Complainant

Respondent

Anonymised Parties

An employee

A community forum

Representatives

Aidan McGrath ARAG Legal Protection

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-00045756-001

20/08/2021

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

CA-00045756-002

20/08/2021

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

CA-00045756-003

20/08/2021

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

CA-00045756-004

20/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00045756-005

20/08/2021

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

CA-00045756-006

20/08/2021

The complainant worked for the respondent from 3 February 2014 until 21 May 2021

The complainant gave her evidence under affirmation.

The respondent did not attend the hearing of these matters.  The hearing began with a short adjournment to permit the respondent time to appear.  I am satisfied that the respondent was on notice of the hearing and accordingly the hearing proceeded in their absence.

A 195-page submission was received at the start of the hearing and the hearing was adjourned for a short period to consider its contents.  The complainant confirmed that the submission was copied by the complainant to the respondent in advance of the hearing.

CA-00045756-001 Unfair Dismissal

The complainant outlined her difficulties with the respondent which led to the termination of her employment by the respondent.  The complainant submitted that this treatment amounted to unfair dismissal.

CA-00045756-002 Payment of Wages

The complainant submitted that she was the only person who was not given a bonus at Christmas.  The bonus consisted of a €100 voucher given to all staff.  Although she enquired, the complainant was not given any reason as to why she did not receive such a bonus.

CA-00045756-003 Terms of Employment (Information)

The complainant submitted that the documentation she received under the Terms of Employment (Information) Act, 1994 did not comply with Section 3 of that Act.

CA-00045756-004 Minimum Notice

The complainant submitted that she was dismissed without notice in a letter dated 31 May 2021 contrary to the provisions of the Minimum Notice & Terms of Employment Act, 1973.

CA-00045756-005 Employment Equality

The complainant submitted that she was discriminated against and harassed on the basis of her disability and family status

CA-00045756-006 Payment of Wages

The complainant submitted that the respondent failed to pay her salary from the 10th of May 2021 to when the letter of termination of employment was issued, i.e., 31 May 2021.  The complainant submitted that she was due to be paid €1,546.77

The respondent did not attend the hearing of these matters.

Preliminary matter – Anonymity

The complainant gave her testimony which included information on her mental health condition.  In addition, she put forward certain allegations (relating to individuals acting in voluntary roles) which, although relevant, were not challenged or cross-examined due to the absence of the respondent from the proceedings.  Thus, in all the circumstances pertaining to this case and in the interest of fair procedure, I have decided to anonymise the decision in line with the procedures of the WRC and the recent decision of Ms Justice Butler in the case of SM v SL [2022] IHEC 449.

The WRC Guidance note on the Workplace Relations (Miscellaneous Provisions) Act 2021 includes the following procedural information:

“Hearings in public and parties named in decisions

All WRC hearings involving the administration of justice (that is all WRC cases save for those for disputes under s.13 Industrial Relations Act 1969), will be conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.   

·       By way of example ‘special circumstances’ may include the following non-exhaustive list:

·       cases involving a minor;

·       circumstances where a party has a disability or medical condition, which they do not wish to be revealed;

·       cases involving issues of a sensitive nature such as sexual harassment;

·       cases involving a protected disclosure where there is an issue of the disclosure being made in confidence;

·       or cases which could result in a real risk of harm to a party if the hearing is held in public, or if the parties are named in the decision.”

Ms Justice Butler, when referring to the Administration of Justice in public under the Constitution noted, inter alia, that

“16. The issue came before the Supreme Court in Gilchrest and Rogers v Sunday Newspapers Ltd [2017] 2 IR 284, a case concerning a newspaper article about the witness protection programme operated by An Garda Síochána, the facts of which O’Donnell J regarded as “extreme”. The newspaper sought to restrict the application of the Irish Times judgement to its specific criminal context and argued that the correct test to be applied in civil cases was that found in In Re R Ltd. Under this test, a case could only be heard in camera if the administration of justice in public, i.e. publicity, would itself deny the doing of justice as between the parties. O’Donnell J did not accept that the test was necessarily so strict, although he acknowledged that most of the circumstances in which it would be appropriate for the court to exercise an inherent jurisdiction to hear a case in camera would in fact meet the In Re R. Ltd test.

17. Interestingly, in considering the extent to which the potential harm to another right or interest protected by the Constitution might justify a departure from the general principle that justice be administered in public, O’Donnell J looked at the provisions of article 6.1 of the European Convention on Human Rights under which a person is, in principle, entitled to a “fair and public hearing” of cases concerning their civil rights and obligations. The exceptions to this general principle, also contained in article 6.1, include “where… the protection of the private life of the parties so require”. O’Donnell J commented:

“23. The formulation in the ECHR makes it clear that while interference with the administration of justice is a ground for permitting hearing other than in public, it is not the sole ground. There are other areas where it can be said that the exclusion of the public is justified, normally because publicity for proceedings or even access to them would offend important values, many of which are also protected by the Convention and Constitution. The headings in s.45 of the 1961 Act do not themselves identify subject matter where it will be impossible to do justice if a hearing is conducted in public: instead they identify areas where it is generally believed that a hearing in public provides justice at too high a price for other values considered important. Under the Convention at least, it is not necessary to force cases involving intimate relationships, the affairs of children, or those of people under a disability into the restrictive rubric of demonstrating that justice cannot be done in the individual case, even if that may be a component of a valid and justifiable decision to exclude the public from whole or part of the case.”

The ECHR was not raised by either party in their written or oral legal submissions but is nonetheless something to which, in my view, the Court can have regard.”

Substantive complaints:

CA-00045756-001 Unfair Dismissal

Section 6(1) of the unfair Dismissals Act, 1977 states that

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 did not attend the hearing or make any submissions in relation to this matter.  Accordingly, I find that the dismissal of the complainant is deemed to be an unfair dismissal.

At the hearing, the complainant outlined her pre-existing mental health challenges, she outlined how her treatment at the hands of the respondent impacted on her and exacerbated her existing mental health issues to the point where she was unable to seek work on a regular and ongoing basis.

She gave evidence about taking a grievance against another member of staff which was not dealt with and how the respondent repeatedly tried to get her to attend the office where she worked in an office with two others - her work colleague that she made the grievance about and another staff member who was the daughter of the first staff member.

She outlined how the respondent tried to force her to sign a new contract of employment, on less favourable terms, before it would investigate her grievances further and how she refused to return to the office in the circumstances outlined.  She cited a number of instances where she felt intimidated by her former manager and the chair of the board after having been terminated in relation to the return of a laptop and a phone which contained confidential information on some of her and noted that when leaving her home, she had to pass her former place of employment.

The complainant submitted that the case of Liz Allen v Independent Newspaper (Ireland) Ltd [2002] 13 ELR 84 was instructive here and that the actions of the respondent rendered the complainant unable to engage in effective job search and although she did some work when it was offered to her she was unable to engage in as thorough a search as she would have like to.

The Tribunal in ‘Allen’ stated as follows:

“We have already set out our findings regarding the cause of the claimant’s illness in this case. We are satisfied that her illness is attributable wholly to the factors which led her to resign her employment and claim constructive dismissal. Her illness had led to her financial loss. Having regard to the series of findings made by this Tribunal it follows that the Tribunal must hold that the claimant’s financial loss is attributable to the conduct of the respondent. To hold otherwise, in light of the findings made, would in the view of this Tribunal, have the effect of leaving an unfairly dismissed employee (where re-instatement or reengagement have been ruled out as unsuitable remedies) without any effective remedy for the financial loss suffered as a result of the dismissal. Such a result would in our view be contrary to the intention and spirit of section 7 of the Unfair Dismissals Act 1977.”

In this instance the case differs from the Allen case in that the complainant is not claiming that the respondent is wholly responsible for her illness, rather it was put forward that her treatment at the hands of the respondent exacerbated her existing illness to such a degree as to limit her ability to engage in job search.  Another difference as compared to the Allen case is that in that case both parties put forward medical expert testimony and no such testimony was put forward in this case.

However, I am satisfied that the complainant came across as a credible witness – her evidence was consistent with the documentation submitted and she was not afraid to give testimony that cast her in an unfavourable light.  The respondent did not attend the hearing and accordingly was not in a position to rebut or challenge the witness testimony given.  However, in the circumstances, I find that the respondent contributed to some degree to the complainant’s situation whereby she was unable to engage in a comprehensive job search. The complainant submitted that she was paid €525 per week.  She outlined that she had engaged in some casual employment but was not in a position to find work for the past year. 

CA-00045756-002 Payment of Wages

The complainant put forward the non-payment of a bonus in regard to this payment of wages complaint.  However, this account differs from the narrative in the original complaint form and was never notified to the respondent or the WRC.  Accordingly, I find that no breach of the Payment of Wages Act occurred in relation to this complaint within the time frame comprehended by the Act.

CA-00045756-003 Terms of Employment (Information)

The complainant submitted that the documentation she received did not comply with Section 3 of the Act.  However, the contract of employment submitted would indicate otherwise as it was dated March 2020. 

Section 41(6) & (8) of the Workplace Relations Act, 2015 cover the reference period for presenting a complaint:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

As the period where there may have been a breach of the Act is outside the 6/12 month period comprehended by the Act, I find that this complaint is not well founded.

CA-00045756-004 Minimum Notice

The complainant did not receive any notice of her dismissal and as per the complaint above, I have found that she was unfairly dismissed. The complainant submitted that she had seven years’ service with the respondent.  In the absence of the respondent, this was not disputed.

Section 4 (1) and (2) of the Minimum Notice & Terms of Employment Act, 1973 states:

(1) 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.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(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,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Therefore, I find that the Act was contravened, and the complainant was entitled to four weeks’ notice.

CA-00045756-005 Employment Equality

The complainant submitted that she was discriminated against and harassed on the basis of her disability and family status.  She gave evidence of the harassment and the difficulties she faced in the workplace.  She outlined that the difficulties related to her dealings with another staff member.  However, the complainant did not indicate that these difficulties related directly or indirectly to her family status nor to her disability.

Section 85A of the Employment Equality Acts 1998 – 2021 concerns the Burden of Proof and states that:

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination ’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provisionwhich, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001 ), in so far as they relate to proceedings under this Act, are revoked.

The complainant gave her evidence in a cogent and credible fashion and provided an account of the employment relationship and her difficulties there. 

It is only where the facts of discrimination are established that the burden of proof shifts to the respondent.  Having regard to all the written and oral evidence presented to me, I am not satisfied that the complainant has established the facts of discrimination as she has not provided evidence that would link the treatment she received with one or other of the grounds provided for in the Act.  Accordingly, I find this complaint is not well founded.

CA-00045756-006 Payment of Wages

The complainant submitted that the respondent failed to pay her salary from the 10th of May 2021 to when the letter of termination of employment was issued, i.e., 31 May 2021.  The complainant submitted that she was due to be paid €1,546.77.  As I have found the witness to be credible and in the absence of any argument to the contrary, I find that the complaint is well founded.

CA-00045756-001 Unfair Dismissal

Having regard to the written and oral submissions I find that the complainant was unfairly dismissed and award her the sum of €13,650 which is equivalent to 50% of the loss of her salary for the year.

CA-00045756-002 Payment of Wages

Having regard to the written and oral evidence presented to me, my decision is that this complaint is not well founded.

CA-00045756-003 Terms of Employment (Information)

Having regard to the written and oral evidence presented to me, my decision is that the complaint is not well founded.

CA-00045756-004 Minimum Notice

Having regard to the written and oral evidence presented in relation to this complaint and to my finding that the complainant was unfairly dismissed, my decision is that the Act was contravened.  I hereby direct that the employer pays to employee compensation equivalent to four weeks’ notice, i.e. €2100.

CA-00045756-005 Employment Equality

Having regard to all the written and oral evidence presented to me, my decision is that this complaint is not well founded.

CA-00045756-006 Payment of Wages

Having regard to the written and oral evidence presented in relation to this complaint my decision is that the compliant is well founded.  I hereby direct that the employer pays to employee compensation of €1,546.77 which I consider to be reasonable in the circumstances.

Unfair dismissal – deemed unfair – payment of wages – terms of employment – employment equality - not well founded – minimum notice – contravened – payment of wages – well founded.