Complainant

Respondent

Anonymised Parties

Office Manager

Chimney Service Company

Representatives

ESA Consultants

 Did not attend

Act

Complaint Reference No.

Date of Receipt

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

CA-00034035-001

28/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034035-002

28/01/2020

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

CA-00034035-003

28/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034035-004

28/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00034035-005

28/01/2020

The complainant worked for the respondent from 1 November 2016 until she was dismissed on 4 December 2019 and was paid €430 per week. She claims the dismissal was unfair and made further claims that she did not receive written terms and conditions of employment, did not get breaks during the day, was not paid minimum notice when she was dismissed and did not receive the appropriate payment in lieu of notice on termination of her employment.

A hearing was arranged for 8 October 2020 and the complainant attended but the respondent did not attend. Notification of the hearing was sent by email on 4 September 2020. The respondent made no contact with the WRC to confirm he had received the notification. The email address to which the notification was sent is the same as was used by the respondent in correspondence with the complainant which was submitted as evidence at the hearing. I am, therefore, satisfied that the respondent was properly informed of the date, time and place of the hearing. I proceeded with the hearing in the absence of the respondent. The respondent made no contact with the WRC after the hearing.

CA-00034035-001 - Terms of Employment (Information) Act, 1994: The complainant says she never received written terms and conditions of employment, despite requesting them several times.

CA-00034035-002 - Organisation of Working Time Act, 1997 (OWTA): The complainant says that up to September 2018 she worked from home. Then she was told to work in the respondent’s base and was told to answer the phone at all times during the her working day (9am – 5pm). She was therefore unable to take breaks in accordance with the OWTA.

CA-00034035-003 - Unfair Dismissals Act, 1977: The complainant went on sick leave on 19 November 2019 and her doctor certified her on sick leave until 3 December 2019. On 26 November she sent an email to the respondent to explain her health had deteriorated and, following appointment with her consultant and GP she had been placed on full medication for an underlying condition. She said the cold and damp conditions in the office were having a negative effect on her health. She asked to return to working from home. The respondent by making a number of accusations of poor performance. He denied the office was cold or damp. He finished by saying: “Under all the above, under no circumstances are you an employee of [The respondent]. You have two days holidays left according to our accountant, I’ll pay you them and send you a list of your holidays.”

The complainant took this to be her dismissal and there was no further contact. The complainant says she was not paid the two days holiday pay.

The complainant submits there were no procedures and she had no opportunity to respond to the accusations made by the respondent and claims the dismissal was unfair. Given the lack of procedures there was no avenue to appeal the dismissal.

The complainant submits that she was fit to work shortly after her dismissal. However, despite making many

Applications she has not yet been able to find employment.

CA-00034035-004 - Minimum Notice & Terms of Employment Act, 1973: The complainant says she was entitled to two weeks’ notice, but her dismissal was instant.

CA-00034035-005 - Payment of Wages Act, 1991: The complainant says she did not receive payment in respect of the two weeks minimum notice and no payment for work done up to the date of her dismissal.

The respondent did not attend the hearing and made no written submissions

CA-00034035-001 - Terms of Employment (Information) Act, 1994 : I accept the complainant’s evidence that she did not receive written terms and conditions of employment and find the respondent contravened the legislation. The complaint is well founded.

CA-00034035-002 - Organisation of Working Time Act, 1997: Section 12 of the OWTA provides that an employee shall not be required to work more than 4 hours 30 minutes without a break of at least 15 minutes and shall not work more for more than 6 hours without a 30-minute break. This 15-minute break can be included in the 30-minute break but would have to start no later than 4 hours and 30 minutes after the commencement of work.

I accept the complainant’s evidence that on most days from September 2018 to her dismissal on 26 November 2019 she was unable to take breaks in accordance with section 12 of the OWTA.

CA-00034035-003 - Unfair Dismissals Act, 1977: The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent. Section 6 (1) of the Unfair Dismissals Act 1977 states: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The respondent provided no evidence, written or oral to show grounds justifying the dismissal. The complainant credible evidence, substantiated by a medical certificate and email correspondence, of the circumstances of her dismissal. In these circumstances I conclude that the dismissal was unfair.

CA-00034035-004 - Minimum Notice & Terms of Employment Act, 1973: Section 4(1) of the Act states 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 thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

And at 4(2) it states: “The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(b)    If the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

I accept the complainant’s uncontroverted evidence that she was not given any notice and received no payment in lieu of the notice. I find that the complaint is well- founded, and that the employer has breached Section 4(2) of the Act.

CA-00034035-005 - Payment of Wages Act, 1991: this complaint relates primarily to monies due for not being given notice. I have dealt with this under CA-00034035-004. I therefore find the claim not to be well founded.

CA-00034035-001 - Terms of Employment (Information) Act, 1994: For the reasons given above I find the complaint is well founded and I order the respondent to pay the complainant compensation of €1,760.

CA-00034035-002 - Organisation of Working Time Act, 1997: For the reasons given above I find the complaint is well founded, and I order the respondent to pay the complainant a total of €11,180 in respect of the loss of her statutory entitlements and as compensation for the infringement of her rights

CA-00034035-003 - Unfair Dismissals Act, 1977: For the reasons given above, pursuant to Section 8 of the Unfair Dismissals Act 1977, I find the complaint is well-founded and conclude that the Complainant was unfairly dismissed by the Respondent and I order the respondent to pay compensation of €11,180.

CA-00034035-004 - Minimum Notice & Terms of Employment Act, 1973: For the reasons given above I find the complaint is well- founded, and that the employer has breached Section 4(2) of the Act and direct that the employer pay compensation to the employee of two weeks’ notice which amounts to €860.

CA-00034035-005 - Payment of Wages Act, 1991: for the reasons given above I find this complaint is not well-founded.

Respondent did not attend hearing