Complainant

Respondent

Anonymised Parties

A Chartered Physiotherapist

A Clinic

Representatives

Laura Madden, BL instructed by Brody and Company

David Browne, BDM Boylan Solicitors

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-00030018-001

01/08/2019

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

CA-00030018-002

01/08/2019

On August 1, 2019, the complainant, a Chartered Physio therapist lodged a claim for unpaid wages and Constructive Dismissal. The hearing was rescheduled from November 2019 to 20 February 2020 due to the non-availability of the Adjudicator.

Both claims were rejected by the respondent, who runs a Clinic

Both parties were legally represented. The complainant by Laura Madden, BL and the respondent by David Browne, Solicitor.

At the commencement of hearing, the complainant requested to submit evidence of a taped conversation with the respondent on 14 February 2019. This was opposed by the respondent.

For my part, I noted that the complainant had not availed of the opportunity to submit a written submission in advance of the hearing. In my opinion, this would have provided an outline of her case on foot of a very terse complaint form. As it was, the respondent was very aggrieved that he was being asked to answer a non-particularised claim and articulated this dissatisfaction both by way of earlier submission and at hearing.

I gave some consideration to the status of the taped conversation which was obtained without consent. While I appreciate that it is not prohibited by any single law, I decided to refuse the inclusion as I explained to the parties that I preferred to hear oral evidence from the parties in attendance during the call. In addition, I explained that during the hearing I would also observe both parties body language and the engine of cross examination to assist in my decision making in the case.

The complainant commenced work as a Chartered Physio therapist on 27 November 2017 until her constructive dismissal on 14 February 2019. She submitted that she earned €25 an hour for 4 hours work followed by a percentage of client fees ranging from 40-60%.

CA-00030018-001 Payment of Wages Act

The complainant submitted that a cheque dated 7 February 2019 had got lost. She requested that it be re-issued on February 22, 2019.

The complainant submitted that she was owed €538.50 when requested to particularise her claim at the commencement of the hearing.

This was later amended to €99.50 unpaid. The parties agreed to engage on this, but no further feedback was received. On 19 June 2020, the complainants Solicitor confirmed that the complainant had received a cheque for €99.50 from the respondent.

CA-00030018-002 Claim for Constructive Dismissal

The Complainant commenced work on 27 November 2017. she was not issued with a contract of employment, but her understanding was that she was to receive a % of client attendance fee which had risen to 50% -60%. In addition, she received a €25 an hour payment for 4 hours weekly. Payment issued by means of two cheques.

Counsel for the complainant outlined that the complainant had been constructively dismissed by the respondent on 14 February 2019. She had been successful at the multi-disciplinary practice until late 2018 when a new medical device was introduced. Consultation and suggestions followed on renovations to the clinic which culminated in architectural review.

At the same time, the complainant began to have concerns surrounding her pay system and whether it was in fact tax compliant.

Client records were accessible through a Clinic computer and the complainant suddenly discovered that the password was changed, which in turn denied her access. She had difficulty in retrieving the password.

On 14 February 2019, the complainant understood that she was told to leave by the respondent and felt she had no choice but to respond to his order “to get out “There were also issues of bullying and harassment. The Complainant took two weeks sick leave after this and found new work in June 2019.

Evidence of the Complainant

The complainant confirmed her pay arrangements and clinic responsibilities. She worked as a Physio which often required her to be a lone worker at the clinic. She actively promoted the Clinic through a web site marketing venture. she used the respondent IT system to facilitate this. Four people had access to the Office System

1 the respondent

2 Ms A

3 the complainant

4 Reception assistants

The complainant recalled the introduction of a new medical device in November 2018. A Colleague who worked as a Sports therapist and the respondent explored the prospect of partnership and sought to invite sports stars to the Clinic.

The complainant knew that the Physical infrastructure of the clinic was not up to standard and she identified that major upgrading was needed on the building and work systems. The complainant reflected that her Professional registration placed a high level of importance of optimal treatment areas and she was concerned. The respondent asked her if she just wanted to rent a room and she agreed but had reservations. She was encouraged when the respondent told her that he had commissioned an Architect to review the potential for the building.

The architect came to the Clinic and met with the respondent. He was asked to prepare a plan for the Clinic. There were two meetings on this between November 2018 and January 2019. The Architect did not return after this.

The Complainant submitted that details of marketing, Insurers, and all Clients of the Clinic were stored in the Clinic Computer.

On 9 February 2019, the complainant was denied access to these details and when she contacted Ms A, she was informed that the Respondent had told Ms A to change her password. She was advised to contact the respondent directly.

Eventually, the password was returned, but it was changed again on 13 February.

By February 13, the respondent informed the complainant in a 30 -45-minute meeting that he had decided against remodelling. He told her that his Accountant had disapproved of his plans. He explained that he was considering moving the Business in a different direction and he would help the complainant to find a job. He told her that it would be better if she left after Easter.

This was the first time the complainant had heard that her payment system was irregular. She felt that she had to go home to process what she had heard.

The next day around 09.15 to 10.00 am the complainant nervously approached the respondent. He told her that the Accountant was coming in to meet with her. she disputed that she had bidded on the clinic and submitted that the respondent had made that up.

When she raised the topic of the passwords, the respondent told her that he had lost trust in her and she should leave. In future, she would be overseen by Clinic staff if she wanted something. He feared she would leak information on clients. The complainant maintained that she had been subjected to a campaign of bullying for over a year

The respondent then referred to an earlier employment and accused the complainant of bullying a co-worker, Ms A. A strong argument followed where the complainant understood she was highly criticised and told unequivocally to leave. The complainant submitted that she fought back as her taxes had not been paid by the respondent. Recriminations were passed by both parties. The complainant told the respondent she had to leave to talk to her Solicitor as he had threatened her with Jail.

The complainant left the building and took legal advice. she was informed that she should give two weeks’ notice. she wished to leave there and then and submitted a medical certificate under the respondent door. She was scared and reported the matter to the Gardai.

The Complainant secured a return on her personal items some time later. She confirmed that she had retained the red book. she had not signed a Loyalty agreement surrounding the business.

The Complainant clarified that she had not tendered a resignation and felt that she had to leave due to fear.

In cross examination, the complainant confirmed that she had not been requested to return “the red book”

She denied that she had pursued a share of the business or that she had an Accountant of her own in February 2019.

The complainant confirmed that she was permitted to undertake medico legal reports outside work time.

In addressing the “password issue “the complainant confirmed that her work was not impeded by changing passwords.

She found the planned revisions for the clinic to be very stressful, she had contacted the architects at the owner’s direction and accepted that he held a veto on any revisions.

The complainant submitted that the respondent decided to get rid of her and disputed the prices referred to in the revisions. she stated that she had no plans to leave.

The Complainant confirmed that she had instigated the conversation of February 14, she was scared about the criminal implications from revenue and taped the conversation for her protection.

The complainant confirmed that the respondent had told her to give the keys back on 14 February. She reaffirmed that she was advised to give two weeks’ notice and denied that the respondent did not know that she was not returning.

The complainant confirmed that she was not available for work for two weeks and saw her first patient two weeks post leaving. She commenced work through a Room Rental in June and submitted that she had less income than she anticipated.

The complainant confirmed that she wished to have a regular income and had no desire for self-employment, a status she held previously up to 2017.

Counsel for the complainant clarified that the complainant availed of the diary of her patients and one client was waiting for his appointment.

Counsel for the Complainant concluded that the complainant’s access to key information had been restricted before 14 February 2019. she was told repeatedly to get out and the password issue had not been resolved. She surrendered her keys and retrieved her belongings, yet he respondent made no further enquiries or contacts with her. The respondent had not been tax compliant in the management of her pay system.

All of this amounted to unreasonable conduct and breach of contract. The respondent was not operating any employment policies and the complainant was at a loss on how to proceed in the face of such unreasonableness. Procedures had subsequently been put in place.

The complainant undertook to submit a table of loss within 7 days of hearing, but this was not received.

The Respondent operates a Multi-disciplinary Health Clinic and confirmed the dates of employment submitted by the complainant. The Respondent disputed both complaints. On 23 August 2019, the Respondents solicitor filed a rebuttal to both complaints. He also raised a concern regarding the lack of on the WRC complaint form, which he maintained placed his client at a disadvantage.

The respondent denied any contravention under the Payment of Wages Act, 1991. His practice involved paying the complainant €99.50 weekly by cheque on consent. A P60 was furnished for the year 2018. In addition, the complainant was paid 50% of all fees earned by her for her work at the clinic by way of a profit-sharing arrangement.

CA-00030018-001 Payment of Wages Act

The Respondent disputed any contravention of the Act. They exhibited a bank statement which reflected that cheque no 2773 had been cleared on 13 February. The respondent confirmed that a Solicitors letter dated 14 March 2019 had sought payment of €99.50 outstanding for the same period. He had responded through his Solicitors confirming that payment had issued.

In evidence at hearing, he was unclear if the matter had been disposed of.

Post hearing, the respondent confirmed that a cheque had been raised and forwarded to the complainant but did not specify an amount.

CA-00030018-002 Claim for Constructive Dismissal

The solicitor for the respondent disputed that the complainant had been dismissed in the first instance or constructively dismissed in the second instance.

He confirmed that the Architects had visited the business, but this had not amounted to a defined action plan. He submitted that the complainant wanted access to a full partnership and when this was not realised, she communicated that she intended to leave the Clinic after Easter.

The password was changed to protect this process as the client files required IT protection.

On 14 February 2019 the complainant called a meeting with the clinic owner at 2pm. This was an inconvenient time as a waiting room was populated by patients. A heated argument followed, and the respondent was unaware that the complainant was taping this conversation. Another employee, Ms A was in attendance. A bid to purchase the business was rejected by the respondent.

The Complainant left the clinic with the Clinics Red Book of patient contacts.

She did not activate a Grievance procedure or seek to resolve the obvious conflict short of walking out.

Evidence of the Respondent.

The respondent is the Proprietor of a Physio therapy Clinic. He was unsure as to whose idea the complainant’s payment arrangements evolved but accepted her description of same.

He confirmed that the parties had got on well over the first year of employment.

By 2019, the complainant was looking at self-advancement at the clinic. He discussed renting her a room upstairs, but she was not satisfied. He had not discussed a Partnership with her.

He understood that the complainant was planning to move on within a couple of months. Recommendations around password management suggested that they be changed every three months.

He confirmed that he had allowed Architects to view the premises, but he had not wanted to alter his business and the price for this would have been prohibitive.

He recalled that he had offered job flexibility to the complainant in the form of part time work where she would be permitted to continue with her Medico Legal work. She did not accept this arrangement.

He confirmed that she had mentioned rubbish disposal to him. This was paper based and there was no organic waste.

He distinguished the Appt Book as Blue and the Clinic Diary as red. The complainant did not have permission to take Clinic property.

The respondent had no intention of dismissing the complainant, her leaving inconvenienced the Clinic.

In referring to the meeting of 14 February, he submitted that it had begun with pleasantries and the conversation was based on tax. He had not retained any notes. The complainant expressed a desire to buy the business to which he jokingly said she could have it. She offered €250,000 after which he told her that the business was not for sale. A heated discussion followed in both cases.

He confirmed that he was protective of what was on the computer and he had no recollection of whether he asked for the complainant’s keys. He thought the keys were left there.

The Complainant left a within the hour a sick cert was handed in. He learned that she was not returning through a Solicitors letter and discovered through Social Media that she had recommenced work in another part of the City. He was quite receptive to having the complainant back, but she didn’t advance on that. He denied firing the complainant.

He described the interaction during the February 14 discussion as assertive but denied bullying and harassment the complainant at the business. Another employee had mentioned that the complainant had caused her to feel distressed at work, but this had not amounted to a formal complaint.

During cross examination, the respondent reaffirmed that he understood that the complainant was planning her exit when the exploratory plans on refurbishment did not work out. He denied telling the complainant that the password was changed. He had told Ms A that he just wanted to protect clinic information.

In referring to the 14 February conversation, he confirmed that he had raised the topic of Ms as treatment during the discussion. He indicated that all parties would have a problem with the tax situation. Threats and bad language had issued from both parties. He did not recall telling her to get out and surrender her keys. He recalled her throwing them on the table and walking out the door neglecting her duty of care to clients. He was unable to refer the clients on as he did not know where she was.

He did not contact the complainant after the 14 February as he thought she was angry and had elected for the legal route in March. He was prepared to welcome her back to work if she wanted that without disciplinary action. His Solicitor had responded to the letter of March 14.

The Respondent confirmed that the clinic had been in existence for 35 years. He confirmed that the loss of data had been reported to the Data Commissioner and an outcome awaited. He confirmed that tax was paid for employees and self employed managed their own returns. He had not challenged the removal of the clinic book directly with the complainant. Sick leave was unpaid. He has not furnished a complaint to the complainant’s regulatory body.

Evidence of Ms A.

Ms A worked in reception and part time Therapist. she had been with the business for 26 years. She was aware of the Architects visits and that changes were viewed as non-viable by the respondent. She was aware that the complainant was going to look for new work with the respondents help.

During the first week of February, information was being prepared for the company Accountant and a list of patients had been compiled. The password was changed.

On Friday and Saturday, the complainant made several calls to her seeking access to her password. She told her to discuss with the owner. she was shocked by the complainant angry demeanour and was very upset. This continued onto the Tuesday when the complainant again remonstrated with her for changing the password. Another worker told the owner that “she was in bits “

She recalled the morning of 14 February , where the complainant was in “ great form” she submitted that the engagement between the complainant and the respondent lasted approximately 20-30 minutes .She understood that the complainant wanted to go into Partnership and may have offered €250,000, but this didn’t make sense .She observed that both parties were upset towards the end as she understood that they were discussing the password and she didn’t want to be part of that . She had no recall of the keys but recalled finding a medical cert on her return from the bank later that day. She confirmed that the blue book contained client names and telephone numbers and it had never been removed from the Clinic before.

During cross examination, Ms A confirmed that clients were shared across the complainant, the respondent and herself. She was unclear on the respondent’s succession planning and reaffirmed that everyone was upset following the February 14 meeting.

In conclusion, the respondent representative summarised that the complainant had engaged in a hybrid employment which had hall marks of self-employment. she was ambitious and had plans to set up her own business.

A single episode of discord had occurred on February 14 between the respondent and the complainant which was insufficient to ground a claim for Constructive Dismissal. The complainant had no reason to tape the conversation and this served as an ill will towards the respondent.

The password issue should have been explained better, nonetheless the respondent was protecting his legitimate interest and the complainant’s reaction was disproportionate.

The respondent had no intention of disciplining or dismissing the complainant. she had not sustained any economic loss and had not been constructively dismissed.

I have carefully considered both submissions in this case. I have also considered both parties submitted documents.

CA-00030018-001 Payment of Wages Act

The Complainant submitted that she was owed €99.50 nett pay which remained unpaid at the end of her employment. The respondent maintained that the cheque raised on 7 February for that amount was issued and cleared.

The complainant was paid in a hybrid manner. A written contract of employment was not available to me. Had this document been in being, clarity may have followed the clear ambiguity in the pay system.

For my part at hearing, I could not establish with certainty that the complainant received the €99.50 she sought. It was not disputed that the complainant had worked in the period claimed. I find that while a clear ambiguity existed surrounding both the pay system and the conclusion of employment, the complainant had proved that she did not receive a payment for work done.

As the complainant Solicitor has confirmed that payment was received for €99.50 nett, I have accepted this post hearing confirmation at face value as the respondent submitted that a payment had followed.

However, I must find that that a contravention of Section 5 of the Act occurred.

I find the claim to be well founded.

As payment for the amount sought has been made, it is not for me to order the respondent to make a payment in compensation in respect of the breach.

CA-00030018-002 Claim for Constructive Dismissal

This is a claim for Constructive dismissal. The Complainant made a very brief complaint on August 1, 2019. Prior to this in her Solicitors letter dated March 14, the respondent had been placed on notice of an unfair dismissal. I asked the complainants representative to clarify the claim and this was resolved in favour of a claim for Constructive Dismissal on 14 February 2019.

A Constructive Dismissal is covered in Section 1 of the Act.

dismissal”, in relation to an employee, means—

( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

The burden of proof rests with the complainant to prove that her actions in leaving her employer were of an involuntary nature. In coming to a decision in this, I am bound to consider an application of both the contract and reasonableness test.

Contract Test:

The contract test was set down in Western Excavating (ECC) ltd V Sharp [1978] ICR221 where Lord Denning summarised:

If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat herself as discharged from any future performance

In the instant case, there was no material contract of employment. The complainant submitted that one had been prepared in time for April 2018 but had not been concluded. I am to examine the contract test through the operation of the employment.

This was an unusual employment from a pay determination process. I tried to probe if the hybrid pay system was a typical arrangement? and I found it was not so.

What surprised me was that the complainant gave evidence that she had experienced historical difficulties in a previous employment where she needed to register as self-employed up to 2017. I am satisfied that she was aware of the differences between self-employment and direct employment for tax /prsi purposes. I note the short form P60 of 2018 which captured a portion of the work done. I must conclude that the employment in this case was ambiguous from the beginning and both parties ought to have addressed this ambiguity long before February 2019. the complainant had a knowledge of the limitations of self-employment and the respondent had a 35-year operational background. The lack of certainty and uniformity in salary served as a poor foundation stone for employment. I accept the respondent latter day submission that there were overtures of self-employment in the relationship, however, I have taken the employment to be wholly that of a contract of service, albeit poorly administrated.

I note that the respondent had activated a plan to get his Accountant to address this hybrid payment system by February 13, 2019.

I could not identify that the respondent was intent on changing any aspect of the complainants working arrangement. Her client list was unaltered, her hours of work had not been reduced and payments had been made.

The Complainant has asked that I consider her treatment at the hands of the employer on 14 February as proof that he behaved in a way which she found intolerable and was just grounds for her departure. I have some difficulty with this submission.

The complainant asked for the engagement, which she had decided to tape. She told the hearing that her main concern was passwords, and this was corroborated by Ms A. However, the discussion descended into a mutual shouting match, where neither party emerged with much dignity intact. In this I am influenced by Ms A who gave evidence of both parties being terribly upset, but she had not observed a curtailment in the complainant’s employment by the respondent or the complainant.

I appreciate that a “mother and father “of a battle of words took place during that discussion by both parties but I did not identify a repudiatory breach going to the root of the contract.

It seemed to me that the respondent was evasive in his recollection of events, however, the complainant had prepared for this discussion as a follow on from the conversation on tax from the previous day.

It is very hard to ignore the sub plot in this case, that of the exploration of whether the Clinic would be remodelled or not. I appreciate that the complainant was very keen to participate in a remodelling professionally and financially and did not anticipate that the respondent changed direction.

I found that the kernel of her anger centred on her perceived exclusion from the password protected client data. Yet, she confirmed that the password was not essential to undertaking her work. This was a marked inconsistency in the complainant evidence and one I have reflected on.

Throughout the hearing, the complainant exhibited pronounced anger towards the respondent. I asked if the parties had previously experienced any disagreement and was told no. Therefore, the anger exhibited by the complainant seemed more focussed on a plan gone wrong rather than a breach of contract. I can appreciate that the complainant had high hopes of influencing positive developments at the clinic and these were dashed during February 14. However, I found that the complainants’ frustrations with the password restrictions were remedied when she left the clinic with the “blue book “of client details. She did not return this book and for me, at least this demonstrated that these client details were foremost in her mind on 14 February and not perhaps the terms of her employment.

I have established that the complainant did experience a very emotionally charged 30 minutes with her employer on 14 February, I accept that she was threatened and was afraid. However, I found her actions of taping the conversation without consent, followed by the arbitrary removal of client information without permission to be counter balancing and self-defeating actions.

I cannot accept that this meeting compelled the complainant to resign. She followed the meeting with a sick note within one hour. She requested her belongings during her sick leave and did not communicate her resignation outside the Solicitors letter of March 14.

I have not found a successful application of the contract test.

I must now consider the Reasonableness Test

This is where the employer is found to have conducted his affairs so unreasonably and outside the band of reasonableness that an employee cannot be expected to put up with it any longer.

In Conway V Ulster Bank UD/ 474/198, the EAT found for the Bank when the complainant had not “substantially utilised the grievance procedure to remedy her complaints “in a proposed relocation plan.

This was re-affirmed in Mc Cormack V Dunnes Stores UD 1421/2008.

In this case, there were no live company procedures for conflict resolution. This is a significant shortfall since remedied.

The complainant alleges that she was subjected to behaviour amounting to bullying and harassment at the respondent employment. She submitted that she was wrongly treated in terms of pay and in access to the company passwords. She told the hearing that she was threatened with jail by the respondent.

I listened carefully to both parties. I found that the complainant did not take the time to formalise a grievance prior to her departure. I appreciate that she did not have a template available to her through company procedures. I found the complainant to be highly conversant in the world of work and highly articulate in her verbal delivery. It was reasonable for her to withdraw from the highly combative meeting on February 14, just as she had from the first meeting on 13 February where her salary was mentioned. However, it was unreasonable for her to leave it at that.

She did not communicate that she had left the business for 4 weeks after this. I am back to the retention of the blue book on her departure. It is clear to me that the complainant did not intend to return to work for the respondent at any time after the 14 February. It is regrettable that she waited 4 weeks to communicate this via her Solicitor on 14 March. This placed the respondent in a commercially vulnerable situation where the Clinic faced reputational damage. I was surprised that he did not reach out to the complainant to ascertain her intentions prior to this date. I appreciate that he was giving the complainant time to recover from her stated illness. However, he presented as a disengaged employer when he did not follow the complainant up after this period.

The complainant did not record a complaint of bullying or harassment during the employment relationship and yet this was attributed to her claim for unfair dismissal. She did not give the employer a chance to investigate this complaint. I was very struck by Ms as evidence when she recalled the force the complainant had applied in conversation with her on the passwords. I detected her fear of the complainant at that point.

I noted that the complainant did not stay to engage with the Clinic Accountants as suggested by the respondent on February 13

I must conclude that while internal complaint procedures were not available to the complainant, she was covered by Legal advice from the moment, she left the meeting as she told the hearing that she rang her Solicitor immediately on her departure. She also told the hearing that she was informed that she would have to give two weeks’ notice. She addressed this by submitting a medical certificate within the hour. I am satisfied that the complainant did not expend any effort in seeking to save the employment relationship.

I am also satisfied that the respondent’s behaviour at the taped discussion fell short of a responsible employer. I am also dissatisfied that the respondent presided over such an ambiguous employment relationship through pay and procedures.

However, on balance, I must conclude that the complainant left her employment in a hurried fashion and without seeking to resolve matters with an employer she had reported positive staff relations previously.

On this occasion, I cannot find that the actions of the respondent were so unreasonable to ground her immediate departure. I find that the complainant was overly hasty and did not allow for any manner of conflict resolution or representation prior to her termination of employment. I find that the anticipated clinic expansion followed by a change of heart by the respondent played a large part in her rationale for leaving.

The complainant told me that her tax affairs with Revenue had been resolved. Therefore, I have not found grounds to exercise my obligations under Section 8(12) of the Act. The Complainant gave an undertaking at hearing that she would return the “blue book “to the respondent.

I find that the complainant was not constructively dismissed.

Section 41 of the Workplace Relations Act 2015 requires that I decide 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 decide in relation to the complaint in accordance with the provisions of Section 5 of   that Act.

CA-00030018-001 Payment of Wages Act

I have found the claim to be well founded but as payment was issued in a latter-day format, I have not ordered compensation for the contravention of section 5 of the Act.

CA-00030018-002 Claim for Constructive Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant was not constructively dismissed.

Claim for Payment of Wages, Constructive Dismissal.