Complainant

Respondent

Anonymised Parties

A Former Employee

A Sports Equipment Provider

Representatives

none 

none 

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-00031768-001

22/10/2019

The Complainant stated that she was engaged to be married to the Managing Director (MD) of the Respondent and that she was unfairly dismissed when their relationship broke up in July 2019. The Complainant is seeking redress by way of compensation under the Unfair Dismissals Act [1977-2017]. The Respondent maintains that the Complainant left her employment voluntarily and that there was no dismissal. The complaint was received by the WRC on the 22nd October, 2019.

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. The Respondent stated as follows:

·       That the Complainant and the MD had been in a long-term relationship which ended at the end of July/beginning of August 2019;

·       That the Complainant’s father was a shareholder in the company and had told the Complainant that her continued employment would not work out given the breakdown of the relationship. In this regard the Respondent stated that the Complainant’s father told her to ‘walk away from the business’;

·       That the Complainant showed no inclination or interest in staying working in the business after the relationship breakdown and did not work at all during August 2019;

·       That the Complainant was not told to leave the business, that she was not dismissed and that she voluntarily left;

·       That the Complainant was paid all outstanding holiday pay and a month’s salary.

It is the Respondent’s position that it did not unfairly dismiss the Complainant. The Respondent maintained this was not a normal situation, that there was an element of ‘spite’  in the case and that it was recognised the Complainant could not continue to work in the business given the relationship breakdown. In this regard, the Respondent’s representative stated that given that the Complainant’s father continued to work in the business, it was not plausible to assert that the Complainant had been dismissed. The Respondent’s representative stated that the Respondent did not wish to go down the route of dismissal and that it was the Complainant’s own decision to voluntarily leave the business and seek employment elsewhere. The Respondent’s representative stated that the Complainant had no written evidence or agreement to show that she would stay working in the business until she got another job.

Post hearing in an email received by the WRC on the 11th February 2021, the Respondent stated that the MD remained in Ireland until December 2019 and did not leave the country after the alleged dismissal. The Respondent provided copy of a ferry receipt in this regard dated 7/12/2019. The Respondent also clarified post hearing that the company is no longer active, has not yet closed but is in the process of closure.

The Complainant stated that she started working in the business in 2015 and that in 2018 she was formerly employed taking over duties such as payroll. The Complainant stated that on 30 July 2019 she and the MD ended their relationship by mutual agreement and that the MD moved to Scotland from where the company continues to trade. The Complainant expressed dissatisfaction that the Respondent’s MD did not attend the adjudication hearing. In this regard, she stated that the Respondent’s representative was also an employee who was relying on what he had been told and was not present for the interactions between her and the MD.

The Complainant stated that after 30 July she agreed she would stay working in the business until she secured employment elsewhere. However, she stated that on Thursday, 1 August 2019, she was told by the MD to pay everyone’s wages including her own, to pay herself her annual leave entitlements and to leave the business that day and not return. The Complainant stated that she was told to “get out of the office”, to “stay clear of the office” and to “give [yourself] your P45 and leave and not return”.

The Complainant stated that she was only paid her weekly wages up until Friday, 2 August 2019 together with three weeks wages in respect of holiday pay due to her. She stated that she was not paid a month’s salary as the additional money was for the annual leave entitlement. Accordingly, the Complainant submits that her employment ended effective from 2 August 2019.

It is the Complainant’s position that she has been unfairly dismissed and treated in a very unreasonable manner. She stated that she was left with no wages from 2 August 2019 even though she had bills to pay and had to support herself. She stated there was no reason for her to leave the business in such a manner as the relationship with the MD had ended by mutual agreement. Further, the Complainant disputed that her father told her to leave the business and she stated that the Respondent’s representative was not party to the discussions between her, her father and the MD. The Complainant stated that the MD’s dealings with her father was a separate matter in terms of the latter’s role as a shareholder. The Complainant maintained that she considered herself dismissed with effect from 2 August 2019 and accordingly, she did not continue working in the business after that date.

The Complainant stated that she did not have copies of her payslips or her contract of employment as these were on the company’s premises. The Complainant stated that she had taken up new employment on the 26th September 2019.  In this regard, post hearing the Complainant provided confirmation from her new employer of her commencement date together with copy of a payslip dated 28/11/19.

The relevant legislative provisions in relation to unfair dismissal are set out in the Unfair Dismissals Act [1977-2017]. In that regard, Section 1 of the Act defines dismissal as follows:

“dismissal”, in relation to an employee, means—

a)      the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

b)      the termination by the employee of his contract of employment with his employer…., or

c)       the expiration of a contract of employment for a fixed term without its being renewed ….”

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 Act sets out specific circumstances wherein the dismissal of an employee “shall be deemed…..not to be an unfair dismissal” where for example, the dismissal results wholly or mainly from issues related to the capability, competence, qualifications or conduct of the employee.

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”.

The combined effect of the foregoing is that I must firstly consider whether or not on the balance of probabilities, there was a dismissal in circumstances where this assertion is contested and thereafter, if I decide there was, I must go on to consider whether or not the dismissal was fair/unfair. The Respondent’s representative has stated clearly that the Respondent did not wish to go down the dismissals route, that the Complainant voluntarily left of her own accord and that there was no dismissal. I note the parties confirmed there was no written documentation exchanged in relation to the Complainant’s leaving the business.

Taking account of the definition of dismissal outlined above and having reflected carefully on the oral evidence adduced at the adjudication hearing, I find that the Complainant was dismissed from her position in the Respondent’s business as her employment was terminated with effect from the 2nd August 2019. In coming to this decision I found the following particularly persuasive:  

·       The Complainant’s oral evidence that she did not wish nor could not afford to be out of employment until such time as she secured another position;

·       The Complainant’s oral evidence in relation to what was said to her by the Respondent’s MD on the 1st August 2019 in terms of telling her to get her P45, stay clear of the office, leave and not return -  which statements I consider have not been contested;

·       That the Complainant was paid her full annual leave entitlements with her final wages on the 2nd August 2019 which I’m satisfied signalled the end of her employment with the Respondent. 

Having decided that the Complainant was dismissed, I must now consider whether the Respondent has discharged the legislative burden of demonstrating that the dismissal was not unfair. In this regard, I note that no evidence has been adduced before me to the effect that the Complainant was advised that her employment was in jeopardy or that there were any complaints or charges against her in terms of her  “capability, competence, qualifications or conduct” as outlined at Section 6 (4) of the Unfair Dismissals Act [1977-2017]. I also note from the evidence that no disciplinary procedure was instigated along the lines recommended in Statutory Instrument (SI) 146/2000 which sets out general guidelines to ensure that a disciplinary process complies with the principles of natural justice and fair procedures – such as furnishing an employee with details of complaints, affording him/her an opportunity to respond and avail of representation – prior to any disciplinary action being taken.

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….”

The issue of reasonableness was considered by Noonan J. in Bank of Ireland V O'Reilly [2015] IEHC 241 where it was held that:

“…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “.

Having regard to the foregoing, I am satisfied that the Respondent has not advanced any substantial reason as to why the Complainant’s employment was terminated in terms of the matters set out at  Section 6(4) of the Act or otherwise as provided for at Section 6(6) of the Act. In the interests of completeness, I wish to state that I consider the matter of the ending of the Complainant’s relationship with the MD an entirely separate matter from her employment.  Having found that the Respondent has not shown any substantial reason within the parameters of Sections 6(4) and 6(6) of the Unfair Dismissals Act [1977-2017] to justify the Complainant’s dismissal and that no disciplinary procedure was instigated, I find that the Respondent acted unreasonably in dismissing the Complainant. Accordingly, I find that the Respondent has not discharged the legislative burden of proof and that the dismissal of the Complainant was unfair.

For the reasons outlined, I find the complaint is well founded. Section 7 of the Unfair Dismissals Act [1977-2017] provides that redress may consist of re-instatement, re-engagement or compensation. In the present circumstances, I decide that compensation is the appropriate remedy and I note the Complainant has selected this redress option also.  The Complainant is required to mitigate her losses and adopt a proactive approach in obtaining replacement employment. In that regard, the Complainant has confirmed that she commenced new employment with effect from the 26th September, 2019.

Post hearing the Respondent provided copy of two pages of an AIB current account statement and a payslip for the Complainant dated 15/8/2018 and advised “I have looked back through my emails and can not locate any other payslip….I would suggest that [Complainant] provides the payslip as the company…..is no longer functioning and no longer has access to the payroll system. The salary at the time was €250 per week less taxes but I would be happy for [Complainant] to provide otherwise….”.  The Complainant stated on her Complaint Form, at the adjudication hearing and in an email submitted post hearing that prior to her dismissal her gross weekly wages was €300.00 and I accept this to be the case. Post hearing the Complainant provided a payslip from her new employment dated 28/11/19 for the gross amount of €1036.75 and advised that she was now being paid monthly. The Respondent stated post hearing that this was €36.75 more than her previous salary.   

Having considered all the documentation and evidence, I award the Complainant a gross payment of €4,500 for the financial losses incurred, which I consider to be just and equitable in all the circumstances.  This amount is subject to the usual statutory deductions and taxable in the normal manner in accordance with such Revenue Rules as may apply on termination of employment.

Unfair Dismissal; Lack of Substantial Reason