Complainant

Respondent

Parties

Helena  Davis

Dye and Durham Hibernian Legal International

Representatives

  Self

Catherine Jane O'Rourke Hayes Solicitors with Mary Paula Guinness

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042972-001

09/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042972-002

09/03/2021

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

CA-00042972-003

09/03/2021

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

CA-00042972-004

09/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00042972-005

09/03/2021

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

CA-00042972-006

09/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00042972-007

09/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00042972-008

09/03/2021

The Complainant alleges that she was underpaid during her period of lay-off, was discriminated against by her employer and that her employer breached its’ obligation under the Terms of Employment ( Information) Act.

The Complainant withdrew her claims under CA 42972 – 002, 004, 005,007, and 008

The Complainant commenced her employment with the Respondent in 2018. She enjoyed her work, her job and her team. In or around 2019 there had been a few changes with operation’s managers. The last of three operation’s managers worked very closely with the litigation team trying to assist the team in getting their figures up as there had been concerns about the figures. That went well. A staff handbook was then introduced. The Respondent states that it was just an updated version, but she didn’t have the 2009 copy of it. The Complainant had issues with the drug testing part of it as she was on prescribed medications following an injury she had sustained. She queried that. After discussions with the individual concerned, she decided not to sign it because the Respondent would not give her the name of the doctor who would be taking the bloods. She wanted to discuss her medications with him prior to any bloods been taken. She didn’t want her personal, none work related, information being disclosed to her employers.  Then the team leader who had left, returned and he started to stack a disproportionate amount of the workload onto her. She brought that to management’s attention. As a result of not signing the handbook and complaining about the work load she felt that she was now on their radar, in a negative way. 

Just before her team leader left, she had handed in her notice as she had been offered a job with another firm. He asked her to stay and to do a counter proposal. That coincided with her husband entering into a period of ill health.  She needed to be at home more as a result of that. Her team leader agreed that she could start daily at 9am and do a half day on a Tuesday and finish at 4pm on Wednesday and Thursday.  It was also agreed that she could do 1.5 days remotely. She was happy with that. He then left. That was in late 2019.   In December she was called into the boardroom and was told that the Respondent had got rid of the HR department. The Respondent states that the HR company they used closed but that they used the HR department from the UK. The Complainant didn’t have access to the HR department in the UK. The HR in Ireland was replaced by one individual who was to be available to staff if they needed assistance. She did try to get in touch with her on a few occasions, but she never got back to her.

Covid commencement in March 2020.  She was working from home. She was doing a lot of cold calling trying to drum up business. She returned to the office in May 2020 and that seemed to put an end to the promise that she could do 1.5 days of remote working. She did raise some objection to returning to the office. She was instructed to return, so she did. In 2020 she continued to work in the office even through the pandemic restrictions. At vary stages during lockdown other individuals were allowed to work from home depending on the work that they were doing. She was given the probate work to do. That is something that she could do remotely. So was the marketing. By Christmas 2020 a few things happened that were hurtful. The Complainant’s husband’s Uncle died. She took a day off. The operations managers leave responded by saying she only had one day left. Then the cleaner’s hours were reduced, so the place was not clean. The Respondent denied that, but the building was not clean.  That was worrying especially during a pandemic. It was around that time that the Complainant began to get the feeling that she was going to be let go. The Christmas vouchers were delayed too. They did not get the vouchers until February or March and it was much less than normal.

The Complainant complained about the state of the office. Just after that she was informed by Ms. Mc Dermott that she was being put on temporarily lay off. She asked why her and was told that others were trained up in more areas, so they were needed. Others got a message from Ms. Mc Dermott about it straight after HR inform them, but the Complainant didn’t get any message from Ms. Mc Dermott.

The day she returned (March) she was given work from February and told to get to it as there was a big backlog. She asked if they were so busy why had she been put on temporary lay -off. She did not get a response. The Respondent stated that a large unexpected probate file came in around the time of her return and that was why they were under pressure. The Complainant stated that that was in early February and not in March when she returned. Her probate files were given to someone else and that person was allowed to work from home. She was handed judgement files. She had only three hours training in Judgements. Later on, but not at the time, she was told that the firm was being investigated due to a mistake she had made. An internal investigation was launched. Others had made mistakes in the past and nothing was done about it. Then she was told that there had been a data protection breach when she scanned documents on the scanner. The Respondent stated that the documents had “do not transfer” all over them. The Complainant accepts that but lots of legal documents were scanned. She was informed that the penalty could be as much as €50,000.00. She called the Data Protection Commissioner and was informed that it was only a structural breach and not a data breached and that she would not be fined. She was so upset about that and as a result she failed exams. Then she was informed that she had a breach in relation to a deed poll application. She had e-mailed the information to herself. She was again very upset by that. She felt that it was all a witch hunt.

The Complainant resigned her position with a very heavy heart. She loved working in law. The Respondent wrote to her and asked her to reconsider her position and to invoke the grievance procedure. The Complainant wrote to the Respondent by email on the 3rd June setting out a proposal stating she would work 2.5 days a week, wanted to be reimbursed for January February and balance of Mays wages, wanted the internal investigation discontinued with no finding against her and if so, she would withdraw the WRC Complaint, undertake not to use company equipment for personal use, return to work without ill will to  staff and HR.  That was an attempt at a negotiation. They didn’t negotiate, so she had no choice to leave. She just wanted them to back- off so she could get on with her job.

The employee handbook from 2009 was given to the Complainant when she started her employment. She has confirmed that she received and read it. There were some adjustments made to it in August 2019. Both the original and the updated handbook provide for lay-off.  In relation to the lay off the Respondent took into consideration three things, the number of hours, the department and the ability to cover or assist. The Complainant was informed of that in response to the grievance she raised. The Complainant was encouraged to attend a formal grievance hearing so that she could voice her concerns and so that the Respondent could fully understand her issues. There was a hearing. An outcome was sent to the Complainant. Her grievance was not upheld. She was given a right of appeal in the outcome letter. She did not exercise that right.

In April 2021 Ms. Mc Dermott contact HR to state that there was an issue and requested that the Respondent gain access to the Complainant’s emails. In doing so the Respondent discovered some information that had been sent to her from the Courts also.  Whilst looking for that information they discovered that private and confidential documents had been sent to her personal e-mail address. The Respondent wrote to the Complainant in April in relation to this matter.  She was asked to attend an investigation meeting to discuss the matter. The Respondent did not know the extend of the issue at that time as a full investigation had not been carried out. There was no mention of fines or anything of that sort.

Following the first brief investigation meeting HR were informed that the Complainant was not feeling well and had gone on sick leave.  She was due to return on Friday 21st May. She was informed in writing that the investigation would recommence on her return. The Complainant resigned her position by letter dated the 23rd May. She did reference bullying and harassment and being singled out in the letter. The Respondent replied by asking her to reconsider her position. She then sent the email setting out her wish list. The Respondent also wrote to her setting out the grievance policy and stating that if she wanted to raise a grievance she could do so. She confirmed her resignation.

CA  42972- 001 Payment of Wages

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

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

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

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

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

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

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

unless—

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

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

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

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

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

and

       (iv)        in case the deduction is in respect of an act or omission of the employee, the employee has       been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v)              in case the deduction is in respect of compensation for loss or damage sustained by

the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi)              in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii)           the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

The Complainant did not address the issue of her underpayment during the course of her oral evidence, however she did touch on it in her submission. The Respondent also address the issue is their submissions.

The relevant period in relation to the alleged unlawful deduction was during the period of layoff. I note that the Complainant’s contract provides for layoff.

Clause 1.8 of the handbook states:

“The Company reserves the right to lay you off from work or reduce your working hours where through circumstances beyond its control, it is unable to maintain you in employment”

Therefore, I find that pursuant to Section 5 (2) (i)-(vii)   no unlawful deductions were made from the Complainant’s wages.

The Complaint fails.

CA 42972 – 003 Terms of Employment.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4  or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

The Complainant did not adduce any evidence of changes made to her contract of employment save for the governments pandemic lockdown restrictions placed on the population at various stages during the pandemic.  Therefore, S5 does not apply to her specific circumstances. The complaint fails.

CA 42972 – 006 Employment Equality

The burden of proof which applies to claims of discrimination is well established in this jurisdiction. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision requires the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required her case cannot succeed.

The Complainant was asked at the outset to identify upon which ground/grounds of discrimination she was relying on. She was unable to identify any ground. She was given a further opportunity after giving her evidence to identify upon which ground she says the Respondent discriminated against her. She said “I do not know”. It is on that basis that I find that the Complainant has failed to establish a prima facia case of discrimination against the Respondent. The complaint fails.

CA 42972 – 001 The complaint fails

CA 42972 – 003 The complaint fails.

CA 42972 – 006 The complaint fails.

Discrimination. Lay-off. Unlawful deduction. Terms of Employment.