ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023525
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | A Business |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00030236-001 | 14/08/2019 |
Date of Adjudication Hearing: 17/12/2019
Workplace Relations Commission Adjudication Officer: Anne McElduff
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2017,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant has brought a claim for unfair dismissal against the Respondent business. The complaint was received by the WRC on the 14th August 2019. The business consists of a post office, shop and public house. The Complainant was a Director of the business and married to the other Director but they separated in September, 2017. The Complainant has issued judicial separation proceedings. The Respondent denies there was an unfair dismissal. Both prior to and at the commencement of the adjudication hearing, the Respondent argued that as the case before the WRC was inextricably linked to the judicial separation proceedings, an adjournment should be granted pending resolution of the family law proceedings. The Complainant objected to this at the hearing and stated that the case before the WRC was a separate matter. In my capacity as Adjudication Officer I advised the parties that prior to the adjudication hearing, the WRC had refused the Respondent’s request for a postponement on this basis and that I was adhering to that position. Accordingly the hearing proceeded as scheduled on the 17th December, 2019. The Complainant was assisted at the hearing by a friend who is an accountant. The Respondent was represented at the hearing by Groarke & Partners Solicitors and by the Directors of the business – ie A (the Complainant’s former husband) and A’s brother B. |
Summary of Respondent’s Case:
In accordance with Section 6(1) of the Unfair Dismissals Act [1977-2017], the Respondent outlined its position that it had not unfairly dismissed the Complainant. At the outset, the Respondent raised a preliminary matter that the Complainant as a Director of a family run business was not an employee and therefore did not have the protection of the Unfair Dismissals Act [1977-2017]. The Respondent stated that as a family run business, the Directors were not operating under contracts of employment nor were either operating under the control of the other. The Respondent cited the UK case of Buchan V The Secretary of State for Employment [EAT/770/95] in support of its position in this regard. A and B gave evidence in relation to the substantive matters. In addition I was furnished with various documentation. The Respondent outlined: · That there were two bank accounts for the business – the main bank account being for the shop and public house and the second bank account for the post office which was managed by the Complainant; · That A monitored the main bank account – ie the shop and public house account but not the post office account and that A did not have the codes to access the post office bank account on-line but that the Complainant did; · That there were various standing orders set up on the main shop and public house bank account to pay utility bills and the wages of the Complainant and A. The wages were €4,160 net/month and this was paid by way of one monthly transfer from the main bank account to the joint personal bank account of A and the Complainant; · That in late 2018 whilst A was in the process of applying for an education grant for his children, he needed to access the post office bank account on-line. It is A’s position that when he checked the bank statements for this account he was very concerned about certain unaccounted finances and in particular, that without his permission, there were various withdrawals from the post office account of €1000 which were transferred to his and the Complainant’s joint personal bank account; · That A paid the children’s expenses, paid the Complainant’s credit card but exercised no control over his and the Complainant’s joint personal account and that had he done so, the financial issues would have become apparent to him sooner; · That A brought his concerns and the bank statements to the attention of his accountants one of whom was A’s brother B and that they were shocked by the withdrawals from the company accounts; · That these withdrawals constituted a loss of income for the business, that withdrawals from company accounts are only permitted in certain circumstances as there are tax implications and that there was an onus on the business to account for these withdrawals; · That it was a cash business and money was needed for suppliers; · That due to the immediate risk to the finances of the business they sought advice and were informed that they were under a fiduciary duty to protect the business; · That A moved to block the Complainant’s access to the business bank accounts; · That pursuant to Article 146 of the Companies Act [2014-2020], the Complainant was removed as a Director of the business with effect from the 14th February, 2019. The Complainant was replaced as Director by B; · That the Complainant was out of the country in February 2019 but that on her return on the 18th February, A and B met her. The Respondent maintained that at this meeting on 18 February, the Complainant stated that she would have made various withdrawals to her and A’s personal joint account of a €1000 to top up her finances, that this had been authorised by another accountant in the Respondent’s accountancy firm, that the money was needed by her and that she would pay it back. The Respondent maintained that the Complainant also stated that her spending was out of control. B furnished a memorandum note of this meeting which – inter alia – recorded the following:
“I [B] met [Complainant] and informed her that I was meeting with her in relation to unaccounted finances within the company that [A] had discovered when reviewing company bank statements and that I was setting up an independent investigation process to examine this. I informed [Complainant] that she will remain off work with pay. The independent investigator will be meeting with [Complainant] as part of the process and [Complainant] can be accompanied at these meetings…..This letter I am giving [Complainant] confirms everything we have discussed.
Complainant stated during the conversation that [another accountant from the business accountant’s firm] told her she could take €1000 per month to top up. [Complainant] also stated that she didn’t do it on purpose, that she needed the money and was going to give it back. I [B] told her the investigation would establish all the facts and issue their independent report……”
· At the meeting of the 18th February, 2019 the Respondent furnished the Complainant with a letter also dated 18/2/19, which stated:
“Further to our meeting regarding unaccounted finances…., I am writing to confirm that I will be setting up an investigation process to examine this.
The process will be undertaken by XX. He has been requested to establish the facts surrounding the issue and any related matters in accordance with the terms of reference and prepare a report for me on the matter by Friday 12th April 2019.
As part of the investigation process XX will be meeting with you and will provide you with any other relevant documentation. You will be afforded the opportunity of representation at these meetings. Your co-operation is appreciated….
You should remain off work with pay until this matter has been resolved.
I can assure you that confidentiality in relation to this matter will be maintained insofar as is practicable……
On receipt of the investigation report I will be in further contact with you”
In relation to the Respondent’s investigation, the Respondent outlined the following: · That the Investigator selected was totally independent of the business; · That on the 1st March, 2019, B furnished the Investigator and the Complainant with “financial documents in respect of this matter from the relevant financial institutions”; · That the Terms of Reference for the investigation were drafted by B. In this regard, the Terms of Reference stated: “At the request of B, XX [Investigator]…..has been requested to undertake an investigation into the circumstances surrounding unaccounted finances within [Respondent] …… · That the Terms of Reference comprised 12 paragraphs which included the following: “Par 11: Upon completion of the investigation XX will produce a written report which he shall endeavour to present to B, no later than Friday 12th April, 2019. In the report XX shall: a. Establish the facts surrounding the unaccounted finances b. Make findings as to whom or whether any person was responsible for misappropriation of finances c. Make recommendations, if appropriate”
Par 12: B shall provide a copy of the final report to relevant parties involved in the process. B may subject to the findings and recommendations in the report, determine whether any further steps should be taken”.
· That a number of unsuccessful attempts were made to arrange a meeting between the Complainant and the Investigator and these were identified by the Respondent as being on the 6th March, 2019 for a proposed meeting on the 11th March and on the 8th April, ’19 for a proposed meeting on the 10th April, that ultimately the Complainant did not meet with the Investigator but did make a written reply; · That after the Investigator’s report was completed, B also tried – unsuccessfully - to meet with the Complainant. These attempts were identified by the Respondent as being on the 29th April, 9th May and 14th May for proposed meetings on the 8th May, 16th May and 21st May ’19 respectively; · That B wrote to the Complainant on the 29th April, 2019 and stated:
“Dear [Complainant] I refer to my previous correspondence to you regarding setting up an independent investigation process to examine unaccounted finances within [the Respondent]. I have now received the investigation report and am enclosing a copy of it for you. Prior to me making a decision on this issue, I would like to meet with you to hear what you have to say on this matter. I would be grateful if you would attend a meeting as follows……Wednesday 8th May, 2019…. You may, if you so wish, bring a representative with you to this meeting.”
· The Respondent advised that B received no response to his first letter to the Complainant of the 29th April but that notwithstanding, B waited in the proposed meeting venue for the Complainant but she did not attend. In response to B’s communication of the 9th May, B received a response from the Complainant that she was unfit to attend. B did not receive any response from the Complainant in response to his third communication of the 14th May, 2019;
· The Respondent outlined that B finally wrote to the Complainant on the 6th June 2019 as follows:
Dear [Complainant] I refer to my previous correspondence to you regarding the independent investigation process which was set up to examine unaccounted finances within [the Respondent]. I forwarded you the investigation report and requested to meet you on Wednesday 8th May 2019 in order to hear any final points which you wished me to consider prior to any decision being taken on this matter. Unfortunately you did not attend this meeting. I arranged a subsequent meeting for Thursday 16th May 2019 and received an email from you on 13th May stating that you would not be attending this meeting due to health reasons. In view of this I offered you the opportunity to put any points which you wished me to consider in writing by Tuesday 21st May 2019. I did not receive a response from you.
The independent investigator found that: 1. Between the 5th February 2018 and 14th February 2019 a total of €25,160 was transferred on-line to the Joint Personal Bank Account of [A and Complainant] in 19separate transactions from the Company’s Post Office Bank Account. 2. Between 15th January and 14th February 2019, €8000 in four transactions was transferred on-line from the Company’s Post Office Bank Account to this personal bank account, including one transfer of €5000 on 4th February 2019. 3. Between 31st August 2017 and 30th November, 2018, a total of €30,250 in 29 separate transactions were lodged into the joint personal bank account of [A and Complainant] as cash lodgements. 4. It was unlikely, based on the evidence presented that the withdrawals from the Post Office Account were made by [A]. He was not the person who had day to day responsibility for the financial management of this account. 5. It is unlikely based on the evidence and on the balance of probabilities that the lodgements to the Joint Bank Account were made by [A] as he did not have a lodgement card for either account. 6. It was more credible, based on the balance of probabilities and from the evidence gathered, that [Complainant] was the person responsible for these withdrawal transactions from the Post Office Bank Account without approval and for the lodgements to the Joint Personal Bank Account.
As a Company Director it is expected that you manage the day to day affairs of the company ensuring a high level of professionalism and trustworthiness. The manner in which you have conducted yourself regarding this matter is totally unacceptable. Conducting yourself in such a manner undermines the trust and confidence necessary in any business and working relationships.
Your actions have seriously undermined the level of trust in the business and working relationships within the Company, which is key in any business relationship. It has also cast serious doubt as to the level of trust which we could place in you in any future business relationship.
Resulting from this, the decision which I have reached is to terminate, with immediate effect, your Directorship in the Company and also cease any existing payments from the Company which are being made to you.”
· The Respondent disputed the Complainant’s claim that she had been authorised by another accountant in the Respondent’s accountancy firm to withdraw €1000 per month from the business. In this regard, the Respondent referred to the interview between this other accountant and the Investigator wherein this other accountant stated that he “…..never gave [A] or [the Complainant] the instruction that either of them could withdraw any additional monies other than the €4,160 net wages that was being debited each month from the main business bank account….”. However, this other accountant was not present at the adjudication hearing to confirm this statement;
· That an employee of the business who worked in the Post Office section had given notice of her resignation effective from the 23rd February, 2019 and that this position – due this employee’s resignation - was advertised on the 15th February, 2019. The Respondent maintained that prior to February 2019 the Complainant had been in contact with an Post to seek a replacement for this position;
· It is the Respondent’s position that it did everything it could do deal with this situation from a professional and personal point of view, that the Complainant and A were joint Directors in a family run business, that the Complainant was at home when she needed to be or at work when she needed to be, that this was not an employee/employer situation, that the Complainant had admitted the withdrawal of the money from the business, that the investigation was independent, that the Complainant was on full pay throughout and until her position was terminated, that every effort was made to meet with the Complainant at the different stages and that in all the circumstances, the Respondent went over and above its obligations of fairness. |
Summary of Complainant’s Case:
The Complainant stated she was both a Director of the Respondent business and an employee of the business from 2007 to the 14th February, 2019. The Complainant maintained that she worked two and half days per week in the post office part of the business from 2007 to 2013. She then stayed at home to mind her children from approximately 2013 – 2015 and that she returned to work in the business from 2015. The Complainant stated that she also helped in the shop and in the bar – ie on Mondays and Fridays in the shop and on Tuesdays and Wednesdays in the post office. The Complainant stated that she generally commenced work at 7.30am and opened the shop at 8am. The Complainant stated that she worked on average between 50 – 70 hours per week and that she always worked hard. By way of background the Complainant outlined that her wages were paid into her and A’s personal joint bank account, that she received P60s but did not receive any payslips. She stated that she had previously sought an increase in salary and that she asked for money – for example for health insurance. The Complainant stated that she was advised by A that she could go to the shop account if she needed money and that there were a number of occasions when money was transferred from the post office bank account to support the main shop and pub bank account. The Complainant maintained that she was advised by another accountant in the Respondent’s accountancy firm that she could top up her wages by withdrawals of €1000. She stated that she never denied transferring the money from the post office account to her and A’s joint personal bank account and that she did so in a transparent manner. The Complainant disputed that A did not have access to the post office account. The Complainant denied any misappropriation of money. The Complainant outlined the following in relation to the period leading up to her dismissal: · That whilst she was out of the country and without any consultation, she was removed as a Director of the business on the 14th February, 2019 by the other Director/her former husband A; · That A appointed B - his brother as Director in the Complainant’s place; · That B was the accountant for the business; · That upon her return on the 18th February, 2019 the Complainant was accused of misappropriation of monies by A and B and was advised that an investigation was being instigated; · That immediately after her return from holidays in February 2019 she was denied access to the business credit/cash card; · That everything was “stripped from her” in February 2019 including her job; · That there was no attempt on her part to hide the transfer of the money and that if she was intent on misappropriation of any money she would not have transferred the money to her and A’s joint personal bank account; · That she did not transfer money from the post office bank account to her and A’s joint personal bank account without someone telling her she could do this – and this was the other accountant in the Respondent’s accountancy firm; · That the business advertised for her replacement in February 2019; · That she was not consulted about the Terms of Reference for the investigation; · That from the outset she was concerned and apprehensive about the investigation, that she did not get a fair hearing and that she was also concerned about B’s role as he had replaced her as Director; · That she was advised by her Solicitor not to participate in the investigation or meet with B. The Complainant confirmed that she was paid by the Respondent up until 30/6/2019. After she left the Respondent’s business, the Complainant stated that she undertook a book-keeping course in October 2019. She has been employed elsewhere since 8/10/19 earning €445 net per week and working five and half days per week. The Complainant is seeking compensation for the unfair dismissal. |
Findings and Conclusions:
CA-00030236-001 This complaint is about whether or not the Complainant was unfairly dismissed from her employment in the Respondent’s business. Throughout the adjudication hearing I made it clear that I had no jurisdiction with regard to the Complainant’s position and removal as a Director of the Respondent.
The Respondent raised a preliminary matter that the Complainant did not have locus standi to bring a claim under the Unfair Dismissals Act [1977-2017] on the basis that she was not an employee of the business. The Respondent stated that the Complainant was a joint Director of the business with A, that the enterprise was jointly owned and run by her and A, that she had no express or implied contract of employment with the Respondent and that, unlike an employee, she was not subject to the control of any person. The term "a contract of service" or contract of employment is not defined by statute. However, a Director of a company, by virtue of his/her office, is not precluded from being an employee. This is recognised by the Companies Act [2014-2020] which provides at paragraph 154 for the retention of copies of Directors contracts of service (or contracts of employment). In order to determine this matter, it is therefore necessary to consider various characteristics of the Complainant’s employment as against various tests which have been utilised by the courts. This approach has been endorsed by case law, for example in Henry Denny & Sons (Ireland) Ltd. V. Minister for Social Welfare [1998] 1 IR 34, it was stated that: “Each case must be considered in the light of its particular facts and of the general principles which the courts have developed”. In the case of Minister for Agriculture V. Barry [2009] I IR 215, it was held that there was not a “one size fits all” test for this purpose. The legal tests include consideration of the degree of control exercised over the worker, whether the person is integrated into the workplace and whether or not the person is engaged in business on his/her own account. Another key factor is whether or not a mutuality of obligation exists in terms of the employer being required to provide work for the employee and the corollary obligation on the employee to complete that work. I have also considered the Code of Practice for Determining Employment or Self-Employment Status of Individuals which is published by the Irish Revenue Department as this also sets out criteria to be considered in assessing whether an individual is an employee or is self employed.
The Complainant worked in the Respondent’s business. At the adjudication hearing, she outlined that since 2015 she worked regular hours every week for the Respondent which for the most part was in the post office part of the business and this was not disputed. The Respondent has confirmed that the Complainant was paid jointly with A, a monthly wage of €4,160 by way of a standing order transfer to the joint personal bank account she held with A. The Complainant outlined that she had previously sought a salary increase and this had been refused. The Complainant stated that she was furnished with P60s which were the certificates which set out employees annual pay and deductions. The Respondent’s complaint against the Complainant is that she transferred money from the business post office account “without approval” and this led to the investigation and termination of her position within the Respondent.
Having considered all these matters, it is my view that on balance, the Complainant was an employee of the Respondent and that there was an implied contract of employment.
In light of the foregoing decision, the Complainant was entitled to pursue her claim for unfair dismissal in accordance with the Unfair Dismissals Act [1977-2017]. In this regard, I consider the Complainant was dismissed from her position as an employee of the Respondent effective from the 30th June, 2019 which was her last date of paid employment. Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” - ie there is a statutory presumption of unfairness unless the Respondent employer can show there were substantial grounds justifying the dismissal. Section 6 (4) of the Unfair Dismissals Act [1977-2017] sets out specific circumstances wherein the dismissal of an employee “shall be deemed…..not to be an unfair dismissal”. Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”. Section 6(7) of the Unfair Dismissals Act [1977-2017] provides that in determining whether a dismissal is unfair, regard may be had: 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…..with the procedure….or with the provisions of any code of practice….”
In the present situation, the Respondent did not treat this matter as a termination of employment. Evidence was given by the Complainant that there was no disciplinary procedure and this was not disputed by the Respondent. The Complainant also stated that she was not consulted regarding the Terms of Reference of the proposed investigation and that she had concerns about the role of B as he had replaced her as Director, had drafted the Terms of Reference and had a primary role in the steps leading to her termination. For its part, the Respondent outlined the several unsuccessful steps it took to seek the engagement of the Complainant in meetings with the Investigator and in meeting with B prior to the termination of her position. It is also notable that the Respondent afforded the Complainant representation at every stage.
In Iarnród Éireann/Irish Rail V McKelvey [2018] IECA 346, the Court of Appeal enunciated the following principles of fair procedures – in addition to the right to representation :
“(i) [the] right to know the nature of the complaint/allegation made against him; (ii) [the] right to know the procedure to be followed in the course of the investigation; (iii) [the] right to know the potential implications of the complaint/allegation should it be established, i.e. the sanction/sanctions that might be imposed; (iv) [the] right to be heard in relation to the complaint/allegation and to make representations in relation thereto; (v) [the] right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses; (vi) [the] right to call witnesses in support of his stated position”.
In addition, the Court of Appeal commented as follows on the Code of Practice applicable to workplace disciplinary matters which is set out in Statutory Instrument 146/2000: “That code of practice is stated to promote best practice and outlines the principles of fair procedures for employers and employees generally …... It is well understood that the code, promulgated so many years ago, was developed so that disciplinary issues could be handled in accordance with the principles of natural justice and fair procedures and in order that good industrial relations might be maintained in the workplace.”
SI 146/2000 sets out the following general principles:
· The requirement to comply with the general principles of natural justice and fair procedures; · That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned; · That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available; · That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal – ie the principle of proportionality.
Notwithstanding that the Respondent in the present case did not treat this matter as an employment disciplinary matter, I am satisfied that in the conduct of the investigation fair procedures were applied, the Complainant was clearly notified of the concerns, she was afforded representation at all stages, invited to respond and provided with several opportunities to engage with the process via direct meetings, which she declined – though she did provide a written reply.
However, in so far as the Complainant’s employment was concerned, the process that led to the termination of her employment, in my opinion, fell far short of the requirements of any fair disciplinary procedure. After the investigation report was furnished to her, the Complainant was requested by B to meet with him “to hear what [she had] to say on this matter”. The Complainant was not advised or forewarned in advance that she may be dismissed from her employment. The Complainant was not advised in advance of the charges or allegations of misconduct upon which disciplinary action may be based. Accordingly, she was not afforded an opportunity to answer any charges of misconduct in the context of an employment disciplinary process. It was not sufficient to simply furnish the Complainant with the report of the Investigator and require her to interpret or construe what matters would give rise to consideration of the termination of her employment. In this regard, I note there was no express mention in the Investigator’s findings of misappropriation, notwithstanding that this was specifically stipulated in the Terms of Reference. Further, there was no evidence of any consideration of a lesser penalty – for example whether it was possible to retain the Complainant in employment but without access to any of the business bank accounts? Nor was the Complainant afforded a right of appeal arising from the termination of her employment.
In all the circumstances, I decide that the Respondent has not rebutted the presumption that the dismissal was unfair. The complaint of unfair dismissals is therefore well founded.
Section 7 of the Unfair Dismissals Act [1977-2017] states:
“7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances……
a) re-instatement……, or b) re-engagement……., or c) (i) 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 undersection 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances…….
(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, b) 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, c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal”
Given that the Complainant has secured alternative employment elsewhere and that she has selected compensation as her preferred remedy, I consider that compensation is the appropriate form of redress in this case.
In assessing the amount of compensation to award, Section 7 (1)(c)(i) of the Acts states that I may award “any financial loss attributable to the dismissal…….. as is just and equitable having regard to all the circumstances”.
Section 7(3) of the Acts further states:
“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal …..”.
I am also satisfied that the Complainant contributed to the circumstances in which she found herself as a consequence of her lack of engagement with the investigation process and in particular, by her refusal to meet with B afterwards. Furthermore, notwithstanding the unresolved conflict between the Complainant and the Respondent as regards authorisation for the withdrawal of the monies to her and A’s joint personal bank account, from the evidence presented at the hearing, I am satisfied the Complainant should have considered the impact of these withdrawals on the business.
In terms of mitigation, the Complainant stated at the adjudication hearing that she had undertaken a book-keeping course and that since the 8th October, 2019 she was working elsewhere earning €445 net/week for a five and half day week.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2017 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00030236-001 The Complainant and A were paid a joint monthly net wage of €4,160 and so I deem the Complainant’s wages to be half that amount – ie €2080 net per month. No evidence to the contrary was presented at the adjudication hearing. The Complainant continued to be paid until 30/6/2019. From the 8th October, 2019 she has been earning the lesser amount of €445 net per week. In all the circumstances, I order the Respondent to pay the Complainant compensation of €9,500 which I determine to be just and equitable based on the Complainant’s 14 weeks loss of income between July and the 8th October, 2019 @ €480/week, an amount of €3,640 for prospective loss and taking into account the Complainant’s contribution to the dismissal. |
Dated: 23.3.2020
Workplace Relations Commission Adjudication Officer: Anne McElduff
Key Words:
A Worker V A Business |