Complainant

Respondent

Parties

Mary-Ellen  Breen

Prestige Services

Representatives

Self Represented

 Administrative Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049296-001

23/03/2022

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

CA-00049296-002

23/03/2022

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

CA-00049296-003

23/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00049296-004

23/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00049296-005

23/03/2022

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

CA-00049296-006

23/03/2022

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

CA-00049296-007

23/03/2022

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

CA-00049296-008

23/03/2022

The Complainant was employed as a Dog Groomer and claims she was unfairly dismissed by virtue of the Respondent claiming they had a fixed term contract relationship which ended and the Complainant alleged she had a full time contract of employment.

The Complainant commenced employment as a Dog Groomer on July 6th 2020. She went on health and safety leave in November 2020 when requested by her employer to do so. She started maternity leave in June 2021 and after the completion of the leave she enquired in November 2021 about getting 16 weeks unpaid maternity leave and received no reply. She visited the office premises in November and there was no one present.   She subsequently spoke to a person who handled payroll and then got a call from the Owner to attend a meeting where she was informed her contract had finished in July 2021 and that the Company had been contacted by social welfare about the Complainant doing dog grooming during her maternity leave and the Complainant asked for proof of this but none was provided,

The Fixed term contract has not been signed by the Complainant or the Respondent.

The Respondent signed a maternity leave form for the Complainant n April 2021 which would entitle her to maternity leave payment on the condition that I am still under the employment of the company throughout my maternity leave.

The Respondent made no attempt to contact the Complainant throughout her health and safety or maternity leave to inform her that her contract was up for renewal nor was she ever made aware that there was a fixed term contract. The first she heard of this was when she met the Owner in November 2021 and only then was she informed that she was no longer an employee of the company and at that stage she was still on maternity leave.

While on health and safety and maternity leave the Complainant accumulated bank holidays and annual leave which she sought payment of as she was not paid for these.

The Respondent relied on the status of a 12 month fixed term contract for the termination of the employment.

The Respondent submitted that proving that the Complainant groomed dogs in late July for a customer of Prestige Mobile Dog Grooming is not relevant at this point.

The Complainant was issued with her core terms of employment within 5 days of her employment commencing. These terms follow the guidelines of the WRC Section 3(1A).

The Complainant was issued the remainder of her terms within 1 month as per requirements. She took these home and never signed or returned them.

The Complainant was issued another copy of the contract in November in a bid to have them signed and filed.

The Complainant was paid her annual leave at end of year for 6 months of her 12-month contract.

The Complainant was not fired, sacked or let go as her contract had expired.

At the time the meeting was held with the Complainant she was not an employee of the company.

The dispute under Section 45a of the 1946 Industrial Relations Act was not pursued at the Hearing.

Two contracts of employment were submitted to the Hearing. The first, a permanent type contract was signed by both parties. This contract was signed by the parties on November 26th 2021 with a commencement date of July 10th 2020. A fixed term contract was signed by a person with a pp signature acting for the Respondent and not signed by the Complainant. It appears that this was an attachment placed at the end of a company handbook or as the Complainant alleged, she never saw it until November 2021. Either way, the only valid legal contract is the signed permanent contract, and the fixed term contract has no legal validity. As a result, the Respondents case that the Complainants employment came to an end by virtue of the end of a fixed term employment relationship has no validity.

The Respondent also set out initially an argument that the Complainants employment was terminated as a result of a breach of company policy that she was doing dog grooming privately while on maternity leave. No proof whatsoever of this was presented to or after the Hearing by the Respondent and the claim therefore has no merit.  It is also very inconsistent that the Respondent provided the Complainant with a permanent contract dated November 26th 2021 and then dismissed her allegedly due to the end of a fixed term contract on November 29th 2021.

Since the permanent contract was terminated unilaterally by the actions of the Respondent the Complainant is entitled to succeed in her unfair dismissal complaint.

With regard to the date of dismissal the Complainant met the Owner on November 29th 2021 and was told the employment relationship had ended. I deem this to be the dismissal date. The Complainant commenced employment in July 2020 and therefore had almost 17 months service however only actually worked for five months of this time due to a health and safety issue due to the use of chemicals while she was pregnant and her legally entitled time on maternity leave. No evidence of the Complainant disagreeing with the decision to take health and safety leave was supplied to the Hearing or raised by the Complainant during her employment and therefore it must be concluded this leave was by mutual consent.  The Complainant sought payment of holiday pay and public holiday pay and payment in lieu of notice. The Complainant worked 28 hours a week at 12 euro per hour with a basic weekly wage of 336 Euros. The Complainant was on health and safety leave or maternity leave from November 2020 to her dismissal in November 2021 and is therefore entitled to holiday entitlement (20 days average pay) and public holidays (eight days average pay) during this period. The average daily pay was approximately 67 Euros per day so the Complainant is entitled to 1344 Euros holiday  pay and 536 public holiday pay. The Complainant is also entitled to one weeks notice pay amounting to 335 Euros.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complainant was not given proper notice of the termination of her employment and is entitled to statutory notice of one weeks pay of 336 Euros compensation. (CA-00049296-001)

The Complainant was not paid her holiday pay due and is entitled to 20 days amounting to 1344 Euros. (CA-00049296-002)

The Complainant was not paid her public holiday pay due and is entitled to 8 days amounting to 536 Euros. (CA-00049296-003).

The complaint under Section 45a of the Industrial Relations Act 1946 was not pursued and no recommendation is required or appropriate. ( CA-00049296-004)

The issue of the change to terms of employment has been dealt with in my findings and there is no need to elaborate further here but there is no merit to compensation directly under this claim number and  I find the complaint is not well founded.  ( CA-00049296-005)

The complaints for not being paid both holiday pay and public holiday pay on leaving employment are essentially duplicate complaints with complaint numbers 003 and 004 above and are therefore not well founded. ( CA-00049296-007 and  CA-00049296-008.)

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. With regard to the complaint for unfair dismissal which has been proven I have given some thought to what is fair in relation to al the circumstances of the employment, the events that unfolded and the actual amount of time spent working by the Complainant (five months excluding her maternity leave). The Complainants employment ended on November 29th 2021 and she took up new employment on January 26th 2022. The Complainant supplied a small number of efforts for getting a new role. The Complainants loss during this period was approximately 2700 Euros. Having considered these factors, I deem that a compensation payment of 2700 Euros is appropriate. I find the Complainant was unfairly dismissed and award the Complainant 2700 Euros compensation for her unfair dismissal. (CA-00049296-006)

Unfair Dismissal