Complainant

Respondent

Anonymised Parties

A company director/administrator

A landscaping company

Representatives

Michael McGuffin BL

Stephen O’Sullivan BL instructed by Kingsford Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049024-001

05/03/2022

The Complainant was a Director of the Respondent company from the establishment of the company in 2008 until the termination of her employment on the 29th September 2021.  The Complainant claimed that she was unfairly dismissed by the Respondent contrary to Section 8 of the Unfair Dismissal Acts, 1977. 

The Respondent disputed the claim under the Unfair Dismissals Act. 

Preliminary Issue 1:

The Respondent sought a hearing in private and anonymisation of the decision due to special circumstances.  The Respondent submitted that the Complainant and the Respondent were married and had parallel family law proceedings between them which were in camera.  The Respondent submitted that it was relevant and necessary to touch on some aspects of those issues in the Workplace Relations Commission proceedings. 

The Respondent representative stated that while it was accepted that this was an employment law matter between a former employee and the company, matters relating to family law would inevitably come into the discussion and in the context of the protection of those matters and the three young children involved, it was essential that this matter be held in private and that the decision arising from the hearing be anonymised.

Preliminary Issue 2:

The Respondent submitted that Section 2 (1)(c) of the Unfair Dismissals Act provides that the Act shall not apply to “a person who is employed by his spouse … and his place of employment is a private dwelling house or a farm in or on which both the employee and employer reside”.  The Respondent submitted that the Complainants’ claim falls within this exception and that she is not entitled to initiate a claim under Unfair Dismissals Act in those circumstances. 

The Respondent Position:

CA- 00029024-001 – The Substantive Issue

The Respondent outlined that it was a tree surgery company that carries out a lot of work on behalf of local government agencies.  The Respondent submitted that Mr W is the owner of the company and guarantor of company loans.  The company has machinery vehicles and owes debts to banks.  Mr W has 22 years’ experience as a tree surgeon and set up the company in 2008. 

The Respondent submitted that at the time the Complainant was dismissed, the company had 4/5 employees.  The company now has Mr W, one full time employee and one subcontractor.  Mr W pays himself a salary of circa €50,000 gross per annum.  In the financial year 2021 the company made a loss of circa €30,000. 

The Respondent submitted that the Complainant is a primary school teacher for the past 10-12 years and that prior to her dismissal from this employment she worked as a primary school teacher part time.  The Respondent stated that it was not known whether the Complainant continues to work full time or part time or has alternative employment since dismissal. 

The Respondent submitted that Mr W and the Complainant were married in 2010, that they have three children aged 4, 7 and 9 and that in August 2020, unhappy differences arose and Mr W moved out of the family home.  The Respondent submitted that the Complainant worked with the Respondent from 2009 on an ad hoc basis and that she commenced as an employee on the 1st February 2019, by agreement between the Complainant and Mr W.  The Respondent submitted that the Complainant worked an average of five hours per week and her duties included:

·        Sending information to the accountant for pay roll and tax purposes

·        Answering queries and forwarding emails to Mr W

·        Preparing tenders.  Mr W inputted on key issues such as price

·        Organising insurance renewal, dealing with post

The Respondent submitted that the Complainants’ initial place of work was an office leased by the company until October 2020 but that from October 2020 until her dismissal, any work carried out by the Complainant was from the family home.  The Respondent submitted that the Complainants’ gross pay was as follows:

·        2019 - €13,648

·        2020 - €19,076

·        2021 - €19,077

The Respondent submitted that the Complainant did the payroll and gave herself a pay increase in 2020.  The Respondent submitted that this was a unilateral decision and not something that Mr W specifically agreed to.

Evidence given by Mr W under oath:

Mr W confirmed that he was working in the business since it was set up in 1998 and he confirmed that at the time of the dismissal of the Complainant there were 3-4 ground workers employed by the company.  He confirmed that he was in receipt of a salary of €50,000 per annum.  He stated that in 2021 the company ran at a loss.  He confirmed that his wife, during those early years, had worked as a primary school teacher and that she had started working with the company in 2019.  He confirmed that initially his wife worked as a full-time teacher and that then she went part time after the children were born.  He confirmed that he had not lived in the family home since their separation, and he confirmed that the Complainant only commenced employment with the Respondent company on the 1st February 2019. 

The Respondent confirmed that the Complainants’ duties consisted of emails, pay roll, sending hours of work to accountants, ensuring information relevant to payment of wages was done, answering tenders and putting tenders together.  He confirmed that in carrying out these tasks she worked approximately five hours per week.

In relation to the Complainant alleging that she was paid in cash prior to that he stated that there was no cash going through the business, that a lot of the agencies he did business with were semi state businesses and that payments were made by bank transfer.  He stated that the Complainant worked from the family home, that they rented an office for a very short period of time.  He confirmed that the office was rented from mid-2019 to October 2020.  He confirmed that he was out of home from August 2020 and he confirmed that there were a number of proceedings in play including an allegation of assault and a protection order.  He confirmed that initially after he moved out from home in August 2020, he and the Complainant communicated via phone calls and emails but that after the protection order it was by email only, that he couldn’t go to the office and the Complainant would not tell him when he could use the office.

He stated that it was taking anything between 24 and 48 hours for her to respond to emails and that this had a significant impact on the business.  He cited an example of a local authority invoice for work that had not been completed and described the impact of this on the relationship between him and the relevant agency.  He confirmed also that the Complainant did not provide key information such as insurance, to the insurance company, that she wouldn’t take direction and that she was ignoring requests and leaving work until the last minute.  He said that the insurance company sought information in relation to safety and risk and that she did not provide it. 

He confirmed that he still did not have access to the company email, that he had sought this personally and through his solicitor and that it had never been given.  He stated that he had to set up a new email address and had lost business in relation to enquiries that had gone to the old email.  He confirmed that in relation to the company documents that the CRO document was signed by the Complainant without his knowledge or his approval and he confirmed that the Complainant would not provide information for the 2020 tax return and that anything he asked for he was not able to get.  The Respondent further confirmed that the safety documents, staff training records, information in relation to the company set up etc were on the desktop which again was not returned to him.  He said he had no other sources for that information. 

In relation to the Complainants’ spending, he said he had asked the Complainant if she was using the company credit card and that he was concerned that perhaps the credit card was being hacked.  He said there was in excess of €1,000 paid out for trees. 

The Respondent stated that he had difficulty getting access to his own accounts, he had to go into the bank and explain the situation and that it was only then that he saw a bank transfer which was made on the 21st September 2020 to a garage in relation to the purchase of a car.  He said that this was done without his say so or his knowledge.  He said that the Complainant already had a car but that she had bought a new seven-seater car.

In relation to the Complainants’ attempts to get alternative work, the Respondent stated that he was aware that she was working in a school but that he had no details of those arrangements. 

Cross Examination of the Respondent:

The Complainant representative put it to the Respondent that the Complainant had been employed with the company from in or around 2008/2009 to which the Respondent replied that she had been employed on the books since 2019.  The Respondent was asked if he had ever provided a contract of employment to the Complainant, and he stated that it was part of her duties to give out the contracts.  It was put to the Respondent in relation to losses in 2020 that the monies declared did not include cash payments and if such cash payments were declared, to which the Respondent replied that the company does not operate in cash.  The Complainant representative asked the Respondent if he was familiar with the difference between a dismissal and a redundancy and the Respondent replied that no, he was not.  The Complainant representative asked the Respondent if the Complainant had been given any warning regarding conduct that appeared to be of concern and the Respondent replied that he would have sent emails in relation to spending on the credit card. When asked if he had them available, he said that no, he did not have them with him, to which the Complainant representative responded, because they do not exist. 

Re-examination of the Respondent by his representative:

The Respondent representative asked him in relation to the outsourcing, what was outsourced, and he replied that the role previously carried out by the Complainant had been divided up between the accountant and himself and that a friend of his had helped him for a short while and that thereafter he took it over himself. 

Closing submission of the Respondent:

The Respondent representative stated that the Complainant had not provided adequate information in relation to the mitigation of her loss, that there was an onus on the Complainant to mitigate her loss and an onus to seek out work and that she had not demonstrated that she had done this and that in that context she should not receive the maximum compensation available and also that the behaviour of the Complainant in the run up to her dismissal should be taken into account and it should be noted by the Adjudication Officer that she had contributed significantly to her own dismissal.

The Respondent representative further stated that it became impossible for the two parties to work together and that as the work of the company was being done by Mr W, it was imperative that he remain on as the remaining director of the company.  The Respondent stated that the Complainant was a director of the company from the outset but was not employed by the company until later, as set out in their submission.

Family Law issues and proceedings:

The Respondent submitted that there are family law proceedings between the parties, that the Complainant has made an application for maintenance which was due for hearing soon after the WRC hearings.  The Complainant is currently in receipt of maintenance of €160 per week plus contributions to the children’s expenses.  Mr W has issued proceedings for judicial separation and divorce.  Affidavits have been exchanged but the case is not ready for hearing. 

The Respondent outlined that the Complainant had also made a criminal complaint of assault against Mr W in respect of an alleged incident in August 2018 which was due for hearing before the Circuit Court. 

The Respondent submitted that by reason of issues arising in the context of the marital breakdown, it became impossible for the parties to work together and that in order for Mr W to continue to survive and to pay maintenance, it was essential that the company continue to function and that he would stay working for the company. 

The Dismissal:

The Respondent submitted that the Complainant was dismissed by letter of the 29th September 2021.  The dismissal was for redundancy and her role was restructured, however the letter set out a number of issues of misconduct which had rendered the working relationship unworkable as follows:

·        The Complainant was not communicating with Mr W except via email

·        The Complainant was delaying in replying to emails

·        The Complainant was invoicing for work before work was complete

·        The Complainant refused to provide information as required to carry out key company activities eg the company was late renewing its annual insurance because the Complainant did not deliver company safety documentation

·        The Complainant would not provide a password for company email account.  Mr W had to set up a replacement email account and believed he had lost significant business as a result

·        The Complainant would not provide information regarding the company accounts needed to complete it’s 2020 tax returns

·        The Complainant removed a desktop computer from niece’s office and refused to return it to the company

·        The Complainant engaged in personal spending from the company visa statement in the sum of €3,377.38c

The Respondent submitted that the letter also asked the Complainant to return certain items including:

·        Desktop computer

·        All accounting information – including hard copies and soft copies

·        Company safety documentation, risk assessments and safety statements

·        Email password for company email account

The Respondent submitted that at the date of provision of their submission to the Workplace Relations Commission the Complainant had not complied with that request

The Respondent submitted that on the 20th September 2021 the Complainant was paid statutory redundancy of €2,219.00, paid for holiday entitlements of €364, pay in lieu of notice of €700.  The Respondent said it was understood that the Complainant returned those monies because she argued that there was no redundancy. 

The Respondent submitted that he subsequently discovered that the Complainant withdrew €6000 from the business account in September 2020 to buy herself a car.  He submitted that this was without consent from or discussion with the Respondent.

The Respondent submitted that the Complainant was dismissed for redundancy, that the Complainant was not replaced in her role or functions, that the accountant now does the books and vat returns and that Mr W does invoices, quotes and tenders himself.  The Respondent submitted that Mr W continues to work 12 hour days, Monday to Friday and sometimes works at weekends. 

The Respondent submitted that if the WRC concludes that dismissal was not for redundancy, it was submitted that the dismissal was not unfair as being for gross misconduct for the reasons set out in the correspondence to the Complainant.  In the alternative, the Respondent submitted that the Complainant contributed to her dismissal by reason of her conduct.  The Respondent submitted that the Complainant should set out all earnings from any source since the date of dismissal, clarify whether she has received any additional social welfare since her dismissal in particular illness benefit or invalidity pension or partial capacity benefit and that she should also outline all efforts to obtain alternative employment, mitigate her loss since her dismissal.

Without prejudice to the generality of the above, the Respondent stated it is material to ascertain whether the claimant sought full time work as a teacher. 

The Respondent submitted copies of all documentation referred to in their submission.

Post hearing Submissions

The Respondent provided copies of pay slips for the Complainant for the years 2019-2021.  He also provided copies of emails between the parties prior to the dismissal of the Complainant showing their exchanges in relation to some of the issues of misconduct referred to in the Respondent submission.

Complainants’ Response to Preliminary Issues:

The Complainant stated that the Respondent was attempting to muddy the waters, that while it was accepted that the individuals were involved in a family law matter, the Complainant was attending the WRC in the capacity of a former employee taking an employment law matter against a company.  The Complainant accepted that from August 2021 onwards she had worked for a period of time up until her dismissal in the place where she resided. However, she stated that originally there was an office rented for a period of time and that she reverted to working from home in the context of COVID.  The Complainant representative stated that while they understood the question of privacy in relation to the family law matters, this was a matter of an action against a company. 

Post Hearing Submission

The Complainant provided a supplementary submission post hearing in which she objected to the Respondent application for the hearing to remain anonymous.  She confirmed that she wished for the hearing to be public and that she wanted to make clear that she was taking a case of dismissal against a limited company.

She submitted that the hearing was solely a matter of an unfair dismissal claim between an employee and a private company limited by shares.  She submitted that no family law matters arise and that it should be treated as a standard unfair dismissal case.  She further submitted that the claim by the respondent seemed to be an attempt to have the behaviour of the company, in dismissing her without notice, or due process, kept quiet for the sole benefit of the company.

CA- 00029024-001 – The Substantive Issue

The Complainants’ submission consisted of her complaint form and the following documents:

1.      Letter from Kingsford Solicitors to the Complainant containing a letter from the Respondent dated 29th September 2021

2.      An email from the Respondent to Kingsford Solicitors dated 4th October 2021

3.      Letter from Kingsford Solicitors to the Complainant dated 4th October 2021 containing a letter from the Respondent dated 30th September 2021 and enclosures

4.      A letter from the Respondent to the Complainant dated 20th October 2021

In her complaint form, the Complainant outlined that she was employed as a Director of the Respondent company with effect from the 24th November 2008 until her employment was terminated on the 29th September 2021.  She stated that the reason given for her dismissal was redundancy and conduct and she contended that she was unfairly dismissed at that time.  In her complaint form she confirmed that she had taken up employment since her dismissal and that that employment had taken effect on the 19th October 2021.

The Complainant submitted that she worked with the Respondent from it’s establishment in November 2008.  She stated that she and Mr W established the company together and were both directors.  She stated that Mr W was responsible for site locations and that she was responsible for winning contracts for the company via e-tenders website and having the Respondent appointed to County Council panels.  She outlined that she was successful and diligent in her role.

She stated that on the 29th September 2021 she received a solicitor’s letter from the Respondent listing a number of alleged misconduct issues and she stated that these allegations had never been put to her before, either verbally or in writing.  She stated that in the same letter the Respondent also stated that they had chosen to outsource her role and that therefore she was being made redundant effective immediately.  She stated that she was given no right of reply or appeal.  The Complainant stated that there was no redundancy discussion or terms given in the letter. 

The Complainant outlined that she contacted the Respondents’ solicitor via email on the 4th October 2021 asking for documents that had been referred to in their letter but not provided at the time of the issue of that letter.  She stated that the redundancy was based on allegations of misconduct.  The Complainant stated that she wrote again to the Respondent on the 20th October 2021 and that the Respondents’ solicitor replied stating that they acknowledged her letter but would not be engaging further.  The Complainant stated that she had three children and the immediate termination of her employment meant she was immediately placed under severe financial pressure.  She stated that the lack of income placed her under huge emotional stress in trying to maintain herself and her three young children and meet childcare commitments that had been put in place on the basis that she was working.  She stated that she had won contracts with a number of government agencies in September 2020 and in March 2021. 

Additional Representations made at hearing:

The Complainants’ representative stated that the Respondents’ blending of the employment law and the family law issues were totally unnecessary.  He stated that there was a disparity in relation to how to dismiss the Complainant, was she being dismissed as an employee or as a wife, or indeed as it suited.  He stated that the Respondent had listed eight given reasons why the Complainant could have been dismissed and stated that this seemed to be in an effort to have enough reasons to satisfy the requirements to dismiss.  He stated that in the alternative the Respondent was suggesting that the Complainant was been made redundant and that her role was being outsourced and he pointed out that a redundancy relates to a position and not to the person.  He stated that the letter of termination issued to the Complainant came out of the blue and that he wanted to draw attention to the fact that the Complainant was working for nine years prior to her being placed on the books as an employee when she was paid in cash each week.  He said that every employee was entitled to due process and that the Complainant did not receive due process.  He pointed out that she had never received a contract of employment or indeed a staff handbook. 

Complainant evidence given under oath:

The Complainant confirmed that when the company was set up originally in 2008 it was founded by herself and Mr W.  She said that at that time there was a lot of cash paid into the company and that she was paid in cash at that time.  She stated that she had never received a contract and from the founding of the company in 2008 and that the roles grew as the company expanded.  She stated that currently about 95% of the business of the company was semi state but that was not the case at the outset.  She stated that they had won significant tenders in recent years and had been successful to be placed on tender panels and that there was a lot of paperwork involved but they did also engage in private work.  She stated that in the early years the mix of private business to public sector business was 50:50 ratio and she stated that approximately 25% of private businesses would pay in cash.  She confirmed that the company was still successful and that it had won significant public sector contracts in recent times.  In relation to the office, she said that she had worked on a computer in the evenings at home for a small amount of time in the early years and that she had often worked a balance of her hours in her parents’ house.  She also confirmed that any appointments with clients were done in the office space. 

The Complainant confirmed that she did not prevent the Respondent from accessing financial information.  She confirmed that both she and Mr W were authorised signatures on the company accounts, and she noticed that her name had been removed in the run up to receiving the letter of dismissal. 

She said that she was shocked to receive the letter of dismissal outlining eight points that were considered to be inappropriate conduct, that normally the Respondent contacted her by email or text or WhatsApp rather than by phone, due to the noise levels of machinery and due to the fact that Mr W would often be wearing protective ear coverings.  In relation to the invoice that was submitted for work which had not been completed, she said that this was never brought to her attention, but that if it had happened it was merely an error and could have been resolved.  She confirmed that she had never received a warning. 

In relation to insurance, she said that she completed the insurance document every year up to the end of her employment.  She confirmed that she did receive a phone call in July of that year and that she directed the company to make contact with Mr W. 

In relation to the computer, she confirmed that she became aware via the landlord that Mr W had terminated the lease early and that she continued to work from home during lockdown as the children were also in lockdown.  She confirmed that she had used the company account for personal spending, and she said it was an accepted practice within the company and that both she and Mr W engaged in the practice.  In response to questions from her representative she confirmed that she had never received any notice of her dismissal, nor had she received any notice that her position was being terminated.  She confirmed that no procedure had been put in place and that the effect was that she had to immediately address childminding issues.  She confirmed that she had a screenshot in relation to the discussion between her and the Respondent in relation to the purchase of the car.

Cross examination of the Complainant:

The Respondent put it to the Complainant that she was a primary school teacher working part time and she confirmed that she had taken a career break in 2018.  She said she had job shared during the 2021 and 2022 school year and had been working as a substitute teacher intermittently throughout that time.  She confirmed that she was working approximately 12-15 hours in a normal week for the Respondent, and at times when tender work was required that increased to between 20 and 25 hours a week.  The Respondent representative asked her if she had sought alternative hours to fill the hours that she had lost in this employment and she said, no, she could normally balance teaching with her family, but it had been impossible to do so in the context of the pandemic and children not being in school.  The Respondent representative asked her if she was in receipt of any social welfare payment, and she confirmed that she was not in receipt of any social welfare other than child benefit.  The Respondent representative asked her what efforts she had made to look for alternative employment and she confirmed that she had not applied for alternative employment for a period of time because she had childminding issues relating to the pandemic.  The Respondent representative asked her how her pay was determined in the first year of employment and she said that Mr W discussed the appropriate rate of pay with her and that they reached a verbal agreement.  She said payment at that time was small and it was supplemented with cash earnings.  The Respondent representative asked her about those cash earnings and what information was sent to the accountant and she said that she sent the information to the accountant in consultation with Mr W.  She said that the accountant prepared the end of year accounts and that both she and Mr W signed off on those documents.  The Respondent representative asked her if the accounts do not accurately reflect payments made through the business and she responded that they submitted the information to the accountant and that both of them signed off on that information. 

The Respondent representative asked her to confirm that the Respondent did not live in the home from August 2020, and she confirmed that he did not because of their personal issues and she confirmed that relations were not good.  In response to questions from the Respondent representative the Complainant confirmed that herself and Mr W did speak to each other and that they did so by phone.  She confirmed that she knew she had phone conversations with him and some face-to-face discussions; and that as far as she was concerned their working relationship could continue as normal.  She confirmed that she did not provide the password to Mr W in 2021.  She said she was aware that Mr W was unhappy that she was still employed and that she didn’t refuse to give the passwords, she simply didn’t respond prior to her dismissal.  She confirmed that she no longer used the email after her dismissal and that she was aware that Mr W had set up a new email address for the business.  In relation to company information on the desktop, she confirmed that she had not been asked for any information, that she tried to engage with Mr W through her solicitor but that she received no response.  She confirmed that she had no engagement with Mr W since October 2021.  In relation to employment contracts the Complainant confirmed that the accountant did the contracts of employment and gave them out along with the staff handbook.  She confirmed that she had never received one and that she had also never asked for one.  In relation to the purchase of the car, the Complainant agreed that the screenshot which she provided did not necessarily prove that approval was given for the spend, however it would demonstrate that there was a conversation with Mr W presenting options to her in relation to her transport and she confirmed that the vehicle purchased was to be used for both work and personal use. 

The Complainant confirmed that she had worked some hours as a teacher in 2019, that she had been paid in March, but she had not been paid thereafter.  She confirmed that she had worked half time in 2021 and 2022 but that in 2020 and into 2021 she had only had ad hoc substitute teaching and that once the lockdown commenced in January 2021 she was in receipt of no salary whatsoever.  She also confirmed that throughout the summer months of 2020 and 2021 she was unpaid because she was considered a substitute teacher.  She advised that she had a small amount of substitute teaching in Autumn 2021 but that she remained unemployed at the time of the hearing.  She clarified that with childminding commitments and the pandemic she was restricted in taking opportunities to apply for work.

Closing Submission:

The Complainant representative confirmed that the Complainant had never received any complaints in relation to her activities prior to the differences giving rise to the marriage breakup.  He said that Mr W simply wanted rid of the Complainant and that he acted in haste and failed to afford the Complainant due process and that he failed to demonstrate a fair procedure.  He stated that, in that context, he was asking for the maximum amount to be awarded.  The Complainant in concluding stated that she wished the company well and that she was very proud of the work she had done for the company, that she had worked very hard and diligently throughout her time with the company and that she did wish the company every success in the future. 

Post Hearing Submission

The Complainant provided information from her revenue account which showed that her start date of employment was 1st January 2019 and that the end date of her employment was 30th September 2021.  The statements provided showed gross earnings of €19,077.98 in 2019, €19,076.08 in 2020 and €14,712.66 in 2021.

The Complainant also submitted that the issue of her purchasing the car had not arisen prior to her dismissal and she provided copies of text messages between the parties which she stated demonstrated that the Respondent was aware of her intention to purchase the vehicle.  Finally, the Complainant provided a copy of text messages to demonstrate that the Respondent had used a friend to take over some of her duties in an effort to side-line her, prior to dismissal.

Preliminary Issue 1:

I noted the Respondent request that the hearing be in private, and that the decision should be anonymised due to special circumstances.  He submitted that the parties were married and had parallel family law proceedings between them which were due to be held in camera.  The Respondent submitted that it was relevant and necessary to touch on some aspects of those issues in the Workplace Relations Commission proceedings. 

I noted the Complainant position that it was not necessary to anonymise the decision as the instant case related to an employment matter between an employee and a company and that this was entirely separate from the family law matters.

On the day there were no members of the public present or seeking admittance to the hearing, so the matter did not need to be decided immediately.  It seemed prudent to me to consider the question further in light of evidence that might arise in the course of the hearing.

I noted the Complainant position as set out in her post hearing submission and in particular her concern that the Respondent request was aimed at keeping the matter quiet for the sole benefit of the company.

On considering this matter, and in the finalisation of my decisions it became apparent to me that significant amounts of information arose during the course of the hearing that would also form part of the family law hearing.  While the family issues are not a matter for this process, they do form part of information and evidence outlined in this decision.  As the matters in question also form part of the family law case which is held in camera it would not be appropriate to place them in the public domain via this process.  In these circumstances, I have exercised my discretion to anonymise this decision.

Preliminary Issue 2:

I noted the Respondent position that Section 2 (1)(c) of the Unfair Dismissals Act provides that the Act shall not apply to “a person who is employed by his spouse … and his place of employment is a private dwelling house or a farm in or on which both the employee and employer reside” and I noted the Respondent contention that the Complainants’ claim falls within this exception and that therefore, she is not entitled to initiate a claim under Unfair Dismissals Act in those circumstances. 

I noted the Complainant position that she had a number of different work locations throughout her employment with the Respondent, that she worked at times at her parents’ house, that she worked in the office rented by the Respondent and that she only started to work from home during the Covid lockdown as the marriage had broken down and she had to care for the three children.

It is clear from the evidence given that the Complainant worked at home in the “early” years when she was not under contract of employment and that there were times when she worked at her parent’s house.  It is clear from the evidence of the Respondent that he rented an office from mid-2019 to October 2020 and I noted that the Complainant commenced formal employment with the Respondent in February 2019.  I noted that the Respondent moved out of the home in August 2020 and that the Complainant was dismissed in September 2021.  I must therefore conclude that the Complainant, in the main, did not work from her home and that the Respondent was not living in that home at the time of the termination of her employment.

Section 2(1) of the Unfair Dismissals Act states that “This Act shall not apply in relation to any of the following persons…(c) a person who is employed by his spouse, ….and whose place of employment is a private dwelling house or a farm or on which both the employee and the employer reside.”

It is clear to me that the Complainant normally worked at the office of the Respondent and would have continued to do so but for the circumstances of the Covid 19 pandemic and resulting childminding issues.  It is also clear to me that the employer (the Respondent) and the employee (the Complainant) did not both reside in the “dwelling house” at the time of the dismissal, nor indeed, for a considerable time prior to the dismissal.

On the basis of the above I find that the Complainant is not excluded under Section 2(1)(c) from pursuing her complaint.

CA- 00029024-001 – The Substantive Issue

I noted the Respondent position that the Complainant was made redundant by letter of 29th September 2021 and that the letter drew attention to areas of concern in relation to her conduct.  I noted that the Respondent confirmed that the duties carried out heretofore by the Complainant had been distributed between the Respondent, the accountant and, in the short-term, a friend of the Respondent. 

I noted the Complaint position that she was unfairly dismissed by the Respondent by letter of 29th September 2021 and that while the letter referred to making her redundant it weighed heavily on the side of issues of conduct, which the Complainant stated were never raised with her.  I further noted the Complainant position that she had no opportunity to defend herself from those allegations, that no disciplinary hearing took place and that she was given no right of appeal.

It was noteworthy, that at hearing, there continued to be a level of animosity between the parties and it was clear from the Respondent that he had a deal of concern in relation to the impact of the breakdown of the personal relationship on the working relationship.  I noted that the Respondent described, at length, the issues arising from the breakdown in the relationship in terms of legal cases pending and in terms of the Complainants use of company funds.  The Respondent’s frustration in relation to challenges he experienced in accessing information, bank accounts and phone messages was also apparent.  In fact, the Respondent confirmed in their submission, that in the context of the marital breakdown “it became impossible for the parties to work together.”

A genuine redundancy is one where the employer has a real business reason for making the employee redundant e.g., financial difficulties, lack of work, reorganisation, or business closure. It is abundantly clear that these were not the circumstances giving rise to the termination of employment.  It is clear to me, that in keeping with the content of the letter of 29th September 2021 that personal matters, couple with the conduct of the Complainant arising therefrom were the real reasons for the dismissal and that this was not a bona fide redundancy situation. 

I noted that, in the alternative, the Respondent submitted that the Complainant was dismissed for Gross Misconduct, and I noted that the Respondent pointed to the issues of misconduct as follows:

·        The Complainant not communicating with the Respondent except by email

·        The Complainant delay in responding to emails

·        The Complainant invoicing for work not yet completed

·        The Complainant’s refusal to provide information required to carry out key activities such as safety documentation for insurance renewal

·        The Complainant not providing password for company email account

·        The Complainant not providing information regarding the company’s accounts needed to complete it’s 2020 tax returns

·        The Complainant removal of desktop computer from the leased office and refusal to return same

·        The Complainant engaging in personal spending from the company visa account

I noted the Complainant position that she had always had access to the company account and that it was normal practice for her to spend from that account.  I noted the account statements provided by both parties which show that the business account was used frequently for general purchases, though it cannot be determined who made those purchases.  What is obvious is that this was normal practice.

I also noted that the Complainant advised that she had not refused to provide certain information, she had merely not responded to requests, and I noted that she confirmed that if she had invoiced for work before it was complete that she had done so in error and could have rectified the matter if it had been brought to her attention.

In considering the above I believe that the Complainant did act inappropriately as an employee of the Respondent and that, at a minimum she set out to cause difficulties and frustration for the Respondent.  However, frustrating as her actions may have been, I am of the view that a reasonable employer would not have treated these actions as gross misconduct but rather would have addressed them through the progressive stages of the disciplinary procedure.  In reality, I believe these issues would never have arisen but for the breakdown in the marital relationship.  

In carrying out the dismissal the Respondent did not follow anything that resembled a fair procedure, the Complainant was not given any opportunity to respond to the allegations, was not afforded an appeal process and was, in fact dismissed by letter.

In all of the above circumstance I find that the Complainant was unfairly dismissed by the Respondent.

The Complainant submitted that she had commenced employment in 2008 and that she remained in employment until her dismissal in 2021, though she advised that she was paid in cash up until 2019.  The Respondent argued that she had only been in employment since 2019, while she had been a director of the company since the beginning and that the company had never made payments in cash.  The parties also disputed the earnings of the Complainant and both parties provided post hearing information in relation to pay arrangements.

It is clear that the Complainant was working an average of 20 hours per week with the Respondent and was earning €16.55 per hour.  The Complainant was dismissed on 29th September 2021, and due to the pandemic and associated childminding arrangements she remained largely out of work up to the time of the hearing.  Despite this it is established law that an employee who is dismissed must make efforts to mitigate their loss and the Complainant did not provide any evidence of her efforts in this regard.  I have taken this into account in arriving at my decision in relation to compensation for loss arising from this unfair dismissal.

I have found that the complainant’s was not made redundant but that she was unfairly dismissed.  In that context it is my decision that this complaint is well founded.  Under the Act an employee who is unfairly dismissed is entitled to compensation for their loss arising from the dismissal.  Based on the Complainant’s hourly rate of €16.55 per hour, her average working week of 20 hours per week and the duration of her unemployment it is also my decision that the Respondent should pay the Complainant the amount of €13,240 as compensation for her loss.

Unfair dismissal