Complainant

Respondent

Parties

Bernadette  Walsh

Waterford Castle Hotel and Golf Club Limited Waterford Castle & Golf Club

Representatives

David Gaffney Gaffney Solicitors

Caroline Doyle, BL instructed by  Neil j Breheny & Co.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 (withdrawn at hearing)

CA-00032835-001

10/12/2019

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

CA-00032835-002

10/12/2019

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

CA-00032835-003

10/12/2019

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

CA-00032835-004

10/12/2019

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

CA-00032835-005

10/12/2019

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

CA-00032835-006

10/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 withdrawn at hearing

CA-00032835-007

10/12/2019

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

CA-00032835-008

10/12/2019

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

CA-00032835-009

10/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000 withdrawn at hearing

CA-00032835-010

10/12/2019

This matter was heard by way of Remote Hearing days pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 10 December 2019, the Complainants Solicitor submitted 10 complaints to the WRC on behalf of the complainant. These complainants covered an employment which spanned March 1, 2015, to September 2, 2019, when the Complainant was dismissed from what has been termed a Family Business, owned by the Complainants brother who did not attend the hearing. The Complainant became a non-shareholding Director during the course her direct employment at the Hotel.

The Respondent went on record seeking particulars of the claims lodged in advance of the hearing and neither party had submitted outline submissions by the first hearing date.

On May 6, 2021, I   wrote to the parties advising of the Zalewski Judgement at the Supreme Court. I requested written submissions in advance of the hearing.

On May 11, 2021, the first remote hearing occurred in the case. On that day, having heard the parties on an envisaged serious and direct conflict of interest in progressing the case, which was offset by the complainant wishing to advance some of the organisation of working time act cases, I granted a postponement to facilitate the legislative development post Zalewski at the Supreme court.

On that day, I learned that the Complainant was now resident in the United States and dismissal was not disputed. I learned that new work had been sourced by the Complainant in March 2021.

Once again, I requested that the parties submit

Contract of employment, if any,

Statement in relation to the claim under minimum wage

Details on loss and mitigation

Payslips and Particularised claim details Records maintained under Organisation of Working Time Act, 1997

Letter of Dismissal

I explained to the parties that in the continued vacuum of written submissions, I was prepared to decide the case on oral evidence.

On the day of the resumed hearing in January 2022. 3 of these complaints were withdrawn by the Complainant.

The case was reduced to 7 complaints. The case progressed on that basis.

The hours of work per week attributed to the complainant were agreed as 50 hours in return for a varied salary of €307.65 per week.

Both parties were represented, the complainant by her Solicitor, David Gaffney and the Respondent by Counsel, Caroline Doyle, BL instructed by Neil Breheny

In referring to the clear familial links in the case and the sensitivities that may flow into an employment relationship, I offered the parties time at the commencement of the hearing if they wished to discuss issues. The parties availed of the time but did not record a mutually acceptable resolution and the case progressed as planned.

Counsel for the Respondent, Ms Doyle outlined that the owner, Seamus Walshe, the Complainants brother, had bought the Business as a going concern in 2015. The Complainant had assisted in operationalising the business, which included a hotel and adjacent lodges. The Complainant lived in one of the lodges for the duration of her employment and adopted the role of “informal apprentice “to the Owner.

On 7 August 2015, the Complainant was provided with a contract of employment and handbook by Ms Louise Hurley, Chief Financial Officer at the business. This contract reflected the complainants own desire to minimise tax liability and the agreed salary was €16,000 per annum with an accommodation, valued €4,800 per annum and fringe benefits, such as phone and expenses The complainant was offered the opportunity to clock on and record her attendance, she refused. As a non-shareholding Director of the business, she governed and was responsible for her own attendance.

Initially the Complainant worked under a Manager, Ms A, who departed the business in 2017. The Complainant assumed the role of General Manager, in 2018 in the aftermath of the General Managers departure. Family conflicts arose and numerous operational issues followed, which culminated in the Complainants dismissal on 2 September 2019.

The Complainant had sought a pay increase in respect of the additional hours worked in April 2019. She had not recorded the quantum of hours claimed and the request was refused.

The Complainant sought to mediate on the matter and the Respondent attended an unsuccessful mediation in August 2019.

The Respondent exhibited documentation from a WRC Inspection conducted in January 2020.

CA-00032835-002 Annual Leave

The Respondent denied the claim. The Complainant received 163.55 hours annual leave in 2019, whereas her contractual pro rata entitlement stood at 106.67 hrs. The Respondent exhibited pay slip which reflected payment of annual leave in June, July and cesser pay in September 2019.

The Respondent argued that this claim was without foundation.

CA-00032835-003 Claim for Unfair Dismissal

The Respondent prepared and written submissions consistent with the hearing date and conceded that the Respondent accepted that the dismissal effected on 2 September 2019 had been unfair. They expressed reservations regarding the stated shortfalls in Complainant’s loss and mitigation.

It is accepted by the Respondent that there was no substantially fair ground for the Complainant’s dismissal and that it failed to adopt a fair dismissal procedure in relation to the Complainant’s dismissal.

               By way of explanation rather than excuse, Mr Walsh was experiencing the aforementioned operative difficulties arising from the Complainant’s employment, growing familial conflict and that familial conflict seeping into corporate matters within the Respondent. These issues informed his decision to dismiss the Complainant; however, the Respondent accepts that the Complainant’s dismissal was unfair.

The Respondent expressed some surprise that this stated position was further probed at hearing.

CA-00032835-004 Maximum hours

The Respondent denied that the complainant had worked in excess of 50 hours per week during June-October 2019.

The Complainant was contracted to work a 40-hour week. The Respondent contended that the complainant had a certain flexibility in how this operated across Monday to Saturday working.

Furthermore, the Respondent operated a default position, where any staff member held to be working in excess of 40 hours per week was subject to further inquiry and scrutiny by the respondent CFO. the Complainant had not placed herself into this default scheme.

The Respondent also contended that the complainant refused to comply with the time and attendance electronic recording system.

CA-00032835-005 Rest periods

The Respondent submitted that this claim was not sufficiently particularised and was without foundation

The Complainant was responsible for her own roster and in August 2019, took the lead in highlighting the importance of rest periods for staff at the Hotel.

CA-00032835-006   Rest periods

The Respondent denied any contravention in section 12 of the Act. The Respondent contended that the complainant had been properly advised of breaks through her contract and staff handbook.

The Complainant had initiated a further focus of correct break times in August 2019 and refused to comply with the time management system.

The Respondent held that the complainant was denied breaks within the cognisable period permitted.

CA-00032835-008 Statement of Terms of Employment

The Respondent submitted that the complainant was provided with a signed statement of the terms and conditions of her employment dated 7 August 2015, inclusive of the obligatory provisions in section 3 of the Act.

In the alternative, the Respondent reliant on an EAT decision in Sergejs Udalous v South east Vegetable Producers ltd TE 224/2012 and Archbold Ireland ltd TE05/2003   argued that the Complainant was not unduly prejudiced in the event that a technical breach of the Act was identified as she had worked continuously and assumed the role of General Manager at the Hotel. The Complainant had not raised this matter during the course of her employment and an award of compensation would not be fair or equitable against the Respondent.

CA-00032835-09    Sunday Pay

The Respondent rejected this claim. Sunday was considered in the determination of annual salary.

Evidence of Ms Louise Hurley, Chief Financial Officer by affirmation

Ms Hurley had been in the Business since 2013 and had overseen the financial transition to the new owner .m The Hotel had been rescued from receivership.

She first met the complainant in March 2015, when she had returned the states. she understood that her role was to assist with hotel interiors.

By August 2015, the Owner confirmed that the complainant was staying. Her role, Resort Executive was then formalised by contract, backdated to March 2015. Ms Hurley was not directly involved at the operational level where the owner and the complainant operated.

Ms Hurley told the hearing that the complainant was not required to work on Sundays. The Hotel paid a composite rate for Sundays worked by salaried staff.

Ms Hurley stated that the complainant had the full run of a 3 bedroomed luxurious lodge in addition to a Company car.

She stated that annual leave had been applied and taken correctly as outlined in the staff handbook.

She stated that the Pay Roll Assistant had provided a Clock in number to the complainant in August 2015, this would have recorded time and attendance. The Complainant did not use this system.

Ms Hurley observed that the complainant had freedom of movement at the business through her status as sister and family member of the owner.

Management changed at the Hotel in April 2017 and the complainant assumed the role of General Manager shortly afterwards. She reported to the CEO, who was based in Melbourne, but had delegated authority over the operation of the business She interacted with the respective Heads of Departments.

MsHurley recalled that the Complainant had drafted out notices under the Organisation of Working Time Act, 1997 and placed them on the canteen noticeboard in August 2019. This action complimented what was already detailed in the staff hand books.

Ms Hurley detailed that the business had a system of where in excess of 40 hours were worked at the business then it was flagged with her for discussion. This did not occur in the complainant’s case.

She described a “breakdown “in staff relations between the Complainant and the owner, which by august, 2019 had “quite a detrimental effect on the business “The Complainant had refrained from speaking with the owner, which was unviable from an operational point of view.

Ms Hurley placed the conclusion of the employment as 2 October 2019.

During cross examination,

Ms Hurley accepted that start and finish times had not been specified on the contract of employment. She was unaware if the complainant was proficient in human resource or whether she had completed a course on the tropic. Ms Hurley accepted that the composite rate aligned to Sunday working was not specified in the contract prepared by the legal advisors, she had been instructed to issue that version which detailed a Monday - Sunday 40-hour commitment.

She re-affirmed that the complainant self-determined her attendance, which mainly fell Tuesdays – Saturdays.

Ms Hurley accepted that obligatory records under Organisation of Working time Act, 1997 had not been maintained. She reflected that it had been difficult to address the CEOs sister as an employee.  the Complainant had been instructed to clock in.

She confirmed that the Complainant became a director in 2017, when her reporting line changed from General Manager to CEO.

She also rebutted that the complainant had ever advised her that she should be classified as a post 50 hrs worker. She did not inform her “I should be on that list “

Ms Hurley accepted that the salary was not inserted in the contract.

Ms Hurley clarified that there were 3 company directors

1 CEO with 100% shareholding

2 the Complainant

3 Mr B

Ms Hurley clarified that the previous ~General Manager to the Complainant had not clocked in. She confirmed that the Board had not discussed the letter of dismissal. An appeal of the decision by not provided .by the Hotel, to which Ms Hurley countered that she had not been involved in the circumstances of dismissal.

Ms Hurley also helpfully clarified a time in lieu system was not in operation. The Complainant was not paid as a director. The €16,000 salary was designed as a threshold for tax purposes. The Complainant had not requested a reference after she left

In conclusion, Counsel for the Respondent accepted the dismissal at the heart of the case was procedurally unfair. she requested that the minimus rule be applied as loss and mitigation was not sufficiently proved and the test in Sheehan, not satisfied on the evidence adduced on complainants’ efforts to find new work.

In referring to ADJ 30153, Counsel submitted that the Respondent had not contravened Terms of Employment (Information) Act,.1994

Having regard for the cognisable period allowed, no contravention of the legislation had occurred.

By the complainant’s own admission, she was aware of rest periods. She emphasised her knowledge further by putting up notices and refrained from clocking in.

The claim for annual leave was unfounded.

I asked the Respondent to clarify what various members of staff listed in the staff handbook earned?

I learned that the Chief Financial Officer, Revenue Manager, Wedding and Events Manager, Head chef and Head Green keeper were classified in 2019 terms as much higher earners than the complainants €16,000 per annum This salary ranged from €36, 000-€50,000. I found the complainants positioning vis a vis this grouping to be quite solitary, yet I was assured that she had not earned anything additional than what she informed the hearing as what was placed on the Complaint form at €307.00 per week.

Solicitor for the Complainant, David Gaffney outlined that the Complainant was the Owners sister and was involved in an inordinate amount of work in her role as Resort Executive, Company Director and latterly as General Manager.

The complainant had relocated from the Bahamas to take on a challenging role at the Hotel

She lived in the lodge on site, but this property was no hers alone. Stock and material storage shared this space.

During 2019, the Complainant requested a pay increase. She was concerned at the number of hours she was putting into the business. The Complainant sought to secure a benchmarking process but was refused a raise. This left a number of tensions at the business and the complainant had recourse to sick leave. The request for an increase in pay was refused by the Owner / CEO.  Tensions prevailed and the Complainant was summarily dismissed without returning to the business.

She found new work in March 2021.

The Complainant had requested to sign in and thus record her attendance, but this was not permitted

It was the Complainant case that she had been taken advantage of by her “do er “approach during her employment and she contended that a variety of employment laws had been contravened as a result

CA-00032835-002 Annual Leave

the Complainant submitted that she did not receive public holidays or annual leave entitlements during the course of her employment. She gave evidence of receiving some annual leave but was unsure whether she had received cesser pay.

CA-00032835-003 Claim for Unfair Dismissal

The complainant submitted that her employment had been unlawfully terminated contrary to natural justice and fair procedures and without any reason for doing so.

CA-00032835-004 Maximum hours

The Complaint contended that she was required to work in excess of 48 hrs on a regular basis

CA-00032835-005 Rest periods

The complainant submitted that she did receive rest periods in keeping with the legislation

CA-00032835-006   Rest period

The complainant submitted that she did receive rest periods in keeping with the legislation

CA-00032835-008 Statement of Terms of Employment

The complainant submitted that she had not received a minimum statement of her terms and conditions of employment.

CA-00032835-09    Sunday Pay

The Complainant submitted that she had not received a Sunday premium.

Evidence of the Complainant.

The Complainant outlined that she was resident in the Bahamas when she was contacted by a business contact on acquisition of the Castle to “come over and help “at the Business.

The Complainant accepted this challenge and arrived to assist at the business which was ex Nama.

She was actively engaged and busy in seeking quotes from service providers. She disputed that the lodges were at luxury level at that stage.

She recalled meeting the CEO on her first day and he was active at the business initially, but he was bi located in Australia.

The Complainant recalled the evolution of the contract in August 2015, hours of attendance were not discussed but attended 8.30a m or earlier to 6-6.30pm finish. she shared an office with marketing Executive and developed a working relationship with Ms Hurley, who was copied of estimate prices of re-fit.

The Complainant confirmed that she reported directly to the CEO, and she identified the potential pathway of growth at the business which was approved for re-brand.

She began to see a gradual improvement at the Business as advertising and marketing proved effective. She had a day-to-day reportage to the General Manager.

In 2017, two Senior Managers left the business. The Owner/ CEO approached her to become a director. He needed an Irish Director, but it was to be a non-shareholding directorship. She denied assuming the authority of General Manager. She recalled Ms Hurleys role had also changed at that time from Accountant to CFO with direct reportage to the CEO.

By then, she had resigned from her earlier job, did not require a work visa nor was she limited by a €16,000 salary.

The complainant worked an average of 6-day s a week as she oversaw all aspects of the business. This covered a 3-hour commitment on Sundays. The CEO also shared the lodge where she lived

She described 2019 as a very difficult year but it was the best trading year. She adopted a “girl Friday “persona filling in where the service required.

She confirmed that she had been provided with a clocking in number but was not asked to clock in.

She met Ms Hurley every day, outside of weekends and they shared a printer where the door between their desks was open 80% of the time. she clarified that meetings with Heads of Departments were sporadic and not weekly occurrences. She relied a lot on Ms Hurley to help her in her role. She habitually arrived before her in the mornings, and they walked out to the car park together most evenings.

The Complainant detailed some of the purchases made for and around the business.

She confirmed that she signed for her transition as General Manger on 14 February 2018. Her salary remained unaltered. An Intern filed the contract, complete with blanks. the Complainant recalled a meeting with the CEO, Mr B and Ms Hurley in August 2019. Ms Hurley asked for a new role and title, only answerable to the CEO. This was agreed.

The Compliant described the time from her ascension to General Manager as one “of a slippery slope “she distinguished the departure of the senior managers as one had been terminated and the other left the buses. After that, a tripartite management team evolved between, Ms Hurley, Mr B, and the Complainant.

She denied that she was her own boss and that decisions were not hers to make alone. She contended that her working time was controlled from Australia and terms of variations in time zones and she said “I did what was needed and (CEO) knows that “

The Complainant maintained that staff were unaware of her Directorship. She realised now that her flexibility in filling in where needed had served to act to her detriment.

She submitted that between June -October 2019 that she had worked in excess of 50 hours per week, but she had not written down this pattern of attendance.

The Complainant denied benefitting from public holidays x 9 per annum.

The Complainant gave some evidence of her 71 weeks loss and mitigation. She had subsisted on PUP payment and left Ireland in December 2020. She found new work in March 2021

During cross examination

The Complainant outlined a history in childcare and property management. she was experienced in revenue/ budgetary management.

She rejected that she was approached to help the Castle and responded that the CEO had formulated the title of Resort Executive and referred to her targeted objective as coming to “polish a diamond “

She recalled going over the contract with the previous General Manager and concurred that she had signed for a 40-hour week. She accepted that she was provided with a staff handbook but had not retained it. She did not recall a section on “clocking in “but accepted that she had not clocked in. she was aware that Ms Hurley clocked in.

The Complainant denied that her ascension to General Manager was an opportunity for professional development when she said that she had been directed by the CEO to “look at problems “

The Complainant was uncertain whether she had been paid annual leave in her final two pay slips. She confirmed taking leave 15 December 2018 to 7 January 2019

She accepted that she had typed up the notice on breaks exhibited by the respondent, there was not a culture of structured breaks amongst supervisory staff as business needs dictated.

The Complainant denied the existence of family conflict. she said that she fulfilled her role as a professional employee and hosted the CEO s family during that time.

When asked by Counsel why she had avoided discussing pay until an email of January 2019?

The Complainant said that she had raised the matter earlier She had tried to advance the case for her hours and salary on August 20 meeting with CEO, but the meeting started on wages and then drifted onto operational matters. The CEO told her that “she was the biggest problem. you are too straight “ 

The Complainant clarified that she secured annual leave directly from the CEO. she was not present at a Board Meeting, where the termination of her role was discussed.

The Complainant confirmed that she had not raised any real time grievances outside January and August 2019. she had asked the CEO to review her pay and asked for €65,000 per annum. He told her that money was not an issue

 For background, I asked the complainant what she had earned prior to her arrival at the Hotel. she told the hearing that she had earned $100,000 but did not exhibit evidence of this.

She said that since leaving the respondent employment, she had lived on her savings and job seekers benefit. She said that she had been shocked by her dismissal. This caused her to re-evaluate. she was available for work three weeks after her dismissal

The Complainant said there were no trading difficulties at the Hotel, and she had been paid for her sick leave prior to leaving. she did not exhibit the January 2019 or August 2019 related documents.

The Complainant confirmed that she understood the cognisable period of the claim. She detailed night work in 2018 -2019.

She re-affirmed that she did not have a separate earnings stream as a Director of the Business

In conclusion, the Complainants Solicitor argued the correct interpretation of the temporal limitation of the provisions of the statement of terms of employment. He said it was not a lawful statement as it was deficient in hours set out and salary was not calculated.

He submitted that his client had been penalised for asking for an increase in pay and accepted that an earlier claim on penalisation had been withdrawn.

The Complainant had been denied the protections which subsequently issued to works at the business during the covid pandemic and had been dismissed  against the shadow of a pay claim. she pursued new work at her earliest opportunity.

I have been requested to make seven decisions in the remaining 7 complaints in this case. In arriving at these decisions, I have considered oral evidence of the parties, respective documentation submitted, and the staff handbook requested at hearing. I have reflected carefully on all.

The Respondent provided a copy of the staff handbook dated September 16, 2019, which did not reflect the complainant’s presence at the business as a separately named General Manager was mentioned   

. Given both parties reference to this document during the course of the hearing and the dateline of September 16, 2019, placed in the first in time exhibited handbook, I sought a copy of this post hearing which was received on February 1, 2022, and copied to the Complainant. No further comment issued. For my part, I noticed some points that I have decided to incorporate as a preface to my findings.

In the post hearing handbook, which was undated, the Complainant was referred in the opening narrative as the General Manager, but this was not reflected in the organisational chart where her title was simply Director and Sales and Marketing Manager. This role had been reduced to a Marketing role on September 16, 2019, document and many other personnel names had altered. I was unable to apply a dateline on the handbook received post hearing, but from the evidence in case it must fall between July 2017 and September 2019.

I found a comprehensive grievance and disciplinary policies in addition to a “modified dismissal procedure “I established a reference to staff complying with performance appraisal in addition to a universal requirement for staff to clock in. Dismissal was to follow an investigation and disciplinary hearing. The reality of this case seemed to veer away significantly from that pathway.

The parties have presented a very unusual employment relationship before the WRC. On one level none of the pre-employment rituals were followed, egg an interview, employment checks, a visible match fit of the candidate to the job, an in-time contract of employment/job description or an induction. The Complainant was simply appointed to the role by familial patronage.  For me, that amounted to an almost spiritual appointment.

 I found it unusual that anyone would leave a $100,000 employment in the sun for a sub minimum wage and a vague variety in titled positions at a Family Hotel. I appreciate that the business was rescued from Nama or Receivership, but I identified early in the case a lack of foundation to the business enterprise which seemed to be home to a hight attrition rate of key staff and changed titles. It would have helped me to have met the CEO in this case, both to help me understand the real essence of the employment relationship in real terms and the real reasons behind the dismissal. I did not obtain a full picture from any of the witnesses. I appreciate that the business entered a WRC Inspectorate process in January 2020, but this was after the complainant was dismissed.

In short, I would have liked to witness a much more solid basis to this employment as that might have helped me to understand the occurrences attributed to the case a lot better. I proceed.

None the less, I accept that the Respondent approached the case in January 2022 having conceded that the dismissal was indeed unfair, however, they persisted in challenging the complainants chosen remedy of compensation. This compelled me to seek to look behind the facts adduced.

CA-00032835-002 Annual Leave  

Holiday pay is earned against time worked; a day spent on certified illness is deemed to be a working day in accordance with Section 19 of the Act Section 20 of the Act provides that employees are consulted at least one month in advance of dates selected by the employer for annual leave.

Section 25 of the Act requires an employer to maintain records showing that the provisions of the act have been complied with.

Note CCOO v Deutsche Bank SAE, 14 May 2019 C -55/18

In order to ensure the effectiveness of those rights provided in Directive 2003/88 and of the fundamental right enshrined in article 31(2) of the charter, the Member states must require employers to set up an objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured

The Respondent confirmed that annual leave had not been properly recorded at the business. The Complainant told the hearing that she got her leave sanctioned directly by her brother, the CEO, she had not recorded it.

A careful analysis of the pay slips showed single units of 8 hours, presumably public holiday payment and block holidays delineated as paid June, July, and September 2019. The Complainant was not certain that she had secured her full leave but was unable to particularise her claim. The Respondent conformed that all public holidays and annual leave were properly paid.

Section 27 (3) of the act provides that:

 A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s employment. 

I could not establish with certainty that the complainant received her full public holidays and annual leave in accordance with section 20 and 21 of the Act within the cognisable period of 11 June 2019 until her cessation of employment on 2 September 2019. I appreciate that cesser pay was paid in her final pay slip, but it was not broken down as particularised.

I must therefore conclude that the claim is well founded. I have established a breach of section 20 and 21 of the Organisation of Working Time Act, 1997.

CA-00032835-003 Claim for Unfair Dismissal

I have carefully considered the approach adopted by the Respondent in this case. I note that they accept that the dismissal of September 2, 2019, during sick leave was both procedurally and substantively unfair.

I did not have the evidence of the decision maker to consider. I heard from the Complainant that the dismissal shocked her and caused her considerable instability prior to her relaunching in March 2021. I accept the point made by the Complainants representative that the timing of the dismissal and the subsequent harsh effect on tourism by covid 19 accentuated that instability.

I appreciate that Ms Hurley was not participant in the dismissal, but she was a director in the business at that time and second in command to the complainant. It seemed to me that the new General Manager on 16 September 2019 came very close in time to the complainant’s dismissal.

In this case, the company reneged on their own procedures when they summarily dismissed the highest ranking and lowest paid member of the management team. I have reflected on the letter of dismissal which completely ignores the overarching presence of the Unfair Dismissals Act 1977 or indeed any procedural framework of either suspension, investigation, disciplinary procedure, or an appeal.

In short, this dismissal is a manifestation of a zero culture of fair procedures or natural justice. The familial connection underpinning this makes it even more disrespectful.

The Respondent has deviated from the clear mutuality of obligation contained in any contract of employment. The impact of the decision to dismiss the complainant in such a summary judgement style was cruel and the fact that the letter of dismissal reflects the following phrase

This decision is no reflection whatsoever on your competence or capability. thank you for your service and loyalty however on the expiration of one month from the date of this letter your employment with us will end

I have looked behind this letter and considered the evidence of the parties and yes, I understand that the complainant sought a pay rise of €65,000 which was vetoed but it was the secondary comment that caused me to pause when the Complainant said that the CEO told her that “she was too straight “and veered promptly from discussing salary to operational matters at that meeting.

I accept that evidence from the complainant which was not contested by the respondent. I have established that the Respondent broke all the rules of fair procedures and natural justice in the dismissal of 2 September 2019. The decision was a unilateral action not channelled through the Board and on the balance of probabilities reflected operational concerns, (signalled by Ms Hurleys reference to the CEO and the Complainant not speaking), which were not spelled out by the respondent and the complainant was not given time to address matters to improve.

I find that the complainant was unfairly dismissed and the dismissal disproportionate and without a stated reason. The complainant was a serving Director, albeit a non-shareholding Director, albeit she had fiduciary duties in that role. She was also deprived of a continuum here and reduced to changing a name of administrator on a face book page.

I have considered the Respondent submissions on the Complainants actions on loss and mitigation. I have also considered the Complainants response. I will address remedy in my decision.

CA-00032835-004 Maximum hours

The 1997 Act provides that an employee shall not be permitted to work more than an average 48 hrs per week. Every week is not a standalone week provided it is balanced and off set against a lower working week. The reference period used cannot include annual leave, sick leave, parental leave or carers leave. The reference period in tourism is 6 months.

The Complainant has not demonstrated that she worked over 48 hours per week in a six-month period.

The claim is not well founded.

CA-00032835-005 Rest periods

Daily rest periods refer to the time that must elapse between an employee finishing work on e one day and recommencing work on the next day  

13.— (1) In this section “daily rest period” means a rest period referred to in section 11 .

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

The 11-hour period must be consecutive, and all employees must have an uninterrupted rest period of at least 24 hours in any seven-day period. The cognisable period of this claim is 11 June 2019 to 10 December 2019.

The Complainant has not particularised this claim. I accept that she by passed the internal clocking system as it appears her predecessor General Manager did also. I do not accept that the complainant refused to log onto that system. I find that she was not directed to do so or managed in her abstention.

I did not have the benefit of records of time worked. I am unable to dip into the inspectorate report of January 2020. I had regard for the complainant’s own evidence that she had walked out in the company of Ms Hurley towards the car park at close of business. I also had regard for Ms Hurleys role as trouble shooter for those employees who worked in excess hours.

I find that the Respondent has not demonstrated an adherence to section 13 within the cognisable period. I also find that the lack of particulars of the claim make it difficult for me to isolate the contravention. However, I find that I accept the complainant evidence of her 50-hour week in the Summer of 2019. References to earlier long stretches of work are outside my jurisdiction.

I find the claim is well founded.

CA-00032835-006   Rest period breaks the parties were completely opposed on this claim. On one hand the Respondent contended that the complainant was self-governing and held flexibility in accessing breaks, which the contract details paid breaks. The Complainant gave evidence that she did not avail of breaks as she was at the” beck and call of the business”.

The time and Management system did not carry her records of breaks. It ought to have done. I have listened to two viewpoints on these breaks in the cognisable period and I find that the complainant was paid for breaks but once again did not particularise just which days she forsakes the breaks. I appreciate that the respondent carries the burden of reliance on records in this part, however, I wish to place some weighting on the complainants’ actions, particularly as she agreed that she had heightened awareness of breaks across the Hotel as late as August ,2019. I find that the complainant did miss out on her statutory breaks.

I find the claim well founded.

CA-00032835-008 Statement of Terms of Employment

I have considered both parties evidence in this matter. I find that the Complainant commenced work on 10 March 2015 and was paid that month. She did not receive the signed statement of terms and conditions plus the handbook until August 2015 with a suggested retrospective effect.

I find that the Respondent did not comply with the obligation set down in section 3 of the act and a subsisting breach arose and continued in this case. I find the claim well founded. I find that this contravention must be considered more than a de minimus breach as had the foundation documentation been issued consistent with the first two months of employment and earlier clarity of role and position may have unfolded much much sooner.

The claim is well founded.

CA-00032835-09    Sunday Pay

I have considered both parties approach to Sunday working. Section 14 of the act applied here.

 The Respondent said a composite rate was paid for Sundays to the Complainant was not obliged to work Sunday s. The complainant on the other hand recollecting liaising ion post wedding feedback with the CEO on Sunday mornings and estimated that this lasted about a 3-hr period. she did not match these conversations with particularised date lines within the cognisable period.

However, I cannot accept that a sub minimum wage as was paid to the complainant could include an additional composite rate.

However, I have not received particulars of the complainant working Sundays during the cognisable period.

 Find the claim is not well founded.

CA-00032835-002 Annual Leave

I found the claim well founded. In accordance with section 27 of the Act, I order the Respondent to comply with their statutory obligations for to record all time worked for annual leave purposes. I also order the Respondent to pay the complainant €750 .00 as compensation in respect of the contravention of Section 20 and Section 21 of the Act.

CA-00032835-003 Claim for Unfair Dismissal

I have found that the complainant was unfairly dismissed, and compensation is the only practical remedy to this long-concluded employment. I found the circumstances of this dismissal to be void of fair procedures and natural justice. The sanction was wholly disproportionate, where the Respondent is not permitted to rely on any defence in accordance with section 6 of the Act.

I found the circumstances of this dismissal to be injurious on the complainant who struggled to relaunch safely .in a much-changed pandemic world. I find that this case requires that I do justice to the parties in applying the maximum compensation permitted to me as there is no viable means of return to the business in this case. The Complainant was also denied the respect

I order the Respondent to pay the complainant 71 weeks loss at €21,843.00 in respect of the unfair dismissal.

I would also advise the Respondent to desist from a practice of retrospective contracts of employment as the foundation of any employment deserves a real time commencement.

CA-00032835-004 Maximum hours

This claim is not well founded.

CA-00032835-005 Rest periods

I find the claim well founded and in accordance with my powers under Section 27 of the Act. I order the Respondent to apply a time recording system for all employees and I award €300.00 as compensation for a breach of S. 13 of the Act.

CA-00032835-006   Rest period

I find the claim is well founded. and in accordance with my powers under Section 27 of the Act. I order the Respondent to apply a time recording system for all employees and I award €300.00 as compensation for a breach of Section 12 of the Act.

CA-00032835-008 Statement of Terms of Employment

I find the claim well founded. In accordance with my powers under Section 7 of the Act, I order the Respondent pay €615.30, two weeks’ pay, as just and equitable compensation for the subsisting breach .of section 3 of the Act.

CA-00032835-09    Sunday Pay

I find the claim is not well founded.

Unfair Dismissal, Annual leave, maximum hours worked, rest periods, Sunday working, Statement of Terms of Employment