FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES: SEDA (SKILLS & ENTERPRISE DEVELOPMENT ACADEMY) LIMITED (REPRESENTED BY DAVID COLGAN BL, INSTRUCTED BY MP MALONEY SOLICITORS) - AND - MS MELISSA ANGARITA CARDENAS (REPRESENTED BY MS JENNIFER ANGARITA CARDENAS) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00026583 CA-00039813-001 DETERMINATION: This is an appeal on behalf of SEDA (Skills & Enterprise Development Academy) Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00026853/ CA-00039813-001, dated 2 August 2022) under the Terms of Employment (Information) Act 1994 (‘the Act’). Notice of Appeal was received on 31 August 2022. The Court heard the appeal along with five other related appeals over three days: 14 and 15 February 2023 and on 21 June 2023. The originating complaint under the Act was received by the Workplace Relations Commission on 14 September 2020. It follows that the period comprehended by the complaint is 15 April 2020 to 14 September 2020. Factual Matrix The Complainant is a Colombian national. In 2016 she came to study English at the Respondent language school. On completion of her course, she undertook an internship with the Respondent and commenced employment there on a part-time basis in October 2016. The Complainant’s initial appointment was in the marketing and sales department. She was paid an hourly rate of €9.15 plus commission on sales. The commission element only became payable when a student had paid in full for their course. The Complainant assumed a full-time role with the Respondent as a Receptionist in September 2018. She continued to perform sales for a number of months thereafter also. The marketing element of her role was discontinued in September 2019 when the Respondent hired a full-time employee in that role. On 2 February 2020, the Complainant submitted a number of statutory complaints against the Respondent to the Workplace Relations Commission. She initiated complaints under the Payment of Wages Act 1991, the Terms of Employment (Information) Act 1994, the Employment Equality Act 1998 and the Protection of Employees (Fixed-term Work) Act 2003. The Respondent was notified by the Workplace Relations Commission of those complaints on 7 February 2020. The Complaint was on a period certified sick leave in February 2020. On her return to work on 12 February, the Complainant discovered that she no longer had access to her marketing email account. The Respondent’s explanation for this is that it had been unable to make contact with the Complainant during her sick-leave; as Receptionist, the Complainant had unique access to certain information systems linked to her email address that was password protected; the Respondent was forced to request IT to change the access details to her email account in order to obtain information that was urgently required to assist students in their application to extend their visas etc Separately, the Respondent had a number of concerns arising from the reasons given by the Complainant for her certified sick leave. It had been indicated on the Complainant’s medical certificates that she was suffering from work-related stress. Management, therefore, considered that it would be appropriate to engage with the Complainant on her return to work in relation to her workload to determine if she needed additional supports. The Head of Operations, Mr Stephen Murphy sent the Complainant an email at approximately mid-day on 12 February 2020 inviting her to a meeting on 18 February 2020 to review her workload. It is common case that the Complainant printed a considerable volume of documents on a small printer behind the reception desk throughout the day on 12 February 2020. This was observed by a colleague in the finance department who had reason to go to the stationery store which is behind the reception desk. He told members of management about the level of printing that the Complainant was doing. It appears most large printing jobs in the college were done on heavy duty printers on the second floor. Mr Murphy and Mr Mascarhenas, the Respondent’s CEO, were able to observe this activity from a balcony overlooking the atrium in which the reception area was located. Later that day, Mr Murphy and Mr Mascarhenas approached the Complainant at the reception desk and asked her what she was printing off and placing in her handbag. She gave them permission to look at the printed documents and it was apparent that the documents contained a significant amount of personal data in relation to many of the Respondent’s students. In his evidence, Mr Mascarhenas told the Court that given the unusual nature of what he had observed he felt it necessary to obtain legal advice before deciding what to do next. Having got that advice, he requested Mr Murphy to organise a meeting with the Complainant for 4.15 pm that afternoon to discuss why she had printed off the Respondent’s information and placed it in an envelope in her handbag. Another colleague, Ms Jane Langley was requested to ask the Complainant to attend a meeting at that time with Mr Murphy and Mr Mascarhenas. The Complainant declined to attend the meeting and left her workstation to go outside to make a telephone call. She returned at approximately 4.35 pm and went to see Mr Mascarhenas on the second floor of the building to advise him that she would not be attending the meeting because she hadn’t been given the agenda for it, wasn’t advised of her right to be accompanied and it was by that stage outside her working time. Later that evening, Mr Murphy wrote to the Complainant by email advising her that her employment had been suspended pending an investigation. A disciplinary meeting was held on 9 March 2020 to consider whether or not the Complainant had, unlawfully and without prior permission, accessed and removed for her own use, students’ personal data held by the Respondent. This disciplinary process was not concluded on 9 March 2020. The Covid-19 pandemic then intervened and the Complainant remained under suspension until she was put on lay-off, along with all staff from 6 April 2020. The Complainant resigned her employment in July 2021. Submissions The Complainant submits that she received a written fixed-term contract of employment dated 21 May 2019 in respect of the period 11 March 2019 to 7 March 2020. The contract provided for an annual salary of €21,000.00. The Complainant did not receive any written statement of terms and conditions following the expiry of the aforementioned contract. The Respondent’s representative conceded at hearing that the Respondent had neglected to issue the Complainant with statement of terms and conditions following the expiry of her fixed-term contract on 7 March 2020. However, the Respondent did not formally withdraw the appeal. Discussion and Decision The Respondent concedes that it did not comply with the requirements of the Act in so far as it neglected to issue the Complainant with a written statement of terms and conditions in respect of her employment after 8 March 2020. It follows that the Respondent’s appeal cannot succeed. The Court measures the appropriate compensation payable to the Complainant under the Act at €1,611.00. The decision of the Adjudication Office is varied accordingly. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
