Complainant

Respondent

Parties

Min  Ling

The Square Dental Services Limited

Representatives

Marius Marosan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00048079-001

10/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2006

CA-00048079-002

10/01/2022

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

CA-00048079-003

10/01/2022

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

CA-00048079-005

10/01/2022

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

CA-00048079-006

10/01/2022

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

CA-00052074-001

03/08/2022

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

CA-00052094-001

04/08/2022

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

CA-00052095-001

04/08/2022

The Complainant is a Canadian national and began her employment with the Respondent as a dentist on 18 October 2021. She was paid €64,000 per annum in accordance with the terms of the critical skills permit which the Respondent obtained to allow her work in Ireland.

She asserted that she was given notice of termination of her employment on 3 November 2021 when she refused to sign a new contract agreeing to a pay reduction. She also stated that the Respondent made illegal deductions from her pay and alleged that she did not receive her statutory rest breaks or the overtime payments that she was due.

The Complainant stated in evidence that prior to starting her employment with the Respondent, there were some discussions around her work permit as well as her salary. Specifically, although she initially agreed to a accept a salary of €55,000 and signed a contract on this basis, she subsequently learned from the Respondent that the Department of Enterprise, Trade and Employment would not grant a critical skills working permit if her salary was not at least €64,000. She therefore assumed, in accordance with the terms of the work permit, that she would be paid €64,000 per annum for a 39 hour working week, notwithstanding what she had previously agreed to.

The Complainant stated that she did not receive an amended contract from the Respondent and claimed that her signature was forged on the contract containing a salary of €64,000 which the Respondent furnished to the Department of Enterprise, Trade and Employment to procure her permit. She also asserted that she made it very clear to the Respondent, in email correspondence on 31 October and 1 November 2021, following attempts by them to issue a new contract, that she would not accept any terms and conditions that were inferior to what was stipulated in her work permit. Specifically, she insisted on being paid €64,000 for a 39 hour working week in accordance with the conditions of the permit and because she refused to change her terms and conditions of employment, she was given notice of termination of her employment on 3 November 2021.

She also alleged that the Respondent deducted €500 from both her October and November pay in respect of costs for her work permit application and stated that this was illegal.

In addition, she claimed that she did not always get her daily rest breaks or her overtime pay but was not able to provide any evidence of the dates in question.

The Respondent’s witness, Mr Muttumulu, stated that the reason behind the termination of the Complainant’s employment was not related to her refusal to change her contractual terms and asserted that she was dismissed because the Respondent was unhappy with her performance, specifically the amount of time that she was taking on treatments as well as her poor interactions with other staff members. He accepted that no discussion was had with the Complainant in relation to these alleged performance shortcomings and when questioned as to why not stated that was not how things operated in dentistry and when matters did not work out, the employer just said “goodbye”.

Mr Muttumulu also denied that the Respondent forged the Complainant’s signature when submitting her contract of employment to the Department of Enterprise, Trade and Employment as part of the work permit application.

He also denied that the Complainant did not always get her daily rest breaks or her overtime pay.

CA-00048079-001:

I note that, similar to the case of the Mental HealthCommission and A Worker [18 December 2020], LCR22316 , both this complaint as well as CA-00048079-002 below are “based on the same set of facts”. Specifically, the Labour Court, in the aforementioned case, stated that the Worker was pursuing the matter

“under the Industrial Relations Act in addition to a separate case under the Employment Equality Acts and that both cases are based on the same set of facts.

Therefore, the Court notes that the dispute between the parties is being pursued as a matter of employment law under the Employment Equality Acts and that it would be inappropriate for the Court to recommend concession of the Worker’s claim under the Industrial Relations Act.”

As this complaint is effectively a duplicate of CA-00048079-002 below, and having regard to the decision in LCR22316 above, the alleged unfair dismissal will be dealt with in the context of that complaint.

CA-00048079-002:

The Law

Section 26 of Employment Permits Acts 2003 to 2014 states:

26.— (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1) , “penalisation” in this section includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2005), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) making a complaint to a member of the Garda Síochána or the Minister that a provision of the Act of 2003 or this Act is not being complied with,

(b) giving evidence in any proceedings under the Act of 2003 or this Act, or

(c) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(3A) Subsection (3) does not apply where the complaint is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

Section 5 of the Protected Disclosures Act 2014 states:

5(1) For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the   passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if— (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed

Findings

The Complainant stated that the Respondent gave her notice of the termination of her employment on 3 November 2021 two days after she refused, via email, to sign a new contract agreeing to a basic salary of €55,000, which was less than the €64,000 stipulated in the contract that had been sent to the Department of Enterprise, Trade and Employment to procure the critical skills working permit.

The Respondent’s witness, Mr Muttumulu stated that the reason behind the termination of the Complainant’s employment was not related to her refusal to sign the new contract and alleged that she was dismissed because the Respondent was unhappy with her performance, specifically the amount of time that she was taking on dental treatments as well as her poor interactions with other staff members. No evidence was presented however to suggest that there had been any discussions with the Complainant surrounding her performance or her interpersonal skills and I do not consider the assertion made by Mr Mattumulu that dental employers do not engage with their employees around performance issues, prior to dismissing them, to be credible and note that such conduct is a breach of SI 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

Considering the foregoing, I find that the Complainant’s employment was terminated as a result of her having made a protected disclosure in her email of 31 October 2021 in relation to the attempt by the Respondent to alter the conditions of the work permit which constitutes an offence as set out in section 5 (3) of the Act above. Accordingly, I find that the dismissal was unfair.

CA-00048079-003:

The Payment of Wages Act 1991 states at section 5 and 6 as follows:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

( a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

( b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

( c) in the case of a deduction, the employee has given his prior consent in writing to it.

The Complainant stated that the Respondent made deductions from her pay on two occasions, one from her October 2021 pay and another from her November 2021 pay, in the amount of €1,000 euros in respect of her critical skills employment permit application fee. However, she also highlighted that section 23 of the Employment Permits Act 2006 prohibits an employer from making any deduction from the permit holder’s remuneration or seeking to recover from a permit holder any charge, fee or expense relating to the application for the permit or its renewal and/or recruitment and traveling expenses in connection with taking up employment in the state.

As the Respondent was neither required to make the deductions by virtue of statute or by a term of the employee’s contract of employment, and that the employee did not consent in writing to them being made, I find that this complaint is well founded.

CA-00048079-005:

The Payment of Wages Act 1991 states at section 5 and 6 as follows:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

( a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

( b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

( c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

( a) any act or omission of the employee, or

( b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction,

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Complainant gave evidence that on several occasions she was not paid in respect of overtime she worked, and which was payable in accordance with the terms and conditions of her contract of employment. She did not provide any evidence however of the specific dates and times on which she had worked this overtime. In the absence of any evidence from her surrounding the dates on which the overtime was worked, I find that this complaint is not well founded.

CA-00048079-006:

The Complainant contends that she never received her daily rest periods in accordance with section 11 of the Organisation of Working Time Act 1997 which provides:

11. Daily rest period

An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

The Complainant gave evidence that she did not get her breaks on several occasions but did not provide details of dates and times.

The Respondent disputed this and stated that she was given the opportunity to take her breaks. Where a complaint is made under this piece of legislation however, there is an onus on the Complainant to be more specific about the details of denial of rest periods. In the instant case, as I am not satisfied that the Complainant has given enough evidence to in support of her claim, I find that the complaint is not well founded.

CA-00048079-001:

This is a duplicate compliant and has been dealt with in the context of CA-00048079-002.

CA-00048079-002:

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. Having found that the Complainant was unfairly dismissed because she made a protected disclosure, I must now consider the appropriate redress.

Given the way in which in the Complainant’s employment ended and considering how she was treated during her employment, the redress of compensation is the only viable remedy.

In assessing the compensation payable, I note that the Complainant obtained alternative employment with a greater remuneration package on 21 February 2022. As she can only be compensated for her financial loss arising from her dismissal and recognising that she was paid for the full month of November which she did not work I make an award of €14,378 in respect of this complaint.

CA-00048079-003:

I find that this complaint is well founded for the reasons set out above.

I direct that the Respondent pay the Complainant an amount of €1,000 in respect of the illegal deductions.

CA-00048079-005:

I find that this complaint is not well founded for the reasons set out above.

CA-00048079-006:

I find that this complaint is not well founded for the reasons set out above.

CA-00052074-001:

This is a duplicate compliant and has been dealt with in the context of CA-00048079-002.

CA-00052094-001:

This is a duplicate compliant and has been dealt with in the context of CA-00048079-002.

CA-00052095-001:

This is a duplicate compliant and has been dealt with in the context of CA-00048079-002.