Complainant

Respondent

Parties

Karen  Condron

Pet Experts Limited

Representatives

Simon McElwee Farrell McElwee Solicitors

 Sean Ormonde & Co.

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-00035164-001

10/03/2020

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

CA-00035164-002

10/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00036523-001

04/06/2020

The Complainant alleges she was summarily dismissed in the absence of any procedures and that during the course of her employment, was forced to work for less than the national minimum wage, was subjected to verbal abuse, was victimised and was not given any written terms of her employment. 

The Complainant had previously worked for Mr. XX in a separate entity in Carlow for a period of five years prior to her employment with the Respondent herein. Prior to the termination of her employment with that entity, she was asked by Mr. XX if she would consider working for him in a different but related business he had in the area. He informed the Complainant that upon payment of the sum of €15,000.00 the Complainant would obtain 50% of the shares in the new company and would become a director. The Complainant did not get any prior legal advice in relation to the proposed agreement, instead opting to secure a loan for the amount and transferring that sum to Mr. XX.

The Mr XX had complete control of the Respondent company. The Complainant had no access to the accounts nor was she ever paid a dividend.  She was kept entirely in the dark as to the level of income the business was generating or any figures that Mr XX extracted by means of a salary to him or dividends. The Complainant later found out that Mr XX had failed to honour his agreement with her to transfer the 50% shareholding to her, despite the fact that she had paid him €15,000.00 to do so.

At the commencement of her employment the Complainant was told that she would be responsible for building up the business. It came as an unpleasant surprise to the Complainant to learn that she was only going to be paid €300.00 per week. Furthermore, the Complainant was not provided with written terms and conditions of her employment or any company hand books or policies. She was required to work approximately 55 hours per week up to the date of her dismissal. The Complainant sought, on two occasions, a written statement of her hourly rate of pay per week from the Respondent but this information was not forthcoming. The Complainant received no salary whatsoever from the end of August 2018 to the 22nd of October 2018. She was informed by Mr XX that the Respondent entity did not have any earnings. The Complainant was due to get married in September 2018 and because she had no income she was forced to obtain a second loan for €7000.00 The complainant’s pay was restored again in late October but the sums due from August 2018 to October 2018 were never discharged.  In December 2019 the Complainant discovered that the shares she had been promised and had paid for had not been issued or transferred to her. The Complainant at this juncture was extremely upset about that situation, and also because she was expected to work extremely long hours for less than minimum wage. Mr XX on several occasions demeaned her in front of staff. Then on 11 December 2019 after the Complainant had sought an increase in her wages an argument broke out via text message. Mr XX then informed the Complainant that he expected her to hand in her notice but then demoted her. The following day he told her that everything would be okay and that he would “put her name on the business” . On 14 December 2019 he informed the Complainant that his failure to place 50% of the company shares into her name was a genuine mistake and that he was going to rectify it. In January 2020 he sent her a text, seeking her details so that the shares could be transferred to her. On 20 January 2020 the Complainant received a phone call from Mr XX in relation to a rota.  During the course of that call the Mr XX told the complainant to “shut the fuck up”. Following that call she received a text message from him stating that she had been demoted from her manager’s position and that her pay would be reduced accordingly. The complainant complained that every time she spoke to Mr. XX he would tell her to “shut up” and/or  “you are going to be fired”  and/or “you need to be very careful”.  Mr XX’s treatment of the Complainant caused her significant distress and upset. On 31 January 2020 and without prior notice to the Complainant, Mr XX dismissed her summarily.  She was given no reason for her dismissal and was given no opportunity to defend her position or to appeal the decision. Following her dismissal, the Complainant tried to rectify the situation in relation to the shares that she was promised and had paid for. Mr XX tried to renege from the previous agreement by stating that she was only entitled to 15% and not the 50% agreed.

The Complainant gave evidence in relation to her efforts to mitigate her loss. She secured employment with a local supermarket on 12 October 2020 and is paid a net figure of €360.00 per week. She stated that she made all efforts to try and secure employment because she had the loan that she had taken out to buy the shares to pay off. She applied for positions online and dropped her CV by hand into numerous businesses in the town, ranging from hairdressers to coffee shops to retail outlets. She herself was surprised at the length of time it took her to secure employment, taking into account her level of experience. She put this down to the fact that she was looking for a job in the middle of the COVID-19 pandemic and that everybody else was looking for the type of work that she was.

The Complainant was paid €300.00 gross per week and worked approximately 55 hours.  The Complainant was not given terms and conditions which would set out her hours. She sought details of her hours worked from the Respondent in line with her obligations to do so under the legislation. To date no information has been furnished. The Complainant worked 55 hours per week. For the pay reference period in 2019, the minimum wage was €8.90 per hour. For 55 hours that equates to €539.00. The complainant was paid €300.0 therefore for 26 weeks the complainant is due compensation in the amount of €6,214.00

The Respondent’s legal representative appeared at the hearing. There was no appearance by Mr XX. The Respondent’s legal representative stated that the Respondent was not contesting the Unfair Dismissal claim.

In relation to the Terms of Employment (Information) Act claim, the Respondents suggested that because the Complainant was the manager of the Respondent entity, it was her responsibility to draft her own terms and conditions of employment and she had failed to do so.

Respondents representative stated that they were not on notice of the National Minimum Wage claim. They were in receipt of the notice of hearing which listed the Minimum Wage claim but had not received the actual claim form.

The Respondent took issue with the efforts the Complainant had made to mitigate her loss stated that the only documentation furnished to the WRC where six applications over a nine-month period. Based on those efforts she failed to satisfy her legal obligation to mitigate her loss.

CA 35164 – 001

S6.—  (1) 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.

S7 .—  (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

( a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

( b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

 (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii)   if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. 

The Complainant’s evidence in this matter was uncontested, the Respondent having conceded the claim. I found her evidence to be honest, fair and credible. She stated in her submissions that she was dismissed summarily with no notice of what the issue was, no right of reply and no option to appeal. The Complainant as a matter of basic fairness was entitled to know the charge being preferred against her and was entitled to defend herself. She was denied that very basic, but fundamental right. In the circumstances, I find that the complaint is well founded.

The Complainant stated that she found looking for work during the pandemic very difficult. She was experienced in probably one of the only areas not to be negatively impacted by the pandemic, the household retail sector. Unfortunately for her, demand for jobs in that sector was extremely high at the time she was looking for work. I agree with her in that regard. She did everything she could to secure employment, not with her obligation to mitigate her loss in mind but so that she could pay off her loans. She took out the first loan of €15,000 to buy her 50% stake in the company, which said shares were never transferred to her. She took out her second loan of €7,000.00 because the Respondent had failed to pay her from late August to mid- October 2019 and she had to pay for her wedding. 

The Complainant was out of work for a period of 37 weeks. When calculating the appropriate sum to award the complainant I have taken into account the number of weeks the complainant was out of work, the efforts she made to secure new employment, the Respondent’s appalling and inexcusable treatment of the Complainant, his failure to honour his agreement to transfer the shares to the Complainant and her obligation to pay back the loan to the credit union without the financial benefit she could have had from having the shares. 

 In all the circumstances I award the complainant €15,000.00

CA 35164 – 002

S3.—  (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing…”

The Respondent’s suggestion that because the Complainant was a manager, she should have drafted her own terms and conditions of employment is a nonsense. The legislation is clear and unambiguous.  The obligation to give a written statement of terms to an Employee is on the Employer and nobody else.

I find that the complaint is well founded. I award the Complainant the maximum number of weeks allowed by the Act, four weeks, amounting to €1,200.00

CA 36523 -001

24.—(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee’s entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee’s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

(b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33 or 34, or

(ii) prosecuted for an offence under section 35.

26.   (1) A decision of an adjudication officer in relation to a dispute in respect of the entitlements of an employee under this Act referred to the adjudication officer under  section 41   of the Workplace Relations Act 2015 may contain —

(a) a direction to the employer to pay to the employee —

(i) an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates, and 

(ii) reasonable expenses of the employee in connection with the dispute.

The complainant’s evidence was that she paid €300.00 gross per week and worked approximately 55 hours.  The Complainant was not given terms and conditions which set out her regular hours. I am satisfied that she satisfied her legal obligations pursuant to Section 24(2) (a) (ii) when she sought details of her hours worked from the Respondent on two occasions but to date no information has been furnished. The Complainant worked 55 hours per week. The minimum wage for the relevant period of time was €8.90 per hour. For 55 hours that equates to €539.00. The complainant was paid €300 for 19 weeks and €0 for 7 weeks within that period.  The complainant shortfall for the period of 19 weeks was €4,541.00 and for the 7 weeks period was €3,773.00. The total arrears amount to €8,314.00

I award the complainant €8,314..00 pursuant to Section 26 (1)(a)(i) and €3,000.00 pursuant to Section 26 (1)(a)(ii) as a contribution toward to complainant’s legal expenses which are directly connected to this dispute.

CA 35164 -001 The complaint is well founded. I award the complainant €15,000.00

CA 35164 -002 The complaint is well founded. I award the complainant €1,200.00

CA 36523 -001 The complaint is well founded. I award the complainant €11,314.00