FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES: SHAMROCK FARM ENTERPRISES LTD - AND - A WORKER DIVISION:
SUBJECT: 1.Non-Payment of Salary & Expenses, Non-Payment of Social Insurances, Unfair Dismissal, No Notice given by Employer.
The Worker is a German national who was employed by Shamrock Farm Enterprises Limited (‘the Company’), under a contract of employment dated 1 April 2022, as a Business Manager to support the Company’s expansion into the German market. A salary of €30,000.00 per annum plus commission of 3% on sales was payable to the Worker under the contract. The Worker and the Company engaged in pre-employment discussions from mid-December 2022 onwards. The clear intention of the Parties was that the Worker would be located in Germany. Several administrative issues arose in relation to this proposed arrangement such as the registration of the Company as an employer in that jurisdiction to facilitate payment of social insurance contributions on the Worker’s behalf. As a result, although the Worker received an offer of employment from the Company on 12 January 2022, she did not officially commence employment with it until 1 April 2022. According to the Worker, however, she commenced work translating Company documents and brochures into German in late March 2022. By agreement, the Worker travelled to Ireland on 11 April 2022 for a two-week period of familiarisation with the Company, its staff and its products. During that period, the Company provided her with accommodation in a bed and breakfast establishment and the use of a company vehicle. The Company had undertaken to discharge the Worker’s travelling expenses also. The Worker continued her work translating documents and sales leaflets for the Company while present at the Company’s offices. After the two-week period, the Worker returned to Germany. Arrangements were made by the Company for the Worker to collaborate with Mr William Day, the Company’s Head of Sales, to meet with a former customer of his in Berlin initially and then to begin the process of sourcing potential clients for the Company throughout Germany. On 26 April 2022, the Worker received the necessary documentation from the Company that she required in order to register as an employee of the Company for social insurance purposes. The Worker also received an email from the Company on that date confirming that the expenses she had incurred on the Company’s behalf would be paid that week. She informed Mr Day by text message on 27 April 2022 that she had to prioritise her registration on that date and wouldn’t be available to pursue sales leads with him until that had been finalised. She did not receive a reply from Mr Day then or ever. On 29 April 2022, the Worker received an automated message to advise her that she had been removed from a number of Company accounts. Her Company email account was closed on 3 May 2022. Finally, she was informed by email dated 5 May 2022 from a member of the Company’s administrative staff that the Company regarded her as having terminated her employment with it through her failure to engage with Mr Day during his German trip and that it deemed her liable for training expenses totalling between €6,000.00 and €8,000.00, the exact amount to be advised in due course. It is appropriate to reproduce the full text of that email of 5 May 2022 at this point:
The Worker received no salary payment from the Company and nor was she re-imbursed by it for the expenses she incurred on the Company’s behalf. She is, therefore, seeking compensation as follows from the Court: expenses of €695.14; €2,500.00 gross salary for April 2022; €1,000.00 gross salary (including one week’s notice) for the period 1 May to 12 May 2022 and compensation for her unfair dismissal by the Company. The Company’s case, as outlined to the Court by Mr O’Doherty, is that the Worker had been verbally informed of the Company’s policy regarding re-imbursement of training costs in the event that an employee leaves the Company’s employment within three months of commencement of employment. Mr O’Doherty confirmed that no written document setting out this policy is in place and there is no reference to any such policy in the written contract of employment issued by the Company to the Worker and signed on behalf of the Company by him. Mr O’Doherty also told the Court that he had agreed to allow the Worker to postpone her trip from Germany to the Company’s offices until 11 April 2022 as her daughter was in school in Germany but would have holidays from that date. Mr O’Doherty informed the Court that the Company does not accept it terminated the Worker’s employment. It is the Company’s position, he said, that she failed to perform her side of the contract and therefore no payment is due to her under the contract and any expenses that may have been repayable to her are offset by the costs incurred by the Company in training her. No breakdown of the alleged training costs was furnished to the Court. Discussion and Recommendation The Court finds that the Worker presented a very credible and honest account of her engagement with Company. Her account was substantiated by reference to detailed supporting documentation, including receipts for all expenses claimed, that accompanied her comprehensive written submission. As admitted by Mr O’Doherty, the Company does not have a written document setting out its alleged policy in relation to the re-imbursement of training costs. Mr O’Doherty also confirmed that there is no reference to such a policy in the Worker’s written contract of employment. No breakdown of those alleged training costs was presented to the Worker at any stage or submitted to the Court. Having regard to the foregoing, the Court does not accept that there is any legitimacy to the Company’s claim to be owed an unspecified amount of between €6,000.00 and €8,000.00 by the Worker for putative training costs incurred during her two-week stay in Ireland. It follows, therefore, that the Court finds the Worker’s claim in respect of unpaid salary and expenses incurred by her is well-founded. The Court recommends that the Company make payment in full to her for the following amounts: gross salary payments of €3,500.00 and expenses of €695.94. Mr O’Doherty submitted on the Company’s behalf that the Worker terminated her own employment. He denies that the Company dismissed her. However, the email dated 5 May 2022 from the Company to the Worker – reproduced in full above – clearly establishes that it was the Company and not the Worker who deemed her employment to have ended on an unspecified date prior to 5 May 2022. In those circumstances, the Worker is entitled to the notice period of one week provided for in her contract of employment. Furthermore, the Company failed to engage with the Worker before it terminated her employment to address any perceived performance issues on her part. In all the circumstances, therefore, the Company’s treatment of the Worker in the period between her return to Germany and its effective termination of her employment on 5 May 2022 was utterly devoid of any fair procedures. The Court, therefore, recommends payment of compensation to her in the amount of €2,000.00 for the unfair manner in which the Worker’s employment was terminated. For the avoidance of doubt, this amount is in addition to the amounts recommended above in respect of outstanding salary and expenses. The Court so recommends.
NOTE Enquiries concerning this Recommendation should be addressed to Therese Hickey, Court Secretary. |
