FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES :CASTLE DARGAN RESORT LIMITED (REPRESENTED BY NIAMH MCGOWAN B.L., INSTRUCTED BY GALVAN SOLICITORS) - AND - MS AOIFE MC CORMACK (REPRESENTED BY DAMIEN TANSEY SOLICITORS LLP) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer's Decision No.ADJ-00019072 CA-00024510-001 In the course of the hearing of the Court, which was held in a virtual courtroom, the solicitor for the Appellant raised a range of issues at various points in the proceedings including pleas for ‘balance’ in the proceedings and a proposition that this Court had a latitude in terms of its proceedings and as regards the rules of evidence while a witness is under oath which would not be available to a higher Court. The Court drew the solicitor’s attention to the decision of the Supreme Court in TOMASZ ZALEWSKI— AND —AN ADJUDICATION OFFICER AND THE WORKPLACE RELATIONS COMMISSION AND IRELAND AND THE ATTORNEY GENERAL [IESC](2022)wherein O’Donnell J. as he then was, having decided that this Court is engaged in the Administration of Justice in accordance with Article 37 of the Constitution, clearly stated The exercise of jurisdiction captured by Article 37 is the administration of justice. The Article merely permits it to be carried out by a body other than a court and by a person other than a judge in a context that is non-criminal and limited. This has the consequence that, for example, a decision-maker is not required to make a declaration required by Article 34.6 to be appointed by the President, and is not prohibited from holding any other position of emolument. However, the function being performed and the power being exercised must comply with the fundamental components of independence, impartiality, dispassionate application of the law, openness, and, above all, fairness, which are understood to be the essence of the administration of justice. It might be said that this is encompassed in the requirement that any decision-maker act judicially and adhere to the principles of constitutional justice but, in my view, the acknowledgement that what is at issue here is the administration of justice, albeit by a body other than a court and a person other than a judge, provides a useful structure within which to consider the procedures established pursuant to the legislation. The standard of justice administered under Article 37 cannot be lower or less demanding than the justice administered in courts under Article 34. The Court asked the solicitor to put forward any authorities against that background for his proposition regarding the latitude available to this Court in terms of the impartial and fair administration of justice and in particular as regards the conduct of a hearing in the course of testimony under oath. The solicitor put forward no authorities .At a point in the sworn evidence of the Appellant when Counsel for the Respondent, in cross examination, asked a question of the Appellant who was under oath, her solicitor could be observed by the Court on screen shaking his head in a negative fashion and the witness immediately responded to the question by saying no. The Court intervened and, while noting the challenges presented by the venue for the hearing which was a virtual courtroom, recounted its observation to counsel for both parties and said that the physical activity observed by the Court could potentially be interpreted as the provision of direction or guidance to the witness under cross examination. The Court also drew the parties’ attention to a number of earlier incidences, which had not been raised at the time, of what sounded to the Court like ‘noises off’ while the witness was under cross examination and while her solicitor was off camera. The solicitor for the Appellant asserted that his physical behaviour related to an earlier discussed matter and was unrelated to the question being asked of the witness at the time. He also indicated that he was unaware of any ‘noises off’ and consequently could not comment. The Court accepted the clarification of the solicitor in respect of both matters .The solicitor for the Complainant then stated that it was his view that the Court had put forward a ‘fantastical’ proposition that he had put in place ‘a scheme’ to facilitate coaching of the witness and stated that in his decades of practice he had never been accused of coaching a witness. He submitted that the Court had an ‘attitude’ to his client and to her appeal before the Court. He assured the Court that at no time had he engaged in coaching of this witness while she was under oath. The Court confirmed that no accusation of coaching or of the creation of a fantastical scheme had been made by the Court but rather the Court had shared its observations on certain matters and had invited comment from the representatives of both parties. Counsel for the Respondent confirmed that it was her understanding that the Court had intervened in the manner described by the Court and confirmed that she had no observation to make on the matter. The Court re-iterated that the clarification offered by the solicitor for the Appellant in respect of the two areas upon which the Court had invited comment had been accepted by the Court. The Court, arising from its concern as regards the nature of certain interventions, comments and submissions of the solicitor for the Appellant, invited both parties to state clearly whether they in fact had concerns as regards potential bias or pre-determination on the part of the Court in the proceedings. Neither the solicitor for the Appellant nor Counsel for the Respondent took the opportunity to put forward any concern in these respects. On the basis of that clarity and in the absence of any concern being articulated on invitation, the Court proceeded to hear the evidence of the Complainant to its conclusion and proceeded to complete the hearing of the appeal. The Respondent submitted to the Court that the Appellant lacked the service necessary to maintain a complaint under the Act. It was submitted that the Appellant commenced her employment on 28thNovember 2017 and was dismissed on 23rdOctober 2018.The Appellant submitted that she commenced her employment on 11thOctober 2017 and that she was dismissed on 26th October 2018 and, consequently, her service with the Respondent exceeded the period of one year required by the Act. The Court suggested that the matter under appeal could be described as having two ‘wings’, with ‘wing 1’being the matter of service and application of the Act at Section 2, and ‘wing 2’ being the substantive matter. The Court, at its hearing, proposed to hear the parties fully in relation to ‘wing 1’ before moving on to hear the parties in relation to ‘wing 2’. Both parties agreed to that approach. Ultimately, at its second day of hearing, the Court, having heard the parties in full in relation to ‘wing 1’, and on the proposal of the Appellant with which the Respondent did not disagree, decided to deal with ‘wing 1’ as a preliminary matter which would be decided before hearing the parties in relation to ‘wing 2’. On that basis a further hearing would only be necessary if the Court decided that the Complainant had the service necessary to qualify for the protection of the Act. The Court made this decision because the approach had been proposed by the Appellant and because a decision in relation to‘wing 1’ had the potential to dispose of the matter in its entirety and consequently achieving an efficiency of process. Both parties accepted the decision of the Court in relation to this matter. The Appellant submitted that she commenced working with the Respondent on 11thNovember 2017 and her employment terminated on 26thOctober 2018. Her contract of employment entitled her to four weeks’ notice when signed and so when her contract was terminated she had accrued more than one year’s service with the Respondent, The Appellant submitted that in October 2017, when she was working for a third party, she was approached by a manager of the Respondent, Ms SS. An interview ensued and Ms SS then informally asked the Appellant to join the Respondent as Sales and Marketing manager. A contract of employment was offered to her by Ms SS, who was no longer in the employ of the Respondent at the time of the hearing of the Court, by way of e-mail dated 6thNovember 2017. On the 7thNovember 2017 she mailed Ms SS accepting the offer of employment. On that day she handed a letter of resignation to her employer giving four weeks’ notice.On 11thNovember 2007 Ms SS contacted the Appellant by phone telling her that she had a wedding showcase scheduled for 10th December 2017 and advising the Appellant that she would have to start work on the project immediately from home irrespective of notice periods to which she was subject with her previous employer. She started work that day and on- site work was due to start on 28thNovember. She was advised by Ms SS that she would be remunerated for her remote work up to 27thNovember 2017 with one week’s pay on the basis of the pay level set out in the contract. There was no suggestion that she would be working remotely for the Respondent for free or on a charitable basis. She submitted and gave evidence that in the period from 11thNovember 2017 to 27thNovember 2017 she commenced preparing for the wedding showcase, developing a marketing strategy, commissioning media and other advertising and liaising with the designer, media and print houses. The work she performed was typical of work performed by a sales and marketing manager as per her contract of employment. She gave evidence that she spent about 32 hours in total performing this work from 11thNovember to 27thNovember. On the 12thNovember she attended a meeting at the hotel with a wedding designer. In or around the 15thNovember Ms SS contacted the Appellant and provided a direction that she should assist her, Ms SS, with work on a presentation for a Golf planning / strategy event. Ms SS gave a range of instructions over the phone to the Appellant in the period by way of e-mail and telephone communications. With effect from 28thNovember 2017 the Respondent commenced paying the Appellant weekly in arrears. On that date also she commenced working on the Respondent’s site.On her first attendance on the site, she completed an ‘employee starter form’ wherein she recorded her start date as 28thNovember 2017. She gave evidence that she inserted that date at the suggestion of a staff member in the accounts department of the Respondent on the basis that she presumed that this was a record of her start date on site rather than the start date of her employment. At some point in time after her commencement on site Ms SS advised the Appellant that, rather than had been earlier advised, the Respondent would remunerate her with four days in lieu in respect of her work prior to 28thNovember 2017. Her working week was of four days’ duration. The Appellant gave evidence that the Respondents’ time in lieu system was not documented on payslips and the system involved an oral notification of someone in the Respondent’s accounts department that a day in lieu was being taken. The Appellant did not receive payslips from the Respondent until September 2018.She gave evidence that she took holidays in the week of 22ndJanuary and that her wages that week were listed on her wage-slip, which was provided to her in September 2018, as “salary”. On the basis that no holiday pay was listed on her payslip the Appellant submitted that she was clearly paid three days’ time in lieu which amounted to remuneration in respect of her work carried out in the period from 11thto 27thNovember 2017. She was approved by her manager for this time in lieu and by nobody else.The Appellant gave evidence that throughput the period from 11thto 27thNovember 2017 no suggestion had been made to her that she was other than an employee of the Respondent including when dealing with third parties in the commissioning of design, print, signage and advertising. She said that at that time she was the only person carrying out sales and marketing work for the Respondent. She agreed in evidence that at the material time she remained an employee of her previous employer but said that this was acceptable to her previous employer. She was able to balance both jobs she said. She said that she gave four weeks’ notice of her termination to her previous employer and this period of notice expired on the Friday before 28thNovember 2017 when she commenced on site with the Respondent. She agreed that she commenced on site with the Respondent on 28thNovember 2017 and that she never made an issue of the fact that she was not paid in respect of the period from 11thNovember 2017 at that time. She understood from Ms SS that she would be paid for that work but was ultimately advised by Ms SS that she would be paid in lieu. She could not recall in evidence when that information was provided to her. It most likely occurred after she received her first wage payment for the Respondent she said. She said that she was not concerned at the proposition that she would be paid in lieu for the period from 11thNovember as she was being paid for her work albeit not into her bank account. The Appellant put forward a document purporting to be from Ms SS supporting her contention that she engaged in work for the Respondent at the behest of Ms SS from 11thNovember 2017. Ms SS, who was no longer in the employ of the Respondent at the time of the hearing of the Court, was not present at the hearing to give evidence in relation to arrangements prior to 28thNovember 2017 or in respect of the document submitted the Court by the Appellant. The Appellant agreed that she was paid in arrears of 28thNovember 2017 and that her first pay received from the Respondent was paid to her on 7thDecember being wages due to her since her commencement on site on 28thNovember 2017.She said that she was on holidays in January 2018 and she received time off in lieu for some of those holidays. She said that she did not believe she had, or could not recall that she had, accrued three days’ time off in lieu between 28thNovember 2017 and the period of her holidays in January 2018. The Respondent submitted that the Appellant commenced employment on 28thNovember 2017 and her employment was terminated on 23rdOctober 2018 at the end of a period of probation which had been extended. The Appellant therefore had not accrued the service required by the Act at the date of the termination of her employment. She was offered a contract of employment which did not contain a start date by e-mail dated 6thNovember 2014 and accepted same by e-mail dated 7thNovember. In her reply e-mail she set out that she would be in touch regarding her start date ‘as soon as I have had the conversation here’, meaning with her employer of nine years with whom she was employed at the time. The Respondent made an internal announcement on 25thNovember 2017 that the Appellant would commence her employment on 28th. She duly commenced her employment on that date and a P46 notification form was submitted to the Revenue Commissioners which identified her start date as 28thNovember. She subsequently completed an Employer Starter Form which erroneously stated that her start date was Monday 28thNovember when in fact it was Tuesday 28thNovember 2017. That form was completed by her on 11thDecember 2017. No member of staff instructed the Appellant as regards the date to be inserted in the form. The Respondent submitted that the Appellant remained on probation at the date of her dismissal and consequently not entitled to four weeks’ notice. In the event however the Appellant was deemed to not be on probation at the date of her dismissal on 23rdOctober 2017 and entitled to four weeks’ notice of termination of her employment she would not have accrued the service necessary to maintain a complaint under the Act. Similarly, whereas the Appellant maintains that her employment was terminated on 26thOctober rather than the 23rdas maintained by the Respondent, a four week notice period from that date would not avail her in maintaining a complaint under the Act having regard to the fact that her employment commenced on 28thNovember 2017.The Appellant did not commence employment with the Respondent on any date prior to 28thNovember 2017. It is the case that her employment with her previous employer is recorded by relevant Revenue documentation as having terminated on 24thNovember 2017 and Revenue commencement documentation as earlier stated records the commencement of the within employment on 28thNovember 2017.The Appellant’s commencement date was agreed with her having regard to the notice requirements of her previous employer. It has never been the Respondent’s position prior to the occurrence of the global pandemic to provide for off -site working as alleged by the Appellant. No time off in lieu was provided to the Appellant in respect of any period prior to the commencement of her employment on 28thNovember 2017. The Respondent submitted and the Financial Controller, Mr CG, of the Respondent gave evidence to the effect that the time off in lieu arrangements in place were strict and required authorisation in every case by the Financial Controller. Mr CG said that no other manager was authorised to grant such time off in return for work provided and no manager sought authorisation for time off in lieu in respect of any period prior to November 28th2017 in respect of the Appellant. Mr CG gave evidence that the first time period in respect of which remuneration was paid to the Appellant was week beginning 28thNovember 2017. The Financial Controller, Mr CG, gave evidence that he did authorise three days’ time off in lieu to the Appellant in January 2018 on foot of additional authorised working by her in the first two weeks in January in return for such leave in the period from 28thNovember 2017 to the date of commencement of her holidays in January 2018. He said that the system of allowing staff to avail of time off in lieu was a highly regulated one and that he personally authorised all such time off. He said that the payment records in respect of the holidays of the Appellant in January would not highlight that time off in lieu was being taken because, as a salaried employee, the Appellant’s wages remained the same each week. He said that Ms SS had never suggested to him that the Appellant commenced employment prior to 28thNovember 2017 and no request or proposal to allow her time off in lieu in respect of work carried out in advance of 28thNovember 2017 was ever made by Ms SS. The Respondent submitted that no work was carried out by the Appellant on foot of an employment relationship with the Respondent prior to 28thNovember 2017 and no payment, either in the form of pay or time off in lieu, was ever made in respect of such work. If she did carry out work prior to 28thNovember 2017 at the behest of Ms SS it was not in pursuance of a contract of employment with the Respondent .On the basis that her employment did not commence until 28thNovember 2018 she does have the capacity to maintain a complaint under the Act. The Act at Section 2 makes provision as follows: 2.(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons: (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,
The Act at Section 2 makes clear that the Act does not apply to an employee who, at the date of their dismissal, had less than twelve months’ service. The parties are in dispute as regards the date of commencement of the employment and date of termination of the employment. The Appellant maintains, on the basis of work she says she carried out in the period from 11thNovember 2017 at the behest of Ms SS, a manager of the Respondent who is no longer employed by the Respondent, that her contract of employment commenced on that date. The Respondent submits that the Appellant was not in an employment relationship under a contract of employment, in writing or implied, until 28thNovember 2018. The parties are also in dispute as to whether, at the date of termination of her employment, the Appellant was entitled to four weeks’ notice of termination or whether she was entitled to one week’s notice. She maintains that she had completed her probation at the date of her termination and was, as a result, contractually entitled to four week’s notice of the termination of her employment. The Respondent maintains that she had not completed her probation and consequently was entitled only to the notice provisions set out in the Minimum Notice and Terms of Employment Act, 1973 (the Act of 1973) as a result which in their view amounted to one week. The preliminary matter before the Court is the issue as to whether the Appellant is deprived of the protection of the Act by the exclusion related to service at the date of termination provided for at Section 2 of the Act. The Court notes the level of disputation between the parties as regards commencement date, termination date, probation status at termination, application of contractual notice terms and applicability of the terms of the Act of 1973. In the view of the Court therefore, the commencement date of the employment is a matter to be resolved first by the Court in order to ground any determination of the facts as regards termination date, probation and notice entitlements and ultimately, to application of the Act to the Appellant’s employment. This is so, in the view of the Court, because if the Appellant commenced employment on 28thNovember 2017 as contended for by the Respondent and was dismissed on 26thOctober 2018 as contended for by her, her notice entitlement arising from her probation status has no bearing on whether she had, at the date of termination, accrued the service necessary to enjoy the protection of the Act. If these dates were her commencement date and termination date then, even if she was entitled to four weeks’ notice as she contends, she would not reach a total of twelve months continuous service as required by the Act. It is only therefore if she commenced employment under a contract of employment with the Respondent on 11thNovember 2017 would matters associated with probation status and notice entitlement, which are in dispute between the parties, fall to be decided by the Court. The Appellant has given a credible account in evidence of a range of tasks she undertook over a period of a total of 32 hours according to her in the period from 11thNovember 2017 to 28thNovember 2017. She has given cogent evidence that she carried out these tasks at the behest of a manager of the Respondent, Ms SS. It is the conclusion of the Court, on the balance of probability, that she did carry out a range of tasks at the behest of Ms SS as contended for by her. The Court has not had the benefit of evidence from Ms SS as regards the intended nature of the relationship between the Appellant and Respondent across this time period. The Appellant has provided a document purporting to be authored by Ms SS in the period after the making by the Appellant of the within complaint, which makes assertions in support of the contentions of the Appellant. This document is, however, unproven and cannot be elevated to the status of evidence in the view of the Court. The Appellant has submitted that she availed of time off in lieu in January 2018 as payment in respect of her work in the period from 11thto 28thNovember 201.There does not appear to be a conflict between the parties that she did, in the course of holidays in January 2018, avail of time off in lieu as she asserts. The Financial Controller of the Respondent, Mr CG, gave clear and cogent evidence however that she did receive such leave but that it related to time worked in the first two weeks of January 2018. He gave evidence that the time off in lieu arrangements in the Respondent are highly regulated and that only he, and not any other manager as had been suggested by the Appellant, had the authority at the material time to authorise such leave. He also gave evidence that Ms SS had never sought approval for such leave for the Appellant arising from work she had carried out in the period between 11thNovember 2017 and 28thNovember 2017. The Appellant said in evidence that she did not believe or could not recall that she had worked in the first two weeks of January 2018 so as to create an entitlement to such leave. Having regard to the clarity of evidence on this point from the Financial Controller and the less clear evidence of the Appellant, the Court concludes, on the balance of probability, that the Appellant did work in the first two weeks of January 2018 so as to create an entitlement to three days’ time off in lieu leave and that this was the leave she availed of while on holidays in January 2018.The Court understands that, notwithstanding earlier contentions by her, the Appellant agrees that she was not paid in the form of pay in respect of any work she carried out in the period from 11thNovember 2017 to 28thNovember 2017.There is no evidence before the Court therefore that the Respondent made any payment, whether in the form of time off in lieu or in the form of pay, to the Appellant in respect of the period from 11thNovember 2017 to 28thNovember 2017. The Court notes also that no claim for such payment has ever been made by the Appellant. It is a fact therefore, having regard to the Court’s earlier conclusion in respect of the time off in lieu availed of by the Appellant in January 2018, that no element of the obligations placed upon the employer by the contract which was, by common case, in being since at least 28thNovember 2017, was operated or effected prior to that date. The Court notes that the Appellant was engaged under a contract of employment with another employer until the expiry of notice she had given to that employer on the 24thNovember 2017, which was the Friday before 28thNovember 2017. The Court notes also the uncontested submission of the Respondent that relevant Revenue documentation records her earlier employment as terminating on 24thNovember 2017 and her employment with the Respondent commencing on 28thNovember 2017.Having regard therefore to the factual matrix before it, the Court concludes that, whereas the Appellant did carry out tasks at the behest of Ms SS in the period from 11thNovember 2017, no basis has been established which would allow the Court to conclude that the contract of employment between the Respondent and the Appellant commenced on that date. The Court, therefore, relying upon the evidence and submissions before it, concludes that a contract of employment existed between the Appellant and the Respondent with effect from 28thNovember 2017 but that such a contract did not exist before that date between these parties. Having reached these conclusions, the Court concludes that the Appellant does not have the service required by the Act at Section 2 to ground the within complaint. Having reached such a conclusion, the Court cannot proceed to consider the within complaint further. The Court decides that, at the date of her dismissal, the Appellant had less than one year’s continuous service with the Respondent and consequently, by operation of the law at Section 2 of the Act, the within appeal must fail. The decision of the Adjudication Officer is affirmed. The Court so decides.
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
