ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00028722
Parties:
| Complainant | Respondent |
Parties | Lynda Fitzpatrick | MCK Promotions |
Representatives | SELF | SELF |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00038608-001 | 05/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038608-002 | 05/06/2020 |
Date of Adjudication Hearing: 07/04/2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant was employed by the Respondent from 18th February 2019 until 5th March 2020. The Complainant was employed in the capacity of a Sales and Marketing Executive. The Complainant’s salary was €37k per annum. The hearing of the complaint took place remotely on 7th April 2021. I explained the implications of the Supreme Court ruling in the Zalewski v Adjudication Officer and WRC [2021] IESC 24 to the parties. Both parties were willing to proceed with the hearing. |
Summary of Complainant’s Case:
● The Complainant asserts that she was unfairly dismissed from employment and was subjected to an unfair process throughout the process of the dismissal. ● In relation to the letter issued to the Complainant at the time of her dismissal, in or around 5th March, the Complainant fails to understand the meaning of the letter. ● The Complainant asserts that she was not paid the correct amount of pay in lieu of notice. ● The Complainant was happy working with the Respondent and was not looking for another job. ● The Complainant after her dismissal accepted a position paying her €10 k per annum less than what she was earning in the employment of the Respondent.Loss of earnings for being out of work ● When I gained employment, I had to take a pay decrease of 10K ● I was a hard worker from the day I started working with MCK Promotions ● Never missed a sick day - even when signed off for a week by doctor in November ● Worked early mornings/ late evenings and even through lunch hours ● I think it was premeditated as outlined in my overall document submitted
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Summary of Respondent’s Case:
CA-00038608-001 Pay
The reason for not forwarding payment to the Complainant was due to the Pandemic arising and the company losing an order valued at €100k, within a matter of days from 13th March to 31st March the company lost contracts worth €150k because of the pandemic and our offices closing suddenly.
The company did not have the funds to pay the Complainant in full as they operate on a payment basis, the company does not have this spare cash.
The company fell into debt quite rapidly.
The Complainant was paid in full for the time she worked, plus holiday + 1 week gesture payment.
CA-00038608-002 Unfair Dismissal It is the opinion of the Respondent that they did not unfairly dismissal the complainant. The Respondent accepts that they did not utilise a proper procedure whilst dismissing the Complainant.
When the Complainant first applied for the role of “Business Development, Sales & Marketing” for the Respondent she came with a lot of promise and the Respondent had high hopes. In the early weeks of employment, it became apparent that the Complainant had a lack of experience in the areas of Sales and Marketing.
The Respondent business is very small and managed in a very informal manner, things being decided in a consensus manner with agreement being reached by those present.
The organisation worked very well as a team and the company grew successfully, unfortunately when cracks started to show the Managing Director realised that she had made an error of having previous undocumented conversations as the organisation was now in a “comfort zone” and her position was overlooked.
The Complainant started performing tasks that she was neither requested to do or authorised to do, one such task was making payments for the Respondent. On more than one occasion the Complainant was asked to go back to the duties she was employed to for.
When the Respondent MD commenced her maternity leave the Complainant started carrying out tasks that were far removed from what her job was, one such area was banking and following up with customers in relation to payments.
On 5th February 2020 the Respondent MD sent an email to the Complainant stating: “This position does not require any account querying / payment requests, nor grant permission to make payments without MD knowledge or approval”.
The Complainant was a highly regarded employee and her work was noticed to the extent that she was awarded a salary increase of €3,000 per annum within three months of her commencing employment. The Responded stated that the Complainant’s potential was noticed and that it was important that she, the Complainant, felt rewarded and that she was willing to go above and beyond expectations.
On her return from Maternity Leave the Respondent MD quickly realised that the company was not growing and that some changes would have to be made. She also realised that whilst the Complainant was comfortable managing existing clients she was not attracting new customers / client to the business. The Complainant was asked to focus on the business of attracting new customers.
The Respondent organisation hired a business analyst and it became apparent that each sales employee would be issued with a sales target. It was at this point that the Complainant informed the Managing Director that she did not like making sales calls and when asked to identify five potential customers she was unable to do so.
The dismissal of the Complainant was done to protect the business.
The Respondent accepts that the correct dismissal procedures were not followed.
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Findings and Conclusions:
CA – 00038608 – 001. I am satisfied that the Complainant received all outstanding wages. CA – 00038608 – 002. It is accepted by all that the correct procedures were not followed; this fact deems the dismissal of the Complainant unfair. The complaint as presented under the Unfair Dismissals Act, 1977 is well founded. Following her dismissal, the Complainant was unemployed for a period of five weeks. When she secured a position in another company her salary was €10 k per annum less that the salary paid to her by the Respondent. I now order that the Respondent pays compensation of €7,403.84 (representing 5 weeks pay for the period of unemployment plus the difference between her old salary and new salary for a period of 20 weeks). Compensation should be paid to the Complainant within 42 days from the date of this decision. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
As outlined above. |
Dated: 2nd June 2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
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ADJUDICATION OFFICER DECISION.
CORRECTION ORDER issued pursuant to section 41 (16) of the Workplace Relations Act, 2015. This Correction Order is made to correct the respondent’s name which was incorrect in the initial Decision.
This Order corrects the original Decision issued on 2nd June 2021 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00028722
Parties:
| Complainant | Respondent |
Parties | Lynda Fitzpatrick | MCK Promotions Limited. |
Representatives | SELF | SELF |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00038608-001 | 05/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038608-002 | 05/06/2020 |
Date of Adjudication Hearing: 07/04/2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant was employed by the Respondent from 18th February 2019 until 5th March 2020. The Complainant was employed in the capacity of a Sales and Marketing Executive. The Complainant’s salary was €37k per annum. The hearing of the complaint took place remotely on 7th April 2021. I explained the implications of the Supreme Court ruling in the Zalewski v Adjudication Officer and WRC [2021] IESC 24 to the parties. Both parties were willing to proceed with the hearing. |
Summary of Complainant’s Case:
● The Complainant asserts that she was unfairly dismissed from employment and was subjected to an unfair process throughout the process of the dismissal. ● In relation to the letter issued to the Complainant at the time of her dismissal, in or around 5th March, the Complainant fails to understand the meaning of the letter. ● The Complainant asserts that she was not paid the correct amount of pay in lieu of notice. ● The Complainant was happy working with the Respondent and was not looking for another job. ● The Complainant after her dismissal accepted a position paying her €10 k per annum less than what she was earning in the employment of the Respondent. Loss of earnings for being out of work ● When I gained employment, I had to take a pay decrease of 10K ● I was a hard worker from the day I started working with MCK Promotions ● Never missed a sick day - even when signed off for a week by doctor in November ● Worked early mornings/ late evenings and even through lunch hours ● I think it was premeditated as outlined in my overall document submitted
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Summary of Respondent’s Case:
CA-00038608-001 Pay
The reason for not forwarding payment to the Complainant was due to the Pandemic arising and the company losing an order valued at €100k, within a matter of days from 13th March to 31st March the company lost contracts worth €150k because of the pandemic and our offices closing suddenly.
The company did not have the funds to pay the Complainant in full as they operate on a payment basis, the company does not have this spare cash.
The company fell into debt quite rapidly.
The Complainant was paid in full for the time she worked, plus holiday + 1-week gesture payment.
CA-00038608-002 Unfair Dismissal It is the opinion of the Respondent that they did not unfairly dismissal the complainant. The Respondent accepts that they did not utilise a proper procedure whilst dismissing the Complainant.
When the Complainant first applied for the role of “Business Development, Sales & Marketing” for the Respondent she came with a lot of promise and the Respondent had high hopes. In the early weeks of employment, it became apparent that the Complainant had a lack of experience in the areas of Sales and Marketing.
The Respondent business is very small and managed in a very informal manner, things being decided in a consensus manner with agreement being reached by those present.
The organisation worked very well as a team and the company grew successfully, unfortunately when cracks started to show the Managing Director realised that she had made an error of having previous undocumented conversations as the organisation was now in a “comfort zone” and her position was overlooked.
The Complainant started performing tasks that she was neither requested to do or authorised to do, one such task was making payments for the Respondent. On more than one occasion the Complainant was asked to go back to the duties she was employed to for.
When the Respondent MD commenced her maternity leave the Complainant started carrying out tasks that were far removed from what her job was, one such area was banking and following up with customers in relation to payments.
On 5th February 2020 the Respondent MD sent an email to the Complainant stating: “This position does not require any account querying / payment requests, nor grant permission to make payments without MD knowledge or approval”.
The Complainant was a highly regarded employee and her work was noticed to the extent that she was awarded a salary increase of €3,000 per annum within three months of her commencing employment. The Responded stated that the Complainant’s potential was noticed and that it was important that she, the Complainant, felt rewarded and that she was willing to go above and beyond expectations.
On her return from Maternity Leave the Respondent MD quickly realised that the company was not growing and that some changes would have to be made. She also realised that whilst the Complainant was comfortable managing existing clients she was not attracting new customers / client to the business. The Complainant was asked to focus on the business of attracting new customers.
The Respondent organisation hired a business analyst and it became apparent that each sales employee would be issued with a sales target. It was at this point that the Complainant informed the Managing Director that she did not like making sales calls and when asked to identify five potential customers she was unable to do so.
The dismissal of the Complainant was done to protect the business.
The Respondent accepts that the correct dismissal procedures were not followed.
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Findings and Conclusions:
CA – 00038608 – 001. I am satisfied that the Complainant received all outstanding wages. CA – 00038608 – 002. It is accepted by all that the correct procedures were not followed; this fact deems the dismissal of the Complainant unfair. The complaint as presented under the Unfair Dismissals Act, 1977 is well founded. Following her dismissal, the Complainant was unemployed for a period of five weeks. When she secured a position in another company her salary was €10 k per annum less that the salary paid to her by the Respondent. I now order that the Respondent pays compensation of €7,403.84 (representing 5 weeks’ pay for the period of unemployment plus the difference between her old salary and new salary for a period of 20 weeks). Compensation should be paid to the Complainant within 42 days from the date of this decision. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
As outlined above. |
Dated: 5th October 2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
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