Complainant

Respondent

Parties

Vladlena  Soltan

Shannons Solicitors

Complainant

Respondent

Representatives

  Self-Represented

 P. Barriscale BL

Act

Complaint/Dispute 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-00040376-001

12/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00040376-002

12/10/2020

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

CA-00040376-003

12/10/2020

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

CA-00040376-004

12/10/2020

The issues in contention concern the alleged unfair ending of an alleged employment of the Complainant by the Respondent firm of Solicitors with allied Minimum Notice and Terms & Conditions of Employment complaints.

While disputed by the Parties the alleged employment was stated to have commenced on the 10th February 2020 and formally ended on the 22nd June 2020.

While also contested the rate of pay was stated to be €1,666.67 per month (€ 266.27 per week ) for 37.50-hour week.

1:1         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 / CA -00040376-001

The Complainant alleged that no contract of employment or any written statement of T &Cs of employment were provided. The offer of employment was verbal only.

1:2         Dispute seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts / CA -00040376-002

The Complainant was laid off due to Covid 19 on the 24th of March 2020. Efforts to establish a return to work date were unsuccessful. In a phone call of late June 2020, the Complainant was informed that there was no more work for her and that the job was over. No proper procedures were followed, there was no formal meeting to discuss her termination and no offer of an appeal. In addition, holiday pay, both basic and public, was refused and wages for the month of March were left short.

It was a very disrespectful and procedurally flawed process.

1:3        Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA -00040376-003

The Complainant alleged that no Statutory Minimum Notice was paid on the ending of the employment.

1:4        Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA -00040376-004

The Complainant alleged that no contract of employment or any written statement of T &Cs of employment were provided. The offer of employment was verbal only.

2:1       Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 / CA -00040376-001

The Complainant was never an employee of the Respondent. She was offered a work experience placement in a Solicitor’s Office to further her prospective career. She had no legal experience whatsoever and the placement was to allow her gain knowledge of legal matters.

As there was no employment relationship no issue of a Contract or T &Cs arose.

It was agreed that the Complainant was paid a small sum for her work in February and March but his was more in the nature of a stipend rather than a formal wage. It was below the Statutory Legal Minimum wage.

All the arrangements were never the subject of any complaints from the Complainant.

2:2       Dispute seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts / CA - 00040376-002

The Complainant was never an employee. She was a Work Experience placement. The Covid 19 situation over took her. She went on the PUP which was much more financially advantageous to her.

The Respondent simply confirmed to her in late June that the Work Experience had finished on the 8th April and there was no longer an experience opportunity for her in an office already coping with the Covid 19 business slowdown.

The dispute, even under the Industrial Relations Act,1969, has simply no proper legal basis as no employment relationship existed.

2:3        Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 / CA -00040376-003

No grounds for Minimum notice arise as there was no “ending of employment”. A Work Experience placement came to an end and the Complainant went on to the PUP.

2:4         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 / CA -00040376-004

As stated above for CA-00040376-001 the relationship was a Work Experience placement, albeit with a small payment for February and March 2020. There was no requirement for a formal contract or written T &Cs document.

3:1        Preliminary discussion of the key question – Employment or Work Experience.

There was a major conflict of evidence or at best a serious misinterpretation of facts between the parties in this case.

Evidence was given by way of written submissions and oral evidence. All witnesses were under an Affirmation and were cautioned regarding the Perjury Acts. The principal Respondent witness is a long-standing and qualified member of the Legal profession.

Without any doubt the Complainant was most anxious in 2019 to develop a career in the Legal profession. Lacking any legal track record, she approached the Respondent to seek experience in his Office. This began on an unpaid basis toward the end of 2019

Being of a diligent and industrious approach she impressed the Respondent and it was decided to offer her a payment for her contribution. A phone call on or about the 10th February 2020 arranged a new placement or as contested by the Complainant a regular job offer with payment.

The Respondent resolutely denied it was a formal job offer, as claimed by the Complainant, as a regular Legal Secretary.

Arising from this situation a major evidential conflict existed between the Parties the resolution of which effectively determines the entire case.

The Complainant had previously, by her own admission, held a substantial job in a Services Company in Dublin Airport.

The only factual evidence available was the Wage Slips from the Respondent. For the month of February, a full month’s salary was paid. This gave a sum of €1,153.84. A working week was deemed to be of 37.50 hours duration.

Annualising this gives the following figures

€ 1153.84 x 12 = €13,846 Annual Salary.

€ 13,846 / 52 = € 266.27 per week / 37.5 gives an hourly rate of €7.10.

(The legal national minimum wage in 2020 was € 10.10).

It is clear from these figures that the position was not that of a regular worker. The Complainant was not a novice in employment matters and must have understood this.

While it was unfortunate that all matters were only verbally discussed, and some confusion was inevitable it is clear that this was a Work Experience arrangement and not a regular job.

The letter of reference dated the 6th July 2020 stated that the Complainant worked as a Legal intern and then a Legal Secretary. This letter has to be seen from the verbal evidence as a good will gesture by the Employer, to “gild the lily” so to speak for the Complainant seeking other work.

In summary the arguments of the Respondent have to be accepted.  Misunderstandings aside there was no contract of employment.

Taking this position, I then considered the listed complaints.

3:2         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 / CA -00040376-001

As there was no Contract of Employment there was no legal requirement for a written statement of T &Cs or a formal written legal contract of employment.

3:3         Dispute seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts / CA - 00040376-002

Undoubtably there was much misunderstanding in this case between the Parties. However, the facts are that the Complainant was on a Work Placement/Legal Intern arrangement. It was overtaken by Covid 19 and the arrangement came to an end. It appeared that the amount of PUP the Complainant was receiving was in excess of her “stipend” from the Employer. Employer communications might have been better so as to clarify the situation of the Complainant at an earlier date.

However, the suggestion of a formal end of employment process akin to SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures while possibly good practice was not absolutely necessary in this case.

My recommendation is that in any future Legal internships/Work Experience situations a written document is agreed to set out clearly for all concerned what is being arranged.

3:4        Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 / CA -00040376-003

As set out above the evidence did not point to a formal contract of employment. As such no Minimum Notice entitlement arises.

3:5         Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA -00040376-004

This is effectively a repeat of CA -00040376-001 above. There was no contract of employment and as such no legal requirement to provide a written contract or statement of T &Cs.

Work Experience, Legal Internship, Minimum Notice, Statement of Terms and Conditions of Employment, Dismissal Procedures.