Complainant

Respondent

Parties

Kathyrn  Hartnett

Crucible Arts Services And Technology Cast Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Mary Fay BL                                           Susan Noone                                                OBH Partners

John Madden BL                                    Julie Breen                                          Julie Breen Solicitors

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-00041655-001

22/12/2020

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

CA-00041655-002

22/12/2020

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

CA-00041655-003

22/12/2020

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

CA-00041655-004

22/12/2020

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

CA-00041655-006

22/12/2020

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

CA-00047385-001

29/11/2021

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

CA-00047385-002

29/11/2021

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

CA-00047385-003

29/11/2021

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

CA-00047385-004

29/11/2021

This matter comes before the Adjudication services on foot of two workplace relations complaint forms. The first issued on the 22nd of December 2020 and the second issued on the 29th of November 2021. The Complaints are similar though relate to different periods directly preceding the issuing of the separate complaints. The issues between the parties arise out of the purported failure of the Employer to bring the Complainant back into the workplace from a period of lay-off brought about by the Covid pandemic.

The Complainant was fully represented. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 11th day of March 2022. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant brings a number of complaints against her Employer on foot of the Employer’s failure to return her to the workplace along with most or all of her colleagues as the pandemic restrictions eased.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

After an unintentional false start, the Complainant revised and finished her evidence having made the appropriate Affirmation

I understand that the Respondent company is a metalwork foundry and in particular has an expertise in bronze work. The company brings into existence three-dimensional design. From bespoke prizes to street sculpture, to privately commissioned pieces. The Respondent works closely with Artists, Architects and Public Bodies. The Respondent had representation at this hearing.  The Respondent provided me a written submissions dated March 2022.  I have additionally heard from the Managing Director/Director of the Respondent company who made an affirmation.  The Respondent witness was cross examined by the Complainant representative.

The Respondent rejects that there has been any discrimination and does not accept any contravention of Employment Rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant commenced her Employment with the Respondent foundry in April 1997 and has provided a dedicated and professional service to the company for the past 25 years. The Complainant had worked her way into the position of sole administrator/office manager, in charge of all bookkeeping, receptionist and administrative tasks. The Complainant indicated that she worked very closely with the company Accountants for the purpose of preparing the annual end of year accounts.

The Complainant worked 24 hours a week, spread across the workplace and home. By March of 2020, the Complainant was doing three mornings a week in the office and the balance of her hours were being worked from home. The Complainant’s gross salary was €32,000.00 per annum.

There can be no doubt that the Complainant had an excellent and close working relationship with the previous Director - the now retired CB Snr. In and around 2007, CB Snr had encouraged the Complainant to avail of a highly advantageous pension option instead of looking for a salary increase. I understand this is payable by the Employer and is index linked. By March of 2020, I understand that the Company was liable to pay €1,019.00 per month contribution on her behalf. After 12 or 15 years this agreement has proved most advantageous to the Complainant. I acknowledge and accept that this payment was an issue in this workplace, as it seems the Complainant alone had been singled out for this enhanced employment package

I note the Complainant was never provided with a Contract of Employment and therefore her Terms and conditions are based on a common and historic understanding. Whilst this may not have been uncommon back in 1997, things have developed somewhat since that time and there are certain obligations (regulatory and Statutory) imposed on Employers now, which should not and cannot be ignored. The Complainant gave evidence that as the Office Manager/ Administrator she had raised the issue of Employment Contracts with the Directors as far back as 2017 when CB Jnr had taken over the company. The Complainant says she knew it was something of an imperative and that it was, she says, a hot topic in SMEs.

The Complainant wants it noted that she had been extremely happy in this workplace and was proud of the fantastic reputation that the company had across the industry. This a company that worked on prestigious commissions and had the best of clients lining up to execute their requirements.

I understand that when the Covid pandemic hit in March 2020 there were about thirteen employees in the company. Most of the staff worked in the craft side of the business. I note that CB Jnr worked with the Complainant in the Office. CB Jnr. is the son of CB Snr. and has been Managing Director for some time now.

At the start of the pandemic the Complainant, along with all her co-workers, was advised that the foundry was closing down (on the 20th of March 2020). This was in response to the Government imposed lockdown as the workplace was deemed non-essential. The direction came by text message and as there was no need for even a skeletal staff, everyone was advised to apply for PUP payments.

The Complainant says she took home some papers and accounts relating to the previous 18 months output so that she could process VAT, Payroll and whatever else might be required of her in those initial and uncertain stages of lockdown. She says she wanted to be ready and prepared when and if called upon to engage in any transaction, perform any duty. The Complainant had always partially worked from home, so this was not something that concerned her.

The Complainant heard nothing from the place of work until she was told by a third party that there was activity back in the foundry. The Complainant became aware that functions she would normally perform such as Revenue returns had been performed though not by her. The Complainant could see some activity in the Company Bank Account. The Complainant was contacted by the Company Accountants about the Bank Account which the Complainant then discovered she had been blocked from accessing. The Complainant explained to me that she knew that the Employer had recently changed Accountants (this process had commenced pre-pandemic), but she had assumed that this was to replace the previous Accountancy firm who had only ever been used to prepare and sign off on the annual company accounts.  The Complainant rang up CB Jnr whom she says was evasive with her. He eventually conceded that either he or the Accountancy Firm normally (which she understood had been retained to produce end of year accounts) were now doing the lion’s share of her duties. The Complainant was shocked and upset that she had been seemingly replaced without any conversation or forewarning. The Complainant says that CB Jnr. told her that she should consider herself lucky to be on the PUP.

The Complainant says she wrote by email on the 23rd of October 2020 and again on the 10th of November 2020. In her letter she outlined that it was her understanding that the workforce, with the notable exception of her, was largely back to work. The Complainant queried whether it was the Employer’s intention to make her Redundant? The Complainant addressed the letters to the Co -Directors CB Jnr. and LH who is the most experienced craftsperson on the premises and someone with whom the Complainant felt she had a good relationship. The Complainant wanted to know if she was being made redundant. I have had sight of the email of the 23rd of October 2020 wherein she stated that:

“I understand that more or less the entire workforce at CAST has been taken off temporary lay-off except for me.

…I am writing to you because I feel aggrieved that I have not returned to work since the layoffs were implemented. Can you explain why that is the case? Is it intended to make me redundant?”

The Complainant called CB Jnr. on the 15th of December 2020 though this call was never returned. It was in these circumstances that the complainant issued the first Workplace relations complaint form wherein she brings complaints regarding the fact hat she has no terms and conditions of Employment, that there are ongoing unlawful deductions and discriminating treatment of her, by her Employer and based on her age.

The Complainant has not since returned to the workplace. Her PUP payments gradually reduced from €350.00 to €300.00 to €208.00. The Complainant says this is no longer a genuine lay off situation as the Complainant should have returned back to the workplace – even on reduced hours - alongside her colleagues. The Complainant, in fact, believes that her Employer is of the view that she is too expensive and not good value for the remuneration and pension contribution she is entitled to. She believes the employer has left her out of the workplace of the workplace in the hope that she will give up and go away. The Complainant is the oldest and longest serving Employee in the workplace and believes that there has been an executive decision made to the effect that she is expendable.

The complainant makes the case that her work is still there, and that the company continues to flourish and that she should be welcomed back into the workplace to take up her position and perform the functions she has performed for up to 25 years. The company, she says, has outsourced her work without reference to her. The Complainant expressed her sense of devastation to have her career and her livelihood pulled form under at the age of 63.

The Respondent position is that the workplace went into complete shutdown and that it fell to the Directors, and primarily CB Jnr., to ensure that everything that could be done to keep the company afloat was done. The evidence is that there has been a steady decline in orders and business and an increase in the cost of the materials. The evidence adduced by CB was of a company in survival mode. I recognize that this is an industry inextricably associated with the Arts and Sporting events and would accept that there must have been a period of dire uncertainty as the pandemic unfolded in 2020. The Respondent witness CB Jnr. states that it has always been his intention to bring the Complainant back into the workplace when the outlook improved. There has, he says been a 60% downturn in business – implying perhaps the company still retained 40% of business? The Respondent witness explained in detail who had returned and who had not.

It is noted that during the Cross examination of the Complainant, that there was a rather unedifying attempt to suggest incompetence or laziness on the part of the Complainant in her employment with the Respondent. In particular it was suggested that the failure to ensure all employees had Contracts of Employment fell to her. There was no paperwork to suggest that this has ever been raised as an issue and in fact the Complainant had already stated she was the one who raised the issue.

Counsel for the Complainant took issue with the Paragraph 4 of the Respondent’s submission which stated:

“The Complainant was employed by the Respondent on exceptional terms for an extended period. The terms upon which the Complainant is employed show an hourly wage of approximately €26.00 together with a disproportionately large pension. The Complainant is the only person within the company to have a pension of such stature. The Respondent is unaware of how the pension was established as even the Directors do not obtain such a large benefit from the company.”

To my mind, the content and tone of this paragraph is about as blunt an admission of the underlying thinking as is needed to clearly expose the Respondent’s rationale. It is quite clear that the Complainant’s contention that she is considered too expensive is correct. In fact, I would say that there is a suggestion in this paragraph that the Complainant has somehow hoodwinked her way into a position of advantage to the detriment of everyone else. There is no evidence to substantiate such a notion.

As of the date of the hearing, the Complainant was in a most invidious situation. She has not been made Redundant and so continues to be in the employment of the Respondent company. The Respondent states that she must continue on lay off as there is not a sufficient amount of work to justify bringing her back into the workplace. At the same time, the Respondent appears to also concede that it has outsourced much if not all of the Complainant’s functions to a third-party Accountancy Firm. Most surprisingly is the almost total lack of engagement. The Respondent has not engaged with the Complainant in a meaningful way since March 2020.  Lest there be any doubt, I consider it to have been the Employer’s duty to keep this Employee involved and up to date. The Employer has failed in it’s duty of care to this long standing Employee. The Employer says he always intended bringing the Complainant back when the time is right but there is not a shred of evidence to back this up. No comfort was ever given that she was anything other than being cut adrift.

It seems having listened to the parties that things have changed in this workplace for this Employee. The change in overall management from the father to the son appears to have brought about changes that have not been particularly satisfactory for the parties, vis-a-vis each other. It seems to me that this is a classic situation where a long-standing employee has been earmarked as being overly expensive, dead weight. Rather than take the commercially obvious decision of making the Complainant redundant or seeking to entice her into an early retirement the Employer has opted to alienate, ostracise and belittle this lady. Whether intentional or not, the behaviour has been cruel and upsetting. There are no procedures in place to raise a Grievance or open dialogue.

On balance, I am satisfied that the Complainant has actually made out a Prima facie case of Discrimination as against this Employer. Bound up in the Respondent’s phrase “exceptional terms for an extended period” (per the Respondent’s submission)is the clear implication that the Respondent believes that Complainant’s unusually long service has yielded her preferential treatment and favour. There is no doubt that her length of service and attendant age has embedded her into the workplace in a way that was clearly frustrating to CB Jnr. Mr CB Jnr has availed of the random opportunity presented by Covid, to get the Complainant out of the workplace and to keep her out.

I do not accept the evidence presented that this was a workplace in a terminal downward spiral. On his own admission, CB Jnr conceded that the business at it’s worst, still operated at 40% which, at it’s simplest, should have entitled the Complainant return to the workplace on 40% of her hours.  Even if things were bona fide as bad as he portrayed, I don’t think that the motivation here was anything other than to get rid of this lady and I fully accept that her age and associated length of service are a factor. The Complainant has manifestly been treated less favourably than anyone else in the workplace on the grounds of her age.

It follows from the foregoing that the Complainant has sustained remunerative losses (including pension contributions) for the two six-month periods immediately preceding the two Payment of Wages claims. I am satisfied that this amounts to an unlawful deduction having been made from the Employee’s wage. I accept that the Complainant would not have been needed for all of her Contractual hours. In the absence of any evidence led by either party on the appropriate figures, I am assessing that the Complainant should have been back to work on 40% of her pre-shutdown hours. In assessing compensation (in an amount I consider to be reasonable) I am having regard for the missed pension contributions and the fact that the Complainant was on PUP.

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

CA-00041655-001 – The Complaint herein is well founded, and I direct a payment of compensation in the amount of €650.00 is just and equitable in all the circumstances.

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

CA-00041655-002 - The Complaint herein is well founded, and I direct that the employer pay to the employee an amount of €1,000.00

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

CA-00041655-003 – The Complaint herein is well founded, and I direct that the employer pay to the Complainant her Public Holiday entitlements in the amount of €1,200.00

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

CA-00041655-004 – TheComplainant has been discriminated against and in making an award of compensation I am bound to have regard for the effect that the discrimination had, and I consequently award the sum of €17,500.00.

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

CA-00041655-006 – I find that there was no discrimination based on gender.

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

CA-00047385-001  -  The Complaint herein is well founded, and I direct that the employer pay to the employee an amount of €3,000.00

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

CA-00047385-002 – This complaint is dismissed as repetitive of an earlier complaint.

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

CA-00047385-003  - The Complaint herein is well founded, and I direct that the employer pay to the Complainant her Public Holiday entitlements in the amount of €1,200.00

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

CA-00047385-004 - The Complaint herein is well founded, and I direct that the employer pay to the Complainant her Public Holiday entitlements in the amount of €800.00