ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00014949

Parties:

Complaint(s):

Date of Adjudication Hearing: 21/02/2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The parties, who were not represented were also provided with the opportunity to cross-examine each other’s evidence and partook in this opportunity.

Background:

This complaint refers to a book-keeper/post office clerk who maintained she was unfairly dismissed, that she did not receive appropriate payment in lieu of notice, that she did not receive written Terms and Conditions of Employment, and that she had not received her holiday pay entitlements at the cessation of her employment. The Respondent denied the complaints.

Summary of Complainant’s Case:

CA-00019302-001 Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991  

The Complainant maintained that on 29th November 2017 she received a call from the Respondent who operated the Post Office outlet and she was asked to meet with the Respondent that evening. She maintained in around 5:30pm the Respondent met with her and he told her he was afraid it’s over and that he had to let her go. The Complainant submitted that the Respondent advised her that he was going to do the work himself and that he was going to do things his way from now on. The Complainant advised that she asked was there a problem with her work and the Respondent said no. The Complainant submitted that she was asked to take her belongings and go.

The Complainant further maintained the Respondent had indicated to her that he would forward her payment in lieu of notice but she never received the payment. She submitted that she had commenced work on 13th July 2004 and was seeking her statutory notice period. In cross examination during the hearing the Complainant submitted that she was on the payroll and in receipt of payslips from 2013 where she presented some of her pay slips and that there was a PRSI number associated with the Respondent from that time.

CA-00019302-002 Complaint seeking adjudication under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant submitted that she was employed with the Respondent from 13th July 2004 and during the course of her employment she would also have been working in a Community Employment Scheme.

The Complainant maintained that since 2003 she had been working with Respondent where he would have had a number of business, and that his shop went in to liquidation/insolvency but he held on to the Post Office outlet, and in 2013 she began to work part-time in the post office for 17.5 hours per week. Her other hours each week were on a Community Employment Scheme. In 2016 she decided to not continue with the Community Employment Scheme and continue working with the Respondent. She advised that in March 2017 she increased her hours in the Post Office to 22 hours per week. Her work with the Respondent was from a Wednesday afternoon to a Friday.

The Complainant submitted that at no time did she receive a written statement of her Terms and Conditions of employment.  

CA-00019302-003 Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that on 29th November 2017 at around 5:30 pm she was told to take her belongings and leave the workplace. She indicated that during the day prior to that she would have witnessed an audit in the workplace and that all was successful. However, during previous audits there had been discrepancies of €800 and €1800 which she was not responsible for.

The Complainant also maintained that the Respondent would have sat beside her at times when she was using the computer and had asked her to make certain entries relating to payments but that she had refused to do so advising the Respondent that he could log on and do the entries himself under his own credentials.

The Complainant maintained that on the 29th November 2017 there was a discrepancy of €400 that she was not responsible for but that she had been asked by the Respondent to leave her employment at the end of the. The Complainant maintained that she was surprised with this decision.

She said she sought a reference and letter from the Respondent to receive her Social Welfare Payments. The letter of reference which was received on 18th December 2017 was dated 1st December 2017. Its late arrival impacted in the Complainant’s ability to claim her social welfare payments. The reference was positive where the Respondent stated he had no problem in recommending the Complainant as an officer manager. It further stated that only for the downturn in the transactions she would still be working with the Respondent. The Complainant therefore maintained that she left her employment because she was asked to leave, and she did not leave of her own accord.

The Complainant maintained that in November 2017 the Respondent came into the workplace and leaned over to her when she was working on the computer. The Respondent completed a procedure on the computer for which she felt shocked about. The Complainant also advised that earlier that year there had been an audit where it was outlined that no person should process procedures on the computer other than on their own login credentials. The Complainant advised that on 24th November 2017 the Respondent again arrived and tried to lean over her computer to do another procedure. On this occasion she logged out to let him work on the computer with his own log in details.

The Complainant advised that on the morning 28th November 2017 the Respondent again tried to action procedures on her computer when she was logged on and she advised him to log on to another vacant computer and work away under his own credentials. The Complainant maintained that the Respondent was not pleased about this and that he then asked for her key as he needed to get his own key cut as it was not working properly. The Respondent did not come back in the afternoon and she had to ring for him for the key, and he advised that he did not get the key cut. The Complainant submitted that when she locked up that evening she put a note on the lock that a key was missing and was held by the Respondent.

The Complainant advised that on the morning of 27th November 2017 she arrived to find two auditors were waiting. She advised them about the key and the audit took place and the Respondent handed the Complainant back her key in front of the auditors.

The Complainant also maintained that on 27th November 2017 a note had been left on her desk by the Respondent advising that she had taken too many holidays in the year and that he was deducting these from her in November and December. She spoke with the Respondent about her leave and why he had not asked her before, and she said she also received a phone call from the accountant asking about her leave. She said the accountant could not understand why she was being asked at the end of the year and why the issue was coming up.

The Complainant maintained that subsequently on the evening of 29th November 2017 the Respondent told her that she was go and take her belongings and leave. The following day she followed this up with her colleagues who advised her that they had been told on the previous evening by the Respondent to come in early to prepare for the day ahead. The Respondent had told them that he was fed up with being told what to do, and that the Complainant was bullying him. She also advised that another colleague was asked by the Respondent to work for the days and hours that the Complainant had worked every week and to take on all her responsibilities. She advised that this colleague had told her the Respondent had said the Complainant had handed in her notice and left him in the lurch.

CA-00019302-004 Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967

The Complainant advised that she was progressing her complaint under the Unfair Dismissal’s Acts and withdrew her complaint under the Redundancy Payments Act.

CA-00019302-005 Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997                                                                                                                     

The Complainant advised that she had taken two weeks leave in the year but that she did not receive the balance of leave due to her when she was dismissed in November 2017. She was not entirely clear of the number of days that she was due but was seeking her entitlements pro-rata for the hours that she had worked on the basis that she had only received two weeks holidays in the summer.

Summary of Respondent’s Case:

CA-00019302-001 Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991

The Respondent maintained that the Complainant left of her own accord and accordingly there was no wages owing to her.

Furthermore, the Respondent submitted that the Complainant was not an employee in that she was on a contract for services and that the Complainant would have provided her own computer and software with regards to bookkeeping duties

CA-00019302-002 Complaint seeking adjudication under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent acknowledged that he did not provide the Complainant with written Terms and Conditions of Employment. He indicated that he had ongoing difficulties with trying to get agreement with the Complainant on the hours and times of work and for that reason he did not issue her with a statement in writing.     

CA-00019302-003 Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977

The Respondent maintained that the Complainant left of her own accord on 29th November 2017 following a discussion he had with her. He advised he was trying to talk to her about the Terms and Conditions of her Employment and her working hours and that money had gone missing to the value of €400. He maintained that when money goes missing it is up to the person who is managing the cash that day to make up the differences and that the Complainant, who was managing the money that day, would not pay the €400. He advised that during these discussions the Complainant decided that she was leaving and left of her own accord. She subsequently sought for a reference and other documentation which the Respondent provided in due course.   He therefore maintained that the Complainant was not dismissed or that he did not terminate her employment but that she left herself.

He advised that the basis of her leaving was that the Complainant was not agreeable to discussions he was having with her on the evening of 29th November 2017 with regards to money that was missing, her working hours, and her holidays. He maintained that she was difficult to deal with and that he felt bullied by her. He further maintained that she would not acknowledge the money was missing.

The Respondent maintained that the Complainant had left because she was unhappy with what she was being asked to do.   The Respondent acknowledged the reference he wrote about the Complainant was positive and he also acknowledged that the statement in the reference indicated that she had to leave because of a downturn in the business. He advised that he put that in the reference as he did not want to say anything bad about the Complainant. However, he maintained that he did not dismiss the Complainant and she left of her own accord.

CA-00019302-004 Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967

This complaint was withdrawn.                                                       

CA-00019302-005 Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997

The Respondent denied that the Complainant was not paid for her annual leave. He maintained that he was having a discussion with her on 29th November 2017 with regards to the amount of leave that she had taken, and he argued that she had received all her leave and was not entitled to any payments. The Respondent advised he would submit the leave record following the hearing. A copy of month per page wall calendar for 2017 was subsequently provided which supposedly listed those who attended work on given days.

The Respondent maintained that the Complainant would have received her leave during the year, and she would have been paid for same.  For his part the Respondent maintained he had been seeking the details of the Complaint’s annual leave, but they had not been provided by the Complainant. Notwithstanding he maintained the Complainant had been paid and she was owed no leave.

Findings and Conclusions:

CA-00019302-001 Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991

Having reviewed the evidence I am satisfied on the balance of probability that a discussion took place between the Complainant and the Respondent on the 29th November 2017 that led to the termination of the employment of the Complainant.   The Complainant had contemporaneous notes and documentation relating that incident and presented that she was in fact asked to leave and she felt this occurred because she has some disagreements with the Respondent which included the Complainant not agreeing to allow the Respondent access to her computer, about a shortfall of cash on the day, and regarding other matters relating to her work. The Complainant denied that she decided to leave. Whether she left or was dismissed is considered under complaint 3 below.

The parties also disputed whether the Complainant was an employee or was providing a contract for services.

Having considered the evidence from the Respondent I find there are inconsistencies with regards to the Respondent’s stated position that the Complainant was not an employee. Whilst on the one hand the Respondent contended that the Complainant was providing services rather than being on a contract of employment, he also argued that as she would not agree to her terms and conditions of employment, so he did not issue her with a written statement (see Complaint 2).

Notwithstanding I was persuaded by the evidence of the Complainant which indicated she was on the payroll from 2013, and where she submitted some pay slips and evidence that identified the Respondent with a PRSI employer number. On that basis I find that the Complainant was in fact an employee from 2013.

The Respondent also contended that he did not dismiss the Complainant. This matter is considered under Complaint 3 below.

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute…by virtue of a term of the employee's contract of employment …and in the case of a deduction, the employee has given his prior consent in writing to it.

In this compliant the Complainant has submitted as she was dismissed, she did not receive her statutory notice in lieu of payment, and by not receiving her pay in lieu of notice it was an unauthorised deduction of her wages.

The matter of whether the Complainant is entitled to be paid her notice is dependent on the decision in relation to whether she was unfairly dismissed. If she was dismissed it is clear she did not receive payment in lieu of her notice. As I have found that the Complainant became an employee during 2013, she would have more than two years but less than five years’ service.

Section 4 (b) of the Minimum Notice & Terms of Employment Act, 1973 requires that an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of two years or more, but less than five years, two weeks’ notice. Accordingly, if the Complainant was unfairly dismissed she would be entitled to two weeks’ notice.

CA-00019302-002 Complaint seeking adjudication under section 7 of the Terms of Employment (Information) Act, 1994                                                                                                            

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing…particulars of the terms of the employee’s employment.      

Having considered the evidence presented I am satisfied that the Complainant became an employee during 2013 as P60s were presented by the Complainant which indicated that the Respondent was paying Employers PRSI for some years. I therefore find that the Complainant was entitled to receive written Terms and Conditions of Employment from that point as she was an employee.

The Respondent acknowledged he never provided her with written Terms and Conditions of Employment as the Complainant was never in agreement with the terms he had offered her.

I therefore find the Respondent is in breach of his obligations under the Terms of Employment (information) Act 1994.

CA-00019302-003 Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977 Complaint 3 – Unfair Dismissal

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states [w]ithout prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if… inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice. I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

In the case within the parties have submitted conflicting evidence. The Complainant submitted she was told to leave on the evening of 29th November 2017 whereas the Respondent submitted that the Complainant left of her own accord that evening.

Having considered the evidence presented I am satisfied a meeting took place between the Complainant and the Respondent, at the Respondent’s request, on 29th November 2017. It is acknowledged by both parties that this meeting was difficult.

Having considered the evidence presented and the inconsistencies with regards to the Respondent’s position, in that he initially suggested the Complainant was on a Contract of Service and not an employee but subsequently acknowledged that she was an employee, I am persuaded to regard the Complainant’s evidence as being more credible. Indeed, the reference stated the Complainant’s job was terminated due to a downturn in the business which is contrary to the Respondent’s submission at the hearing that she left.

The Respondent in his evidence also indicated that he was experiencing frustration with the Complainant for not agreeing to work the hours he required and where he felt bullied by her, and that his letter of reference clearly indicates that her departure was due to a downturn in the business.

I therefore find having taken all things into consideration, and in particular the Respondent’s inconsistent evidence, that the Complainant was in fact dismissed on 29th November 2017 without notice or without any formal allegation or process being presented to her.

I conclude that the acts and omissions of the Respondent by dismissing the Complainant in the manner he did amounts to a breach of the Unfair Dismissals Act and find in the Complainant’s favour in that she was in fact told to leave on 29th November 2017.

She indicated that being asked to leave on the weeks before Christmas left her with financial difficulty and was a big shock for her to the point that she became withdrawn and was not available to work for some months.

CA-00019302-004 Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967

As the Complainant withdrew this in order to prosecute her complaint under the Unfair Dismissals Act I note this complaint has been withdrawn.

CA-00019302-005 Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997

In the case where the Complainant worked on an average 88 hours per month, Section 19(1)(c) of the Organisation Of Working Time Act 1997 provides that an employee shall be entitled to paid annual leave equal to 8 per cent. of the hours she works in a leave year (but subject to a maximum of 4 working weeks). The Complainant submitted that she was only provided with 2 working weeks paid leave during the 2017 leave year.

The Respondent contended that the Complainant was provided with all her annual leave entitlement.

The Respondent was not in a position to present any leave records at the hearing. The Organisation of Working Time Act requires employers to keep detailed records of the hours that their employees work each day and week, as well as details of any leave granted to them. The employer must keep these records for 3 years. In addition, S.I. No. 473/2001 - Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001 prescribes the information that is required to be kept on record to comply with the Act.

The Respondent committed to providing a copy of the leave records following the hearing. What was submitted was names jotted on a month per page wall calendar. The records submitted by the Respondent fall so far short of what is required it would be a discredit to the spirit of the Act to give them any credence, not to mention the disservice it would be to the Complainant if this submission was to be regarded in any way. There was an abject failure by the Respondent to present a credible record of the Complainant’s annual leave.

Based on the evidence submitted I find that the Complainant did not receive her full leave entitlement. In accordance with the Act the leave year means a year beginning on 1st day of April. On that basis, at the time of the dismissal of the Complainant had worked 66% of the leave year and was entitled to 13 days annual leave pro rata. As she had only received 10 days leave pro rata in the leave year under consideration, I find that she is entitled to be paid for 3 days annual leave.

Decision:

CA-00019302-001 Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991

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

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to a contravention under Section 5 of that Act. As I have found that the Complainant’s employment was terminated by the Respondent on 27th November 2017, she was entitled to receive two weeks payment in lieu of her notice which she did not receive. As I have found the complaint is well founded as respects the deductions from the Complainant’s entitlements, I direct the Respondent to pay the Complainant compensation of two weeks wages amounting to €675 after the making of any lawful deduction.

CA-00019302-002 Complaint seeking adjudication under section 7 of the Terms of Employment (Information) Act, 1994                                                                                                            

In accordance with Section 7 of the Act I find that the complaint is well founded and that the Respondent has failed to provide the Complainant with written terms of her conditions of employment.   

I therefore order the Respondent to pay to the Complainant compensation of two weeks earnings which amounts to €675, after the making of any lawful deduction.

CA-00019302-003 Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977

For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

In her evidence the Complainant advised that from the date of dismissal up until April 2018 she was not in a position to find employment as she was so shocked, upset and withdrawn by what happened. She acknowledged that she did find new employment in April 2018 where she is in receipt of higher earnings than she was earning with the Respondent. Notwithstanding the Complainant submitted that she was dismissed in the weeks leading up to Christmas, and where she did not receive all her entitlements so at the time she was out of employment without any earnings, and left short both her payments that were due, and where she did not receive payment in lieu of notice. Under these circumstances I find that the acts and conduct on behalf of the Respondent, by dismissing the Comp in the manner he did at a time leading into Christmas attributed to a significant impact on the Complainant’s losses at the time. It is clear the actions of the Respondent placed the Complainant into financial hardship by dismissing the Complainant in the manner he did in the weeks before Christmas, and in his delay in providing the Complainant with a letter so she could claim her social welfare payments in a timely manner.

As the Complainant was unavailable for work shortly after her dismissal, and where she returned to employment at a better rate of pay once she was fit to work I award the Complainant compensation of €2,500 for the loss of her earnings due to the unfair dismissal which is just and equitable under the circumstances.

CA-00019302-004 Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967

This complaint was withdrawn.

CA-00019302-005 Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 19 of that Act.

As I have found the Complainant did not receive her full entitlement of annual leave at the time of her dismissal I find the complaint is well founded and I require the employer to pay Complainant compensation of €500 which is just and equitable having regard to all of the circumstances.  

Dated:   12th August 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words:

Unfair Dismissal. Payment in lieu of notice, Annual leave, Organisation of Working Time Records, Terms and Conditions of Employment.