Complainant

Respondent

Parties

Kate Sheppard

Bacstroke Entertainment Ltd  Trading as Ministry Of Makers

Representatives

Self-represented 

Eamonn Gibney HR Dept

Act

Complaint 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-00045070-001

06/07/2021

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

CA-00045070-002

06/07/2021

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

CA-00045070-003

06/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00045070-004

06/07/2021

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

CA-00045070-005

06/07/2021

The complainant submitted complaints regarding the ending of her employment and accrued leave entitlements; the respondent denied the claims.

The complainant outlined that her employment with the respondent commenced in January 2018, after completing an internship, which had started in October 2017. She was on annual leave when the pandemic hit and was informed that everyone was to go on short-time and then on lay-off. She kept in contact with the respondent about returning to work and possible tenders. She was told to ‘hang tight’. She enquired about her redundancy in August and September 2020.

The complainant contacted the respondent again in May and June 2021 as the country had reopened. She thought that there must surely be work for her. She had seen on social media that the respondent was saying that it was producing furniture. She approached the respondent about doing or designing work as she could do both.

The complainant said that it was frustrating that the respondent had engaged another designer to work for it, part-time. There was work but another designer was doing it. While she was then doing a course, this was part-time, and she could have returned to work. She submitted the complaint to the Workplace Relations Commission and was only then informed that her job was still available.

The complainant said that she moved abroad and commenced an internship in September 2021. She became employed in this role in or around May 2022. She was paid €600 per month as an intern and then €1,000 per month.

In cross-examination, the complainant confirmed the advice she was provided by a Citizens Information Centre.

In reply to the respondent, the complainant said that she had asked the respondent about returning to work and not just about a possible redundancy. She had wanted to go back to work. It was not true to say that she had only looked for her redundancy. The respondent had carried out work in 2021 and not just the charitable work. A contractor had been given the work instead of a full-time employee. It should have been left to her to choose whether to work and lose PUP. She did not accept that her complaint was out-of-time. She had been patient for 18 months to get her job back. The complainant outlined that it was insulting for the respondent to say she was not experienced. She could have done all the jobs. It was her who was trying to communicate and who made the effort.

In post-hearing correspondence regarding annual leave, the complainant outlined that she had not had access to the annual leave system since the 12th March 2020. She outlined that she accrued time off through overtime and weekend work. She also carried over leave from 2018. She believed that she had taken 14 days of annual leave in 2019 and five days in 2020. She had worked considerable overtime in late December 2019 as this was the busy time of year.

The respondent submitted that the complaint form referred to the 15th March 2020 as the date of dismissal, and the complaints were therefore out of time. The complainant had not raised a formal grievance and the respondent did not have an opportunity to engage with the complainant.

The respondent placed the complainant on short-time on the 13th March 2020 and then on lay-off on the 15th March 2020. She was notified that there was no change in the situation in June 2020 and the complainant sought her redundancy in July 2020. The respondent anticipated that there would be work. It then looked to avail of the Employment Wage Subsidy Scheme.

The respondent submitted that the complainant had effectively resigned and was therefore not entitled to notice pay. The respondent was surprised to receive the WRC complaint form and offered the complainant her job back. The respondent stated that there was no dismissal. The complainant was offered to return to her employment on the 1st September 2021, the expiry of section 12A of the Redundancy Payments Act.

The respondent outlined that it had been reasonable to ask the complainant to sit tight. There was little to report to the complainant. The contractor engaged had more skills. One piece mentioned by the complainant was for charity and not billed. The director had completed other, smaller work.

The respondent submitted that the complainant had not been made redundant. Her job was safe, and she remained an employee on the date they received the WRC complaint form. They anticipated that things would pick up from September 2021. It stated that the complainant had received poor advice and she resigned her position. She had not demonstrated efforts to mitigate her loss and had commenced the internship in September 2021.

The respondent stated that it would look at the annual leave issue. The respondent outlined that it was entitled to engage contractors to meet the skills required of work. They had not returned to the same level of business, and it did not make sense to take people off PUP. The events industry was still on its knees.

The complainant’s post-hearing email of the 16th May 2022 was furnished to the respondent, and no response is on file.

The events of this case took place during the Covid-19 pandemic. The respondent and associated companies design and make furniture and props, in particular for the events business. The complainant was employed as a full-time designer.

Like a great many employees, the complainant and other staff were placed on short-time and then on lay-off in March 2020. The Government introduced unprecedented employment supports to keep people in employment during the uncertainty wrought by the pandemic. The complainant availed of the Pandemic Unemployment Payment, while the respondent considered but did not avail of either Wage Subsidy Scheme (initially TWSS and then EWSS).

I accept that the respondent was entitled to place the complainant and other employees on unpaid lay-off. The basis of the case law around the employer’s right to put employees on lay-off revolves around the premise that there was no work to be had. I accept that there was no work to be had during 2020, including over the summer of 2020 when the parties were in contact.

The evidence indicates that there was work to be had in 2021, including requiring the engagement of a named contractor. It is notable that the complainant was left out in the cold, without even being told of the possible work. Even on lay-off, the term of mutual trust and confidence subsists. The complainant was entitled to be consulted about whether she should resume duties, even on a project-by-project basis. The evidence points to the complainant’s skill and there was no assessment of the complainant’s skills to do the project work. In fact, the complainant was doing a part-time course during the pandemic, so the employer ought to have consulted with her regarding the skills required for the project and her then skill base.

Three of the complaints relate to the circumstances around the ending of the complainant’s employment. She considered herself to have been dismissed in 2021, albeit cited the day of lay-off in the complaint form. As part of my duty to enquire, it is my role as adjudication officer to determine whether there was a contravention in respect of the end of the complainant’s employment, pursuant to the Unfair Dismissals Act as well as the Redundancy Payments Act and the Payment of Wages Act (for notice pay). This duty to inquire encompasses the questions of whether there was a dismissal and the nature and date of any such dismissal.

Constructive dismissal – burden of proof

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘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.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health.

Application of the law to the facts – the ending of employment

I accept that a lay-off situation arose in 2020 because of the pandemic. There was work to be had in 2021 and it was entirely inconsistent for the respondent to engage a contractor to carry out work while the complainant was on lay-off. It is striking that there was no conversation with the complainant regarding the pending work and the complainant’s skill base. Indeed, the evidence points to the complainant’s skill, and she was also upskilling during the pandemic on a part-time basis. It was inconsistent with the term of trust and confidence for the complainant to have to read about the respondent doing work on social media, and not being told about it by the respondent.

I find as fact that the complainant was entitled to consider this as repudiation of contract and the ending of her employment. After all, the basis of the lay-off was that there was no work, when there was evidently work. I find that the complainant was constructively dismissed in that the actions of the respondent repudiated the contract of employment and that it was reasonable for the complainant to consider that the respondent no longer intended to be bound by the contract of employment.

This finding of constructive dismissal determines the Unfair Dismissals Act claim, but also those pursuant to the Redundancy Payments Act and the Payment of Wages Act.

CA-00045070-001

This is a complaint pursuant to the Organisation of Working Time Act. It relates to accrued annual leave that the complainant did not avail of and was not paid. The complainant outlined that she had accrued additional leave as time off in lieu. She said that she was not clear how many days she was owed as she did not have access to the system. The respondent has not addressed this point.

It is for the employer to maintain working time records and records pertaining to annual leave. Where there are no records, the burden falls on the employer to demonstrate compliance (section 25(4) of the Act). The complainant gave evidence of outstanding accrued annual leave, which was not paid to her as cesser pay at the end of her employment. The entitlement to annual leave accrued by the complainant prior to lay-off subsisted during the lay-off and is owed as cesser pay at the end of the employment. This subsists arising from the clear and definitive interpretation required by the Court of Justice (see Kreuziger v Land Berlin C-619/16) and relates to the 20 statutory days of annual leave arising from the Act/Directive.

To the extent set out by the complainant, and not rebutted by the respondent, I award redress of €1,000. This is redress for a breach of a statutory right and does not constitute pay or arrears of pay.

CA-00045070-002

This is a complaint for public holidays in March, April, May and June 2020. The complaint was referred on the 6th July 2021. Unlike annual leave (which is due over the course of a leave year and may subsist per the CJEU), the contravention in respect of an unpaid public holiday falls on the day of the public holiday. More than six and indeed 12 months has elapsed since the public holidays in question, so the matter is out of time. I, therefore, find that the complaint is not well-founded.

CA-00045070-003

This is the complaint pursuant to the Unfair Dismissals Act. For the reasons set out above, I find that the complainant was constructively dismissed. The basis of the lay-off was an absence of work. This reflected the situation in 2020 but not in 2021, when work returned but the complainant did not. The basis of the lay-off is undermined by the complete lack of consultation or discussion with the complainant and an actual skill appraisal. Instead, the complainant learnt of the return to work on social media. She then considered herself to have been dismissed, and I find that she was entitled to do so. The date of dismissal is the 6th July 2021, when the complainant submitted the complaint form.

In respect of redress, I note the definition of ‘financial loss’ in section 7 of the Unfair Dismissals Act. I note that the complainant mitigated her loss by commencing a new role in September 2021. I note that the respondent belatedly indicated that it had work for the complainant but only after she had terminated her employment. I note that the complainant had accrued entitlements and per section 7 is due redress for ‘the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973’.

Taking these factors together, I award compensation that is just and equitable of €8,000.

CA-00045070-004

This is a complaint pursuant to the Redundancy Payments Act. This is an alternative to an unfair dismissal. I find that the complainant was not redundant, but work was given to a contractor when it should have been assigned to the complainant, an employee, or that she should have been consulted and considered for the role (including a skill appraisal). I find that the complainant was unfairly dismissed, so she was not, therefore, redundant. I formally find that this complaint is not well-founded.

CA-00045070-005

This is a complaint pursuant to the Payment of Wages Act. It is for notice pay, which falls within the definition of ‘wages’ per the Payment of Wages Act. It is well established that an employee who resigns from their employment is not entitled to notice pay. This applies either via the Minimum Notice & Terms of Employment Act or a notice pay claim per the Payment of Wages Act. It applies even where the employee establishes that they were constructively dismissed, thereby succeeding in the unfair dismissal complaint. It follows that I find that this complaint pursuant to the Payment of Wages Act is not well-founded.

CA-00045070-001

I decide that the complaint for annual leave cesser pay is well-founded and the respondent shall pay to the complainant redress of €1,000, which does not constitute pay or arrears of pay.

CA-00045070-002

I decide that the complaint pursuant to the Organisation of Working Time Act in respect of public holidays is not well-founded.

CA-00045070-003

I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant compensation of €8,000 pursuant to the Unfair Dismissals Act.

CA-00045070-004

I decide that the complaint pursuant to the Redundancy Payments Act is not well-founded.

CA-00045070-005

I decide that the complaint pursuant to the Payment of Wages Act is not well-founded.

Covid-19 pandemic / lay-off / constructive dismissal / annual leave cesser pay