CORRECTION ORDER

ISSUED PURSUANT TO SECTION 39.2 OF THE ORGANISATION OF WORKING TIME ACT 1997 and SECTION 41.16 OF THE WORKPLACE RELATIONS ACT 2015

This Order corrects the original Decision ADJ-00044343 issued on 23/08/23

Note: In the original version of this decision, published on 7 September 2023, a solicitor for the Respondent firm and the Respondent witness was identified as being “Mr Horan” and “ Mr Enda Horan”. He was further identified in the decision as being “ a solicitor and partner in the firm”. I wish to clarify that the Respondent solicitor and witness in question was Mr Enda Nolan.”

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044343

Parties:

	Complainant	Respondent
Parties	Barbara Moore	Horan and Son Solicitors LLP

Representatives

Self

Maria Dillon sol for the Respondent

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054065-001	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054065-002	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054065-003	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054065-004	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054065-005	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054065-006	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00054065-007	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 -Withdrawn see below	CA-00054065-008	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00054065-009	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00054065-010	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007	CA-00054065-011	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054065-012	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054065-013	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054065-014	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 Duplicate-no decision required -see 003	CA-00054065-015	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00054065-016	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00054065-017	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001	CA-00054065-018	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00054065-019	07/12/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054065-020	07/12/2022

Date of Adjudication Hearing: 02/08/2023

Workplace Relations Commission Adjudication Officer: Janet Hughes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 39 of the RedundancyPayments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaint(s to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The format of the form issued by the WRC which lists several subsections of legislation resulted in the Complainant selecting several items of complaint under two pieces of Legislation-the Terms of Employment and Organisation of Working Time Act. She merely ticked boxes under many complaints, writing one line beside other complaints and apart from a few text messages provided no statement of case in advance of the hearing other than scant details on the complaint form. She attended without a copy of her complaint form. Much of the hearing was taken up with establishing the specifics of the complaints from which it became apparent that, while there are a few complaints of substance, many of the rest of the items were either duplicates or frivolous and/or vexatious complaints without any substance. In relating the detail of the complaints as discussed at the hearing to particular CA numbers I have adopted the approach of itemising and then finding and deciding each complaint under the relevant legislation in numerical order and indicating a complaint where the same legislation is referenced again but with no additional item of complaint.

Background:

This case is concerned with multiple complaints submitted by the Complainant against her former employer. The complaints are generally associated with the termination of her employment by a dismissal together with complaints regarding the absence of written terms of employment and payment for hours of work. It should be noted that the complainant was notified of her dismissal on 1 November 2022. She remained on the payroll for a further two months. The complaints were submitted to the WRC on 7 December, while the Complainant was still on the payroll. Technically it could be argued that the complaint of dismissal was received while the Complainant was still on the payroll and arguably was still an employee. However, this contention was not raised by the Respondent. Moreover, with effect from 1 November 2022, the Complainant was left in no doubt that her employment had ended. She was offered no recourse to an appeal mechanism. The letter of 1 November described the two months additional payment as a ‘gesture of goodwill’ without any reference to the date of termination or pay in lieu of notice or other statutory entitlements. For the avoidance of doubt therefore, I am satisfied that the dismissal occurred on 1 November and even if this were not the case, because she remained on the payroll for a further two months, the terms of the letter were such that the Complainant was entitled to take the view that she had been dismissed and could make a complaint to the WRC without waiting until the period on the payroll elapsed.

At the time of her dismissal, the complainant was employed as a cleaner working three hours per week in a Wednesday and paid €75 per week. She gave April 2008 as her date of commencing employment.

Summary of Complainant’s Case:

At the hearing the Complainant gave details of the complaints under each item, where she was able to do so. Her explanations under the Organisation of Working Time Act and the Terms of Employment Act 1994 had the effect of establishing the specifics of the complaints and reducing the number of individual items to be considered to some extent.

CA-00054065-001 Section 27 Organisation of Working Time Act 1997

Failure to pay public holiday pay. The Complainant worked on a Wednesday. If the public holiday fell on a Wednesday, she was required to work her day on another day in that week. Where a public holiday fell on a day other than Wednesday, she received no public holiday pay.

CA-00054065-002 Section 27 Organisation of Working Time Act 1997

Payment for annual leave

The complaint is that no payment was received for annual leave entitlements in the final year of employment.

CA-00054065-003 Section 27 Organisation of Working Time Act 1997

Penalisation

The explanation for this complaint at the hearing was that the Complainant did not receive public holiday pay compared to other employees who did receive pay on public holidays and were not required to work on those days.

CA-00054065-004 Section 27 Organisation of Working Time Act 1997

No additional complaint to the items at 001/002/003

CA-00054065-005 Section 7 Terms of Employment Information Act 1994

The Complainant received no statement of her core terms of employment

CA-00054065-006 Section 7 Terms of Employment Information Act 1994

The Complainant received no statement of her terms of employment

CA-00054065-007 Section 8 Unfair Dismissals Act 1977

Between the complaint form and her evidence, the position of the Complainant can be summarised as follows:

She was asked by Ms Joyce to attend early and to finish early on October 19th-text message provided. She was due to finish at 6 15 pm and she finished at 18.07. She was asked meet with Mr Nolan and Ms Joyce without any notice or representation. She did not agree the meeting was amenable. Her hours of work were queried because they said she was finishing early. As far as she was concerned this happened only when she was asked to attend and finish early to suit the business. From that meeting she understood her hours and pay were to be reduced. She disagreed that she would have said there was a problem with the mop as she had used it for some time so why would she raise that.

She did take advice before she went to work the following week and she gave evidence that when she informed Mr Nolan that she had done so he started shouting at her and accused her of breaching confidentiality. She maintains that she informed him that she had contacted the WRC about her rights. He was annoyed and said she should not have done that. She was told to get out of the office on October 26th

In her complaint form she referred to Mr Nolan describing her to another employee as a liability to the Company due to her disability. One of the reasons given for her dismissal was that they could get better value for money so they were terminating her employment. She was denied any representation at the meetings in October 2022.

CA-00054065-008 Section 77 Employment Equality Act 1998

Following correspondence from the WRC, in which the Complainant was asked whether she intended to withdraw the complaint under the Unfair Dismissals Act 1977 or the Employment Equality Act 1998, on 22.03.22,the Complainant opted to withdraw the complaint under the Employment Equality Act 1998.

CA-00054065-009 Section 28 Safety Welfare at Work Act 2005

The complaint related to comments attributed to Mr Nolan of the Respondent regarding her health where he is said to have described her as a liability. The detriment was that she was humiliated in the workplace.

CA-00054065-010 Schedule 2 of the Protected Disclosures Act 2014

It is the evidence of the Complainant that on 26 October 2022, she informed Mr Nolan that she sought information and advice from the WRC concerning the change in her hours of work and reduction in income. From the meeting on 19 October, she understood that it was intended that she would work from 5-6.15/30-he had not stated how he would reduce her pay. She also informed staff of her obtaining advice on the same day. On 26 October, she informed Mr Nolan that she had contacted the WRC and she was dismissed the same day which was the detriment she suffered.

CA-00054065-011 Part 14 Section 103(55M) of the Health Act 2007

The basis of this complaint was not presented at the hearing-the complaint form contained no detail of the basis of the complaint.

CA-00054065-012 Section 7 Terms of Employment Information Act 1994

The Complainants agreed hours of work each Wednesday were 3pm to 6pm. The Respondent changed these hours on a number of occasions to a 5pm start and then she was not allowed to stay to complete her work.

CA-00054065-013 Section 7 Terms of Employment Information Act 1994

Penalisation

The Complainant was penalised because she could not access her payslips through the log on system for months. The change in her hours of work amounted to penalisation.

CA-00054065-014 Section 27 Organisation of Working Time Act 1997

No additional complaints to those set out at 001/002/003

CA-00054065-015 Section 27 Organisation of Working Time Act 1997-penalisation

See 003 above.

CA-00054065-016 Section 39 Redundancy Payments Act 1967

The Complainant did not receive any redundancy pay on termination.

CA-00054065-017 Section 39 Redundancy Payments Act 1967

The Complainant did not receive any proof of her employer’s inability to pay redundancy -Statement of Affairs (Redundancy Payments Act 1967)

This complaint relates to the complaint that the Respondent did not pay redundancy pay on termination.

CA-00054065-018 Section 16 of the Protection of Employees(Part Time Work) Act,1991

Full time employees received pay for public holidays and did not have to work on those days. She had to work the day/s and received no extra pay or paid time off. It was her understanding that a full-time employee would be allowed to bring another person to a disciplinary (or potential disciplinary) meeting with management whereas she was not allowed to do so.

CA-00054065-019 Section 6 of the Payment of Wages Act 1991

This complaint related to non-payment of holiday pay and public holiday pay and not receiving or having access to payslips which she only received in 2023 as part of another process.

CA-00054065-020 Section 7 Terms of Employment Information Act,1994

No additional complaints to those at 005/006/012 and 013

Summary of Respondent’s Case:

CA-00054065-001 Section 27 Organisation of Working Time Act 1997

Public Holiday Pay. The Complainant did not work forty hours in the five weeks prior to any public holidays as required under the relevant statutory instrument. She was paid extra weeks pay at Christmas when the offices are closed. In any event as she has no statutory entitlement to public holiday pay there was no breach of the legislation.

CA-00054065-002 Section 27 Organisation of Working Time Act 1997

Annual Leave

The Complainant was paid from 26 October for a period of two months although she was not required to work during that period. The Complainant was paid throughout Covid even when not required to work. The Representative accepted that the letter of 01 November 2022 contained no specific reference to holiday pay.

CA-00054065-003 Section 27 Organisation of Working Time Act 1997

Penalisation

There was no penalisation as defined under the legislation. Non-payment of Public Holiday pay related solely to the Complainants statutory entitlements -form which she had no entitlement to Public Holiday Pay.

CA-00054065-004 Section 27 Organisation of Working Time Act 1997

No additional items of complaint to items 001/002 and 003 were presented to be considered.

CA-00054065-005 Section 7 Terms of Employment Information Act 1994

Statement of Core Conditions. The Complainant was employed on an informal basis from 2008 to 2018 when she was converted to a formal employee basis by the then bookkeeper unknown to the partners in the practice. This came to light during the Covid 19 emergency. From that point, the Complainants terms of employment remained unaltered and were deemed to be implied until her employment was terminated.

CA-00054065-006 Section 7 Terms of Employment Information Act 1994

Statement of terms and employment. As for 005.

CA-00054065-007 Section 8 Unfair Dismissals Act 1977

Respondent Submission

The Respondent described two informal meetings with the Complainant on 19 and 26 October 2023 as informal meetings. The one on the 19th of October was arranged to discuss concerns regarding the performance of her duties. The submission stated that a further attempt at resolution was not successful. Her unwillingness to engage was very significant in the context that it was impossible to communicate with her. Reference was also made to the work and time required to clean the previous building where the three-hour work arrangement was agreed and the newer building where the offices are currently located. One problem raised with the Complainant was concerns about confidentiality and discussing the business of another employment in their offices and the observation that she was frequently completing her work in less than the allotted time. The inference was that less time was needed to complete the tasks in the current location.

Witness Enda Nolan-summary of evidence

The witness is a solicitor and partner in the firm. In substance he is the employer in this case.

The witness gave evidence of an informal disciplinary meeting with the Complainant on 19 October 2022. She was finishing her work early. Her practice was to finish her work by cleaning in his office when he was there and she would sit for around about ten minutes telling him things he did not want to hear about other people she also cleaned for. Up to that evening there had never been any discussion or warning about the Complainant. He did suggest to the Complainant that evening that they have a quick word before she left with another solicitor Ms Joyce present. Asked how they left things that evening, the witness described the discussion as very amenable with no acrimony, no raised voices, no upset. The conversation was polite and courteous. He described it as a message both ways.

The witness described the circumstances around some medical issues involving the Complainant in March 2022 based on what she was saying at the time. He had concerns about her medical situation. The Complainant said she would get a letter that she was fine for working. That letter never materialised. Asked why this was relevant to the case of unfair dismissal, the witness replied because the letter of November 2022 refers to that earlier medical incident and other incidents around the Complainants health issues. The witness referred to arrangements made to facilitate the Complainant during Covid by scheduling her work when other workers would not be present. There was a conversation in which she said she was immunocompromised. In response to his representative, the witness confirmed there were frequent references to health issues with others and within earshot.

Regarding the events of 26 October 2022, the witness was asked if the Complainant had mentioned the WRC-to which he replied she didn’t. On that day the Complainant presented for work. She was due to start at 5pm-she came earlier for a chat, around 4 30pm. He had a meeting in the Courthouse at 4 30. The Complainant started talking saying she had to work 3 hours, that she had to be notified in writing of any changes. This was in the kitchen. He said he was going over to the Courthouse and they could discuss when he returned. The Complainant continued to speak in the public office, saying her solicitor told her that he ought to know better being a solicitor himself. She was shouting at this stage. Asked if she identified a particular solicitor, he said no she did not name anyone. There was no reference to the WRC to him. Later he learned that when speaking to other staff she had referred to him in a less than gentlemanly fashion and to contacting the WRC. His immediate concern that day was to take the heat out of the situation. The Complainant was basically hysterical. He went to his meeting and when he returned, he asked the Complainant to come down to the office to have a discussion. At the meeting the Complainant was very animated. It was very clear that she had a mantra, that he had called her a liability in the office. After about ten minutes it was clear there was going to be no discussion. Her behaviour was approaching abusive. He invited her to go home. She was not happy about that. He opened the door and led her out telling her to just go home. Regarding the reference to her being a liability, the only incident he recalled was in March of that year when he expressed concern about the Complainant.

Asked about the status of the meeting of 19 October, the witness described it as an informal disciplinary meeting. The starting point was the finishing time of the Complainant that day-she finished her work at 18.07 having commenced at 5pm. She no longer worked three hours. She finished each day by sitting in his office and talking. Joyce raised a concern about the floors in the kitchen and bathroom not being mopped. The Complainant said she was not happy with the mop. They asked what she wanted and bought a new mop in the days following the meeting. On the hours of work there was no final outcome at that meeting on the quantum of hours to be worked.

Asked about the claim that he had described the Complainant as a liability to another member of staff, the witness stated that the only incident he could recall was back in March 2022 when the Complainant spoke about health issues and he observed her looking unwell at the time and expressed his concern. He never discussed her as a liability in October 2022 but at the meeting on 26 October 2022, the Complainant kept repeating and repeating that he had done so.

CA-00054065-008 Section 77 Employment Equality Act 1998

Withdrawn.

CA-00054065-009 Section 28 Safety Welfare at Work Act 2005

During her employment, the Complainant did make reference to her health conditions and was given time off and flexibility to attend to these. To this day and this hearing, the employer does not know any of the details of her health condition/s and it remains unclear what they are. Expressions of concern were misconstrued. The Respondent does not see how any issue of penalisation arises in this case.

CA-00054065-010 Schedule 2 of the Protected Disclosures Act 2014

It is the Respondents case that the Complainant did not refer to the WRC at any stage on 26 October 2022 to Mr Nolan. She did refer to having contacted a solicitor or taking legal advice, possibly from FLAC. The employer was not aware of any reference to a Protected Disclosure until they received the complaint form. There was no protected disclosure. The dismissal was for the reasons stated.

CA-00054065-011 Part 14 Section 103(55M) of the Health Act 2007

This is a spurious complaint which cannot hope to succeed.

CA-00054065-012 Section 7 Terms of Employment Information Act 1994

No change of terms of employment was ever imposed on the Complainant.

CA-00054065-013 Section 7 Terms of Employment Information Act 1994

Penalisation-there was no act of penalisation against the Complainant.

CA-00054065-014 Section 27 Organisation of Working Time Act 1997

See 001 and 002 above.

CA-00054065-015 Section 27 Organisation of Working Time Act 1997-penalisation

See 003 above

CA-00054065-016 Section 39 Redundancy Payments Act 1967

The Complainant was dismissed for the reasons stated related to the events at the time and set out by the employer in subsequent correspondence. She was not made redundant. Sometime after her dismissal an alternative arrangement was made for cleaning the premises through a self-employed contractor.

CA-00054065-017 Section 39 Redundancy Payments Act 1967

As the complainant was not dismissed on grounds of redundancy a question of inability to pay a redundancy payment does not arise.

CA-00054065-018 Section 16 of the Protection of Employees (Part time Work) Act,1991

The other employees received public holiday pay on the basis of their hours worked in accordance with the Organisation of Working Time Act. As long as they could recall there was no meeting required with any employee in the employment for disciplinary purposes.

CA-00054065-019 Section 6 of the Payment of Wages Act 1991

The complaints regarding pay for holiday and public holiday pay are addressed elsewhere under the Organisation of Working Time Act. It is regrettable that the absence of payslips was not brought to the attention of the Respondent earlier as it appears to relate to a technical matter but it was resolved when raised in another process earlier this year. Payslips were always available for the Complainant through the system which applied to all staff.

CA-00054065-020 Section 7 Terms of Employment Information Act,1994

No additional complaints to those at 005/006/012 and 013 were presented under for consideration under this referral.

Findings and Conclusions:

CA-00054065-001 Section 27 Organisation of Working Time Act 1997

Public Holiday Pay The contention of the Respondent-that the Complainant had no statutoryentitlement to public holiday pay as she did not work forty hours in the five weeks preceding any Public Holiday is correct. This complaint is not well founded.

CA-00054065-002 Section 27 Organisation of Working Time Act 1997

Payment for annual leave The Respondent has no records which indicate that the Complainant received any paid annual leave during the final year of her employment. The Complainant is to receive 3 x €75 amounting to €225 compensation in respect of this complaint which is well founded.

CA-00054065-003 Section 27 Organisation of Working Time Act 1997

Penalisation No justification for this complaint as one of penalisation was provided at the hearing. This is a frivolous complaint and is not well founded.

CA-00054065-004 Section 27 Organisation of Working Time Act 1997

No additional complaint arises for consideration, and it is therefore not well founded.

CA-00054065-005 Section 7 Terms of Employment Information Act 1994

Failure to provide a statement of core terms. This element of the complaint is superseded by that at CA-006 as the five days in this section had elapsed and the obligation to issue a full statement of terms within one month kicked in. The Act does not provide for a double payment of compensation in respect of the additional complaints where the maximum award i.e., four weeks had been made-with the exception of the penalisation clause in the same legislation.

CA-00054065-006 Section 7 Terms of Employment Information Act 1994

Failure to provide a statement of terms

As I advised the parties at the hearing, there is no such thing as an informal employment relationship. Either the Complainant was or she was not an employee. The only reasonable conclusion is that she was at all times an employee and the fault for not regularising this situation lies wholly with the Respondent. The contention of the Respondent that all of the Complainants implied terms remained in place at that point is both misleading and disingenuous. In October 2022, the Respondent commenced discussions with the Complainant about changing her terms of employment-without her agreement- and subsequently dismissed her without any due process-while she was operating blindly without any access to a written contractual commitment and without any written statement of how the procedural processes affecting her employment actually worked or her entitlements under that process, including the right of representation. Moreover, while the Respondent represented a case where they were not aware that the bookkeeper had put the Complainant on the payroll on an employee basis, no effort was made at that time to provide the Complainant with a written statement of terms. The Complainant is to receive €300 or the maximum compensation under the Act in respect of the failure of the Respondent to comply with the terms of the Act of 1994, as amended in providing the Complainant with a full statement of her terms of employment. Section 3(1) refers.

CA-00054065-007 Section 8 Unfair Dismissals Act 1977

The breach in fair procedures on October 19th was egregious. The presumably lowest paid employee in the employment is ambushed by a meeting at which her employer with another solicitor on his side, began a discussion about that employees work performance and her hours of work, never having raised any such issue with her previously and without giving her either any notice of that meeting or offering her support at the meeting. But this was not just a discussion about work performance, the clear implication from this so-called informal meeting was that the Complainants hours could be reduced or they felt the hours could be reduced because they observed the job being done in less than the full hours. The Complainant was entitled to draw such a conclusion from that meeting and that she did, reflects her decision to seek advice on the matter-which I am also satisfied she did during the following week.

What exactly happened on October 26th may never be agreed in terms of the detail. Mr Nolan’s evidence suggests that the Complainant arrived at work somewhat agitated referring to her rights. While she agreed to await his return from the Courthouse before discussing the matter, she continued to vocalise her annoyance in the office while he was absent. When the meeting with Mr Nolan commenced, the Complainant remained agitated and no sensible or coherent discussion proved possible. On balance I prefer the evidence of Mr Nolan in relation to the events of that day. In doing so, I am satisfied that the Complainant did refer to her rights and advice she had received but that he understood that advice was from a legal source and as his representative put it, the Respondent side would very understandably become somewhat defensive in that situation. Faced with the intractable situation, it seems that Mr Nolan showed the Complainant the door, telling her to go home. On the basis of what is concluded to have occurred on October 26th at least broadly, this employment relationship was now in some difficulty. The Complainant was unhappy for reasons related to the prospect of her hours and pay being cut. Mr Nolan seems to have unhappy on a number of fronts and not all of those related to the events of that day. This conclusion is reflected in the contents of the letter of November 1st, 2022. It is to be remembered that it was the Complainant who sought clarity about her position. What she received was notice of her dismissal in a letter which ran to some eleven different paragraphs containing elements not previously raised or only recently raised with the Complainant, and in doing so accused her of behavioural shortcomings containing such expressions as ‘malign’ ‘indiscreet’ ‘misrepresentation’ ’profane language’ ‘working the hours that suited her’ with one issue going back as far as March of that year-some eight months earlier. The letter contains not one element of acknowledgement of the contribution or service of the employee for fourteen years. In that same letter the Respondent commend themselves for their considerable tolerance and understanding and then describes the two months pay as a gesture of goodwill. The term dismissal is not actually used, the expression ‘attendance no longer required’ left the Complainant to draw her own conclusions.

A disinterested third party could not regard the manner in which the Respondent acted in this matter as reasonable. They alone must take responsibility for the manner in which they set about the meeting of October 19th which was entirely flawed and at best ill judged. The main issues raised were ones of work performance where the steps in a disciplinary procedure allowing for corrective action following staged warnings given after properly convened meetings at which the employee has the opportunity to have support. The Complainants behaviour on the 26th of October cannot be accepted as reasonable or well judged. Her hours of work had not been changed or reduced. She was relying on some office gossip where remarks were attributed to Mr Nolan. Armed with some information about her rights which she had obtained since the previous week I am satisfied that she went into work that day looking for a row and in doing so she contributed to the decision of Mr Nolan that she would be dismissed or at least that he no longer wanted her in the office. Even if they were not culpable in the manner in which the meeting on October 26th was conducted, or far less culpable than the Complainant, their letter of dismissal without any process or prior notice is simply inexcusable. In arriving at these conclusions, consideration must be given to what extent if any the Complainants reference to seeking external advice had on Mr Nolan’s attitude towards the Complainant that day and subsequently. On the balance of probabilities Mr Nolan was at best taken aback by the reference to third party advice. If that was to a solicitor, then he might well have felt that the business of his office was being discussed by the Complainant elsewhere, a problem he had expressed about her talking about the business of another practice. Whatever about his reactions on the day, that the reporting of issues to a third party was an issue for Mr Nolan is reflected in the contents of the letter of dismissal where on page two of that letter, he specially refers to the Complainant informing him and members of staff of taking such advice. Why raise this issue as part of a dismissal letter, if it did not play at least some part in the decision to dismiss. That it should have done so at all is not acceptable as the basis for a fair dismissal.

Throughout the Hearing the Respondent representative seemed to suggest that responsibility for the dismissal letter could also be laid at the Complainants door, she after all had asked for a statement in writing of her position. An unusual proposition to say the least.

The Complainant was unfairly dismissed.

Regarding redress the Complainant has not found alternative employment to replace her employment with the Respondent. She worked a one-day week in this employment and any employment she sought to replace that financial loss, such as it was, has been unsuccessfully confined to a straight replacement -one day per week. The Complainant had another position at the time of her dismissal and it is understood she continues in that role. However, it is not for a third party to decide that she must increase her working hours simply to offset her losses. In her line of work, it would require a considerable increase in her hours worked each week to offset her losses from the Respondent employment. In arriving at this conclusion, it is noted that the rate of €25 per hour paid by the Respondent is above the market rate for such employment. There is a balance to be struck between all of the factors including why the Complainant has not achieved any mitigation of her losses.

The parties agreed entirely that compensation is the only suitable form of redress and I cannot disagree. This relationship is broken on both sides. In all of the circumstances of the case, including allowing for the negative conduct of the Complainant on October 26th, 2022, a sum of six months compensation is considered appropriate in the circumstances, noting that the gesture of goodwill in the letter of November 2022 made no reference to the six weeks pay in lieu of notice which the Complainant was entitled to receive, noting that she was not dismissed on grounds of gross misconduct. The Complainant is to receive €1950 compensation for her unfair dismissal. This sum to be in addition to the gesture of goodwill.

CA-00054065-008 Section 77 Employment Equality Act 1998

Withdrawn

CA-00054065-009 Section 27 Safety Welfare at Work Act 2005

Penalisation

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

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

Nothing in the complaint as presented as the hearing falls to be considered under the definition of penalisation contained in Section 27 of said Act. This complaint is vexatious.

CA-00054065-010 Schedule 2 of the Protected Disclosures Act 2014

Penalisation

This issue is addressed in two parts. One is in the interests of clarity regarding the terms of the legislation in describing a protected Act. Secondly there is the overlap between a complaint under the Protected Disclosures Act and the Unfair Dismissals Act.

Section 5(3)(b)of Part 2 of the Protected Disclosures Act 2014 (the version in place in October 2022 when the relevant events occurred) in describing protected disclosures states:

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 where the worker undertakes to do or perform personally any work or services.

What we have in this case is a threat to the established contractual agreement that the Complainant would work three hours per week and receive three hours pay in return. What occurred on 26 October 2022 was the Complainant challenging her employers right to alter that contract of employment without proper notification. While the Complainant was perfectly entitled to challenge the principle of the what the employer was seeking to do, informing him that she had taken advice and then challenging him on that basis does not constitute a protected disclosure for the purposes of the Act.

On the second aspect, and even if the Complainant were not to accept this interpretation of the Protected Disclosures Act 2014, the Complainant gave evidence at the hearing that the detriment suffered was that of dismissal. On that basis and given the centrality of this same issue of referring to the WRC in the complaint under the Unfair Dismissals Act(and other complaints) the term sf the legislation mean that the claim for redress falls to be considered under the Unfair Dismissals Act. This interpretation is clearly articulated in ADJ-00019062.

Findings and Conclusions:

In this case the Complainant’s complaint is that she was subjected to penalisation by the Respondent for having made a protected disclosure. During the hearing to investigate the complaint, the Complainant confirmed that the form of penalisation complained of, is that she had been unfairly (constructively) dismissed for having made a protected disclosure and that this state of affairs followed from the treatment/s of her by the Respondent after September 30th, 2018.

The Complainant referred a complaint to the WRC under the Unfair Dismissals Acts 1977-2016 which was grounded on the same facts as those giving rise to the complaint under the Protected Disclosures Act,2014. A decision on that complaint is contained in ADJ-19792. In that decision I found that the Complainant was constructively dismissed for having made a protected disclosure to which the complaint under the Protected Disclosures Act also relates. In these circumstances, as a matter of law, she cannot obtain redress for penalisation, by way of constructive dismissal, under the Protected Disclosures Act 2014(the Act of 2014).

Section 12(1) of the Act of 2014 prohibits penalisation of an employee for having made a protected disclosure. However, subsection (2) of that section provides as follows:

‘Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977,applies.’

11.(1) The Unfair Dismissals Act 1977 is amended-

(a) in section 1 by inserting the following definitions:

“ ‘protected disclosure’ has the meaning given by the Protected Disclosures Act 2014”

‘relevant wrongdoing’ has the meaning given by the Protected Disclosures Act 2014”;

(b) in section 6 by inserting the following paragraph after paragraph (b) of subsection (2):

“(ba) the employee having made a protected disclosure”

The combined effect of the above amendment to the Unfair Dismissals Acts and Section 12(2) of the Act of 2014, is that where a complaint relates to a claim of penalisation for having made a protected disclosure, and where the detriment claimed is one of unfair dismissal, the facts of the case and any applicable redress fall to be considered solely under the provisions of the Unfair Dismissals Acts. Consideration of a claim for any separate remedy under Schedule 2 of the Protected Disclosures Act does not arise in this case and it follows that the complaint is not well founded under the terms of Section 12(1) of the Protected Disclosures Act. For the avoidance of doubt the term ‘not well founded’ should not be interpreted to mean that there was no protected disclosure or no detriment, merely that it is by application of the Unfair Dismissals Act that these complaints are to be decided as they relate to the claim, a detriment of unfair(constructive) dismissal.

CA-00054065-011 Part 14 Section 103(55M) of the Health Act 2007

The Complainant provided no evidence to support this complaint. It is both vexatious and frivolous.

CA-00054065-012 Section 7 Terms of Employment Information Act 1994

Change in Terms of Employment

Accepting that the Complainants hours of attendance were occasionally changed by the Respondent to suit their own personal or operational needs, there is no evidence that the Complainant objected to those changes at the time. Other changes for example in days worked were occasionally made on a flexible basis to accommodate her needs. When she did object it was because while the hours were shortened and her rate of pay remained the same, in October 2022 she felt that she was being criticised for not working her full hours and/or completing her work in those lesser hours. This complaint is not well founded as representing a change in the contract of the Complainant without her agreement.

CA-00054065-013 Section 7 Terms of Employment Information Act 1994

Penalisation

The complaint of a failure to provide access to payslips does not represent penalisation for the purposes of this legislation.

Change in hours of work -accepting that the meeting on October 19th 2022 represented an indication of the thinking and even intention of the Respondent to reduce the hours of the Complainant without her agreement, that change did not actually occur as the Complainant was dismissed and therefore a complaint of penalisation on this point has no basis in terms of a detriment. Consequently, the Respondent has no case to answer in this matter. The Complaint is not well founded.

CA-00054065-014 Section 27 Organisation of Working Time Act 1997

No additional complaint arises for consideration under this item and therefore it is deemed to be not well founded.

CA-00054065-015 Section 27 Organisation of Working Time Act 1997-penalisation

This complaint is addressed at 003 and therefore 015 will be regarded as a duplicate of 003

CA-00054065-016 Section 39 Redundancy Payments Act 1967

The Complainant was dismissed for a variety of reasons as expressed in the letter issued by the Respondent on 1 November 2022 and in advance of any of the conditions which might have allowed for a redundancy situation to arise being imposed. The appeal is disallowed.

CA-00054065-017 Section 39 Redundancy Payments Act 1967

As a redundancy situation did not occur, this complaint is not well founded.

CA-00054065-018 Section 16 of the Protection of Employees (Part Time Work) Act,1991

The complaints under this legislation are not well founded as it is accepted that public holiday pay for all employees, full and part time was calculated in accordance with their statutory entitlements under the organisation of Working Time Act irrespective of their hours of work. On the matter of representation at a disciplinary hearing, the Complainant failed to provide a valid comparator compared to whom she can claim less favourable treatment. Her evidence amounts to a hypothetical situation based on hearsay. This conclusion does not in any way condone the manner in which the Respondent went about the business of handling their interactions with the Complainant between 19 October and 1 November 2022.

CA-00054065-019 Section 6 of the Payment of Wages Act 1991

The matters of pay for annual leave and public holiday pay are addressed under the Organisation of Working Time Act 1997. A failure to provide payslips does not fall within the remit of an Adjudication Officer under the Payment of Wages Act 1991.This complaint is not well founded.

CA-00054065-020 Section 7 Terms of Employment Information Act,1994

As no additional complaint falls for consideration under this complaint it is regarded as not well founded.

Decision:

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

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

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

CA-00054065-001 Section 27 Organisation of Working Time Act 1997

The Complaint is not well founded

CA-00054065-002 Section 27 Organisation of Working Time Act 1997

The complaint is well founded. The Respondent is to pay the Complainant €225 in compensation.

CA-00054065-003 Section 27 Organisation of Working Time Act 1997

The complaint is not well founded.

CA-00054065-004 Section 27 Organisation of Working Time Act 1997

The complaint is not well founded

CA-00054065-005 Section 7 Terms of Employment Information Act 1994

The complaint is well founded. The Respondent is to pay the Complainant €300 in compensation

CA-00054065-006 Section 7 Terms of Employment Information Act 1994

The complaint is well founded. However the compensation element is superseded by the decision at 005-and no further compensatory award is available.

CA-00054065-007 Section 8 Unfair Dismissals Act 1977

The complaint is upheld. The Respondent is to ay the Complainant €1950 in compensation.

CA-00054065-008 Section 77 Employment Equality Act 1977

Withdrawn in March 2023.

CA-00054065-009 Section 28 Safety Welfare at Work Act 2005

The complaint is not well founded.

CA-00054065-010 Schedule 2 of the Protected Disclosures Act 2014

The complaint is not well founded

CA-00054065-011 Part 14 Section 103(55M) of the Health Act 2007

The complaint is not well founded.

CA-00054065-012 Section 7 Terms of Employment Information Act 1994

The complaint is not well founded.

CA-00054065-013 Section 7 Terms of Employment Information Act 1994

The complaint is not well founded

CA-00054065-014 Section 27 Organisation of Working Time Act 1997

The complaint is not well founded

CA-00054065-015 Section 27 Organisation of Working Time Act 1997-penalisation

The complaint is not well founded

CA-00054065-016 Section 39 Redundancy Payments Act 1967

The appeal is not upheld

CA-00054065-017 Section 39 Redundancy Payments Act 1967

The complaint is not upheld

CA-00054065-018 Section 16 of the Protection of Employees (Part time Work) Act,1991

The complaint is not well founded

CA-00054065-019 Section 6 of the Payment of Wages Act 1991

The complaint is not well founded

CA-00054065-020 Section 7 Terms of Employment Information Act,1994

The complaint is not well founded.

Dated: 23-08-2023

Workplace Relations Commission Adjudication Officer: Janet Hughes

Key Words:

Complaints associated with termination of employment