Complainant

Respondent

Parties

Lisa  Kelly

Rockabill Seafood Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Pat Collier Collier Broderick

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-00045980-001

05/09/2021

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

CA-00045980-002

05/09/2021

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

CA-00045980-003

05/09/2021

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

CA-00045980-004

05/09/2021

In addition to the evidence set out below I have relied on the documentation submitted for this hearing.

CA 00 45980 – 001

The Complainant following the affirmation stated that before the Covid payment, April /August 2020 she had additional tax credits due to the fact that she is a single parent. The Respondent used her tax credits to reduce her gross pay.  Her gross salary & taxes were under declared and under paid for the year end 31.12.2020 to Revenue. As a result of under declared returns she received a tax bill from Revenue instead of a tax refund.  She felt at that time that if she raised this issue her contract would be terminated. On the 31/03/20 Alan Corcoran gave her, the payroll administrator instructions to pay nett pay during the Covid subsidy scheme and amend employee’s taxes through an inflated gross payment at the end of the Covid subsidy scheme. To the best of her knowledge this did not happen, and other employee’s tax may be significantly impacted also. The total figure underpaid was € 2,086.64.

CA00 45980 – 002

The Complainant was given a contract of employment on the commencement of her employment. She signed it. The contract referred to an employee handbook. She did not get a copy of that. She raised a complaint in November 2020. She requested a copy of the handbook then, but one was never given to her.

CA 45980 -003

In May 2019 the Complainant discovered that there was an undocumented worker on the ship. She discovered this when following a request to update the crews’ safety training details, she noted that there was one individual from Egypt who was working on the ship who did not have a permit.  Bill Price held her responsible for this. She did not know why he held her responsible as she had no dealings with the crew. Mr. Price was so annoyed about the situation he threatened to terminate her employment over it. 

December 2019, Mr Price threatened to terminate her employment again. Instead of letting the Complainant know that he intended for her to take over Enterprise Fishing Ltd company’s account in a professional way he shouted at her and intimated her in  front of other staff saying that as her current role was only taking up 50% of her time he was giving her this additional work to do. She objected to this as her current role was a very busy one.

Again, in July 2020 he threatened to terminate her employment over a “share agreement” which had nothing to do with her. In August there was another incident. The Complainant’s manager asked her to transfer the sum of € 35,000.00 to Bill Price’s personal account and to record it as a loan from the Respondent company. She checked the account and no money was owed. She raised a query about it. Mr. Price got extremely annoyed with her. It wouldn’t be an exaggeration to say that he “went mad” about it.

In October 2020 Mr. Price attempted to deduct a days’ pay from her wages when she took leave to attended to her mother who had been given a terminal cancer diagnosis. A few weeks after that the Complainant’s mother died.  Her mother was buried on a bank holiday Monday. She took Tuesday to Thursday as bereavement days. She was entitled to five days but she only took three. Despite that Mr. Price sought to deduct a days’ pay because she had exhausted her annual leave entitlements. The Complainant went out on sick leave after that.

On several occasions when the Complainant was on leave she was contacted by Mr. Price who requested that she carry out some work for him. She found this most inappropriate when she was caring for her mother.

The Complainant began to feel unsafe in the presence of Mr. Price. She felt that he was manipulating situation so that he could have behave in an aggressive way towards her.

The Complainant was out on sick leave for two weeks. She was due back to work on the 17th. She couldn’t face the thought of returning to that environment. She spoke to Alan Corcoran about it and he stated that unfortunately he couldn’t provide a safe place for her to work. Mr.Price was a part of the company and would have to interact with her on a regular basis. She went back to her GP and got a certificate for an additional two months.

In November 2020 the Complainant raised an informal grievance. The Respondent didn’t send her the company policy until February 2021. When she received the policy, she read that in order to raise a grievance she had to put her complaint in writing to the company director. That was Mr. Price.  The Complainant had been promised mediation but was told it would take some time to organise that. She felt that she couldn’t wait.

There was a meeting in relation to the issue in March 2021. Sheila Hand who gave evidence following the affirmation stated that it was accepted during the meeting that Mr. Price was being very difficult. She also confirmed that severance pay was spoken about during the meeting.

The Complainant resigned her position.

Hazel Murphy following the affirmation stated that Alan did acknowledge the effect that stress was having on the Complainant and that he was going to organise mediation. 

Sandra Ward following the affirmation stated that it was not the company policy to give a copy of the handbook.

CA 00 45980 -004

The Complainant was the only single parent in an open plan office. She felt that she was being treated differently by Mr. Price because of that. Nobody else was treated the way she was. She believes that all of the treatment set out above was as a result of her being a single parent.

CA 00 45980 – 001

Joey Gahon following the affirmation gave evidence that, the TWSS was launched March – August 2020. It was designed to keep people in their jobs during the pandemic. The Complainant got € 350.00 originally and the Respondent topped it up. Then the Government changed their mind and the sum became taxable.  The Respondent never received the P21 from the Complainant. From week 14 to week 22 the Complainant was in receipt of the € 350.00 payment from the Government. She also got a tax refund. However, the Respondent accepts that they were getting the benefit of the tax credits and morally felt they should pay it back to the Complainant. An offer of € 515.07 was made to the Complainant (€57.23 x 9 weeks) but it was declined. The Complainant was asked by the Respondent to submit her P21 but she declined to do so. The Complainant alleged that the figures were wrong however figures are based on NET sums and on that basis the amount is lower.

CA 0045980 -002

The Respondent has satisfied its legal obligations by giving the Complainant her contract of Employment at the commencement of her employment. That contract was signed by the Complainant. The employee handbook was also given to her and she signed for it. Even if it wasn’t , which is denied, it is readily available. It is hanging up beside the clock-in machine and it is in the canteen .

CA 0045980 -003

Bill Price after swearing on the bible gave evidence. He stated that he was not in the office during covid. He left in March 2020 and didn’t return to the office until October 2020. The Complainant then went out on sick leave.

He felt that he had a good relationship with the Complainant. At no point did she ever voice any concerns she had with him.

It was part of the Complainant’s duties to deal with the boats. He didn’t deal with the boats at all. Pat and David did.  Mr. Price did recall a conversation he had with the Complainant about an Egyptian man who was working on the boats. That conversation took place in his office. The only two people who were there were himself and the Complainant.  Paddy Price stated that the hiring of crew members was up to the skipper and not the Complainant or Bill Price.

In December 2019, the Complainant was asked to take on the account for a British Boat. There was an issue with that boat. There was only one director for that boat. That was Bill Price. For all Irish boats there have to be at least two directors. When the Complainant came to talk to Mr Price about her concerns in relation to the boat the conversation was professional. Mr Price did not get annoyed and did not shout at the Complainant in front of staff or at all.

Mr. Price denied asking the girls in the office if they were married. He won’t do that because he knows who is married and who is not. He did say however “only the innocent ones get caught”. The complainant took that comment completely out of context.

CA 0045980 – 001

The Complainant avers that she did not submit her P21 because she believed the figures to be wrong. The Respondent stated that the figures are based on NET pay and on that basis the revenue return was correct.

 Section 5 (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

( a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

( b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

( c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

( a) any act or omission of the employee, or

( b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i)           the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii)          The deduction is of an amount that is fair and reasonable having regards to all of the circumstances (including the amount of the wages of the employee) and

(iii)         before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term

The Respondent did request that the Complainant give them her P21. She refused to do so on the basis that the figures calculated by the Respondent were wrong. The Respondent stated that the covid payment was initially not taxable but after a number of months the Government changed it mind and made it taxable.

There is a full conflict between the parties in relation to the calculation of the figures. There is no objective evidence before me, that would allow me confirm, which version of the evidence, is factually correct. On that basis I find that the Complainant has failed to establish as a matter of fact that the Respondent unlawfully deducted sums from her wages. The complaint therefore fails.

Whilst it is outside of my jurisdiction, I would recommend, as a gesture of good will, that the Respondent pay to the Complainant the sum of € 515.07 as was previously offered.

 CA 0045980 – 002

The Complainant accepts that she did receive her contract of employment. She takes issue with the fact that she did not receive the Employee handbook.

S3 (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing”

On the basis that the Respondent gave to the Complainant her terms and conditions of employment within the statutory period provided and there is no legal obligation to give a copy of an employee handbook to an employee, even though they said that they did,   I find that the complaint is not well founded and accordingly fails. 

CA 0045980 -003 UD

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

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

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven, then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”

The Complainant gave evidence that she was having difficulty with Bill Price. She stated that after many incidents of shouting and intimidation she no longer felt safe in the office. She also stated that his poor behaviour was acknowledge by another employee, Alan Corcoran. He did not give evidence.  I note that the Complainant was offered mediation, but she felt she couldn’t wait 8 weeks for that process to begin. That is not unreasonable. She attempted to have her grievance dealt with in November but in February when she received the handbook she realised she had to make the complaint in writing to the director. That was either Bill Price or Ian Price.  As Bill Price was the subject matter of the complaint,  the Respondent appointed an independent person to deal with the grievance. She was informed that it would take eight weeks to organise mediation. The Complainant didn’t actually wait for a conclusion to her grievance resigning before that happened. She didn’t request that mediation be dealt sooner. There is an obligation on the Complainant to exhaust the internal process prior to taking the matter to a third party. She did not do that however the process she was to follow was unclear and the time frame was unreasonable, particularly in circumstances where an employee feels uncomfortable in the workplace.  In those circumstances I find that it is not a fatal flaw that she resigned prior to the conclusion of the grievance process.

There was no evidence of a breach of the complainant’s contract so I must now ask “Did the employer conduct himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”.

There were a small number of isolated incidents where the Complainant felt uncomfortable by the way in which she was spoken to by Bill Price. The majority of those took place prior to pandemic.  Mr. Price wasn’t physically present in the office from March 2020 to October 2020 and the Complainant was out on sick leave from October 2020 to March 2021. Only one witness, Hazel Murphy, gave evidence that the Respondent acknowledged the effect the stress was having on the Complainant. The burden of proof which lies with the Complainant in relation to constructive dismissal is a very high one. Having carefully considered the evidence in relation to why the Complainant made the decision to leave her employment, I find that she has failed to establish that that her employer acted so unreasonably that she couldn’t fairly be expected to put up with the behaviour any longer. Furthermore, she had not established that it was reasonable for her terminate her contract at the time she did. There was a large gap in time between the incidents complained of an the raising of the grievance. The Complainant didn’t wait to see if matter had improved post lockdown. Also there were other options open to the Complainant, but she failed to utilise those, instead, decided to terminate her employment. I also note that the Complainant found employment two weeks later which said employed paid her a higher rate of renumeration.

The complaint fails.

CA 45980 -004 Employment Equality

The burden of proof which applies to claims of discrimination is well established in this jurisdiction. It provides, in effect, that where facts are established by, or on behalf of a Complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test requires the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden passes to the respondent. The appropriate test for determining is that If the Complainant does not discharge the initial probative burden required her case cannot succeed.

The Complainant gave evidence that at the beginning of lockdown, Bill Price who was talking to staff asked two of the girls in the office if they were married. He then asked the Complainant if she was married. She said she was not. He then said “only the innocent get caught”  The Complainant felt like he was calling her stupid. Mr. Price did accept that he said  “only the innocent get caught” but it he didn’t mean it the way the Complainant interpreted it. The conversation he was having with the girls in the office arose out of one of them asking to leave early to collect her kids.  He didn’t ask anyone if they were married because he knew who was married and who was not.

The Complainant felt that Bill Price treated her differently because she was a single parent. All of examples of different treatment given by the Complainant arose out of work related issues. They would have occurred whether the Complainant was a single parent of not. I can find no nexus between the examples given, and the Complainant’s family status and the discrimination. In other words,  I can find no evidence that Mr Price treated the Complainant less favourably because she was a single parent.

 On that basis I find that the Complainant failed to establish a prima facia case of discrimination, accordingly the complaint fails.

CA 0045980 -001 The Complaint fails.

CA 0045980 -002 The Complaint fails.

CA 0045980 -003 The Complaint fails.

CA 0045980 -004 The Complaint fails.