Complainant

Respondent

Parties

Emer  Croston

Expert Safety

Representatives

David Gaffney Gaffney Solicitors

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-00045188-001

14/07/2021

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

CA-00045188-002

14/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00045188-003

14/07/2021

The Complainant alleges that the Respondent unlawfully deducted money from her final pay and failed in their duty in relation to her terms and conditions of employment. The Respondent contests the allegations.

The Complainant following the taking of the oath gave her evidence as follows:

She commenced with the Respondent on the 2nd June 2020 and signed a contract dated 30th July 2020. The Complainant refutes the Respondent’s evidence that she signed a contract prior to starting her employment. She states that the only contract she signed was the one dated the 30th July.

On the 1st January 2021 she received another contract that was sent to her via her Expert Safety email address. She refused to sign that one because there was a “restraint of trade” clause in it. The Complainant was asked under cross examination if the email had been sent from Ms. Murphy but the Complainant did not know who had sent it.

The Complainant’s representative submitted documentation during the hearing which had not been submitted prior to the hearing. That documentation was in relation to the Complainant’s contract/s of employment. The Respondent stated that she took the day off to deal with this matter today and it would be unfair to ask her to take another day off. Ms. Murphy in the interest of finalising the matter agreed to let the documents be submitted.   

The Complainant stated that it was never explained to her that the Respondent had the right to deduct the money paid for her training from her wages.

Collette Murphy following the oath gave her evidence as follows:

The Complainant was a fabulous employee. When she commenced with the Respondent, she signed a contract dated 22nd May 2020, signed on 29th May 2020 and she commended on the 02nd June 2020. The Complainant alleges that the contract wasn’t signed by her. She says the one she signed is dated 30th July 2020. Ms. Murphy stated to Mr. Gaffney that she finds it very hard to believe that Ms. Crossan would lie about that. She is not a liar. The Complainant’s representative states that  there is another contract dated the 01st January 2021 but there is only one signed contract on file. It is the one signed on 29th May. That is her contract, not the second one or the third one she refers to.  All employees are given the contract to sign before they start with the Respondent as there are intellectual property issues that need to be protected.

The Complainant was liked by everyone, and the Respondent had high hopes for her. If she had stayed, she probably would have been as associated director by now.  She wanted to leave. Ms Murphy was extremely upset that she wanted to go. She was such an asset to the Company. She was persuaded to stay but her mind was made up. An exit interview was arranged. She was told that if she ever wanted to come back there would always be a place for her with the Respondent. Ms. Murphy felt that she left on good terms, so she was extremely surprised when the Complaint form came in.

The Complainant’s contract of employment states that if an employee leaves within a year the cost of her training and development will be deducted from her salary. It is set out in Section 17 “in the event of leave expert safety within 12 months of employment the costs associated with training will be deducted from your final pay.”  That was deducted from her final pay. Even thought she had to pay for the training because she left within the year, she still has the benefit of that training and can take that knowledge with her into her future employment.

There was no transfer of undertaking. There was a discussion that the company would become a limited company. That never happened.

There was an issue between the parties in relation to the contract of employment. The Respondent stated that there was only one contract that was dated the 22nd May and was signed on the 29th May. The complainant alleged that there were other contracts. One of those additional contracts, the one dated 1st January 2021 I note has a Microsoft WORD signature and there is a line across the page which looks like it has been photocopied. Ms. Murphy’s actual signature can be seen on the letter of offer. The signature on the contact is not the same. It is a computer-generated signature. In any event the Complainant stated in evidence that she didn’t sign this contract due to a clause that was not to her liking.  The document dated the 22nd July is not signed by Ms Murphy at all and I accept her evidence that she did not produce that document. Having assessed the documents I am satisfied that the only genuine contract is the one dated the 22nd May, signed on the 29th May.

CA-00045188-001

The contract dated 22nd May contact contains a clause “In the event of leave expert safety within 12 months of employment the costs associated with training will be deducted from your final pay.” The Complainant received training that was paid for by the Respondent. She left her employment within the first year. On that basis I find that the Respondent, pursuant to S5 (1) (b) of the act, was entitled to make the deductions, in relation to the Complainant’s training from her final pay.

The complaint is not well founded and accordingly fails.

CA – 00045188 -002

I am fully satisfied that the Complainant was given her contract of employment dated the 22nd May 2020 which she signed on the 29th May 2020 one week before she commenced her employment with the Respondent. I am not satisfied that the two other contracts produced during the hearing are genuine documents. I am also not satisfied that there was a transfer of undertakings. I find that the complaint is not well founded and accordingly fails.

CA – 00045188 -003

The Complainant alleged that there was a transfer of undertakings to the limited Company however the evidence from Ms. Murphy clearly and unambiguously was that even though there had been discussions about forming a limited company that never happened. On that basis I find that the complaint is not well founded and accordingly fails.

CA-00045188-001 The Complaint fails

CA- 00045188 -002 The Complaint fails

CA – 00045188- 003 The Complaint fails.