with the relevant acts the claims as presented must fail.
It is alleged in her complaint form that the Respondent was aware of or had discussions with a
previous employer the Complainants. These are denied, and the Respondent can give evidence that
she had no knowledge until the receipt of the complaint form of this other employer and of the
issues that the Complainant states that she reported.
The Respondent is unaware of any Protective Disclosure that may have been made by the
Complainant. Furthermore, it is submitted that they have no knowledge of the allegations set out in
her complaint form with regard to the Manager of a previous employer.
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Under Whistleblowing, the Complainant ticks the box that I have been penalised for reporting a
breach of the Protection of Persons Reporting Child Abuse Act 1998. The employer again puts
forward that such reporting was entirely unknown to them until receipt of the complaint form in
August 2018 after she had left the employment of the Respondent.
Findings and Conclusions:
Preliminary Issue
By letter dated 14 February 2019, Solicitors on behalf of the Complainant sought to amend the
employer name to (the original name) Limited. Subsequently on the same date Solicitors sought to
amend the claim forms to name two employers, namely;
• XXXXX XXXXX XXXXX
• XXXXX XXXXXX XXXXX Limited
The complainant in seeking to include a further employer name through legal correspondence on 14
February 2019, over 6 months after the end of employment to which the claims relate, failed to
submit any points of reasonable cause to extend the time limits provided. Further it is for a
complainant to submit an updated form.
At all times throughout her period of employment the Complainant was issued with pay slips. These
payslips all name the employer as per the first named Respondent and not as a limited company.
A state agency inspected the premises on 7th November 2018 and named the Respondent service as
the first named Respondent. This was at a time some three and a half months after the Complainant
ceased to be an employee of the Respondent.
The first named Respondent is the correct respondent.
CA-00021029-001: Unlawful deduction under the Payment of Wages Act.
It was pointed out by the Respondent’s representative that there was a contractual right that the
Respondent could reduce the wages of an employee.
The Terms and Conditions of Employment states the following:
Rates of Pay: “Your pay will be €11.50 per hour. You will be paid weekly by credit transfer to a bank
account nominated by you. Alterations to your rate of pay will be discussed with you should business
needs arise to require changes to current terms including reduction in salary”
This clause is not part of the disciplinary procedure, there was no discussions in relation to this
reduction and I heard nothing at the hearing to suggest there was a business need.
This complaint as presented under the Payment of Wages Act, 1991 is well founded.
The Complainant contends that the total was €776.75 gross that she was underpaid.
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I now order the Respondent to make this gross payment to the Complainant. It should be noted that
all statutory deductions should be deducted from this amount to provide a nett payment to the
Complainant.
CA-00021029-002: Paid less than what she claims she should have been paid under the Payment of
Wages Act
I believe this to a duplicate of the complaint CA-00021029-001.
CA-00021029-003: Unfair dismissal claim under the Industrial Relations Acts
By her own admission and stated on her complaint form, the Complainant enjoyed a good working
relationship with the Respondent manager until February 2018.
On 16th January 2018 the Respondent manager asked the Complainant to meet her in the office. This
meeting related to a complaint from another (unnamed) member of staff who had reported to the
manager that she was not happy with the Complainant’s work and had concerns for the wellbeing of
children under her care. The Respondent manager told the Complainant that she would need to be
more organised, concentrate while at work and learn to multitask more. The Complainant was also
told that she needs to make sure that the children are always safe and looked after properly. It was
noted by the Respondent Manager that the Complainant was not happy about the conversation, was
angry and asked who had made the complaint. The Respondent Manager stated that she would
rather keep that as confidential.
On Wednesday 7th February 2018 another member of staff informed the Respondent Manager that
she had concerns about the Complainant’s work and the safety of children under her care. This
employee also voiced an opinion to the Respondent Manager that the Complainant appeared to be
distracted and lacked concentration.
On 13th February the Respondent Manager completed an appraisal type form on the Complainant
and made the following notes on the form:
• Lack of concentration
• Distraction
• Lack of multitasking
• Poor quality for children all ages.
Overall rating in this exercise was “Complainant (named) needs to improve above issues”.
A further note states “Manager to talk to complainant (named) to improve her concentration, to look
at exercise to help her in multitasking and teamwork”.
On Friday 2nd March 2018 the Complainant was spoken to by the Respondent Manager in relation to
a complaint from a parent. The complaint related to the Complainant talking to the parent about
their private life and should this happen again there would be serious consequences.
On 9th April 2018 the Complainant had to be corrected regarding the correct way to hold a baby
safely. The Complainant was told to take corrective measures immediately.
On 10th April the Respondent Manager decided to observe the Complainant to establish how she
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was doing her work and had she addressed the areas they had discussed. The Respondent Manager
contends that she had some concerns about the Complainant’s state of health.
On 20th July 2018 the Respondent Manager, during the course of a meeting with the Complainant,
indicated that it would not be possible to allow her to continue working due to the difficulties
discussed in the past and not corrected. The Complainant was paid full entitlements to that date and
also her outstanding holiday pay and also her payment in lieu of notice as per contract.
In looking at the way the dismissal took place I believe there was a lack of due process. It appears
the Complainant was never informed that her job could be in jeopardy, she was never told who
made complaints, she was never offered to right of representation and not provided with any right
to appeal the manager’s decision to dismiss her. Procedurally the dismissal of the Complainant is
flawed.
Complaints in relation to the Complainant’s work performance cannot be overlooked and the
consequences of not getting things right every time could have been catastrophic.
In Redmond on Dismissal Law (third edition) (chapter 13.23) states the following:
The challenges facing an employer seeking to justify, having dispensed with or disregarded fair
procedures, will off course be considerable. Achieving a balance between procedural and
substantive justice is difficult. The functional importance of manifest justice in industrial relations
cannot be underestimated: good industrial relations depends upon management not only acting
fairly but being seen to do so. Breach of a fundamental tenet of natural and constitutional justice will
not be condoned by the Workplace Relations Commission or Labour Court on appeal. In Gearon v
Dunnes Stores Limited UD367 /1988 the EAT held:
‘The right to defend herself and have her arguments and submissions listened to and evaluated by
the Respondent in relation to the threat to her employment is a right of the Complainant and is not
the gift of the Respondent or the Tribunal…. As the right is a fundamental one under natural and
constitutional justice; it is not open to this Tribunal to forgive its breach.’
This passage was applied and endorsed by the Labour Court in its 2017 determination in Panasov v
Pottle Pig Farm [UDD175 (6TH July 2017)] where the Labour Court concluded:
‘The Court is of the view that a failure to properly investigate allegations of misconduct or afford an
employee who is accused of misconduct a fair opportunity to advance a defence will take the decision
to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.’
In this instant case I believe that the dismissal was procedurally unfair and recommend a
compensation payment of €2,500 be paid to the Complainant.
CA-00021029-004: Bullying/Harassment claim under the Industrial Relations Acts.
By her own admission (as stated in the complaint form) the Complainant had a good working
relationship with the Respondent up to February 2018. The representative for the Respondent has
quite rightly stated that no specific allegation of bullying was ever put forward by the Complainant
and no complaint was ever made by her during the course of her employment.
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This complaint is not well-founded.
CA-00021029-005: Penalisation claim under the Protected Disclosures Act, 2014
CA-00021029-006: Penalisation claim under the Protection of Persons Reporting Child Abuse Act,
1998
These complaints are based on what the Complainant ‘reckons’ on what may have happened. There
is no foundation whatsoever in these complaints.
Neither complaints CA-00021029-005 and CA-00021029-006 are well-founded, they both fail.
CA-00021029-007: Claim for Minimum Notice under the Minimum Notice & Terms of Employment
Act, 1993
The Complainant received one week’s pay in lieu of notice in her final pay.
This complaint is not well-founded.
Payments awarded should be made to the Complainant within 42 days from the date of this decision
/ recommendation.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the
complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation
to the dispute.
As outlined above.
Dated: 22nd April 2020
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Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words: