Complainant

Respondent

Anonymised Parties

A Receptionist

A Veterinary Practice

Representatives

Catherine Bourke, Adrian P Bourke Solicitors

In Person on 15.11.22

No Appearance on 20.3.23.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00049855-001

22/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00049855-002

22/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00049855-003

22/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00049855-004

22/04/2022

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

CA-00049855-005

22/04/2022

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

CA-00049855-007

22/04/2022

The Complainant worked as a part-time receptionist for a veterinary practice in the west of Ireland from 5 August 2021 until 7 January 2022 following her dismissal on 31 December 2021.

At the commencement of the second Adjudication hearing date (20.3.23) the Complainant limited her complaints in the following terms:

CA-00049855-001: Annual leave complaint; extant

CA-00049855-002: Public Holiday complaint; extant

CA-00049855-003: (Duplication of CA-00049855-001) withdrawn

CA-00049855-004: (Duplication of CA-00049855-002) withdrawn

CA-00049855-005: Statement of Employment terms in writing, extant

CA-00049855-007: Protected Disclosure Dismissal, extant

At the first Adjudication hearing on 15.11.22,  the hearing was adjourned to allow submissions to be filed by the parties and to allow the Respondent obtain legal advice with respect to all the complaints, but in particular,  CA-00049855-007, the protected disclosure dismissal.

Between the first and second hearing date the Complainant’s representative filed written submissions and the Respondent furnished a statement outlining his response to the complaints within which he disputed all the complaints.

The parties were issued with a hearing notification (of the remote hearing) by the WRC a month prior to the resumed hearing on 20.3.23. Two weeks prior to the hearing the parties were requested by the WRC to furnish a list of attendees and two days before the hearing the parties were issued with an invitation link for the remote hearing.  An email was received by the WRC in advance of the second hearing date in which the Respondent advised the WRC that he would not attend the hearing on 20.3.23 because it was a busy time of year for his business and one of his employees had been involved in a road traffic accident and he was short staffed. The WRC advised the Respondent that in the absence of a postponement request, the hearing would proceed on 20.3.23. On the morning of the hearing the WRC concierge contacted the Respondent by telephone to see if he intended to attend, the hearing and the Respondent said that he would not.

In light of the potential exposure for the Respondent, particularly arising out of the Protected Disclosure Dismissal complaint, the Adjudicator telephoned the Respondent directly (in the presence of the WRC concierge) to confirm that he was not seeking an adjournment. The Respondent informed the Adjudicator that he would not be attending the hearing because he was too busy. The Adjudicator then advised the Respondent that the statements that he had sent to the WRC could not be admitted as evidence because his evidence was required to be taken under Oath/Affirmation. The Adjudicator asked the Respondent if, in light of the fact that it was March - he was busy and short staffed, if he wished for the hearing to be adjourned. The Respondent confirmed that he wanted the hearing to proceed without him and he was not seeking for the hearing to be adjourned. He said he just wanted the matter to be over with.

On this basis the hearing proceeded in the absence of the Respondent.

The Complainant gave evidence under oath

CA-00049855-001: Annual leave complaint;

The Complainant worked 61 days for the Respondent and was entitled to statutory annual leave of 4.8 days. Her daily rate of pay was €100. The remedy sought is €480.00

CA-00049855-002: Public Holiday complaint

The Complainant worked one public holiday for which she was not paid, this was 25 December 2021. The remedy sought is €100.00

CA-00049855-005: Statement of Employment Terms in Writing

The Complainant did not receive a written contract or statement of her contractual terms in writing. The Respondent conceded this at the hearing on 15.11.21. The remedy sought is four weeks salary, at €200 per week because she did not always work on a Saturday. The remedy sought is €800.00.

CA-00049855-007: Protected Disclosure Dismissal

The Complainant started working for the Respondent as a receptionist on 5.8. 2021.

The Respondent had two practices on one county. A main practice in a large town in the county and a smaller veterinary practice in a smaller town. It was in the smaller or satellite practice that the Complainant worked. There were only two staff on duty at any one time, a receptionist and a vet.  The Complainant worked Thursday, Friday and some Saturdays. On the days that the Complainant was not working there was a manager/ receptionist who had been working in the practice for years and there was a vet.

The Complainant was trained in by the main manager/ receptionist who she found very easy to work with. The Complainant was working for two weeks before she met her employer, the Respondent.  When she met him first, she found them to be direct and very straight. In fact it was only when she was dismissed that he became unreasonable to deal with. When she issued the WRC complaint on 29.3.22, he started making things up about what had happened.

When the Complainant first met the Respondent in August 2021, he told her that he’d had difficulties in the past about cash going missing and this was a concern for him. The Complainant assured him that she was very careful with money and that she would make sure that the tills balanced every day. Towards the end of September 2021, the complainant was putting money into the till when she noticed that cash was missing and that the receipts and cash did not tally.  After that she started double printing the receipts. She told the Respondent that she was doing this because she was worried that he thought it might be her. The complainant knew that the only other person who had access to the till which was the vet. When the complainant spoke to the Respondent, he said that he knew that it had been going on. He thanked the Complainant for letting him know.

On her next working day the Complainant found the Vet had completely changed in his attitude towards her. He refused to engage with her in the practice and the Complainant became worried that her boss had told him what she’d reported to him. The vet said things like “the main office don’t need to know about everything that’s going on.”  The Complainant was concerned that unless she said something to Respondent that she would be implicated in wrongdoing. The Complainant couldn’t understand why the Respondent wasn’t doing something about it or at least putting measures in places to prevent it happening.

The next thing that the Complainant noticed was that animal medication was going off the shelf too quickly and didn’t balance in the till receipts. The complainant suggested to the Respondent that she do a stock take and he agreed. But the vet in response to this told her that she was looking for trouble. The Complainant knew that stock was going missing and wasn’t being paid for. The Complainant emailed her boss on the 17th of December arising out of an incident that occurred the previous day.

On the 16th of December, the Complainant caught the vet selling animal medication to a customer, but then putting the cash into his own wallet instead of the till. The cost of the medication was €60 or €70, but there was only €10 put it into the till the rest went into the vet’s wallet. She saw him doing this and asked him straight away what he was doing. He said he was just getting change. He then took €50 out of his wallet and threw it towards the Complainant and said “you don’t know the amount of s**t you just got yourself into.” However, the Complainant knew that there was enough change in the till that day because she’d seen it that morning. So given this very obvious suspicious behaviour and given the fact that the Respondent had told her on the first day that she met him that he was concerned about theft, the Complainant felt obliged to report this to the Respondent. She went outside and telephoned the Respondent and told him what had happened and he said that he knew about this. He said that there was nothing he could do because he couldn’t get a replacement vet because they’re very hard to find in that area.

Following this conversation the Complainant believed that the vet with whom she worked was told about her reporting him. It made working with him to be impossible.  He knew that she had reported him and he became very aggressive and unpleasant towards her.

The working environment became very difficult. At one stage the complainant became upset and the vet said “go outside and cry little girl.” At that the Complainant went outside and rang the Respondent. He told her that the vet didn’t have any respect for women in his own country and so she shouldn’t expect him to respect her.

The atmosphere was very hostile in the workplace but because it was the run-up to Christmas and she needed to be paid wages she decided to just continue on and hoped that the break at Christmas would improve things. But she also felt that she couldn’t remain working under these conditions if they continued. The Complainant was aware that from January onwards she was expected to work a full working week. This was because she had been asked to do maternity cover for the manager/ main receptionist. This had been offered to her the previous September and she had accepted the offer in October 2021.

In September 2021 the manager/main receptionist asked her if she would she take over her work hours (as well as her own hours) when the manager went on maternity leave in January 2022. This would’ve meant that she was employed from Monday to Friday and working some Saturdays. The Complainant confirmed in October 2021 that she would accept the offer. She could not accept it immediately because she needed to see if this would comply with Court orders in her family proceedings. So as far as she was concerned she was supposed to be starting working a full working week from January 2022 onwards.

 On the 31 December 2021 after Christmas, the Complainant got a phone call from the Respondent  who told her that it wasn’t going to work out between her and the Vet. That one of them had to go, and that the Respondent had decided that it was the Vet who needed to stay working. The Respondent told her that she could continue working in the practice until she got an alternative job and that he would give her a glowing reference, but that it just wasn’t going to work out. The Complainant asked them why she was being dismissed when she hadn’t done anything wrong and all that she done was to try to let him know what was happening underneath his nose. However, he just repeated that it just wasn’t going to work out between them and that she would have to get a new job.

The Complainant contends that the reason she was dismissed was because she reported a suspicion and then evidence of theft to the Respondent.

After that the manager/ receptionist rang the Complainant to ask could she cover for her in the first week of January.  Even though the complainant has just been dismissed, as a courtesy to her the manager (who had always been decent towards her) she worked for that first week in January.  She did this because the manager was pregnant and had got Covid. However, she did not relish the prospect of going back to work alongside the Vet. On the Thursday of that week he came into the practice and he asked her to come over and look at his computer on which she saw that her job was advertised on a veterinary website.

The Complainant had not been told that her job was going to be advertised. The Complainant went into work on Friday but left work and did not come back. The reason that she did not come back was because she had been dismissed for reporting a wrongdoing (theft) to her employer.

The reason that was given by the Respondent was that it was not going to work out between her and Robert, but the Complainant is absolutely certain that but for her raising the theft concerns ie the criminal wrongdoing of the Vet with the Respondent, she would’ve remained in her job.

The Complainant emailed the Respondent on the 12th of January, asking what the reasons of the dismissal were.

It was only after the Complainant took the WRC complaint that the Respondent became hostile towards her and complaining that she was difficult, rude to clients, undermined her colleagues and was a fantasist. Up until then both the Respondent and the manager/ receptionist were very happy with her work and the fact that she was asked to do maternity cover for the manager/receptionist evidences this.

The Complainant said that had she kept quiet and not reported the Vet’s wrongdoing to the Respondent she would still be working in the practice. She liked the work and was very upset by what happened.

Following our dismissal, the complainant was initially a bit shaken by the experience, but then she applied to go to college and is now studying a degree course in child-care advocacy, which she likes.

At the first hearing date no evidence was heard however the Respondent conceded that no written contract was issued to the Complainant. The Respondent denied all other complaints.

Applying section 41 (14) of the Workplace Relations Act 2015, as amended, as the findings in this decision will impact third parties who are not party to this Adjudication, I determine that special circumstances exist which allow me to determine that information that would identify the parties should not be published.  

Findings and Conclusions

This Adjudication is based on the uncontested evidence of the Complainant, despite multiple opportunities having been given to the Respondent to engage in the Adjudication process and to allow him to give his evidence (which was declined.)

Based on the uncontested evidence of the Complainant I find as follows:

CA-00049855-001: Annual leave complaint;

I am satisfied that the Complainant has proven on the balance of probabilities that she worked 61 days for the Respondent and was entitled to statutory annual leave of 4.8 days.

I award the sum of €480.00

CA-00049855-002: Public Holiday complaint

I am satisfied that the Complainant has proven on the balance of probabilities, that she worked one public holiday for which she was not paid, namely 25 December 2021.

I award the sum of €100.00.

CA-00049855-005: Statement of Employment Terms in Writing

I am satisfied that the Complainant has proven on the balance of probabilities that she was not provided with a written contract or statement of her contractual terms in writing, this complaint being conceded by the Respondent. Based on a minimum weekly salary being €200, based on 2 days, (because the Complainant was not always obliged to work Saturdays)

I award the Complainant the sum of €800.00.

CA-00049855-007: Protected Disclosure Dismissal

I am satisfied that the Complainant has proven on the balance of probabilities that she made a protected disclosure (by phone and email) of a reasonably held suspicion of wrongdoing (theft) to her employer (the Respondent) and as a result of making that protected disclosure, she was dismissed. I am satisfied that the Respondent shared this information with the Vet with whom she worked and her work situation thereafter became fractious and difficult, following which the Respondent dismissed the Complainant. I am satisfied that had she not made this protected disclosure to the Respondent, it is probable that she would not have been dismissed. I base this finding on the proximity in time between her email to the Respondent on 17 December 2021 and her being dismissed on 31 December 2021 and there being no Respondent evidence to counter her assertion that no other difficulty other than this existed between her making the disclosure and her dismissal on 31 December 2021.

It is regrettable that the Respondent chose not to attend the Adjudication or seek an adjournment (if he was unable to attend) but given that his instructions were that the Adjudication was to proceed in his absence, that it what occurred.

In making an award that is just and reasonable in all the circumstances, I am influenced by the following factors: The seriousness of the complaint, the fact that the Complainant’s employment with the Respondent was for a relatively short period of time ie. 5 months. The Complainant was working part-time (between 2/3 days per week) and no counter evidence to the complaint being provided. I also take into account the fact that the Complainant has made every effort to mitigate the situation that she found herself in January 2022 and I am pleased to note that she is creating a new future for herself in a different field through further education. Taking into account all the circumstances I consider that a just and reasonable award is 1.5 years of salary, based on a two-day working week, ie €15,600.00

Award: €15,600.00

CA-00049855-001.

I find this complaint to be well founded and I award the Complainant the sum of €480.00.

CA-00049855-002.

I find this complaint to be well founded and I award the Complainant the sum of €100.00.

CA-00049855-005

I find this complaint to be well founded and I award the Complainant the sum of €800.00.

CA-00049855-007: I find that the Complainant was unfairly dismissed (for making a protected disclosure) and I award the Complainant compensation in the sum of €15,600.00.

All other complaints were withdrawn.

Protected Disclosure Unfair Dismissal - OWT - Terms and Conditions of Employment