ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027680

Parties:

	Complainant	Respondent
Parties	Amanda Dineen	Thermopro Limited

Representatives

Self

Sara Daly BL instructed by Ita Flanagan Sweeney McGann sols

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00035370-003	22/03/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00043029-001	12/03/2021

Date of Adjudication Hearing: 24/01/2022 and 10/03/2022

Workplace Relations Commission Adjudication Officer: Janet Hughes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015Section 8 of the UnfairDismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The Complainant lodged a series of eighteen disputes and complaints over three complaint forms, concerned with matters over an extended period which included issues around a suspension, two separate dismissals, appeals, deductions, less favourable treatment-under various different pieces of legislation. Some were understood to have been withdrawn before the first day of hearing but there remained a considerable volume of complaints/disputes and some appeared to have been overtaken by events or the actual nature of the remaining dispute or complaint was unclear. On the date of the first hearing, the Complainant was asked to review all of the complaints/disputes and to advise which ones she wished to proceed with particular reference to the industrial relations disputes and clarity around the complaint under discrimination legislation. The hearing was adjourned on this basis. The Complainant subsequently informed the WRC that she as withdrawing all but two complaints-that under the Unfair Dismissals Act and one under the Payment of Wages Act concerned with the underpayment of a Christmas bonus.

Preliminary discussions with the Complainant and the lead representative for the Respondent resulted in further clarification where the Respondent conceded the dismissal was unfair, they also withdrew any defence on the basis of the Complainants contribution to the dismissal. They also indicated a willingness to pay the balance of the Christmas Bonus paid in December 2019. The parties made it clear that the only form of redress in respect of the dismissal which would be suitable in the circumstances is compensation and the figures for losses were clarified. On this basis the decision below is not as detailed as would normally be the case. Either side has the right to appeal this decision in the usual way. The parties were so advised in formal session.

Background:

The Complainant was employed by the Respondent in an accounts role from April 2014 until her dismissal, for the purposes of this decision, on 14 September 2020 with four weeks pay in lieu of notice. At the time of her dismissal, the Complainant was reinstated on the payroll following the successful appeal of an earlier dismissal. Terms for her return to work were not agreed at the point of dismissal.

In relation to the complaint under the Payment of Wages Act, this is concerned with the decision of the Respondent to pay €50 of a voucher to the Complainant while paying €400 to all other employees. The Complainant was suspended at the time.

Summary of Complainant’s Case:

The Complainant contends that she was unfairly dismissed without any form of a disciplinary or appeal process.

Details of efforts to obtain work and work obtained were submitted in writing. This shows the period of unemployment as 15 September 2020 to January 2021 with a four-week period worked in between. Pay for that period was less than with the Complainant. Pay in the position obtained in January 2021 is the same as it was with the Respondent.

Compensation was sought by way of remedy. The Complainant was clear that she does not wish to return to this employment.

The Complainant submitted that the amount of four hundred was paid every year and she was entitled to that amount. Her preference is for One-For-All vouchers as were given to the other employees.

Summary of Respondent’s Case:

The Respondent withdrew any defence regarding the conduct of the dismissal.

The claim regarding mitigation of losses is not disputed. Account should be taken of the period when the Complainant did work together with the four-week period of notice pay.

Compensation is the preferred remedy given the breakdown in the relationship.

Findings and Conclusions:

Payment of Wages Act 1991

The Respondent withdrew their defence related to the non-payment of an equal amount of a Christmas bonus to the Complainant as was paid to all other employees at that time. Given the option of a monetary or voucher payment, the Complainant indicated a preference for the voucher.

Unfair Dismissals Act 1977

As unfair dismissal is conceded the matter to be decided is the remedy. Any consideration that a restoration of this working relationship is either desirable or feasible would not be realistic. It had irretrievably broken down no later than September 2020.

Section 7 of the Unfair Dismissals Act deals with financial compensation:

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

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

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

The Complainants losses are calculated as follows:

Inclusive of four weeks’ notice and allowing four weeks of pay at a total of €830 earned from late September to the end of October then continuing as unemployed until January 11, 2021 where she resumed employment at €300 per week leaves a total of €3070 in losses to the Complainant. As neither the contribution to the dismissal or the efforts to mitigate losses are disputed, the sum of €3070 becomes payable.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00035370-003 Payment of Wages Act 1991

The complaint regarding the underpayment of the Christmas Bonus in December 2019 is well founded. The Respondent is to pay the Complainant the shortfall be way of a One-for All Voucher to the value of €350.

CA-00043029-001 Unfair Dismissals Act 1977-2016

The complaint of unfair dismissal brought by the Complainant is well founded. The Respondent is to pay the Complainant €3070 in compensation.

Dated: 15th March 2020

Workplace Relations Commission Adjudication Officer: Janet Hughes

Key Words:

Deduction from Christmas Bonus; Unfair Dismissal