ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00026360
Parties:
| Complainant | Respondent |
Parties | Marta Klinkosz | E-Celtic Ltd |
Representatives | Self-represented | Self-represented |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00033725-001 | 10/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00033725-003 | 10/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00033725-005 | 10/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 | CA-00033725-006 | 10/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 | CA-00033725-007 | 10/01/2020 |
Date of Adjudication Hearing: 17/11/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 10th January 2020, the complainant submitted complaints to the Workplace Relations Commission pursuant to the Redundancy Payments Act, the Payment of Wages Act, the Unfair Dismissals Act and the European Communities (Protection of Employment) Regulations.
The complaints were scheduled for adjudication on the 17th November 2021, and this took place remotely. The complainant attended the hearing. Subit Mukherjee and Donogh Keane attended for the respondent. Both parties made post-hearing submissions and the case file consisted of 345 pages.
In accordance with section 41 of the Workplace Relations Act, 2015, section 39 of the Redundancy Payments Acts 1967 - 2022 and section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant’s employment started in May 2014 and ended on the 31st December 2019. She was paid €1,958.97 per month. The complainant asserts that her employment was ended unfairly or that she was entitled to a redundancy lump sum payment. She also cites that she was underpaid in November and December 2019. The respondent denies the claims. |
Summary of Complainant’s Case:
The complainant gave evidence under affirmation. She outlined her work for the respondent and the circumstances around the ending of her employment. She attended the offices of the Valuation Office to handle with care and scan national records from the 19th century. She scanned some 4,000 pages per day using the sometimes-unreliable equipment. The material was sent to a back office outside of the European Union and she said that there were quality issues with the material emanating from there. The complainant was on maternity leave in 2019 and returned to work in the latter part of that year. She was not replaced during the maternity leave. On the 2nd December 2019, she was informed that her employment was ending because things were quiet, and the respondent had lost the next phase of the Valuation Office project. She outlined that she asked for a redundancy payment and the respondent said that this would be reduced by the amount they had topped up her pay during her maternity leave. She asked for written confirmation of the reasons for the ending of her employment and her employment ended at the end of December 2019. In February 2020, the respondent sent her a letter dated 2nd December 2019 citing performance issues dating back to 2015 as grounds for dismissal. The complainant gave evidence of finding work after the ending of her employment and of setting up an online fitness business at the outset of the Covid-19 pandemic. |
Summary of Respondent’s Case:
The two respondent witnesses gave evidence on affirmation. The respondent outlined that the complainant was dismissed on performance grounds, and it had discovered that she was setting up her own fitness business. The respondent said that it lost the next phase of the public contract because of the sub-standard work of the complainant. It emphasised that it had paid a top-up to the complainant during her maternity leave. The respondent stated that the complainant was engaged in a ‘complaining game’, that there were no issues with the equipment, and she did not work all her hours. |
Findings and Conclusions:
CA-00033725-001 This is a complaint pursuant to the Redundancy Payments Act. While the respondent initially indicated on the 2nd December 2019 that the complainant’s employment was ending on grounds of there being not enough work, it altered its position to invoke performance grounds. The complainant states that the project at the Valuation Office was to move to its next phase. I find that the complainant’s role was not redundant and the circumstances around the ending of her employment are addressed via the Unfair Dismissals Act. CA-00033725-003 This is a complaint pursuant to the Payment of Wages Act. I note that the complainant asserts that the respondent deliberately underpaid her for the last two months of pay as she had queried her redundancy lump sum entitlement. The respondent did later pay the shortfall due. I, therefore, formally find that the complaint is not well-founded. CA-00033725-005 This is a complaint pursuant to the Unfair Dismissals Act. The complainant’s employment ended on the 31st December 2019. The complainant was told her employment was ending on this date on the 2nd December 2019 on grounds of a diminution in work. She was later informed that it was because of performance issues, mainly dating from 2015. Having considered the evidence, I reject the assertion that there were any performance or conduct issues grounding the dismissal. I find that the complainant worked hard in challenging circumstances because of the age of the documents she was handling and faults with the equipment she was using. While the respondent initially indicated that this was a redundancy situation, it did not advance grounds to show that this was the basis of the dismissal. When the complainant sought her redundancy lump sum payment, the respondent asserted that it was entitled to discount this because of payments made to her during her maternity leave. Given that the respondent has not demonstrated any justification for the complainant’s dismissal either on grounds of performance or redundancy, the complainant was unfairly dismissed from her employment. The complainant gave evidence of significant efforts to mitigate her financial loss. She worked in a gym and then set up an online fitness website at the outset of the pandemic. The complainant conducted herself in an exemplary fashion in seeking to mitigate her losses. Section 7 defines ‘financial loss’ as including ‘… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.’ I assess the complainant as incurring actual and prospective loss of €25,000. I assess ‘the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973’ in this case as being €5,578 (May 2014 to December 2019). The sum of these two amounts is €30,578 and this is awarded as just and equitable compensation. CA-00033725-006 and CA-00033725-007 The complainant clarified that these complaints related to the ending of her employment. I formally deem these complaints to be not well founded as this is addressed elsewhere. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2022 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under 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.
CA-00033725-001 I formally decide that this complaint is not well-founded as the complainant was unfairly dismissed and an award is made under the Unfair Dismissals Act. CA-00033725-003 I decide that the complaint pursuant to the Payment of Wages Act is not well-founded. CA-00033725-005 For the above reasons, I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant just and equitable compensation of €30,578. CA-00033725-006 I decide that the complaint pursuant to the European Communities (Protection of Employment) Regulations is not well-founded. CA-00033725-007 I decide that the complaint pursuant to the European Communities (Protection of Employment) Regulations is not well-founded. |
Dated: 13th December 2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act / grounds of dismissal |