Complainant

Respondent

Parties

Molly  Sidiakina

Fionnuala Fallon T/A Park Pets Veterinary Clinic

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self

William Wall Peninsula

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-00054967-001

09/02/2023

The Complainant and the Respondent are both qualified vets. The complainant worked with the Respondent from 01.04.22 to 12.08.22 at which time she received a letter of termination which provided for one weeks pay in lieu of notice. This complaint is concerned with the amount of pay in lieu of notice properly payable when the Respondent terminated the employment relationship. The Respondent paid statutory notice of one week whereas the Complainant contends that she was entitled to twelve weeks pay based on the contract and what was said to her by the Respondent at various stages.

The nett pay was €3537.92

Complainant Evidence

The Complainant rang the Respondent about the role. In that call, there was a reference to her having to give twelve weeks notice if she decided to leave. The Respondent referred to a need to have adequate cover-hence the twelve weeks. This was said to the Complainant again when she started. The Complainant spoke about working as hard as she could, that she was there a number of months and it was hard at times. The day before her employment was ended, she had a discussion with the Respondent and again there was a reference by the Respondent to the three months and the Complainant was told she was bound by that contract in terms of giving notice. When asked about that discussion, the Complainant indicated that she may have mentioned resigning that day. Her employment was terminated the next day. It is her position that the three months was said to her verbally; that the term was in the letter marked private and confidential which she thought would be followed; in the terms of contract issued to her it was not mentioned that she would receive less than twelve weeks; the dismissal procedures in their own policy in the handbook were not followed.

Under cross examination, the Complainant agreed that she did not sign the contract provided to her-stating that she  was reluctant to do so because of what had happened to others(employees).

The submission of the Respondent referred to three documents: the letter of offer; the statement of terms and the staff handbook.

Letter of offer:

‘You should note that this offer of employment is conditional upon and subject to the receipt of satisfactory references and the successful completion of a six-month probationary period. Probation may be extended to nine months in certain circumstances. Please note that your probation will not be passed confirmed until such time as you are informed of this in writing.’

The document containing this clause was signed and returned busy the Complainant on March 9th, 2022.

Statement of main terms and conditions. The clause considered relevant from this document is as follows:

‘ Notwithstanding the provisions of the probationary provisions clause above, this contract may be terminated by either party giving notice to the other 12 weeks notice, or the required minimum notice as outlined in the Minimum Notice and Terms of Employment Acts.1973-2005,whichever is greater, of termination of the contract, in writing. The organisation reserves the right to pay you in lieu of notice. A lesser period of notice may be acceptable if agreed by both of you and the Organisation. ‘

On two occasions the Respondent handed a signed copy of the statement to the Complainant, requesting that she sign it, but she refused to do so and now seeks to rely on the terms she refused to accept by signing those terms. The Terms of Employment Act at section 3,does not oblige an employer to include a probationary period in the statement.

Employee Handbook

This document was issued  to the Complainant by email on 12 May 2022 with a copy of the handbook attached. The handbook was referenced in the statement of terms of employment as forming part of the main terms and conditions of employment and in that document, there is reference to the probationary period. The first two clauses reference the duration and operational parts of the probationary period. On the matter of notice it states:

‘During the probationary period either party may terminate the contract by giving one weeks notice in writing. The Company, at all times, reserves the right to pay you your basic salary in lieu of notice, except in case of summary dismissal outlined under the disciplinary procedure.’

While the same term is not contained in the statement of terms and conditions document, it is contained in the handbook which formed part of the main terms and conditions.

The three documents cited in the submission clearly set out the terms of employment to which the complainant was agreeable.

Witness Evidence Fionnuala Fallon-the Respondent

The witness gave evidence of recruiting the Complainant following a telephone conversation and an interview. The witness said she referred to the six months’ probation and one weeks notice and three months after probation ended. She confirmed that all three documents referenced in the statement of case were issued to the Complainant. In questing the Respondent confirmed that part of the concern about the Complainant was her refusal to agree the written terms and the reasons she gave for not doing so.

The issue to be decided in this case, is what amount of pay in lieu of notice was properly payable to the Complainant when her employment was terminated taking into account the inherent contradictions in the position of the parties.

The sequence of documentation issued to the Complainant was as follows:

7.03.22 Letter of commencement containing terms which comply with the requirement to provide core terms of employment. These were signed and accepted by the Complainant on 09.03.22. These signed and accepted terms contain no reference to a period of notice. Neither side can rely on this document.

12.05.22 Email containing the staff handbook. This document contains the full text of the probationary period and the three months notice requirement as separate clauses. That the probationary period is of one weeks duration during the probationary period is unequivocal. The Complainant cannot rely on this document in support of her complaint whereas the Respondent can do so as part of the overall terms of employment.

09.06.22 Full statement of terms of employment. This document was issued more than two months after the commencement of employment and after the staff handbook. This refers to a probationary clause in the clause about three months notice. The text of the probationary clause which the Respondent seeks to rely on was omitted  omitted by the Respondent. It does however contain the clause which refers to a twelve weeks’ notice by either side ’notwithstanding the provision of the probationary clause above.’ ’The omission of the relevant clause can be read as an oversight. The claim that the Respondent was not required to include such a clause in statement of terms is not greatly relevant. An employee reads what they read and that document did not refer o a provision of one weeks notice

 What matters, in my view, is what was stated across all of the documents and whether the Respondent is entitled to rely on the first and  third statement which omitted the clause at the heart of the dispute and to rely entirely on the second document. Also relevant is what was said between the parties leading to and during the employment relationship which may form an oral contract between the parties. On the balance of probabilities, I am satisfied that when the concern was that the Respondent would be left high and dry without cover, the term of twelve weeks notice was mentioned by the Respondent and as late as the day before the Complainant was dismissed in August. However, when it came to a desire to dispense with the Complainants services, the Respondent reverted back to the probationary period mentioned only in one document and that decision was contained in a document handed to the Complainant which she had no opportunity to discuss. The claim by the respondent that a three-month period could not have been operated by the Respondent during probation is not accepted given that they could at all times have made a payment in lieu of notice which would not have extended or affected the period of probation. Nonetheless a period of three months’ notice or payment in lieu of such notice during probation is not usual, it should also be acknowledged.

This is not a straightforward situation. In terms of what was properly payable the parties are relying on a mix of verbal and written implied contracts  containing inherent inconsistencies. In arriving at a decision, I have decided that the there is a well-founded complaint in this instance based on document one and three together with the oral conditions expressed by the Respondent to the Complainant. In the somewhat unusual circumstances of the case, the decision should reflect the opening  term of Section 6(1) of the Payment of Wages Act 1991 where it refers to reasonable in the circumstances:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

On the basis of all of the forgoing, a payment of six weeks nett pay is deemed reasonable.

CA-00054967-001 Payment of Wages Act 1991

The complaint by Molly Sidiakina (Complainant) against the Respondent Fionnuala Fallon is well founded. By operation of clause 6(1) of the Payment of Wages Act 1991, the Respondent is to pay the Complainant €5306.88 nett.

Notice  on termination-contract vs statutory entitlement verbal agreement versus documents