ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037670
Parties:
| Complainant | Respondent |
Parties | Lorraine Ward | The Cock and Bull Coolock |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00047282-001 | 19/11/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00047282-002 | 19/11/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00047282-003 | 19/11/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00047282-004 | 19/11/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00047282-005 | 19/11/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00047282-006 | 19/11/2021 |
Date of Adjudication Hearing: 13/10/2022
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
There are six complaints in this case as set out above.
One arises under the Unfair Dismissals Act in which the complainant is alleging that she was unfairly dismissed. Other complaints relate to pay and conditions.
The respondent disputes that the complainant was dismissed and for that reason her evidence was heard first. |
Summary of Complainant’s Case:
The complainant gave her evidence on affirmation.
The sequence of events began on Sunday, October 24th when she asked if she could take two days off.
She returned to work on October 27th. The lounge area had been polished by other employees, but she was asked to go over it again.
However, she refused and said she would do other work and told her employer to do it himself. She then left early.
The following day, on her arrival at work, her employer Mr. Clarke locked the door and said he wish to speak to her. He asked her to apologise but she refused, and he said ‘’I’m calling it a day’, telling her that her wages would be made up for her on Sunday. He opened the door and let her out.
She asked for her wages due to be prepared and her job was advertised five days later.
Two weeks later she was contacted and asked whether she was on sick leave. Then she got a text saying her wages are ready and she was asked to sign a letter of resignation.
The complainant gave evidence on various aspect of the monies she said were outstanding to her under the other complaints. |
Summary of Respondent’s Case:
Mr. David Clarke proprietor of the respondent business give evidence also on affirmation. He confirmed in relation to the incident above that he had asked another, new employee to polish the floor but felt the floor needed to be polished again.
The complainant said she was refusing to clean up someone else’s mess and verbally abused the other two female employees and she told a witness that she was going home and digital before her shift ended.
On her return to work some days later, he told her they need to have a chat specifically about how he had been spoken to on that day. He confirms that he did ask her to apologise to the others, but she refused.
Wages were left for her, and she was asked to confirm receipt of the wages and the letter she was asked to sign was merely asking if she was out sick.
A second witness Stephen Breen give evidence also an affirmation for the respondent.
Mr. Breen is the respondent’s accountant. He said that the witness was paid in excess of the national minimum wage, and he give details of her wages in the previous years. He confirmed that the respondent had not provided pay slips in previous years but apart from the amounts conceded below said that no other monies are outstanding to the complainant.
Those relate to annual leave and public holidays
The final witness, Declan Mulholland said he was present in the course of course of the incident on October 24th.
He said he arrived on the premises to hear the complainant shouting at the owner Mr. Clark. When the witness said he laughed the complainant asked him using strong language what he was laughing at. |
Findings and Conclusions:
Turning to the six complaints and addressing CA-47282-001 regarding the national minimum wage the complainant did not provide evidence that her rate of pay fell below the national minimum wage.
The respondent submitted detailed evidence after the hearing which rebuts this complaint, and it is not well founded.
Regarding complaints CA-47282-002 and 004 it was accepted that the complainant was owed a total of €1962, comprising €842 in respect of public holidays and €1120.62 for wages.
The respondent undertook to pay this but, in a follow, up contact by the complainant sometime after the hearing it had not been paid. I have included it in my award. Obviously if it has been paid in the meantime this will discharge the award.
CA-47282-003 relates to payment of notice. The complainant is entitled to one week’s pay in this regard.
In relation to complaint CA-47282-006 which alleged a breach of the terms of the Employment Regulation Order for the sector no evidence was offered and therefore no case was made out.
CA-47282-006 refers to the complaint of unfair dismissal and the events which began with the meeting on October 24th.
The facts are set out above and the evidence of the witnesses was not significantly at variance.
There was an altercation between the complainant and her employer and there was evidence that her conduct left something to be desired. She appears to have shouted and used strong language.
What exactly was then said by the respondent and what he meant by it is less clear. The complainant’s evidence was that he said to her ‘I’m calling it a day’, and then told her that her wages would be available for collection some days later.
He did not confirm this specifically in his evidence, but his version of the event was that the language used by him clearly indicated that if she would not apologise then her employment was being terminated.
The phrase ‘calling it a day’ may be open to a more innocent interpretation but not on these facts and in the context set out above. I conclude and find that he intended to terminate her employment.
It was sometime later (November 11th) that he contacted her inquiring at to what the position was and saying he did not know where he stood This letter contained vague and confused references to a disciplinary process, before finally asking whether she was out sick.
It is impossible to make much sense out of this correspondence and the complainant could be forgiven for being uncertain as to its meaning.
Then for some reason, despite acknowledging that she was owed money he could not find a way to get it to her, even by the time the hearing came around the best part of a year later (and as noted despite his commitment at the hearing to do so he had not some time after it.)
While much emphasis was laid on the complainant’s conduct, and it was followed by complaints from other employees about how they were treated this does not excuse the respondent from having to process that conduct in accordance with the rules of fair procedure and he failed to do so.
He referred, for example to a ‘verbal warning’ having been administered in the November 11th letter but there was no evidence of any process leading up to this.
Essentially, he delivered an ultimatum to the complainant to apologise and terminated her employment when she failed to do so but without even the slightest nod in the direction of a fair procedure.
His letter of November 11th, whatever its purpose some weeks after the event does not change this. All of these facts render it an unfair dismissal and the complaint is well-founded.
Fortunately for him the complainant managed to find work within a couple of weeks which limits her claim for compensation. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaints CA-47282-001 and 005 were not made out and are not well founded.
In respect of complaints CA-47282-002 (annual leave) and 004 (public holidays) I award the complainant €842 and €1120.62, unless this has been discharged since the hearing.
In respect of complaint CA-47282-003 I award the complainant one week’s pay in lieu of notice.
In respect of complaint CA-47282-006 I award the complainant four weeks’ pay. |
Dated: 4th January 2023
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Unfair Dismissal, notice payment of wages |