Complainant

Respondent

Parties

Zsuzsanna  Budai

Acd Practice Management Ltd. (Ardrum Clinic)

Representatives

  Self-represented

 No appearance

Act

Complaint

Reference No.

Date of Receipt

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

CA-00048769-001

23/02/2022

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

CA-00048769-002

23/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048769-003

23/02/2022

The Complainant worked for the Respondent (a dental practice) as a receptionist/practice manager. She worked there since 2013, a TUPE occurred in 2016, and she worked for the Respondent since 2016.

The Complainant was earning €3,483 gross (€2,750 net) per month for a forty hour week.

The case involves three complaints. Two of the complaints were contained in the narrative in the complaint form: In line with the Supreme Court case of County Louth VEC V. Equality Tribunal (Notice Party Mr. Pearse Brannigan) [2016] IESC 40, the Adjudication Officer has jurisdiction to hear them.

The three complaints are as follows:

1.       The Complainant submits that she was unfairly dismissed in January 2022; and also that she did not receive fair procedure, or indeed, any procedure.

2.       The Complainant submits that she did not receive her full salary in December 2021.

3.       The Complainant further submits that she did not receive her statutory notice pay.

The Respondent did not attend the hearing. I am satisfied that the Respondent was properly on notice of the hearing.

The Complainant outlined that from her perspective things were ‘okay.’ She outlined that the new owner in 2016, Dr Borbala Csordas, had worked at the practice as a dentist prior to purchasing the business.

She said that when the new owner took over, she gave the Complainant a pay-rise. From her perspective, they had a very good relationship. She said that she had received bonuses at Christmas (one4all vouchers), presents/cards for her birthday, that there had been a staff holiday paid for by the company to Malaga around 2017/2018 approximately.

She stated that she thought the new owner was stressed and suffering with burnout and was missing lots of days at work due to health issues, which had a knock-on effect on the business and its profits. She surmised that the new owner felt under pressure and suggested that perhaps she may have felt offended by the Complainant enquiring when she was returning to work. The Complainant said that she thought she was trying to do her job, but, wonders if the dentist felt offended. She submitted that everyone was depending on their income and the dentist/owner was the main income-producing person. The Complainant said she thought the Respondent company was starting to have money issues. She said that, in the last few months of her employment, she had sometimes been paid late, or not the full amount of her salary and told ‘oh, don’t worry, I will pay the rest’, which sometimes happened and sometimes did not. The Complainant expressed understanding, saying that she “knew it was hard” but “we all try to do our best.” She said that she thought she was “doing great.” “I thought I was helping her [the dentist/owner].”

The Complainant said that, in retrospect, there were signs; that other staff members (including a hygienist and a dentist) had left, amongst other reasons, due to money issues.

She said that on December 7th, 2021, the dentist/owner told her “I may not be able to afford a receptionist from January” and subjected the Complainant to a verbally abusive tirade. The Complainant said that she asked outright: “Am I fired?”

She said that it was very shocking. She said that there was “no discussion, no cup of coffee, no grievance, no disciplinary.” She said that she asked for a dismissal letter, which she never received. She said that was the only conversation – just one conversation, and it took place on December 7th, 2021.

She said that she should have been paid until December 31st, 2021, that she had been promised that she would be, but instead received €750 less than expected – she received €2,000 nett in December, instead of the €2,750 nett, as promised.

In relation to notice pay, she also said that the dentist/owner told her that “she was going to pay me for an extra month”, which also did not happen. The Complainant said that there was no mention of, or recognition of, her statutory entitlements in that regard, and that the promise to pay “an extra month” was represented as a gesture of goodwill.

The Complainant outlined how devastated and shocked she was when she was told out of the blue that she was being fired, that she was subject to a verbally abusive outburst, which in no way matched her experience of her job. She re-iterated that the dentist/owner of the Respondent company had previously told her on multiple occasions how happy she was with her work, that she had received gifts and praise, and previously a pay-rise. She said that she had received both letters and text messages in Hungarian (both persons are Hungarian) praising her and thanking her and outlining how happy her boss was with her work.

She said that she knew that her boss was stressed about the business and financial issues, but she never expected her to make it personal in the way in which she did. The Complainant explained how unfair and unkind she felt her boss’s words and behaviour were, and how hurtful and devastating it was to be on the receiving end of such unexpected behaviour. The Complainant became distressed when outlining her experience and said she felt “so sad about the whole thing” and “I deserve better treatment.”

In response to an enquiry by the Adjudication Officer, at the hearing, the Complainant outlined that she had found new employment as a dentist’s receptionist. She had been on job seeker’s benefit for three weeks before securing a job as a dentist’s receptionist, earning 15 euros per hour on a 32 hour per week contract. She was hopeful that her contract may be increased in the future to 40 hours per week.

No appearance was entered by or on behalf of the Respondent company.

Having reviewed the file, the Adjudication Officer was satisfied that the Respondent was properly on notice of the hearing. On the morning on the hearing, the WRC’s post-registration unit received an email from a man, Mr. Steve Kiss, describing himself as the company secretary of the Respondent company stating: “I wish to inform the WRC that Dr. Borbala Csordas is unable to attend today’s meeting in Cork due to illness.” No supporting documentation of same was supplied. No contact was received from the individual herself then or subsequently. For completeness, the legal Respondent is an incorporated entity.

The Law – Unfair Dismissal – CA-00048769-001

The burden of proof in respect of a claim for Unfair Dismissal is on the Employer: s. 6(1) of the Unfair Dismissal Act 1977 sets out that “subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

It falls to me to determine whether a dismissal is both substantively and procedurally fair.

The Labour Court case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798 wherein the Labour Court stated: “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

I find that the dismissal was substantively unfair.

I further find that the dismissal was wholly procedurally unfair. The Respondent failed to comply with the minimal requirements set out in S.I. No. 146/2000 Code of Practice on Grievance and Disciplinary Procedures in coming to the decision to dismiss the Complainant. The Complainant was given no opportunity to engage with the Respondent whatsoever.

The maximum jurisdiction under the Unfair Dismissals Act 1977 refers to two years’ remuneration, and it refers to all of the elements of an employee’s compensation package, not simply salary/wages. The jurisdiction refers to a monetary amount rather than a temporal period.

I find that compensation is the correct legal remedy in the circumstances of this case, and having regard to the Complainant’s indicated preference.

I am obliged to award a “just and equitable” amount of compensation, in the full circumstances of the case, having had regard to a number of things including the reasonableness of the behaviour of the employer and any mitigation undertaken by the employee, to take account of any losses up to the date of the filing of the WRC complaint as well as future losses.

The Complainant very significantly mitigated her losses, and did so almost immediately, having suffered a grave and unexpected shock. That is to her very great credit. She also suffered an unexpected economic loss, in the run-up to Christmas. I find the manner in which the Complainant was treated to be cruel.

Under s. 7(3) of the Unfair Dismissals Act 1977:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Act, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

The Law – Payment of Wages Act 1991 – CA-00048769-002

Payment of Wages is a fundamental term of a contract of employment. Failure to pay contractually agreed wages constitutes a repudiation of an employment contract.

The Payment of Wages Act, 1991 at s. 5(1) sets out, as follows:

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)    the employee has given his prior consent in writing to it.

The Law – Minimum Notice and Terms of Employment Act 1973 – CA-00048769-003

The Complainant is entitled to four weeks statutory notice, under the legislation, as she had between five and ten years’ service. She received no notice pay.

CA-00048769-001 – Unfair Dismissal claim – I find this complaint is well-founded. I find for the Complainant. I find that she was unfairly dismissed. I direct the Respondent to pay the Complainant €15,000 within 42 days of the date of this decision.

CA-00048769-002 – Payment of Wages claim - I find this complaint is well-founded. I find for the Complainant. The monies outstanding to the Complainant were identified as being €750 nett.  I direct the Respondent to pay the Complainant €815 compensation within 42 days of the date of this decision.

CA-00048769-003 – Minimum Notice claim - I find that this complaint is well-founded. I find for the Complainant. I direct the Respondent to pay the Complainant her statutory notice pay – the equivalent of four weeks’ wages - in the amount of €3,215, within 42 days of the date of this decision.

Unfair Dismissal; Payment of Wages; Minimum Notice;