Complainant

Respondent

Parties

Rodolpho  Dos Santos

The Dublin Lager Company T/a Larkin's Brewing Company

Representatives

Tony Mclynn T&N McLynn Solicitors

Anna Butler Peninsula Group Limited

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-00047739-001

20/12/2021

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

CA-00047739-002

20/12/2021

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

CA-00047739-004

20/12/2021

The Complainant alleges that he was unfairly dismissed from the Respondent Company and that the Company unlawfully deducted money from wages due to him. The entire complaint is denied by the Respondent.

The Complainant is from Brazil. He has a law degree from that jurisdiction, and he has been studying English here for 3 years and is also qualified as an accountant here in Ireland. He applied for a job with the Respondent in the summer of 2019. However, he was in college at the time and his timetable wouldn't allow him take up the position. One year later he was approached by the Respondent who asked him if he would like another interview. He was successful at interview and entered into employment with the Respondent under contract dated 1st June 2020. He was provided with all the Respondent procedures and the employee handbook.

 His role was as office manager and production coordinator. This contract was also subject to a 6-month probationary period. On 10th November 2020, the Complainant received an email from Mr. Fahy which set out that his probationary period was being extended for a further 5 months. At some stage in February 2021, the complainant’s visa was about to expire. Also, his current role of office manager was one that was excluded in relation to the visa requirements. The Complainant informed to Mr. Fahy of this at the meeting. The Complainant denies that he was asked to carry out a new role in relation to Brazil and Portugal. He also states that he never withdrew from that role as he never had it to withdraw from. . The title changed but he carried on doing the same duties as before.  He states that the only thing he was asked to do by Mr. Fahy was to continue on doing the duties he was already doing but as the Complainant visa requirements were that he had to be employed in a role that attracted a salary in excess of €28,000.00. On that basis Mr. Fahy agreed to increase his salary to €28,000.00 He was never paid it.  If the Complainant was to stay on in the company, it was a mandatory part of the visa that the company had to sponsor him. Mr. Fahy said that he would be happy to do that. He asked the Complainant to do out the paperwork for the visa and he would sign it for him. Then in April 2021 Mr. Fahy had a meeting with the Complainant wherein he stated that he was unhappy with his performance in three areas,  English, skills to work tasks and Budgets requests being ignored. Then on the 11th of April there was an email exchange between Mr. Fahy and the Complainant. At the conclusion of the exchange, the Complainant was told that his position was being terminated. A meeting was had between the parties on the 12th of April and confirmation of his termination was given.  However, the Respondent stated that the Complainant could stay on in the position until a new person had been employed. The Complainant remained on with the Respondent until June 2021. When his replacement took over the Complainant was bombarded with text messages looking for information and assistance. Five days after he had left , the new employee asked the Complainant if he would come back to assist him in relation to stock taking an administration duties. The Complainant did that for one day, but he wasn't paid for that day.

The Complainant takes issue with Mr. Sheehan's evidence in relation to the accounts. He stated that from his very first day with the Respondent the accounts were a total mess. He had to reconcile all the accounts from January to June and send them to the accountant. He also had to try and balance the accounts as they were not balanced. The Complainant also contradicted Mr. Sheehan's evidence in that he states that Mr. Sheehan had never complained to him about the state of the bookkeeping

The Complainant applied for jobs starting on the 25th of June. On the 25th of August he got a job and his salary in that role is more or less the same as it was with the Respondent.

CA-00047739-002 Preliminary Application

 The Complainant has alleged that he was not paid, or he was paid less than the amount due to him as “The Complainant was never paid the additional 2000 euro (or part thereof) during the term of the second contract.” Considering that the alleged second contract was due to start on the 17th February 2021, and any payments in relation to same would be made “fortnightly, 1/26 of your annual salary 26 times a year (on the last working day of the month) …”, as per item 7 of the contract, and therefore from 3rd March 2021 onwards, it is submitted that such payments are related to a time period prior to the time limit of 6 months within which the Complainant must lodge his claim.

The Respondent argued that Section 41(6) of the Workplace Relations Act (2015) allows the Complainant 6 months to file his claim.

The Complainant was required under Section 6(4) of the Payment of Wages Act 1991 and Section 41(6) of the Workplace Relations Act 2015 to notify the Workplace Relations Commission of this complaint by no later than 2nd of September 2021.

 The Respondent relied on the High Court Judgement in HSE -V- Mc Dermott [2014] IEHC 331 and the portion of Hogan J’s decision that stated:

“For the purposes of this limitation period, everything turns, accordingly on the manner in which the complaint is framed by the employee. If for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January 2014 onwards and which is presented to the Rights Commissioner in June 2014 will still be intime for the purposes of S. 6(4).If, on the other hand, the complaint was to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of her time.”

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Mr. Cillian Fahy after taking the affirmation gave his evidence as follows:

The Respondent is a small family run company which is involved in micro brewing. They started trading in March 2018. Shortly after they advertised the position of “office manager” as they needed someone to help them run the business and do the bookkeeping. The Complainant came in for interview however he was not employed for approximately one year as he was studying at the time.

The Complainant commenced his employment with the Respondent in the role of “Office Manager and Production Coordinator” on the 1st of June 2020. His salary was €25,000 per annum. The complainants, terms and conditions of employment contained a probationary clause which stated “an initial probationary period of 6 months running from the employment date that may be extended for a further 5 months. Should the company decide to terminate your employment during this period, the standard disciplinary clause of this contract will not apply and employment may be terminated on one month's notice by you or the company”

The Complainant was employed as a qualified and experienced professional who claimed to have experience in administrative and financial process and proficiency in financial and administration skills in line with his position as he graduated in accounting and finance at ICD. There where issues throughout 2020 with the Complainant’s performance. The Complainant was informed regularly about these issues. Mr. Fahy spoke to the company accountant who stated that he would talk to the complainant about carrying out essential tasks, weekly invoicing and bank reconciliations. It was those issues that led to the Complainant’s probationary period being extended. At times it was like the Complainant did not know what he was doing. His probationary period was extended on the 10th of November 2020. The Respondent provided access to webinars on software and accounting to the Complainant in order to help him improve. He also had full access to the Company accountant. Email correspondence between the parties reflects this position.

In December 2020, the Complainant suggested the creation of a new role in order for the company to enter the Brazilian and Portuguese market. This role was to be called international business sales executive Brazilian market. The Respondent was extremely interested in the proposition as it meant that they would be able to expand further into two new territories and due to the fact that the complainant’s first language was Portuguese, it was a big advantage. The Complainant’s salary was increased by €2,000 to €27,000 per annum. The terms and conditions of employment reflecting this new role were signed by the Complainant and by Mr. Fahy on the 25th of January 2021. The new role was due to commenced on 17th of February 2021. However, on the 25th of January, the Complainant withdrew from the proposed new role of international business sales executive informing Mr. Fahy that he wished to remain on in his existing role. The Complainant told Mr. Fahy that he would continue to use the new contract in respect of business sales executive for the purpose of his employment permit. The Complainant did not perform any tasks under the new role but reverted to his existing role and therefore the salary was not increased. Unfortunately, there was no improvement identified by the Respondent in relation to the Complainant’s performance during the extended probation period. At the end of March, the Complainant met with Mr. Fahy in order to discuss the issues with his performance. Following that meeting, it was agreed that the Complainant’s position would be terminated. However, at that time the Country was in the middle of government restrictions in relation to the pandemic and for that reason alone, the Respondent stated that the Complainant could remain on in his position until he found an alternative employment. The Respondent emails the Complainant on the 11th of April 2021 sets out that position.  The Respondent allowed the Complainant to set his own notice period in that regard.  The Complainant’s last day of employment with the Respondent was the 25th of June 2021. The Respondent stated under cross examination that the Complainant was excellent at collecting money and he was a very nice guy so he had no difficulty letting him stay on until he got alternative employment.  The Complainant contacted the Respondent following his departure from the company requesting a letter stating that he had been made redundant. That was for the purposes of his work permit. However, he had not been made redundant and therefore no letter issued.

Mr Jerry Sheehan after taking the affirmation gave evidence as follows:

He is the Company accountant. He was contacted by the Respondent in early 2021. They were to file returns. He requested the Complainant to send over all the relevant accounts so that the returns could be prepared. When they arrived, they were full of errors and the standard end of year report was not done. A list of the issues was compiled and sent to the Complainant. He had to spend a substantial amount of time working on the accounts to get them up to speed. That cost the Respondent additinal sums. Having reviewed the Complainant’s work it did not reflect someone who had accountancy qualifications.

Mr. Dillon Sturdy after taking the affirmation gave evidence as follows:

He has worked with the Respondent since May 2021. He is the head brewer. He noted that there were performance issues with the Complainant in relation to Orders. This led to wastage which in turn cost the Respondent.

CA 47739 -002

The Respondent states that this claim is statute barred based on the fact that the Complainant did not file his complaint until the 20th December 2021. Had, which is in dispute, the Complainant actually taken up this role, he would have been due to be paid the additional sums two weeks after the contract commenced. The Contract was due to commenced on the 17th February therefore his first payment would have been due on the 3rd March. Whilst the Respondent makes a good argument in relation to the statute, I must first establish whether or not the addition sum of € 2,000.00 was actually owed to the Complainant. It was very clear from both Mr. Fahy’s evidence and the Complainant’s, albeit for different reasons, that the Complainant never commenced the new role under his second contract. On the day of the signing of the contract, 25th January, the Complainant announced that he no longer wanted to do that role and wanted to continue in is original role. I am satisfied that the Complainant used the situation to assist him with this visa situation but never actually took up the role. I do not accept his evidence in that regard. On the basis that he never actually performed any part of his new contract and immediately reverted to his former role he was not entitled to the increased salary that the new role would have attracted. Therefore, if the Complainant was never entitled to an increased salary there could be no unlawful deduction in relation to it.

The complaint is not well founded and accordingly fails.

CA 47739 -01

Probationary Period.

The Respondent in legal argument states that the Complainant’s employment was terminated during his probationary period and as such the normal rules in relation to fair procedures do not apply.

The Respondent refers to the Court of Appeal decision of Ms Justice Costello in Donal O'Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, where it was held the fair procedure issue does not arise for termination of employment for reasons other than misconduct, as follows: “It is common case that Mr. O’Donovan was still serving his six-month probationary period when his employment was terminated on 7 January 2020. In my judgment, the trial judge failed to give adequate weight to the fact that the termination occurred during the probationary period. That is a critical fact in this case.” 

“During a probation period, both parties are – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do not accept that a court can imply a right to fair procedures – still less uphold a cause of action for the breach of such an alleged right – in relation to the assessment of an employee’s performance by an employer (other than for misconduct, which does not arise here) during the probationary period, as this would negate the whole purpose of the probationary period. This does not prevent an employer from including a term in the contract which confers rights to fair procedures on the employee, even during the period of probation. Whether there may be other exceptions which do not arise here, I leave to another case. In my judgment, Mr. O’Donovan could not – and did not – establish that he had a strong case for an injunction restraining the termination of his employment, where this occurred during his probationary period.”

The Respondent submits that they were not required to apply the principles of fair procedures and natural justice, in the termination of the Complainant, where the Complainant was within his probationary period, and every effort had been made by the Respondent to assist the Complainant.  The Complainant’s dismissal could not be deemed unfair as he was dismissed for reason of poor performance during his probationary period, and not for misconduct.  

The Complainant’s response:

The Complainant also referred to the  Donal O’Donovan v Over-C Technology Limited and Over-C Limited case but argued that his differs entirely from that of Mr. O’Donovan in circumstances where on 11th April 2021, the Complainant received an email from Cillian Fahy informing him that he had decided to end his employment. On the 12th April 2021, the Complainant had a meeting with Cillian Fahy regarding the date he would cease working. It was agreed at that time that the Complainant would remain in his role until a new staff member was hired and he did so until the 25th June 2021. Each case must be examined on its own particular facts. Therefore, Mr. Dos Santos’ date of dismissal is the 25th June 2021, which is outside of the probationary period and so the case of Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37 does not apply in this case.

There is no dispute between the parties in relation to the dates as set out above. The Complainant was informed on the 11th of April, 2021 that his employment contract was being terminated. The 11th of April was within the probationary period. However, Mr. Fahy allowed the Complainant to work on with the Respondent until the 25th of June 2021. The Complainant during that time carried out his duties and was paid in accordance with this contract. I am therefore satisfied that the date of termination is the 25th of June. The 25th  of June is outside the probationary period and therefore the normal rules in relation to fair procedures do apply.

It is clear from the evidence from all of the Respondents witnesses that there were issues in relation to the Complainant’s performance from the outset. He was spoke to on numerous occasions not only by Mr. Fahy but also by Mr Sheehan. He was given online training opportunities which he did not avail of. The Complainant was made fully aware on the 11th April that he was being dismissed for reasons of his poor performance. He did not appeal that decision, he did not raise a grievance in relation to his perceived lack of support and/or training. He then took it upon himself to find new employment and he voluntarily left on the 25th June to take up his new role.  In the unusual circumstances of this case I can find no reason to deem the dismissal of the Complainant unfair. Accordingly I find that the complaint is not well founded and therefore fails.

CA 47739- 04

As stated previous, I am not satisfied that the Complainant was ever entitled to the additional €2,000 due to the fact that he never actually took up the new role in February 2021. Therefore there can be no breach of his contract in that regard.

The complaint is not well founded and accordingly fails.

CA 47739 – 01 The complaint fails.

CA 47739 -02 The complaint fails.

CA 47739 – 04 The complaint fails.

Probationary Period. Termination. Poor Performance. Contractual terms. Unfair Dismissal. Payment of Wages. Organisation of Working time.