Complainant

Respondent

Parties

Mary  McHale

Moy Fuel Oil Limited t/a  Moy Oil

Representatives

Peter Flynn, Clarke Flynn McCole Solicitors

Thomas Ryan, Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035446-001

26/03/2020

The complainant worked as Manager/Bookkeeper for J&E Hughes Fuel Oil Limited for approximately 10 years.  That company ceased trading in February 2019.  The complainant, on her complaint form states that the Hughes family oil supplier business was carried on through several other companies, including Moy Fuel Oil Limited.  The complainant claims that due to the conduct of her employer, Moy Fuel Oil Limited, or others at work, she had to leave her job on 31 December 2019.  She claims she was unfairly dismissed (constructive dismissal) and seeks redress of compensation.  The complainant worked 35 hours per week and her gross pay was €606.30 per week.  The complainant submitted a complaint to the Workplace Relations Commission on 26 March 2020.

The respondent submits that the complainant does not have the requisite service to avail herself of the protection of the Unfair Dismissals Act, 1977.  The respondent asserts that the complainant commenced employment on 04 June 2019 and that her employment ended on 26 February 2020.  The respondent denies that the complainant was unfairly dismissed.

The complainant worked as Manager/Bookkeeper for a company, J&E Hughes Fuel Oil Limited, for 10 years.  That company ceased trading in early 2019.  Differences had arisen between the directors of the company, brothers Jerome and Eugene Hughes.  J&E Hughes Fuel Oil Limited had been established out of an earlier oil supply business owned by Mr Val Hughes, father of Jerome and Eugene Hughes. One of the brothers, Jerome Hughes, continued trading and the complainant was employed by the new operation which eventually became Moy Fuel Oil Limited.  The new company began to trade openly in June 2019.  The complainant worked continuously for J&E Hughes, the Jerome Hughes operation and eventually Moy Fuel Oil Limited throughout 2019.

When J&E Hughes Fuel Oil Limited ceased trading the complainant’s post was declared redundant and she was paid an amount equal to her statutory redundancy entitlement by Mr Val Hughes, on the condition she would work for Moy Fuel Oil Limited, when it began trading overtly.  The complainant was the Office Manager, and her pay was to remain as it had been in J&E Hughes Fuel Oil Limited. 

The complainant contends that the main person in the new company was Jerome Hughes.  The complainant’s relationship with Jerome Hughes deteriorated and he stopped talking to her, because he objected to her, and another member of staff, telling anything about the business to his father, Mr Val Hughes. 

When Moy Fuel Oil Limited began to trade openly, in June 2019, the complainant sought an assistant to help with the workload.  Another person was employed for several weeks but was then dismissed.  In September 2019 an advertisement appeared in a local paper for an Office Manager / Bookkeeper in a Ballina based company.  The telephone number published in the advertisement was for a firm of accountants.  When contacted the firm of accountants confirmed to the complainant that the vacancy advertised was with Moy Fuel Oil Limited.  In October 2019 a new member of staff was employed.  The complainant was told that she had to train the new member of staff.  The complainant was pressurised over backlogs and mistakes/omissions made by the new member of staff.  The complainant was abused by a representative of one of the respondent’s suppliers.  Later in October the complainant was abused by the new member of staff in the presence of Annette Hughes, wife of Jerome Hughes   Mistakes made by the new member of staff, while the complainant was on leave, generated a considerable amount of additional work for the complainant.

On 06 November 2019 the complainant was handed an envelope by Jerome Hughes.  Contained in the envelope was a document intended to be a new contract of employment.  The job title was Office Staff and not Office Manager, the hours of work were increased to 45 hours per week, and it included a probation period of six months.  The document was not signed. 

Later in November 2019 new cameras were installed in the office.  Three of the four cameras were trained on the complainant at her place of work. 

The complainant ordered heating oil for herself and three other family members in October 2019.  The oil was note delivered for six weeks in one case and eight weeks in another.  The oil was delivered after Mr Val Hughes arranged for a part-time employee to make the deliveries.

In December 2019, Jerome Hughes rebuked the complainant for sending out customer statements.  He alleged that he had told the complainant to show the statements to him before they were sent out.  This was not the case.

Later in December 2019 Corrib Oil placed an advertisement on a recruitment website for a Sales Administrator in Ballina.  However, Corrib Oil does not have a depot in Ballina.  The complainant alleges that this post may have been for Moy Fuel Oil Limited, but this was denied by Annette Hughes.  The complainant raised questions about the advertisement with Tom Connolly of Corrib Oil during December.  A meeting took place on 31 December 2019 at which the complainant expected to discuss the advertisement and the earlier advertisement for Office Manager.  She understood the meeting would be attended by Jerome Hughes, Val Hughes, two representatives of Corrib Oil and the company accountant.  The only attendees were Jerome Hughes and Tom Connolly.  The complainant alleges she was shouted at during the meeting and she became so upset at the way she was treated that she had to leave.  She attended her doctor later that day.  The doctor confirmed the complainant was suffering from stress and gave her a medical certificate stating she was unable to attend work for seven days.  Shortly after the complainant delivered the medical certificate to the office, she was asked to return the office keys.

The complainant contends that due to the conduct of the respondent she had no option but to leave her employment.  She alleges she was unfairly dismissed and claims redress of compensation for the loss suffered by her.

Preliminary Issue

The respondent submits that the complainant does not have the requisite service to avail herself of the protection of the Act.  The complainant commenced employment on 04 June 2019 and her employment ended on 26 February 2020, less than one year’s continuous service with the respondent.

Substantive Case

The respondent denies that the complainant was unfairly dismissed.  The complainant resigned her position claiming it was reasonable for her to do so having regard to all the circumstances.

The respondent operates as an oil supply company.  The complainant was employed as an office assistant.  Prior to working for the respondent, the complainant worked for J&E Hughes Fuel Oil Limited.  That company ceased trading in early 2019 and the complainant was paid her statutory redundancy entitlement.  The complainant was employed by Moy Fuel Oil Limited from 04 June 2019.

It is denied that Jerome Hughes stopped talking with the complainant.  Further, it is denied that three of the four security cameras in the office were trained on the complainant, and it is denied that there was a delay in delivering oil ordered by the complainant.

The respondent contends that there was never enough work in the office to justify employing another member of staff.  However, the respondent did want the complainant to train a person who could cover the office when the complainant was on holidays.

The respondent submits it is for the complainant to show it was fair and reasonable for her to resign her position without allowing the respondent the opportunity to deal with her perceived grievances.  The respondent cited the following cases in support of this submission.  Coffey v Connect Family Resource Centre Ltd UD1126/2014, A General Operative v A Religious Society ADJ-00002814, Western Excavating (ECC) Ltd v Sharpe [1978] ICR 221, Ruffley v The Board of Management of St. Anne’s School [2017] IESC 33, Employee v Employer UD2428/2010, Higgins v Donnelly Mirrors Ltd UD104/1979, Conway v Ulster Bank Ltd UD474/1981, and Flaherty v College Freight Ltd UD1572/2008.

The respondent submits the complainant was not unfairly dismissed.

CA-00035446-001

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

Preliminary Issue

The Act 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, whether prior notice of the termination was or was not given to the employee,

(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 or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

The complainant alleges she had to leave her job due to the conduct of the employer, or others at work and is therefore claiming she was dismissed as defined in paragraph (b) above. 

Section 2, sets out the exclusions to the protection of the Act as follows:

2.— (1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons: (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him

The complainant must have one years’ continuous service with the respondent in order to bring a complaint of unfair dismissal.  The complainant contends she had continuous service as she worked continuously for over ten years with J&E Hughes Fuel Oil Limited, then worked for “the Jerome Hughes operation” and then for Moy Fuel Oil Limited throughout 2019.  The respondent contends the complainant was made redundant when J& E Hughes Fuel Oil Limited ceased operation in early 2019, thus terminating her employment and did not commence employment with Moy Fuel Oil Limited until 04 June 2019.  Further, at the time the complainant’s employment with Moy Fuel Oil Limited terminated, either 31 December 2019 or 26 February 2020 the complainant had less than one years’ continuous service.

The first question to be decided is whether the complainant had one years’ continuous service with the respondent at the date of dismissal.

Oral Evidence

The Complainant

The complainant described her bookkeeping and administration work with J & E Hughes Fuel Oil Limited since 2009.  The business operated from a premises that included a gated yard, storage facility, pumps and an office located in a portacabin in the yard.  The first eight years of her employment were good but then tensions arose in the workplace, and she received contradictory instructions from the brothers Jerome and Eugene Hughes, the owners.  The business ceased trading in March 2019.  She received notice of termination on 08 March 2019.

The complainant stated that the company accountant asked her to sign a form to be appointed as a director of a new company that was being set up and she told him she would have to think about that.  She stated that the next day Jerome Hughes told her that was not required as his sister-in-law was agreeing to be a director.

The complainant stated that the business premises of J&E Hughes Fuel Oil Limited had closed as there was no insurance in place and so she worked out her notice in the house of Mr Val Hughes.  She was getting the books up to date and collecting debts.  After that she worked from her own home dealing with fuel dockets and invoices and obtaining a fuel licence for Moy Fuel Oil Limited from Revenue.

The complainant stated she moved to the new office of Moy Fuel Oil Limited on 04 June 2019.  Initially she was the only person in the office but was later joined by Pauline Clarke for a period of about six weeks.  The complainant stated that when Ms Clarke left the office was very busy.  She was due to go on holidays for two weeks.  A new person was brought before her leave was due to start and as she had no experience of the accounts system the complainant had to train her.  The complainant stated that she did the payroll before she went on leave and told the new employee all she needed to know.  However, while on leave she received a text from Jerome Hughes requesting the payroll password. The complainant stated that mistakes were made while she was on leave, such as the customs information was incorrect and had to be corrected by her when she returned from leave.

The complainant stated that Corrib Oil was the main supplied to Moy Fuel Oil Limited and some of the statements for Corrib were late.  Mr Tom Connolly, a director of Corrib Oil, came into the office to check on the statements.

The complainant stated she requested time off to attend a medical appointment, but this was refused by Jerome Hughes until such time as the new employee was trained.

The complainant stated that the boss in the new company was Jerome Hughes.  She stated she was told not to tell Mr Val Hughes anything about the business.

The complainant stated that in J&E Hughes Fuel Oil employees got oil at cost price and they got a bonus at Christmas.  These benefits were not provided in Moy Fuel Oil.  The complainant ordered oil for herself, her mother and sister and it took weeks for it to be delivered.  She stated that Jerome Hughes was not answering her calls and eventually the delivery of the oil was arranged by Mr Val Hughes.  The complainant’s mother was elderly and was very concerned about having oil for the winter.  It took eight weeks for the oil to be delivered to her mother.

The complainant stated she asked Jerome Hughes several times about a contract of employment.  She had been offered the post of Office Manager but when she later received a written contract it read Office Staff.  She found out a week later that the new employee was on the same wages and terms and conditions as she was.  The complainant stated that Jerome Hughes would not discuss this and would not talk with her.  He would phone the office and talk to the new employee but not with her.  The complainant also stated that Annette Hughes came into the office but did not talk with her. Instead, she left Post Its messages on her desk.

The complainant recounted how on 31 October 2019 she had to leave the office in a hurry to go to her mother.  The new employee asked for help with an item, this was about five weeks after she was employed, and she was still being trained.  The new employee did not take kindly to being rushed and the complainant was shocked at her attitude towards her.  The complainant stated that Annette Hughes was present at that time.  The complainant rang Jerome Hughes to complain about her treatment by the new employee.  Jerome Hughes came into to the office the next day.  He listened to the complainant and said he would get back to her but did not.

The complainant stated that there was an advertisement in the local paper for an Office Manager in the Ballina area.  She rang the number and was told it was for Moy Fuel Oil.  As this was, she believed, her job she questioned Annette Hughes about the advertisement, but she replied she knew nothing about the advertisement.  A similar advertisement was later posted on a recruitment website and when the complainant rang for information, she was told it was for Corrib Oil.  The complainant was of the view that the second advertisement was in fact for Moy Fuel Oil as Corrib did not have a depot in Ballina.  The complainant raised the advertisement for Corrib Oil with Mr Connolly in December 2019.

The complainant stated that CCTV cameras were installed in the office.  This was brought to her attention by Mr Val Hughes.  There were four cameras in total and the complainant stated that three of them were directed at her desk.  She had not been told security cameras were being installed.

The complainant stated that the meeting with Jerome Hughes and Tom Connolly eventually took place on 31 December 2019.  The complainant wanted to discuss her contract and position as Office Manager.  The complainant stated that Mr Connolly seemed to be the spokesperson at the meeting.  The complainant recounted that she was told there was a new regime in the office, all were office staff and the bitching and backbiting needed to stop.  The complainant stated that she was undermined, told she had no contract, and she should get off her high horse.  When the complainant said she did not see a point in continuing with the meeting she was told to sit down.  The complainant said she became very upset in the meeting and had to leave.   She went to her doctor after leaving the meeting.  Her doctor diagnosed stress and certified her unfit for work for seven days.

The complainant stated that she submitted her medical certificate to the office.  She then received a text message requesting her keys to the office.  The complainant stated that she took the request for her office keys to mean she was dismissed.

The complainant stated that the keys to the office were left back.  She recounted the series of letters sent to her address and to her mother’s address in the following weeks.

The complainant stated that Mr Val Hughes gave her money equal to her statutory redundancy.  In October 2019 Jerome Hughes gave her a cheque from J&E Hughes Fuel Oil Limited for her statutory redundancy payment and she then repaid Mr Val Hughes the amount he had given her in April 2019.

The complainant stated that the meeting of 31 December 2019 was the last straw.  She stated she had been offered the Office Manager’s job, then she was undermined, told she was office staff, the post of Office Manager was advertised.  The complainant stated that everything changed when Jerome Hughes got the company and she did not know why Tom Connolly was involved in the company, but the way she was treated at the meeting on 31 December 2019 was the last straw.

The complainant stated that she got a part-time job and from January to June 2020 she worked three days per week.  Then from June 2020 to December 2021 she worked four days per week.  She was paid the same rate as she was in Moy Fuel Oil.

Cross Examination

In response to questions the complainant described her work in J&E Hughes Fuel Oil Limited.  She was bookkeeper and administrator, taking orders and passing them to the drivers, dealing with Customs & Excise, etc. It was a busy job.  In Moy Fuel Oil she did the same work and had to set up a new computer system.  She had looked for assistance and Pauline Clarke was employed for approximately six weeks. 

The complainant stated that she started with Moy Fuel Oil on 04 March 2019.  Her notice period from J&E Hughes Fuel Oil was worked at the house of Mr Val Hughes.  The complainant stated that after her notice period ended, she worked from her own house until the new office opened on 04 June 2019.  The complainant stated that Jerome Hughes could not be seen to be associated with Moy Fuel Oil before June 2019.

In reply to a question about the relevance of insurance in J&E Hughes Fuel Oil Limited the complainant stated it was relevant because it was the reason the company premises closed.  The premises was no longer insured so the employees could no longer work there.

In reply to a question about whether J&E Hughes Fuel Oil was in liquidation the complainant stated that she assumed that it was in liquidation because at some point she had received a phone call from the liquidator. 

Describing some of her work the complainant stated that Jerome Hughes would come in with delivery dockets and she would put the information from them onto the system.

Concerning the title Office Manager, the complainant stated that she wanted to have the title as she had all the responsibility of running the office and was the manager.  That was the post offered to her, but the unsigned contract given to her later by Jerome Hughes, stated office staff.  The complainant stated that she was unhappy with a few things in the written contract, but Jerome Hughes did not respond to her concerns.  The contract was not signed.

Regarding the set up in the office in June 2019 the complainant stated that with the move into the new office there was a backlog of manual notes that had to be uploaded to the new computer system.  She looked for assistance and Pauline Clarke was employed for approximately six weeks until Jerome Hughes asked her to leave.

The complainant stated that the new part-time employee was to work on invoices, lodgements and orders while she was away on leave.  She stated that she had no problem in giving the payroll password to Jerome Hughes, but she had told him that the payroll was already arranged before she went on leave.  The complainant stated that Jerome Hughes wanted to put himself and the new employee on payroll but, he did not do so.

The complainant stated that she spoke with Mr Connolly and asked to meet because she wanted to clarify what job that had been advertised on the recruitment website.  The meeting, on 31 December 2019. was held in the Moy Fuel Oil office.  The complainant stated that Mr Connolly conducted the meeting but neither he nor Jerome Hughes answered her questions at the meeting.

Concerning the involvement of the landlord of the premises where the Moy Fuel Oil office was located the complainant stated that she had not asked him to get involved with the issues in the business.  She stated there had been an altercation between one of the drivers and Jerome Hughes and the landlord had told them to go outside.  She stated the landlord was aware of the tensions in the Moy Fuel Oil office.

In reply to questions about cheques for the purchase of blinds and computer training the complainant stated that she did not have the authority to sign cheques.  The cheques could only be signed by Stella Orme, one of the directors of Moy Fuel Oil Limited.

Regarding the alleged unreasonable conduct by her employers the complainant stated the unreasonable conduct included, not being spoken to by Jerome Hughes, refusal of an employment contract, her post of Office Manager being advertised, a trainee being paid at the same rate as her, being abused by that trainee, being afraid to ask for time off after she had been granted a half day by Val Hughes and then being abused the following day by Annette Hughes, being undermined and abused at the final meeting on 31 December 2019. 

The complainant confirmed that she did not make a complaint in writing as there was no grievance procedure in the company and she did not know to whom a complaint could be directed. She could not complaint to Jerome Hughes as he was the problem, the directors of the company were Stella Orme and Michael Gallagher, sister and brother of Jerome’s wife Annette Hughes.  The complainant stated there was nobody she could approach to make a complaint.

Pauline Clarke

Ms Clarke stated that she worked for J&E Hughes Fuel Oil Limited from 2011 until 2019, when the company ceased to trade.  There were no problems until about three years before the company closed when tensions started to arise between the two brothers.  Ms Clarke stated she was entitled to three weeks’ notice, and she worked out her notice in the house of Mr Val Hughes.  During her notice period her work included banking, lodgements, approval of Moy Oil tickets and other administrative duties.  After the three weeks she finished work.

Ms Clarke stated that in July 2019 the complainant contacted her and asked her to go back to work in the Moy Oil office.  She stated that Jerome Hughes had agreed to her being employed to catch up on outstanding work.  She was paid at the same rate as she had been when working for J&E Hughes.  She worked there for four to five weeks.

Ms Clarke stated that she worked well with the complainant.  The office was visited on occasions by Val Hughes and Annette Hughes.  The only tension that occurred was when Mr Val Hughes asked her to show him the aged debt report.  Ms Clarke stated that Jerome Hughes was the boss and he told her he did not want her to share information about the business of Moy Oil with his father.  Ms Clarke stated that after that she kept her distance until she finished working there.  Ms Clarke stated she was not aware of any complaints about the complainant.

Cross Examination

In reply to questions Ms Clarke confirmed she had worked for J&E Hughes Oil Limited for eight years.  She stated that the tension that had been in J&E Hughes in latter years had gone when she was working for Moy Oil.  She stated that Jerome Hughes had dropped in tickets for oil deliveries when she was working for Moy Oil.

Respondent’s Evidence

Jerome Hughes

Mr Hughes stated that he had worked with his brother at J&E Hughes Fuel Oil Limited and that they were both directors of that company.  That company ceased trading in March 2019.  He stated that he is not and was not a director of Moy Fuel Oil Limited.  The two directors of Moy Fuel Oil are Stella Orme and Michael Gallagher.  Mr Hughes stated that when Moy Fuel Oil was being set up Stella Orme asked him to help out.  He stated that he recommended employing the complainant and two of the drivers that had previously worked for J&E Hughes Fuel Oil.

Mr Hughes recounted that Moy Fuel Oil had a bad start as the necessary papers were not in order.  As a result of that the company could not trade for two months.  The two drivers went to work for Corrib Oil during that two-month period and they then came back to Moy Fuel Oil.

Mr Hughes stated he was not an employee of Moy Fuel Oil until December 2019.  He stated that up to December 2019 he was in and out of the office of Moy Fuel Oil, helping out, as Stella Orme was working elsewhere and had asked him to help.  Moy Fuel Oil is Stella’s company, she had experience in that business.  He said Stella Orme hoped to give up other work and then focus on Moy Fuel Oil but that was not possible in December 2019.

Mr Hughes stated that he had recommended the complainant to Stella Orme as he had worked well with her in the past.  She had worked for J&E Hughes Fuel Oil until it ceased trading and because the premises of that company was not insured, she had worked out her notice period from his father’s house.

Mr Hughes stated that he had told the complainant she would be the only person in the office of Moy Fuel Oil, but he did not promise her a manager’s position.

Mr Hughes stated that Tom Connolly is not and was not a director of Moy Fuel Oil.  Corrib Oil was a supplier to J&E Hughes Oil and is supplier to Moy Fuel Oil.  Mr Connolly is a director of Corrib Oil.

Mr Hughes stated that it was not true that he did not talk with the complainant.  He stated that he spoke with her any day he was in the office and on the phone.  He said the complainant was always asking about the title Office Manager.  He said he explained she was on her own in the office.  He had instructions from Stella Orme that there was no need for a manager.

Mr Hughes stated that in addition to raising the issue of Office Manager the complainant looked for help in the Moy Fuel Oil office.  He had discussed this request with the company accountant, and it was agreed to take on Pauline Clarke for four weeks.  The complainant and Ms Clarke were good friends and the complainant had recommended her to J&E Hughes Oil some years earlier.  There was not the work there for two people in Moy Fuel Oil, so Ms Clarke was not needed after four weeks.  The current staff of Moy Fuel Oil is two drivers, one office staff full time and one part-time, two days per week at the weekends.

Mr Hughes stated that the Moy Fuel Oil office is located in a building with other businesses.  The landlord of the building operates other businesses from that premises.  The landlord met with Mr Hughes in October 2019.  The landlord told Mr Hughes that the complainant was talking to his staff about issues in Moy Fuel Oil. 

Mr Hughes stated that the complainant arranged the meeting that took place on 31 December 2019.  She had spoken to Tom Connolly to air her grievances, which included the position of Office Manager (she wanted the right to hire and fire staff) and her allegation that Jerome Hughes was not speaking with her.  Mr Hughes stated that the meeting was attended by himself, the complainant and Tom Connolly.  The meeting lasted about ten minutes and the complainant did most of the talking.  The complainant spoke mainly about the Office Manager position, the delivery of her oil.  The complainant left the meeting because of the Office Manager position.

Mr Hughes repeated he was not a director of Moy Fuel Oil, and he was not responsible for Moy Fuel Oil

Cross Examination

In response to questions Mr Hughes confirmed that J&E Hughes Fuel Oil Limited was now in liquidation.  He stated that Jerome Hughes Oil was not set up.  He stated that when J&E Hughes Fuel Oil Limited ceased trading an accountant had suggested that each of the directors set up their own company, however Jerome Hughes Oil was not proceeded with and had not traded.

Mr Hughes stated that he was not aware of any proposal to ask the complainant to become a director of Moy Fuel Oil Limited, or any other company.  He had no knowledge of a meeting having taken place with the company accountant about a directorship.

In response to questions about the establishment of Moy Fuel Oil Limited Mr Hughes stated that Stella Orme, his sister-in-law, had worked in the oil business for thirty years.  A few days after J&E Hughes Oil ceased trading he was asked by Stella Orme if it was possible that she could get back into the oil business.  He stated that Stella Orme just happened to have a company ready to go at that time.  The new company was established as Moy Fuel Oil with two directors, Stella Orme and Michael Gallagher.  Mr Hughes stated that Mr Gallagher was in other businesses and was able to get business for the new company.

Regarding work for Moy Fuel Oil being carried on from his father’s house Mr Hughes stated that he was not aware of such work being done.  Mr Hughes stated that he helped out by doing deliveries on some days.  Corrib Oil had provided trucks that were sometimes parked at his home or at the Corrib Oil depot.  Moy Fuel Oil had no licence to operate before June 2019 and so any delivery tickets were for Corrib Oil.

Mr Hughes stated that the complainant engaged with Revenue to obtain the licence for Moy Fuel Oil to operate.  As Moy Fuel Oil was unable to operate before it had the licence any dockets were for Corrib Oil.  Mr Hughes stated that after the Moy Fuel Oil office opened, he would call in two or three time a week, but he was just helping out.  He stated he was not working every day for Moy Fuel Oil until December 2019, when he began to be paid.

Concerning his father’s involvement with Moy Fuel Oil, Mr Hughes stated that his father was not involved with that company.  His father is retired now having been in the oil business all his life.  When he was in the office, he was just passing the time.

Concerning his wife being involved with Moy Fuel Oil, Mr Hughes stated that his wife is employed full-time in a bank but at that time she was on sick leave.  She did call into the office from time to time as she had been advised by her doctor to get out in public as part of her recovery.  She might have left notes from time to time in the office.

Regarding the employment of the complainant, Mr Hughes stated that he approached the complainant and asked if she would apply for a position in the office.  He had not been in a position to promise the complainant anything.  Moy Fuel Oil is Stella Orme’s company, but she was working elsewhere, and she left it to her sister, her son and himself to help out.  Ms Orme’s son was a student and he helped out during his academic holidays and some weekends.  The office needed cover when the complainant was not there.  Because the office needed cover when the complainant was away on holiday a part-time employee was taken on.  The new employee was trained at bookkeeping but didn’t know the office procedure in Moy Fuel Oil.  She needed training in the office procedures, but the complainant did not want to train her, saying she was not paid to train other staff.

Regarding the advertisement that was placed in the local paper, Mr Hughes stated that he did not know who had put the advertisement in the paper.  He stated that the title Office Manager in the advertisement may have been a misprint.  What was needed was a part-time office person to cover leave and weekend times when the complainant was not in work.  There were no replies to the advertisement that had been placed in the paper.  He was aware that Corrib Oil was buying a filling station in Ballina, and they had an arrangement with a recruitment website, and it was agreed that Corrib would look out for someone suitable for Moy from their advertisement on that website.

In reply to questions about the interaction with Tom Connolly, Mr Hughes stated that his wife told him that statements for Corrib Oil were late, and Mr Connolly was concerned about payments to Corrib Oil.  In his view, it would not be unusual for Tom Connolly to be concerned about late statements as Moy Fuel Oil was a new company and Corrib Oil was a supplier providing substantial credit facilities. 

Mr Hughes stated that there was no problem with the complainant’s work in J&E Hughes Fuel Oil, that was why he recommended her for the position with Moy Fuel Oil.  However, a few issues arose in Moy Fuel Oil, for example a phone bill not paid on time, when she went on holidays she told Revenue she would be away but didn’t tell anyone in the office she had been in contact with Revenue, and she had not put herself on the payroll until 16 August 2019.  Mr Hughes stated he did not have the authority to sign company cheques, only Stella Orme could sign cheques, she pre-signed cheques and left them with the complainant, some may have been for her wages while others were for a computer course, office blinds and training course.  Mr Hughes could not explain why these purchases were made.

Mr Hughes stated that the complainant was not a troublesome employee, he said they thought the world of her, they even went to the Accident & Emergency department with her when her partner was involved in an accident.  Mr Hughes stated that he was not frustrated by the complainant, but she had repeatedly raised the title of Office Manager.

Regarding the meeting that took place on 31 December 2019, Mr Hughes stated that the meeting was arranged by the complainant.  He stated that Mr Connolly was there at her request, and he was just trying to help out.  Ms Orme was not there and did not get involved in meeting staff.  Mr Hughes stated that the complainant did most of the talking at the meeting and her main issue was being the Office Manager rather than office staff.  Mr Hughes stated that he had not stopped talking with the complainant, and he did not have a problem with her talking with his father.  He had said to her not to give information about the business on paper to his father to take away from the office, for example information about debtors’.  The complainant left the meeting after about ten minutes.  Mr Hughes stated that the meeting was heated because things didn’t go the complainant’s way.  In reply to a question, Mr Hughes stated that the complainant was not told to get off her high horse, but she was told to calm down.

Mr Hughes stated that the complainant’s sister left the sick note into the office while the part-time employee was there.  Mr Hughes stated that neither he nor his wife Annette, had keys to the office.  There were only two sets and the complainant had those.  He had asked for the complainant’s keys that day to lock up the office.  Mr Hughes stated that his wife had only left notes in the office during office hours when there were staff in the other companies in the premises, she did not have keys to the office.  Mr Hughes stated that he was aware of the complainant’s sick note when he texted her requesting the office keys.  Mr Hughes confirmed he had signed the subsequent correspondence to the complainant in early 2020, at which time he was employed by Moy Fuel Oil Limited.

In reply to a question about paragraph 11 of the respondent’s submission, which states, “Jerome Hughes continued trading as the Respondent referred to above”, Mr Hughes replied that statement was incorrect. 

Mr Hughes confirmed that the complainant was employed on the same terms and conditions as in J&E Hughes Fuel Oil, the terms were agreed between him and the complainant, he having consulted with Ms Orme about the terms.

Tom Connolly

Mr Connolly stated that he had been in the oil business for thirty-five years with Corrib Oil, selling oil to wholesalers, agriculture and the public.  Corrib Oil supplied oil to J&E Hughes Fuel Oil Limited for a good number of years but it was not their sole supplier.  Mr Connolly stated that J&E Hughes Fuel Oil had ceased trading as there were domestic problems and the company had failed to get insurance, the company closed overnight.  Following the overnight closure customers of J&E Hughes Fuel Oil were in contact with the drivers of J&E Hughes about the supply of oil to them.  Corrib Oil did not cover Ballina and Belmullet.  Corrib Oil agreed to employ two drivers and supply oil to those areas.

Mr Connolly stated that J&E Hughes did not owe much money to Corrib Oil when it ceased trading.

Mr Connolly stated that the complainant never worked for Corrib Oil, and he had no dealing with her when J&E Hughes Fuel Oil ceased trading.

Mr Connolly stated that he was not a director of Moy Fuel Oil Limited.  In an emergency Corrib Oil had taken over deliveries to previous customers of J&E Hughes by supplying two trucks and employing two of the drivers who had worked for J&E Hughes.  Moy Fuel Oil was a new company being formed, he had been a caretaker only for a few weeks between March and June 2019.  Mr Connolly stated that he never met the complainant between March and June 2019 and that she had never worked for him.

Cross Examination

In reply to questions about the operation of Moy Fuel Oil in May and June 2019, Mr Connolly stated that he was a supplier to the company and as a supplier he was overseeing a new company whose directors were Stella Orme and Michael Gallagher.

In reply to a question about a connection between J&E Hughes Oil and Moy Fuel Oil, Mr Connolly stated there was no connection.  There were two drivers who had worked for J&E Hughes Fuel Oil who contacted him in May 2019.  One of the drivers told him that he was going to work for a new company, Moy Fuel Oil, and told him who was involved.  Moy Fuel Oil would be buying oil from Corrib Oil, and he was asked to come in on the operations side on a weekly basis, in an advisory capacity.  Mr Connolly stated he was invited by Stella Orme in a phone conversation.  It was agreed that Corrib Oil would supply lorries in May and June 2019.  Moy Fuel Oil Limited then bought their own lorries in June 2019. 

Regarding checks on the new company, Mr Connolly stated that he did a credit check.  The drivers were bringing in customers and collecting money from the customers.  Invoices were issued from Corrib Oil in Galway.  When the Moy Fuel Oil office opened in June 2019, Mr Connolly would collect cheques for Corrib Oil each week. 

Mr Connolly stated that the first time he met with the complainant was in June 2019 in the Moy Fuel Oil office, when he went there to collect cheques for Corrib Oil.  Mr Connolly stated that he had no issue with the complainant until just before Christmas 2019.  In December 2019 the complainant asked for an office meeting with Mr Connolly.  He stated that he agreed to meet but he did not know what the agenda was for the meeting.  The attendees at the meeting were the complainant, Jerome Hughes and Tom Connolly.  Mr Connolly stated the main issue was the position of Office Manager.  He stated there was no need for an Office Manager, there was one full-time and one part-time employee, that was all that was needed.

Regarding his requests for information on statements and credit control, Mr Connolly stated that he wanted to make sure Corrib Oil got paid but, there was in fact no issue on payment.  He wanted to ensure that oil was delivered and paid for as he was there in an advisory capacity.  Mr Connolly stated that he did see Jerome Hughes in the Moy Fuel Oil office helping out from time to time, but he denied that he was the main person in Moy.  He stated that he did not know what the relationship was between the directors and Jerome Hughes.

Concerning the advertisement of a post, Mr Connolly stated that Corrib Oil had bought a retail base in Ballina, and he was looking for an assistant for that location.  If he was successful in filling that post it would have been helpful, he thought, if that person could help in the Moy Fuel Oil office.  Mr Connolly stated he was aware that the complainant was asking for extra help in the office.  The advertisement was for a position with Corrib Oil as a filling station was to open soon in Ballina.  Mr Connolly stated that nobody in Moy Fuel Oil knew about the advertisement for the position with Corrib Oil, he had a feeling there was not enough work in Moy Fuel Oil for a second person but if a person was recruited for Corrib Oil, he hoped they could help in Moy if necessary.  In reply to a question that Jerome Hughes had said that he knew this advertisement was going in, Mr Connolly said his answer was that he put the advertisement in for a position in Corrib Oil.  Mr Connolly stated that he did not receive a phone call from the complainant in relation to the advertisement, al least he did not get her name from any of the four or five phone calls he received.  He told all the people who phoned him to send in a CV and he did not receive a CV from the complainant.

Regarding the meeting that took place on 31 December 2019, Mr Connolly stated that the complainant requested a meeting with him and Jerome Hughes.  The complainant wanted to know if she was the Office Manager.  The meeting was short, the complainant’s attitude was if she was not the Office Manager she was out.  The complainant left the meeting, he had asked her to stay but she left. 

Regarding the advertisement that had been placed in the local paper by Moy Fuel Oil, Mr Connolly stated he was aware the advertisement had been placed but the post had not been filled.  He stated he was aware that the complainant was unwilling to train a new part-time employee.

In response to a question about whether Stella Orme was fronting the business for Jerome Hughes, Mr Connolly stated that he did not know anything about that.  He stated that he had not dealt with Jerome Hughes and his father about a company called Jerome Hughes Oil company.  He knew the directors of Moy Fuel Oil Limited, Stella Orme and Michael Gallagher, but he was not close to anything about another company (Jerome Hughes Oil). 

Mr Connolly restated that one of the drivers who had worked for J&E Hughes had approached him as some of the former customers were contacting him about supplies.  He had agreed that Corrib Oil would supply oil for those customers, using Corrib Oil trucks. 

In re-examination Mr Connolly stated that Corrib Oil had no interest in a continuing business as it did not distribute to Ballina / Belmullet.  Customers in that area who had been supplied by Corrib Oil in May/June 2019 later transferred to Moy Fuel Oil.  He stated that he had called to the Moy Fuel Oil office each week as Corrib was providing substantial supplies to Moy.

Annette Hughes

Ms Hughes stated that she did not work for Moy Fuel Oil Limited.  Her sister and brother, Stella Orme and Michael Gallagher, are the directors of that company. She stated that she had left a sticky note for the complainant on one occasion when one of the drivers had asked her for an invoice book.  The landlord of the premises let her in to the office of Moy Fuel Oil and she took an invoice book and left a note for the complainant to say she had taken the book.

Ms Hughes said she was very upset by the statements made by the complainant.  She recounted how she had accompanied the complainant to the hospital when her partner had been in a bicycle accident and had sat with her for over three hours at the hospital.

Cross Examination

In reply to a question about the ownership of Moy Fuel Oil, Ms Hughes stated that her sister Stella Orme is the owner of 100% of the shares in the company and the directors are Stella Orme and Michael Gallagher.  She confirmed that her sister has a lot of experience in the oil business.

Ms Hughes stated that she did not work for Moy Fuel Oil.  She had offered to help the complainant by collecting dockets from one of the drivers, but the complainant had refused her help.  She stated that the complainant had commented that it would not look good if she was on social welfare payments and was seen in the office.  Ms Hughes stated that she had posted some letters for the company but, she had never collected post from or for the company.

Concerning her doing work for J&E Hughes Fuel Oil Limited, Ms Hughes stated that she very seldom helped in that company as she works in a bank and has three children to look after.  Ms Hughes confirmed that J&E Hughes Fuel Oil closed suddenly, and that the complainant worked out her notice period in the house of Ms Hughes’s father-in-law.  Ms Clarke also worked out her notice in that house.  Ms Hughes stated that the complainant and Ms Clarke were working their notice for J&E Hughes Oil, and they were not working for Moy Fuel Oil.

Ms Hughes stated that her husband Jerome Hughes was unemployed from 02 March to 08 December 2019, during that time he had no wages. 

In reply to a question about the number of oil lorries parked at her house, Ms Hughes stated there was one lorry belonging to J&E Hughes Fuel Oil Limited which was taken back by the liquidator of that company and returned to the yard. 

Regarding her husband working for Moy Fuel Oil, Ms Hughes stated that he was not working for that company between March and December 2019.  He helped out from time to time but was not taking any wages until he was employed by the company in December 2019.  Ms Hughes confirmed that her husband had recommended the complainant to her sister Stella Orme. 

When asked to clarify what she meant by helping out, Ms Hughes stated that Jerome Hughes gave advice to her sister Stella Orme and he drove a truck on occasions, but December 2019 was the first time he got wages.

In reply to a question about Jerome Hughes Oil, Ms Hughes stated that there had been a dispute in the family between the brothers and J&E Hughes Fuel Oil ceased to trade overnight.  There was a proposal to set up Jerome Hughes Oil, but it did not work out and it never traded.

Regarding the start-up of Moy Fuel Oil, Ms Hughes stated that her sister rented an office and the office opened on 04 June 2019 to start trading.  Ms Hughes stated that she was off work suffering from stress at that time and following her doctor’s instruction to get out she sometimes went into the office where she had a cup of tea and dropped in some dockets, she was not working in the office.

Darragh Ruane

Mr Ruane stated that he had worked for J&E Hughes Fuel Oil as a driver.

In reply to a question about phone calls from the complainant, Mr Ruane stated that she was in contact with him daily when she was working for Moy Fuel Oil about aspects of the business.  However, it got too much as he was receiving so many calls he stopped answering after a while.

Mr Ruane stated that he was in the business for over 20 years, five years with J&E Hughes Fuel Oil, and a lot of customers knew him.  He would receive calls for orders, deliveries and take the payment from customers.  Then, overnight J&E Hughes Fuel Oil ceased.  He was in limbo. He needed not to lose customers and he needed an income.   He contacted Tom Connolly whom he knew, and he put it to him that he had a backlog of calls to deliver to customers.  It was agreed that he would start working for Corrib Oil and he worked for them for three months.

Cross Examination

In reply to questions, Mr Ruane stated the following:

That he had a work phone and a personal phone, and he did get orders from customers on his personal phone.

That he heard about the new company, Moy Fuel Oil, in May 2019, he did not know anything about it in February 2019.

In reply to questions about a delivery docket with the name Moy Fuel that was shown to him, Mr Ruane stated that it was not a delivery docket, not one of his, as his dockets always has an invoice number with three to five numbers, and he always signed his name on every docket.  There was no number on this document and it was not signed by him.

Mr Ruane disagreed that that Moy Fuel Oil was operating before June 2019, he stated that Moy Fuel Oil commenced operation in June 2019 to his knowledge.

Mr Ruane was shown a series of text messages, from dates in February and May 2019, which might indicate that Moy Fuel Oil was operating before June 2019.  Mr Ruane stated that he had no recollection of any of these messages, they were not on his personal phone.  Others may have had access to the work phone, but he had no recollection of these text messages.

In reply to a question about the accountant of J&E Hughes Fuel Oil, Mr Ruane stated that he knew his name but had not met him.  He stated that he did not know who does the paperwork for Moy Fuel Oil.  Mr Ruane stated that he was not and had not been a director of Moy Fuel Oil Limited.

Mr Ruane restated that he was employed by J&E Hughes Fuel Oil for five years, was made redundant in April 2019.  He then worked for Corrib Oil for three months and is now an employee of Moy Fuel Oil.  He has worked in the oil business for over 20 years and knows a lot of customers, many of them followed him from one employer to another.

Conclusions

There are many conflicts in the evidence presented by the parties in this case.  In deciding the preliminary issue, it is for the complainant to establish that she had one years’ continuous service with the respondent at the date of dismissal.  The complainant contends she had continuous service of more than one year beginning with her employment with J&E Hughes Fuel Oil in 2009 and continuing with Moy Fuel Oil to 31 December 2019, and therefore, she has the protection of the Act to bring her claim of unfair dismissal.  The respondent contends that the complainant commenced employment with Moy Fuel Oil in June 2019 and her employment terminated on 26 February 2020, therefore less than one years’ continuous service.

It is agreed by both parties that the complainant was an employee of J&E Hughes Fuel Oil Limited starting in March 2009.  That company ceased trading in early 2019 and the premises from which it operated closed overnight due to lack of insurance cover.  That company is now in liquidation.  The complainant’s position with that company was declared redundant in March 2019.  The complainant was given notice of her redundancy and worked out her notice period at the home of Mr Val Hughes.  The complainant acknowledged that she received a statutory redundancy payment.  Although, the payment was made in a rather convoluted way.  On the statutory redundancy form, submitted by the respondent, it shows that the complainant was given notice on 08 March 2019 and her employment terminated on 19 April 2019.

The complainant contends she worked throughout 2019 for J&E Hughes Fuel Oil, continued to work for Mr Jerome Hughes as he continued trading and then continued working for Moy Fuel Oil Limited.  Mr Jerome Hughes in his oral evidence stated that Jerome Hughes Oil was proposed but that company did not trade. 

Mr Jerome Hughes stated that he is not and was not a director of Moy Fuel Oil Limited.  The CRO registration for Moy Fuel Oil Limited shows that the company was registered in February 2019, the Director and owner is Ms Stella Orme, and the Secretary is Mr Michael Gallagher.  The details of the company on the CRO register support Mr Hughes’ statement about him not being a director of Moy Fuel Oil Limited.  However, based on the evidence presented I am satisfied that while Mr Hughes was not an employee of the company until December 2019, he was the person most identifiable as being responsible for the start-up of operations at Moy Fuel Oil, he having been asked by the owner, Ms Orme, to “help out”. 

Mr Hughes stated that he recommended the complainant as a suitable person for employment in Moy Fuel Oil.  As there was no evidence that the owner of Moy Fuel Oil was involved in the recruitment of staff, I accept the evidence of the complainant that her employment came about through discussions with Mr Jerome Hughes.  Regrettably, there are no proper records of the complainant’s offer of employment with Moy Fuel Oil Limited, there was only a verbal offer, and a written contract was not offered to her until November 2019, many months after she commenced employment. 

Concerning the offer of employment to the complainant by the respondent I prefer the evidence of the complainant as she was consistent in her evidence.  There were inconsistencies in the evidence given by Mr Hughes and Mr Connolly in relation to the advertising of posts.  Mr Hughes stated that he was not aware of who put the advertisement in the local paper for Moy Fuel Oil and that the use of the title Office Manager in the advertisement may have been a misprint.  I find that statement is simply not credible, this is a small company and Mr Hughes was involved “helping out” each week on behalf of the owner.  Mr Hughes and Mr Connolly differed in their evidence about the advertisement placed on a recruitment website for Corrib Oil.  I am satisfied that the complainant was offered the position of Office Manager by Jerome Hughes.  I am satisfied that the complainant began working for Moy Fuel Oil Limited before 04 June 2019. 

The complainant received notice of redundancy from J&E Hughes Fuel Oil Limited on 08 March 2019.  She worked her notice period so the earliest she could have commenced working for Moy Fuel Oil Limited was 22 April 2019.  The complainant, claiming constructive dismissal, states she terminated her employment on 31 December 2019.  The respondent stated in their submission the complainant’s employment terminated on 26 February 2020.    Using either of those termination dates the complainant was employed by Moy Fuel Oil Limited for less than one year. 

However, it is the complainant’s case that her de facto employment was with the same persons in the same job from J&E Hughes Fuel Oil to Jerome Hughes Fuel Oil to Moy Fuel Oil.  I am satisfied, based on the evidence presented, that the complainant’s employment with J&E Hughes Oil Limited terminated by way of redundancy. 

I am satisfied that the complainant commenced employment with Moy Fuel Oil Limited in April 2019, and she worked for that company initially from her home and then in their office from June 2019.  Evidence was given by Mr Hughes that the complainant engaged with Revenue to obtain the correct documents required for the company to trade, which trade began in June 2019. 

Based on the evidence presented I am in no doubt that the complainant was not well treated by the respondent.  She was not provided with a statement of terms and conditions or a written contract of employment when commencing employment.  Her position as Office Manager was undermined by the placing of an advertisement for an Office Manager, the same position, in the local paper. 

However, I cannot accept the submission that the complainant was employed by the same persons in the same job continuously for over one year.  The owners of J&E Hughes Fuel Oil are not owners of Moy Fuel Oil Limited.  The complainant was made redundant from J&E Hughes Fuel Oil and was paid and accepted her statutory redundancy payment.  Therefore, her employment terminated on 19 April 2019.  The complainant was then employed by Moy Fuel Oil Limited for a period of less than one year.

The complainant submitted that if her employment did not continue the respondent was nonetheless liable for her rights under the Unfair Dismissals Act by virtue of the transfer of an undertaking.  This complaint was submitted under the Unfair Dismissals Act and no reference to a transfer of an undertaking was contained in the complaint form, the first such reference was in the complainant’s reply to the respondent’s submission.  The evidence presented by the complainant did not demonstrate that there was a legal transfer of an economic entity and tangible assets from J&E Hughes Fuel Oil to Moy Fuel Oil.  I am satisfied that the only complainant submitted was that of unfair dismissal under the Unfair Dismissals Act, 1977.

Finding

I have carefully considered the written and oral submissions, the oral evidence and the legal submissions.  I find the complainant’s employment with J&E Hughes Fuel Oil terminated on 19 April 2019 by reason of redundancy.  The complainant was paid and accepted her statutory redundancy payment.  I find that the complainant commenced employment with the respondent later in April 2019, a new company not owned by her previous employer.  I find there was no continuity of employment from J&E Hughes Fuel Oil to Moy Fuel Oil.  The complainant’s employment with the respondent terminated less than one year after she commenced employment, either on 31 December 2019 or 26 February 2020.  Consequently, the complainant had less than one years’ continuous service with the respondent at the time of termination of her employment.  As the complainant has less than one years’ continuous service with the respondent at the time of the termination of her employment, I determine I do not have jurisdiction to adjudicate on her complaint of unfair dismissal.

CA-00035446-001

Complaint submitted under Section 8 of the Unfair Dismissals Act, 1977

I have carefully considered the written and oral submissions, the oral evidence and the legal submissions.  I find the complainant’s employment with J&E Hughes Fuel Oil terminated on 19 April 2019 by reason of redundancy.  The complainant was paid and accepted her statutory redundancy payment. 

I find that the complainant commenced employment with the respondent later in April 2019, a new company not owned by her previous employer.  I find there was no continuity of employment from J&E Hughes Fuel Oil to Moy Fuel Oil.  The complainant’s employment with the respondent terminated less than one year after she commenced employment, either on 31 December 2019 or 26 February 2020.  Consequently, the complainant had less than one years’ continuous service with the respondent at the time of termination of her employment.  As the complainant has less than one years’ continuous service with the respondent at the time of the termination of her employment, I determine that I do not have jurisdiction to adjudicate on her complaint of unfair dismissal.

Continuous Service

Constructive Dismissal

Unfair Dismissal