Complainant

Respondent

Parties

Caroline  Noonan

Bridget Carey trading as The Canal Turn

Representatives

Mr. Padraig Smith

Ms. Sinead Finnerty,  Peninsula Business Services (Ireland) Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00032967-001

12/12/2019

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

CA-00032967-002

12/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00032967-003

12/12/2019

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

CA-00032967-004

12/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00032967-005

12/12/2019

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

CA-00032967-006

12/12/2019

The Complainant commenced employment with the Respondent in January 2017. The Complainant was a full-time, permanent employee in receipt of an average weekly payment of €550.00. The Complainant’s employment was terminated on 13th June 2019.

On 12th December 2019, the Complainant referred a number of complaints to the Commission. Herein, the Complainant alleged that she did not receive a contract of employment, that she was not paid in lieu of notice, that she did not receive her final weeks’ pay, that she received no compensation for working on a Sunday and that she did not receive compensation for outstanding annual leave on the termination of her employment. The Complainant also submitted that the Respondent dismissed her, without recourse to any formal procedure, on 13th June 2019. While the Respondent conceded some of the complaints advanced by the Complainant, they denied that they dismissed the Complainant unfairly or at all. By submission, the Respondent stated that the Complainant walked out of employment on 13th June 2019 and did not return.

A hearing in relation to this matter was convened for and finalised on 20th October 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

The Complainant commenced employment with the Respondent in or around January 2017. The Complainant was employed as a bar-person in the Respondents’ premises. The Complainant frequently worked on her own initiative to ensure that the business ran efficiently and profitably. In February of 2017, the Respondent advised the Complainant that she was to “step back” from the operation of the premises and would rely on the Complainant in relation to the same. Notwithstanding the same, in March 2017, the Respondent attended to premises without notification. At this point she stated that a significant accountant’s bill would have to be discharged from the revenue generated by the premises. This concerned the Complainant as the premises operated on a narrow margin and unexpected outgoings such as these could affect the viability of the business. Throughout 2018, the premises continued to increase turnover, however profits were affected by legacy debt issues.

On 12th June 2019, the premises received correspondence from revenue requesting certain documentation. The Complainant handed the correspondence to the Respondent who advised that she would have her accountants deal with the matter. The following day, 13th June 2019, the Respondent attended the premises. In the course of this meeting, the Respondent accused the Complainant of mis-managing the premises, she stated that her outgoings were too high and that in effect she could not be trusted to operate the business on her own. The Respondent stated that if the working relationship was to continue, the Complainant would have to work under the close supervision of the Respondent and the latitude afforded the Complainant regarding the operation of the business would now be closely scrutinised. At this point the Complainant considered herself dismissed for her role and left the premises. In the aftermath of her dismissal, the Respondent made no attempt to contact the Complainant regarding her employment.

By response, the Respondent denied that the Complainant was unfairly dismissed, but instead submitted that she resigned her employment.

At the commencement of the employment relationship, the Complainant was entrusted with almost all aspect of the management of the premises. The Respondent submitted that in late 2018 to early 2019, the business began to suffer a downturn in revenue. The Respondent stated that in this period she met with the Complainant on numerous occasions to offer advise and support regarding the correct and efficient management of the business. 

On 12th July 2019, the Respondent received correspondence from revenue regarding an outstanding VAT payment. On foot of the same, the Respondent determined that she would have to take a more pro-active role in the management of the business. On the morning of 13th June 2019, the Respondent met with the Complainant to discuss these matters. From the outset of this conversation, the Complainant appeared to visibly angry and defensive, and maintained that the Respondent was accusing her of serious misconduct. During the conversation, the Complainant left the premises and did not return. The Respondent stated that had the Complainant returned and attempted to speak to her, these matters would have been resolved and the Complainant would be provided with comfort regarding her ongoing employment. The Respondent further submitted that she attempted to contact the Complainant following this meeting, but her calls were not returned.

Section One of the Unfair Dismissals Act defines “dismissal” as,

“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”.

In the present case, the Complainant has alleged that the Respondent unfairly dismissed her during the meeting of the 13th June 2019. In denying this allegation, the Respondent submitted that she did not intend to dismiss the Complainant on this date, but that she had attempted to speak with her regarding the operation of the business.

In the matter of Longford Co Co v Joseph McManus, UDD1753, the Labour Court held,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined”.

Regarding statements that may amount to a termination of employment, in the matter of Devaney -v- DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal held that,

“…what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

It is clear that on 13th June 2019, the Respondent sought a meeting with the Complainant following receipt of revenue correspondence. The Complainant has submitted that the Respondent made a number of unfounded allegations against her in the course of this meeting, while the Respondent maintains that the purpose of this meeting was to discuss the Complainant’s performance and their ongoing employment relationship. While a conflict of evidence exists in relation to these accounts, neither expressly state that the Respondent used actual, unambiguous words of dismissal in the course of the conversation. Having regard to the same, I find that the Respondent did not intend to dismiss the Complainant in the course of the meeting of the 13th June.

In such circumstances, the Complainant effectively resigned her employment in the course of the meeting, and the present complaint is one of constructive dismissal.

In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

In the present case, the Complainant has described herself as a “bar-person”. However, from the evidence tendered, it is clear that the Complainant’s role was that of a bar-manager. The Complainant had almost complete control over the operation of the business and worked on her own initiative for much of her employment. Notwithstanding the clear conflict of evidence regarding the meeting of 13th June 2019, it is apparent that the Respondent sought a meeting with the Complainant to discuss the nature of their ongoing working relationship. The evidence of the Respondent was that the purpose of the meeting was to discuss the Complainant’s performance in managing the business and to outline that the Complainant would have to operate under the direct supervision of the Respondent thereafter. Taking this submission at its height, it is apparent that the Respondent was engaged in a form of capability and/or disciplinary procedure with a pre-judged outcome in mind. The purposes of the meeting was not to canvas the Complainant’s views regarding the same, but to inform her of a decision that had already been made. I further note that the outcome is substantial in nature, the Complainant was effectively being demoted from a bar manager with almost complete control over the business, to an employee subject to a significant level of scrutiny in the performance of her tasks.

It is common case that the Complainant did not receive any contractual documentation at any stage of her employment. On foot of the same, it is not clear whether the Respondent was engaged in a disciplinary or capability procedure at this point. However, it is apparent that the Complainant had no method by which to challenge the Respondent’s contentions and advocate on own behalf. Moreover, the Complainant had no contractual process whereby she could raise these grievances with the Respondent and seek to resolve the matters.  

Again, it is common case that the Complainant left the premises following this meeting and did not return to work thereafter. At this point, the Respondent could be under no illusions as to the Complainant’s views regarding the content and outcome of the meeting. Nonetheless, I find that the Respondent made no substantial attempt to contact the Complainant and seek to resolve matters or otherwise engage with her. I note that both parties had previously enjoyed quite a close working relationship, and the Respondent frequently called and messaged the Complainant regarding employment matters. The Respondent’s failure to contact the Complainant following her abrupt departure supports the conclusion that they did not want to address her concerns regarding the issues that had arisen and were content to allow her to consider herself dismissed.  In this regard, I note that conflict of evidence regarding the Respondent’s failure to contact the Complainant after the meeting of 13th June. Nonetheless, the onus here is on the Respondent to ask the Complainant to re-consider her resignation and engage with some form of grievance procedure. In the event that the Respondent could not contact the Complainant directly, they should have corresponded with her in relation to this process.

Having regard to the totality of the foregoing points, I find that the Complainant was subject to an unfair process. I further find that she had no contractual or pre-agreed process whereby she could raise these grievances with the employer. Finally, I find that the Respondent was unreasonable in failing to contact the Complainant following her departure. Having regard to the totality of the foregoing points, I find that the Complainant acted reasonably in resigning her contract of employment. Consequently, her complaint under the Unfair Dismissals Act is well-founded and her application succeeds.

CA-00032967-001 Complaint under the Unfair Dismissals Acts

The Complainant’s application is well-founded and consequently I find in favour of the Complainant.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

Having regard to the totality of the evidence presented, I award the Complainant the sum of €4,000 in compensation.

CA-00032967-002 Complaint under the Payment of Wages Act

The Complainant alleged that she was owed one weeks’ wages, this being the week in hand she worked at the commencement of her employment. By response, the Respondent conceded this was owed to her.

Having regard to the foregoing, I find that this complaint is well-founded and award the Complainant the sum of €550.00 in respect of this outstanding week of wages.

CA-00032967-003 Complaint under the Organisation of Working Time Act

The Complainant alleged that the Respondent did not compensate her for Sunday work, in contravention of the Act. As this complaint was received on 12th December 2019, the cognisant period of the purposes of the complaint is 12th June 2019 to 12th December 2019.  In that period the Complainant worked for two days, 12th & 13th June. As neither of these days was a Sunday, no breach of the Act occurred within the cognisant period. As a consequence of the same, I find that the complaint is not well-founded.

CA-00032967-004 Complaint under the Terms of Employment (Information) Act

It is common case that the Complainant did not receive a written statement of her terms of employment at the commencement or any other stage of her employment. By submission, the Respondent conceded that this constitutes a breach of the Act. In the circumstances, I find that the complaint is well-founded.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act.

Having regard to the totality of the evidence presented, I award the Complainant the sum of €2,200.00, or four week’s remuneration, in compensation.

CA-00032967-005 Complaint under the Organisation of Working Time Act

The Complainant alleged that she was not compensated for outstanding annual leave at the end of her employment. Again, the Respondent conceded this element of the complaint and accepted that she was in breach of the legislation. Having regard to the same, I find that the complaint is well-founded.

In the matter of Waterford County Council v O’Donoghue DWT0963, the Labour Court stated that,

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

By the termination of her employment, the Complainant had worked for approximately 2.5 months of the leave year, and consequently would have accrued an annual leave entitlement of approximately four days. In these circumstances, I award the Complainant the sum of €440.00 in respect of her outstanding annual leave entitlement and a further €500.00 in compensation. 

CA-00032967-006 Complaint under the Payment of Wages Act

The Complainant alleged that she did not receive her notice entitlement. As the Complainant was unfairly dismissed, her complaint is well-founded.

As the Complainant would have accrued two week’s statutory notice on the termination of her employment, I award her the sum of €1,100 in compensation.