Complainant

Respondent

Parties

Alannaí  O'Connor-Grogan

Flair Beauty Boutique

Complainant

Respondent

Anonymised Parties

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Representatives

Fiona Egan, Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031576-001

14/10/2019

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

CA-00031576-002

14/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004

CA-00031576-004

14/10/2019

The Complainant commenced employment on a part time basis with the Respondent on 22/1/2018. The Respondent’s business is a beauty salon. The Complainant claimed that she was constructively dismissed and that she had no option but to leave her job due to the conduct of the Respondent. In this regard the Complainant referred to advice she received from Citizens Information and the WRC. The Respondent denied the Complainant was dismissed – constructively or otherwise. Dismissal is therefore in dispute. In addition, the Complainant claimed that she was not provided with a contract of employment in a timely manner and that she was penalised. The Respondent denies these complaints also.

 CA-00031576-001

The Complainant stated that notwithstanding that she commenced employment on 22/1/2018, she did not receive her contract of employment until 15/8/2018 and that she signed the contract on 16/8/2018. Accordingly, the Complainant maintains that she was approximately seven months without a contract in breach of the Terms of Employment (Information) Act 1994. In relation to the August 2018 contract, the Complainant also stated that the Respondent had removed “my page 4 and replaced it with your own one.” and that she had “two witnesses who will testify, under oath, that this page 4 was replaced”.

The Complainant stated that she asked for copy of her signed contract when she was invited to the disciplinary meeting in March 2019 and in this regard I note the Complainant’s email to the Respondent of 21 March 2019.  The Complainant further stated:

“Unfortunately, I didn’t photocopy my contract after I signed it so I had to request  copy after my invite to the hearing. It definitely was a shock to me, and my family members, that my employer had altered my contract……”  and also

“[Respondent] didn’t sign and date my copy of the contract until I returned it in August and I never saw the contract again until I requested it for the disciplinary hearing and then I knew that it had been changed”.

The Complainant also stated that her probation was not carried out after six months and that if there were difficulties with her work that should have emerged during a probation or extended probation period.

The Complainant was cross examined on her evidence including in relation to her receipt of the Employee Safety Handbook on 22 January 2018. In addition, it was put to the Complainant that she was provided with her main Terms and Conditions of employment on 25 February 2018, that on several occasions she was asked to sign the contract but that she had mislaid it. The Complainant disputed this and also stated that there was no basis for the Respondent to suggest that she mislaid her contract in the course of moving house.

CA-00031576-002

The Complainant stated that she worked on average 20/25 hours over 3/4 days per week. She stated that she had no option but to leave her employment and that she was out of work with stress from 6 March 2019 and thereafter submitted medical certificates on an on-going basis. The Complainant stated that she asked for a pay rise at a staff meeting in February 2019 and raised the issue of her having to work on Sundays. She stated that the Respondent said there was no problem with this. However, the Complainant stated that in response to her request, “out of the blue…” she received a letter by post requesting her to attend a disciplinary hearing. In this regard, the Complainant referred to the Respondent owner’s letter to her of 4 March 2019 which required her to attend a disciplinary hearing on 11 March to address alleged unsatisfactory outputs of work and alleged failure on her part to devote her time at work to the affairs of the business. The letter also stated that the Complainant “may be accompanied by a fellow employee of your choice or trade union official……” and advised the Complainant that if she wished to contact any employee who could assist her in preparing her explanation/response to the allegations to contact the Respondent and that arrangements would be made accordingly. The 4 March letter also advised the Complainant of the requirement to attend the proposed disciplinary hearing and stated that “It is important that [Complainant] attend this meeting but if you do not do so without good reason, I have to inform you that I will hold the disciplinary hearing and make a decision in your absence based on the evidence available to me which could lead to the termination of your employment. It is therefore very much in your own interests to attend”.

The Complainant stated that she was not a member of a trade union and that the Respondent “had discussions with one of my work colleagues so I cannot bring anyone from the only two categories suggested”. With regard to the latter, the Complainant stated that she had “no idea which of [her] work mates my bosses were talking to about [her], so [she] didn’t know who to trust”. The Complainant stated that she advised the Respondent that she would attend the disciplinary hearing -  “I always said I would go to the hearing, but not alone…..” but that notwithstanding, the Respondent would not agree to her obtaining alternative representation. The Complainant also stated that she was not made aware of any complaints prior to her receipt of the Respondent’s letter of 4 March 2019. In addition the Complainant stated that she had not received any verbal or written warnings contrary to the Respondent’s disciplinary procedure.

It is the position of the Complainant that she could not continue working at Flair beauty salon as there was “no compromise on [the Respondent’s] part to try and sort out the hearing” in terms of affording her alternative representation – ie a friend or family member or adhering to the company’s discipline policy. The Complainant was also concerned that the Respondent would proceed with the disciplinary hearing in her absence. The Complainant’s email to the Respondent of 4 November 2019 stated as follows:

“I went to the doctor on Thursday evening 31st October and he issued me with a final cert stating that I was fit for work from the 1st November. My understanding is that I’m due 2days off for the week which brings me to Sunday 3rd November (you received cert on the 2nd)

Unfortunately I fail to understand how you expect me to return to work in flair as I had no correspondence from you regarding the outcome of the disciplinary hearing you were holding in my absence.

You stated in your email today that you expect me to return to work on Wednesday the 10th of November at 10am again, this date is incorrect just as you’ve done before?

You have made it impossible for me to work in this situation, as you’ve blocked all my efforts to try and resolve same”

Under cross-examination it was put to the Complainant that the disciplinary hearing never took place at all and the Complainant accepted this and that she was never issued with a warning or sanction. The Complainant also accepted under cross examination that she was invited to return to work when she was certified medically fit to do so. It was also put to the Complainant that the Respondent did not stipulate any particular union in terms of her seeking representation. The Respondent also put it to the Complainant that she had not resigned when she lodged her Complaint Form with the WRC on 14 October 2019. In response to this question, the Complainant accepted that she was still employed – albeit on unpaid sick leave - when she lodged her Complaint Form with the WRC. The Complainant also accepted that complaints had been made by customers but she stated she had not been told about them nor had the Respondent specified whether the complaints were in the nature of minor or gross misconduct. During a further exchange the Complainant was asked if she intended to resign and she answered no and that she still considers herself an employee.

CA-00031576-004

The Complainant stated that she was penalised by virtue of the Respondent’s insistence on her being represented by a trade union official or colleague and also by the consequent loss of her employment and resulting loss of earnings since she went out on sick leave on the 6th March 2019.

CA-00031576-001

The Respondent stated that it provided the Complainant with a statement of her main Terms and Conditions on 25 February 2018 together with copy of the Employee Handbook and Safety Statement. According to the Respondent the Complainant took the contract home to read but mislaid it in the course of her moving house. The Respondent stated that it requested return of the signed contract on several occasions but as the Complainant could not locate the original, it provided a further copy - same as the original contract - which was signed by the Complainant on 13 August 2018. The Respondent stated that that there was no evidence or basis for the Complainant’s  assertion that there were changes to the contract from the original February 2018 document, that it was at a loss to understand what changes the Complainant was referring to in this regard and that it was not its practice to change contracts. Further, the Complainant had not produced any witnesses to support her version of events in relation to purported changes to the  contract.

The Respondent’s co-owner gave evidence in relation to the contract issue including in relation to her attempts to seek the original signed contract. The co-owner stated that at one point the Complainant stated that she had given the contract to her mother’s accountant to look over and that she/the co-owner offered to explain the provisions of the contract. The co-owner stated that the Complainant was provided with its Safety Handbook and its Employee Handbook in February 2018 and that the co-owner kept a copy of the original contract on file in the office  which she herself had signed. In relation to the Employee Safety Handbook, the co-owner stated that the Complainant kept this but signed and returned the last page on 6 February 2019.

The Respondent’s second co-owner also gave evidence in relation to the contract issue in terms of her following the matter up with the Complainant.

CA-00031576-002

The Respondent stated that it had received a number of complaints both verbally and in writing about the Complainant’s work which it felt obliged to investigate. Having carried out an internal investigation in February 2019 the Complainant was invited by letter of 4 March 2019 to a disciplinary hearing scheduled for 11 March which the Respondent stated should have been referred to as an investigation meeting. The Respondent stated that the disciplinary hearing was postponed on the basis that the Respondent received a medical certificate from the Complainant which certified her as unfit for work from 7 March to 12 March 2019. The Respondent stated that the proposed disciplinary hearing never took place at all nor was any sanction issued.

The Complainant remained on sick leave until 1 November 2019 when the Respondent received a medical certificate from the Complainant’s GP stating that she was able to attend work. The Respondent then wrote to the Complainant by letter of 4 November 2019 acknowledging that she was fit to return to work and requesting her to report to work on 10 November 2019. In response, the Respondent received the email from the Complainant also dated 4 November 2019 stating that it was impossible for her to return to work. There were further exchanges between the Complainant and the Respondent on 5 November 2019. By letter of 8 November 2019, the Respondent advised the Complainant that she was awaiting her written submissions on the disciplinary matters, that company policy specified entitlement to representation by “a fellow employee or Trade Union Representative” and that:

“I would like to point out that the alleged concerns still remain unclosed and we would like to close them out as we need to understand the allegations and would like to give you an opportunity to give us your understanding of such.

As you feel that your grievances have been unresolved, I ask again that you let us know specifically what your grievances are and inform us whether you would like to take an informal or formal approach for us to investigate them.

In the meantime, as I mentioned I would like you to return back to work as we are under pressure for staff and we hope to close out any underlying concerns you have with us”.

The Respondent stated that thereafter, it failed to hear anything further from the Complainant until it received the notification from the WRC. The Respondent stated that at the time of her lodging her claim, the Complainant was an existing employee and that it was in receipt of a valid sick certificate from her for the month of October 2019 when the complaint was made to the WRC. Accordingly, the Respondent stated that the Complainant had not actually resigned before she considered herself dismissed.  Further the Respondent stated that the Complainant did not exhaust its internal Grievance Procedure.

The Respondent's co-owner gave evidence at the adjudication hearing in relation to the Respondent’s system of dealing with complaints and the lead up to the letter to the Complainant of 4 March 2019. She stated that she informed the Complainant about the complaints and she disputed the Complainant’s assertion to the contrary. The co-owner stated that the purpose of the disciplinary hearing was “to get things back on track”. She also stated that she did not recall the Complainant’s request for a pay rise. The co-owner stated that she did not wish to lose the Complainant as an employee, that it had been her intention to find a solution and offer in-house training as a support and that she was very taken aback to receive the Complainant’s email of 4 November 2019 which she stated did not make clear the Complainant’s intention to resign. Further, the Respondent’s co-owner stated that she recognises the business is located in a small town and therefore she would never have discussed these matter with any other staff members.

The Respondent's co-owner was cross examined on her evidence by the Complainant’s representative in relation to the issue of a disciplinary as opposed to an investigating meeting, as regards the Complainant’s lack of access to a trade union and the Respondent’s insistence on a limited choice of representative. In response the co-owner referred to its disciplinary policy. The co-owner was also questioned on the Complainant’s probation and she replied that it was not policy to review an employee’s performance if not needed. The co-owner stated that the Complainant had passed her probation and that there was constant monitoring and review and an obligation to respond to complaints as they arose.

It is the position of the Respondent that the Complainant was never dismissed nor was she ever threatened by such action or treated in such a manner that made it impossible for her to return to work and further, that she was afforded fair procedures with respect to the proposed disciplinary hearing. The Responded stated that the Complainant had accepted in the course of the adjudication hearing that she was an employee at the time of lodging her complaint, that she still considers herself to be an employee and that she had never resigned. For its part, the Respondent stated that it still considered the Complainant an employee of the business and that it invited her to their annual Christmas party in December 2019. The Respondent further stated that the Complainant is still a key holder of the business and has never returned either her key or uniform contrary to any intention on her part to resign. In its submission the Respondent stated “The Claimant’s position was and is still open to her should she wish to return”.

CA-00031576-004

The Respondent denied there was any penalisation as no disciplinary sanction had been issued to the Complainant, that her own evidence was that she still considered herself an employee and that she had neither resigned nor been dismissed.

CA-00031576-001

The Terms of Employment (Information) Act 1994 and the Employment (Miscellaneous Provisions) Act 2018 apply in relation to providing an employee with details of his/her terms and conditions of employment. The latter came into effect after the employment of the Complainant. Section 3 of the Terms of Employment (Information) Act 1994 set out the terms which should be included in a statement to be furnished to the employee within 2 months of starting work. These include:

·       The full names of the employer and employee

·       The address of the employer

·       The expected duration of the contract (if the contract is temporary or fixed-term)

·       The rate or method of calculating your pay, and the ‘pay reference period’ (for example, whether you are paid weekly, fortnightly or monthly)

·       What the employer reasonably expects the normal length of your working day and week to be (for example, 8 hours a day, 5 days a week)

·       The place of work

·       The job title or nature of the work (such as a brief job description)

·       The date the employment started

·       Pay intervals (for example, weekly or monthly)

·       Any terms or conditions relating to hours of work (such as overtime)

·       Paid leave, including your annual leave and public holiday entitlements

·       Sick pay

·       Pension and pension schemes

·       Period of notice to be given by employer or employee

·       Details of any collective agreements that may affect your terms of employment.

 In the instant case, it is the Complainant’s position that she was not furnished with this statement until a period of seven months had elapsed after the commencement of her employment on 22 January 2018. In considering this matter I note that the Complainant has accepted that she was provided with the Employee Handbook at the time of her employment and also with the Employee Safety Handbook. The Complainant emailed the Respondent on 21 March 2019 in relation to her medical certification and in the email she stated “Would you please forward me my signed copy of terms and conditions of employment”. The Respondent submits that the Complainant mislaid the first copy of the contract and that it sent a duplicate in August 2018. I have been furnished with copy of one contract titled “STATEMENT OF MAIN TERMS OF EMPLOYMENT” which was signed by the Respondent’s co-owner on 25 February 2018 and by the Complainant on 13 August 2018.

There is clearly a conflict of oral evidence in relation to this matter. In this regard, I note there is no documentation available to support the Respondent’s position that it requested the Complainant on several occasions to return the contract prior to August 2018. In all the circumstances and on balance, given the date the Complainant signed the contract, on a procedural basis, I find that the Complainant did not receive copy of her terms and conditions of employment until August 2018.

In relation to the Complainant’s assertion that the contract signed by her in August 2018 was changed subsequently – I find that no other evidence has been produced to support this proposition. Accordingly, from the evidence adduced, I am not satisfied the contract was changed.

CA-00031576-002

PRELIMINARY MATTER:

The Respondent submitted as a preliminary issue that I did not have jurisdiction to hear the unfair dismissal claim on the basis that the Complainant had pre-lodged the complaint. I note that the Complaint Form was dated 9 October 2019 and was received by the WRC on 14 October 2019. The Respondent stated that at this time the Complainant was on certified sick leave from her employment and this was accepted by the Complainant. In this regard, I was furnished with a medical certificate for the Complainant covering the period 1 October 2019 to 31 October 2019. The Complainant submitted that she was relying on the advice she received from Citizens Information and the WRC.

The Workplace Relations Act [2015-2021] states the following in relation to the presentation of complaints at section 41:

“41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director Generalshall,subject to section 39, refer the complaint for adjudication by an adjudication officer.

(2)…..

(3)…..

(4)…..

(5)…..

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7)….

(8)…..”

I have considered this matter and in my view, the import of Section 41 is that a complaint is presented to the WRC following a contravention of a specified Act though the wording of the Section does not specifically exclude pre-lodged complaints. I have also considered the Respondent’s case law in relation to this matter. However, in all the circumstances I have decided to give the Complainant the benefit of the doubt in terms of considering the substance of her unfair dismissals complaint and making a finding in the matter. 

The relevant legal provisions in relation to unfair dismissals are set out in the Unfair Dismissals Act [1977-2017] and for the purpose of this decision I set out the following:

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

““dismissal”, in relation to an employee, means –

a) the termination by his employer of the employee’s contract of employment with the employer…..

b) 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 circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was I would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

The Complainant is claiming she was constructively dismissed and that she had to leave her job due to the conduct of the Respondent. Accordingly, I must consider whether or not on the balance of probabilities, there was a dismissal in accordance with the provisions of section (b) above. There are two tests to establish if a constructive dismissal occurred – the ‘contract test’ – i.e. that there was a breach of the contract of employment, such that an employee is entitled to terminate his/her employment and the ‘reasonableness test’ – i.e. that the behaviour of the employer was so unreasonable that the employee was entitled to terminate his/her employment. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that a complainant could not fairly be expected to put up with it any longer. These tests were enunciated in Western Excavating (ECC) v Sharp [1978] ICR 221 and have been relied on by the Labour Court. For example in NCBI v Ms Mary Cawley [UDD2138] the Court explored whether there was “any fundamental breach going to the root of her contract” such that it was reasonable for the Complainant to terminate her contract and/or whether the employer conducted its affairs “in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer, [and] if so…is justified in leaving”.  By the same token, a complainant is under the burden of establishing that he/she has conducted him/herself reasonably in terms of affording the employer the opportunity to address the issue which ultimately led to the termination of the employment. In that regard, in referring to the need to utilise established internal grievance procedures, the Employment Appeals Tribunal held as follows in Beatty v Bayside Supermarkets [UD142/1987]:

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases…”

In relation to this matter, I had carefully considered the submissions, the sworn evidence of the parties and the sequence of correspondence. There is no dispute that the Complainant was requested to attend a disciplinary hearing on 11 March 2019. From the evidence and submissions I am satisfied this meeting did not occur on 11 March 2019 or at any stage. The Complainant raised a number of issues with the proposed disciplinary hearing including that she had not been appraised of the complaints at issue and that she was required to be represented by either a trade union official or a colleague. In this regard I note that the Respondent’s Disciplinary Rules and Procedures states as follows at paragraph 4(f):

“other than for an “off the record” informal reprimand, you have the right to be accompanied by a fellow employee or trade union representative, who may act as a witness or speak on your behalf, at all stages of the formal disciplinary process. However, they are not there to answer questions on your behalf. In addition, in line with the Code of Practice for Disciplinary and Grievance procedures, there is no provision for legal representation at any stage of the disciplinary process”.

The Complainant went on sick leave from 6 March 2019 and thereafter continued to provide medical certificates of her illness up to 1 November 2019. The Complainant has not returned to work. The medical certificates invariably confirmed that the Complainant was suffering from stress. In relation to the sequence of correspondence, I note the following in particular:

·       The Respondent’s letter to the Complainant of 7 March 2019 acknowledging receipt of her sick cert and advising “….we will postpone the disciplinary hearing and reschedule to a later date. Upon your return to work we will conduct an investigation into the allegations and provide you with the details that are outlined in your letter which we received today”;

·       The Respondent’s letter of 20 March 2019 which inter alia stated: “The sick cert has arrived today dated back 19/03/2019. As we were unsure of your return date we have clients on hold for you but unfortunately we had to cancel your clients as we were unsure of your return date….”;

·       The Complainant’s Medical Certificate of 1 November 2019 stating that she is able to attend work from that date;

·       The Respondent's email to the Complainant of 4 November 2019 which stated as follows:

“Thank you for sending in your updated cert, as you know, your cert states that you are able to attend work and therefore you should have been back on Friday 1st November, but we did not hear from you. Can you please come in on Wednesday,10th November at 10.00am as that is your next day of work? Upon your return to work you are required to attend a return to work meeting”.

·       The Complainant's email to the Respondent of 4 November 2019 wherein she stated that the Respondent had made “it impossible for [her] to work in this situation, as you’ve blocked all my efforts to try and resolve same”;

·       The exchange of emails between the Complainant and the Respondent on 5 November 2019 wherein the Respondent clarified that it expected the Complainant to return to work on 6 November 2019, that the disciplinary hearing did not take place in her absence and that the Respondent “would like to have you back in work in a safe working environment in your best interests” and to let the Respondent know if she wished to raise a complaint. In reply the Complainant stated that she had raised her grievances in several emails and letters in relation to the matter of representation at the disciplinary hearing, that she was not a member of a trade union, that she was not comfortable bringing a staff member to a disciplinary hearing and that the Respondent’s requirement in relation to representation was making it impossible for her to return to work under these circumstances;

·       The Respondent's letter to the Complainant of 8 November 2019 which advised that the original complaints remain unclosed, that the Respondent wished to close them out, that it was open to the Complainant to raise her grievances informally or formally and these would be investigated by the Respondent and that the Respondents “would like [Complainant] to return back to work as we are under pressure for staff and we hope to close out any underlying concerns you have with us”.

In addition to the foregoing, I have also carefully considered the various statements at the adjudication hearing including the Respondent's statement that it never wanted to lose the Complainant as an employee and the Complainant’s own statement that she still considers herself an employee.

In all the circumstances, I consider that it is very unfortunate matters escalated to the point that the Complainant considered herself to be constructively dismissed. That being said, from the submissions and sworn evidence I cannot agree with the Complainant’s assertion in this regard. The proposed disciplinary hearing was convened in accordance with the Respondent’s own Disciplinary Rules and Procedures and it is standard practice that representation is in the form of a trade union official or a colleague. Whilst in hindsight, the Respondent could perhaps have considered being more flexible in relation to the issue of representation, nonetheless it’s stipulation in this regard complied with its own policy and the Complainant did not initiate a formal Grievance Procedure in relation to the matter when such procedure was available. I am also satisfied that the Complainant had every opportunity to return to work after she was certified medically fit to do so on 1 November 2019. Accordingly, I am satisfied that the Respondent did not breach its contractual obligations to the Complainant and nor did it act unreasonably. For these reasons I find that the Complainant has not discharged the burden of proving that she was constructively dismissed.

In the interest of completeness and based on the same reasons, I consider that the Respondent has discharged the burden of proving that it did not unfairly dismiss the Complainant in accordance with Section 6 of the Unfair Dismissals Act [1977-2017].  

CA-00031576-004

Section 9 of the Industrial Relations (Miscellaneous Provisions) Act [2004 – 2020] provides that a complaint may be made to the WRC pursuant to a breach of the provisions set out in section 8 of the Act. Section 8 states as follows:

“8.—(1) This section applies where it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and—

(a) a trade union or an excepted body takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or

(b) such procedures have been invoked by a trade union or excepted body in relation to a trade dispute, or

(c) an employee intends to request the trade union or excepted body of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union or an excepted body intends to make such a request, or

(d) such a request by a trade union or an excepted body has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or

(e) the Court determines that those requirements have been met and either—

(i) that investigation is being or has been carried out, or

(ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

(2) Where this section applies, none of the following—

(a) the employer,

(b) an employee, or

(c) a trade union or an excepted body of which an employee is a member,

shall victimise an employee or (as the case may be) another employee in the employment concerned on account of—

(i) the employee's being or not being a member of a trade union or an excepted body, or

(ii) the employee's engaging or not engaging in any activities on behalf of a trade union or an excepted body.

(3) In this section “victimise”, in relation to an employee, means to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her well being and includes any act specified in a code of practice, prepared under section 42 of the Industrial Relations Act 1990 in relation to conduct prohibited by this section, to be an act falling within the foregoing expression but does not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001.”

Having considered the sworn evidence and submissions of the Complainant and the Respondent at the adjudication hearing, I am satisfied the Complainant has not made out a case that she was victimised within the terms of this Act. 

CA-00031576-001

For the reasons outlined this complaint is procedurally well founded. The Terms of Employment (Information) Act 1994 provide at Section 7 that I may award compensation in relation to a contravention of Section 3 of the Act  of an amount  not exceeding 4 weeks’ remuneration. Accordingly, I award the Complainant one weeks pay which I consider just and equitable in all the circumstances and I direct the Respondent to calculate this on the basis of the Complainant’s last week of employment.

CA-00031576-002

For the reasons outlined this complaint is not well founded.

CA-00031576-004

For the reasons outlined this complaint is not well founded.

Statement of terms of employment; Constructive Dismissal, Victimisation