Complainant

Respondent

Parties

Grazyna  Roclawska-Zoladek

RR Financial Services

Representatives

  Self-represented

David O’Brien BL instructed by HG Carpendale & Co Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00054292-001

23/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act 1967

CA-00054292-002

23/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973

CA-00054292-003

23/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act 2000

CA-00054292-004

23/12/2022

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

CA-00054292-005

23/12/2022

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

CA-00054292-006

23/12/2022

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

CA-00054292-007

23/12/2022

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

CA-00054292-008

23/12/2022

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

CA-00054292-010

23/12/2022

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

CA-00054292-011

23/12/2022

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

CA-00054292-012

23/12/2022

The complainant was employed as a financial advisor with the respondent from 2018 until the respondent terminated her employment effective from 31 July 2022.

The complainant referred various complaints to the Commission on 23 December 2022 in connection with her employment with the respondent and its termination.

The respondent expressed a general reservation concerning a lack of clarity on the detail of the complaints.    The respondent terminated the complainant’s employment by reason of its statutory obligations in relation to the employment of appropriately qualified financial advisors.

The complainant entered into a contract of employment with the respondent in or around March 2018.  She signed a written contract of employment.

The complainant received a telephone call from the owner of the respondent business on 2 August 2022 informing her that she had been dismissed on 31 July 2022. 

The complainant had initially wanted to resolve with the respondent the matter of non-payment of monies due to her, but the respondent did not want to engage with her.

The complainant’s work with the respondent involved meeting potential clients and securing policies.  The complainant travelled to Dublin once a week for meetings at the respondent’s offices to provide an update on the previous week and review policy applications.  There was training on occasion however this varied depending on who was providing the training.

The work was commission based.  It was suggested to the complainant that she apply for the Working Family Payment to supplement her income.   Some weeks, the complainant made €2,000.00 in commission.  She worked hard to earn this kind of money.

The complainant was frequently told that she was blocked from doing any sales however this changed when the complainant’s work was checked by a colleague.

The complainant determined her own weekly working hours; one day could be 14 hours, another could be 3 hours.

The complainant did not work in February and March 2022 due to illness.  She did attend the weekly meetings in 2022.  From April 2022, she worked on looking for customers, making calls and meeting with prospective clients.   The complainant received a payment for work done in April 2022.

Whilst in employment with the respondent, the complainant was never told during meetings that she should do exams or that it was a condition of her employment that she do exams.  She was only told that she had to do exams within 4 years, and she completed them within 3 years.

The complainant disputed that Mr Romanowski informed her on 1 June 2022 that she had 2 months to obtain qualifications, or her employment would terminate.  The relevant exams take place in January, May and September. The complainant did recall a conversation with Mr Romanowski on 1 June 2022 however it was a conversation in which he confirmed that he was not going to let her go from employment.

The complainant had no knowledge of the legislation.  She trusted what she had been told; that there was 4 years to do an exam and from that time a further 4 years to do the other exam.   The complainant was never told that she also had to complete the second exam within a 4-year period.  She had done the May 2021 exam of her own volition because it was what she wanted.  She had been told she had 4 years to do it.  There was no mention at the time that she had to do the second exam.  Mr Romanowski and everyone in the business knew the complainant had successfully obtained the exam in 2021 because she posted it on the employee chat group.  The complainant further submitted that if she had 4 years to do 2 exams, she still had another year to do the second exam which she could easily have done.  It was after she was dismissed that the complainant discovered from another employer that you must be registered for the exams within six months.  The complainant submitted that if relying on the legislation as the basis for her dismissal, then the respondent should have terminated her employment after 6 months.  

The complainant acknowledged there were meetings to prepare for the exams.  However, employees were told not to rush to do the exams as, if not properly prepared, they would not pass the exams.

In relation to her current employment situation, the complainant is employed with another company.  The complainant had a financial regulation exam to complete so she could not work without supervision.  She commenced employment with the company in 2022, after her employment with the respondent terminated, but she was not earning money as she was undergoing training and supervision.  The complainant’s evidence on the first hearing date was that she had only done one controlled sale with the other company, for which she had been paid.  On the second hearing date, the complainant’s evidence was that she took up employment with the other firm in September 2022, undertook controlled sales and was paid in January and February 2023.  The complainant has not been in receipt of social welfare payments since August 2022.  The complainant was looking for work in a few different places after she was let go by the respondent.  The complainant sat the financial regulation exam in May 2023 and got her results in June 2023.  She has a commission only contract with her current employer, there is no base salary.  She had not been working because of the WRC hearing in June 2023, and in June and July 2023 she was on holidays. 

Under cross-examination, the complainant was asked about clause 11 of her contract of employment and how she reconciled that with her evidence that she had 4 years to pass 1 exam and a further four-year period to pass the other exam.  The complainant maintained that her contract did not state that she had to do two exams and that she was not aware she had to get a recognised qualification.

It was submitted that CA-00054292-004 and CA-00054292-010 were statute barred.

The complainant was employed with the respondent as a financial advisor.  The respondent, as a broker for life assurance and pension policies, is a regulated firm for the purpose of the Central Bank’s Minimum Competency Code 2017 (the “Code”).  The complainant was a “new entrant” within the meaning of the Code and it was a term of her employment with the respondent that she work towards obtaining a recognised qualification under the Code within a 4-year period.  This term was based on the minimum requirements in relation to qualification and training and the statutory framework for employers operating in the area. 

The complainant’s employment with the respondent commenced on 20 March 2018 and the 4-year period for attainment of the minimum recognised qualifications was 20 March 2022.

The complainant represented to the respondent that she had undertaken and completed the qualification requirements.  The respondent repeatedly sought from the complainant proof of qualification.  There were two relevant exams the complainant was required to successfully complete for accreditation: life assurance and regulation.  The complainant sat one of the exams, but the respondent was not given confirmation the qualification had been achieved.

The respondent repeatedly engaged with the complainant regarding her qualifications in the period from January to July 2022 as her status as a “new entrant” was to expire in March 2022.  In June 2022, the respondent drew the complainant’s attention to the mandatory requirement under her contract of employment of attainment of professional qualification within 4 years of commencement of employment.  The respondent sought evidence and explanation from the complainant regarding completion of the relevant exams and indicated that a breach of the requirement would result in the termination of the complainant’s employment.  The complainant failed to provide evidence of having attained the relevant qualification leaving the respondent with no option but to terminate the complainant’s employment, which it did on 2 August 2022. 

The respondent referred to section 1.1 of the Code which prohibits a regulated firm from permitting a person, to whom the standards of the Code apply, performing a controlled function unless the regulated firm is satisfied that a person complies with the standards of the Code.  If a regulated firm is not so satisfied, the firm and /or a person concerned in its management may be exposed to financial penalties and other sanctions under the Central Bank Act 1942.

The respondent had no reasonable alternative other than to dismiss the complainant as otherwise it would be in breach of the obligations of the Code.  The complainant’s failure to attain the minimum standards was a substantial ground which justified her dismissal.

The complainant’s contract of employment specified that there were no fixed hours of work and that remuneration was commission only.  The complainant had flexibility in determining her hours of work.  The complainant’s hours of work in 2022 were limited; she secured three new policies in a six-month period in 2022, earning a commission payment of €1,442.27. 

Payroll records for each of the years 2020, 2021 and 2022 were provided.

Summary of sworn evidence of Mr Rafal Romanowski

Mr Romanowski is the owner of the respondent business. 

The witness outlined the legal obligations he has in running a firm regulated by the Central Bank of Ireland, which include obligations as to the competency and qualifications of those working in the business.  Controlled functions are where person in the business provide advice or information to consumers on retail financial products.  Every person starts work as a trainee and they have 4 years to obtain qualifications as an accredited product advisor or qualified financial advisor.  A regulated firm cannot allow a person to perform a controlled function unless it is satisfied the person complies with the standards set out in the Code.   The witness confirmed his familiarity with the minimum competency standards of the Code and those concerning recognised qualifications and new entrants.  The complainant’s contract of employment included a clause on training and detailed the requirement that all financial advisors who did not already have a recognised qualification under the Code, would work towards obtaining same within a 4-year period.   The terms of the complainant’s contract of employment were to give effect to, and accorded with, the Code.  Non-compliance with the Code carries the risk of not only sanctions and penalties from the Central Bank and Ombudsman but would also give rise to issues for the respondent in and around how he operates the business.

The witness advised that records detail the termination date of the complainant’s employment as 31 July 2022.

The witness had delegated responsibility for management of qualifications and CPD to another person in the business.  The witness stepped back into this function in January 2022 and he reviewed qualifications of employees.  The complainant was a person who came to his attention, and he had a conversation with her in relation to how she was going to obtain the necessary qualification within a very short timeframe.  There was no indication that the complainant could obtain the qualification and the respondent could not employ a person who did not have the required qualifications.  The witness did not encourage people to leave sitting the exams until towards the end of the 4-year period, as asserted by the complainant, rather he encouraged employees to sit the exams as soon as they were ready.   The witness could not recall what the complainant said in response to him raising the issue of her not having completed the relevant exam.   The witness told the complainant in January or February 2022 that if he did not see evidence of her having attained the qualification, he would have to terminate her employment. 

The witness was aware the complainant had passed the life assurance exam in mid-2021.  The complainant did not directly inform the witness that she had passed the exam but he was made aware of this by another person in the office.

From March 2022, the witness began thinking he had no other choice but to terminate the complainant’s contract based on the complainant not having obtained the necessary qualifications.  On 1 June 2022, the witness discussed this with the complainant.  The witness was aware the complainant was entitled to notice.  He gave the complainant 2 months to achieve the qualification and if obtained within that timeframe, the witness would change his mind in relation to the termination of her employment.  He told her orally that her employment would terminate in 2 months unless she came to him with evidence of having obtained the relevant qualification.  The witness had very little contact with the complainant after the beginning of June 2022.  He asked her to contact him in relation to work and clients.  At the end of July 2022, nothing had changed and he confirmed with the complainant the termination of her employment.  The witness did not accept the complainant’s dismissal was unfair.  The decision to dismiss was taken because of the respondent’s contractual and legal obligations. 

There was continuous discussion around CPD and qualification requirements, including internal weekly delivery of training to staff.  The main goal of people working in the industry is to obtain the relevant qualifications and become a qualified financial advisor or accredited product advisor.  Every employee knew there was a 4-year timeframe within which to obtain the qualification.

Summary of sworn evidence of Jerzy Lesniak

Mr Lesniak works for the respondent.  He is an accredited product advisor.  He commenced employment with the respondent in 2018 as a financial advisor, similar to the complainant.  Additional responsibilities were delegated to him when he was fully trained and accredited.  

One of the first things the witness learned was that there was a 4-year timeframe within which to achieve accreditation in order to continue working.  Both Mr Romanowski and another employee, when delivering training sessions, explained the need to pass the exams and the 4-year timeframe.  He was told that once he was comfortable, he needed to apply to do the exams because the clock was ticking.  Mr Lesniak commenced employment after the complainant.  There were weekly or fortnightly meetings which involved training sessions and reviewing general operational matters.

To obtain classification as an accredited product advisor, a course with two modules must be completed.   The critical issue is not the exams, it is about being appropriately qualified to advise.

CA-00054292-001 (Unfair Dismissals Act 1977)

The Relevant Law

Section 6(1) of the Unfair Dismissals Acts 1977 – 2015 (the “Acts”) provides as follows:-

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

In accordance with section 6(6) of the Acts, it is for an employer to show that there were substantial grounds justifying the dismissal.

Section 6(7) of the Acts provides that in determining whether a dismissal is unfair, regard may be had:-

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice …”

The onus is on the respondent to establish substantial grounds justifying the dismissal of the complainant. 

Decision to Dismiss

The respondent, a financial services provider, is a regulated firm within the meaning, and for the purposes of the Central Bank’s Minimum Competency Code (2017) (the “Code”).  Parts 1 and 2 of the Code set out minimum competency standards, which include minimum recognised qualifications and experience for persons exercising a controlled function on a professional basis.   It was not in dispute between the parties that the complainant was a new entrant within the meaning of the Code. 

It is worth setting out in relevant part the provisions at 1.4 of the Code:-

“c) Working towards a recognised qualification

The new entrant must be working towards obtaining a relevant recognised qualification.  In this regard, the new entrant must:

i)                    register for the first available sitting of the relevant examination which the person could reasonably be expected to sit, and should the person fail to pass the examination on that occasion, each available sitting thereafter until the person obtains the qualification;

ii)                   work towards obtaining examinations for the relevant qualification on a consistent and timely basis, until completion; and

iii)                 maintain a record of all examinations completed, results obtained and examinations scheduled for completion.

…

e) Timeframe

i)        The maximum period for which a new entrant may participate in the training process is four years in total.

ii)       A pro-rata adjustment may be applied to the requirement to obtain a relevant recognised qualification and relevant experience within four years in the following circumstances:

·       Statutory leave: …

·       Serious illness: …”

The relevant recognised qualification in this case was that of Accredited Product Advisor (“APA”).  APA designation can be achieved following completion of two modules, one of which must be in regulation.  The complainant passed the life assurance exam in May 2021 whilst in the respondent’s employment.  The complainant sat and passed the regulation exam in May 2023, after her employment with the respondent ended.

The complainant’s evidence on the first hearing date was that she had never been told that she should do exams, was not reminded about exams and was told that she should do an exam within 4 years, and she did it in a shorter timeframe.  The complainant’s evidence on the second hearing date was that she was told she had to do an exam within a 4-year timeframe, following which there was a further 4-year timeframe to do the second exam.   The complainant also gave evidence on how there was discussion at meetings about preparing for exams and ensuring proper preparation before sitting.   Under cross-examination, the complainant said that she was not aware she had to obtain a recognised qualification.  The complainant submitted that clause 11 of the contract of employment was badly drafted and she had not realised that obtaining the second exam was so important. 

The respondent’s reason for terminating the complainant’s employment was that she had not obtained the minimum qualifications required by the Code for selling and advising on certain retail financial products.  The respondent’s position was that as the complainant’s new entrant status had expired, which status was facilitated by the Code for a 4-year period, it left the respondent with no alternative but to terminate the complainant’s employment.

I am satisfied that it was a term of the complainant’s employment as financial advisor with the respondent that, where she did not the qualifications and experience mandated under the Code, that she work towards obtaining same within a 4-year period.  The role of financial advisor involves performance of a controlled function in respect of which there are prescribed minimum standards.  The respondent’s requirement that all financial advisors have the recognised qualifications or work towards obtaining same accords with the relevant provisions of the Code.  A failure to comply with the standards of the Code carried the risk of financial penalty and other sanctions for the respondent.  On the complainant’s evidence, the respondent held meetings on financial products and in preparation for exams.  There was dispute between the parties as to what the complainant was told regarding the timeframe for sitting exams however the relevant clause in the contract concerns obtaining the minimum standards in the form of a recognised qualification.  I cannot accept that the complainant was unaware, based on her time in employment with the respondent or from reading her contract of employment, of the significance of having the relevant qualification in the role of financial advisor.  

However, I am not satisfied the complainant’s dismissal effective 31 July 2022 was fair for the following reasons.  On the evidence before me, I find that Mr Romanowski informed the complainant of the termination of her employment effective 31 July 2022 during a telephone call on 2 August 2022.  The complainant’s “new entrant” status expired in March 2022, and she had not obtained the necessary qualifications.  Mr Romanowski’s evidence was that he stepped back into the function of managing employees in 2022, which had previously been delegated to another staff member.  He was reviewing qualifications and following up with those who did not.   Mr Romanowski’s evidence was that when he spoke with the complainant in January / February 2022, he advised that if he did not see completed qualifications, the complainant’s employment with the respondent would be terminated and that, in response, the complainant assured him that she was going to attain the required qualification within a matter of weeks.  Mr Romanowski subsequently stated in evidence that in March 2022 he began thinking that he had no other choice but to terminate the complainant’s employment on grounds of her not having obtained the qualifications as required by her contract.  It was common case that there was a telephone conversation between Mr Romanowski and the complainant on 1 June 2022, albeit the complainant disputed that she was told on that date that her employment would terminate in two months unless she produced evidence of her qualifications.  The foregoing evidence does not support the respondent’s position that it had no alternative but to let the complainant go because her new entrant status had expired, and she had not obtained the necessary qualifications.  I cannot find that the reason relied on by the respondent justified its decision to dismiss the complainant effective 31 July 2022.  It was submitted on behalf of the respondent that there was a protracted period of engagement, discussion and determination by the respondent prior to the complainant’s dismissal and that this was done largely orally in accordance with how the respondent operates its business with a small number of employees.   However, I consider striking and unusual the complete lack of paperwork regarding the complainant’s non-compliance with minimum qualifications requirements and the termination of the complainant’s employment.  There was nothing in the documentation before me that conveyed to the complainant that her employment would terminate in the circumstances.  This perhaps goes towards explaining the complainant’s lack of clarity on the subject of exams and required minimum qualifications.

Having regard to all the circumstances and in particular the fact that the complainant’s employment did not terminate in March 2022 and the absence of any formal communication to the complainant on the consequences of non-compliance, I am not satisfied the decision to dismiss the complainant by reason of not having achieved minimum qualifications was reasonable.  Accordingly, my decision is that the complainant was unfairly dismissed. 

Redress

The complainant’s preferred form of redress was compensation, and this is what was addressed by the parties at the hearing.  The complainant secured alternative employment in September 2022 and remains in that employment.  Having regard to all the circumstances, I do not consider redress of reinstatement or re-engagement appropriate.

Section 7(1)(c) of the Acts provides as follows: -

“(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following [the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(a)    …

(b)    …

(c)     (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

…”

Financial loss is defined in section 7(3) of the Acts and includes any actual loss and any estimated prospective loss of income attributable to the dismissal.

The complainant’s evidence was of commencing employment with another company in September 2022.  She undertook controlled sales until she obtained the regulation exam in May 2023.  The complainant had no earnings from her employment with the respondent in May, June and July 2022 given the nature of the pay arrangements being that of commission only.  Having regard to the minimum qualifications required to undertake the role of financial advisor and the complainant’s pay arrangements with the respondent, I am not satisfied the complainant has incurred financial loss attributable to the dismissal.    

I have had regard to the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 along with the pay records submitted by the respondent in determining the complainant’s weekly remuneration for the purposes of section 7(1)(c) of the Acts.  I determine compensation of €460.00, which is 4 weeks remuneration determined by reference to regulation 11 and 12 of the 1977 Regulations, to be just and equitable having regard to all the circumstances.

 CA-00054292-002 (Redundancy Payments Act 1967)

The complaint relates to not having received a redundancy payment on termination of employment in or around August 2022.

An employee is entitled to a statutory redundancy payment under section 7 of the Redundancy Payments Act 1967 if dismissed by reason of redundancy, or where laid off or kept on short-time for a minimum period.  I am not satisfied that the termination of the complainant’s employment was attributable wholly or mainly to any of the circumstances set out in section 7(2) of the 1967 Act or that the complainant was laid-off or kept on short-time.

Accordingly, I find that the complainant is not entitled to a statutory redundancy payment pursuant to section 7 of the Redundancy Payments Act 1967 and I disallow the complainant’s appeal.

CA-00054292-003 (Minimum Notice & Terms of Employment Act 1973)

The complainant was informed of her dismissal on 31 July 2022 by way of telephone call on 2 August 2022.

Section 4 of the Minimum Notice & Terms of Employment Act 1973 (the “1973 Act”) requires an employer to give an employee a minimum period of notice of termination of a contract of employment.  The minimum notice period is based on an employee’s service.  

Based on the complainant’s service with the respondent, which was uncontested, the respondent was required to give the complainant two weeks’ minimum notice of termination.  I find that the respondent did not comply with this requirement.

I find that the respondent contravened section 4(2) of the 1973 Act.  I make no award of compensation having regard to the pay structure in place and the complainant’s failure to prove loss sustained by reason of the respondent’s default.

CA-00054292-004 (National Minimum Wage Act 2000)

The complainant submitted that she did not receive the national minimum wage and that payment on 11 May 2022 was less than that to which she was entitled under the National Minimum Wage Act 2000 (the “2000 Act”) and that she received no salary in June, July and August 2022.

It was submitted on behalf of the respondent that the dispute had been referred outside of the statutory time limits. 

The complainant’s written submission, received in advance of the second hearing date, made a qualified retraction of this complaint.  In the circumstances I consider it appropriate to adjudicate on the complaint.

Section 24 of the 2000 Act provides as follows:-

“(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the Adjudication Officer may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

(b) where, in respect of the same alleged under-payment, the employer is or has been-

              (i) the subject of investigation by an inspector under section […] 34, or

              (ii) prosecuted for an offence under section 35.”

For information purposes, section 23, in relevant part, provides as follows:-

“(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12-month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of Schedule 1,

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.

(6) …”

Section 2 of the 2000 Act defines “pay reference period” as meaning “the period selected under section 10 by his or her employer”.

Section 10 provides:-

“An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month.”

The complainant submitted copy of an email sent by her on 7 October 2022 to Mr Romanowski in which it is stated “In addition, I request that you write and send back to me a statement about the average hourly rate”.

The complainant did not identify a pay reference period or periods to which the request related.  This is relevant having regard to section 23(1) and (3) of the 2000 Act. 

The referral of a dispute to the Commission as to entitlements under the 2000 Act is predicated on an employee and their employer disagreeing on the appropriate entitlement to pay in accordance with the Act.  The section 23 statement request is a key feature as it goes to determining the existence of a dispute between the parties. 

The complainant’s request in an email of 7 October 2022 did not comply with the requirements of section 23(3) of the 2000 Act.  Accordingly, I find the dispute to be not well founded.

CA-00054292-005 (Organisation of Working Time Act 1997)

This is a complaint of a contravention of section 14 of the Organisation of Working Time Act 1997 (the “1997 Act”).  The complainant submitted that she worked frequently on Sundays without being properly compensated.

The complainant’s written submission, received in advance of the second hearing date, made a qualified retraction of this complaint.  In the circumstances I consider it appropriate to adjudicate on this complaint.

There was no specific evidence before me of the complainant having worked on a Sunday within the six-month period prior to referral of the complaint, and no evidence of the respondent having required the complainant to work on a Sunday.

Section 3(2)(c) of the 1997 Act provides that Part II of the 1997 Act does not apply to:-

“a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.“

It was common case between the parties that the complainant did not have fixed hours of work in employment.  The complainant submitted that it was her responsibility to find customers and handle them in an appropriate timeframe and further that she was not obliged to bring in a specific amount of business from customers in a month or within specific timeframes. The complainant in her direct evidence said that she worked whenever she wanted and at times agreed by her with customers.  Meetings at the respondent’s Dublin premises were held on Mondays and the complainant said she had not attended the Monday meetings in 2022.  The complainant confirmed in cross-examination that it was her decision what hours to work.

I am satisfied on the evidence before me that the complainant determined the duration of her working time within the meaning of section 3(2)(c) of the 1997 Act.  Accordingly, I find that section 14 of Part II of the 1997 Act does not apply to the complainant and that this complaint is not well founded.

CA-00054292-006 (Organisation of Working Time Act 1997)

The complainant submitted that she did not receive paid holiday or annual leave entitlement.

The complainant’s evidence was that she had not worked in February or March 2022 due to illness but that from April 2022 until her employment terminated, she was working looking for potential clients which involved calls and meetings.  In cross-examination, the complainant said that her hours of work were not checked by the respondent but that the respondent knew what hours she worked.  It was put to the complainant that on the information the respondent had, there was no way of the respondent knowing what hours the complainant worked without the complainant telling the respondent.  The complainant said she was receiving commission from sales and the sales were based on her hours of work.  The complainant maintained that the respondent was aware of the complainant’s meetings and calls with clients/ or potential clients from April to July 2022.   The complainant was asked about a net payment of €321.00, which she attributed to a few days’ work in April 2022.

Section 19 of the 1997 Act entitles an employee to minimum paid annual leave in a leave year by reference to hours worked.  The complainant’s contract of employment with the respondent refers to the statutory entitlement as 20 days.  A leave year for the purpose of the 1997 Act is the period from 1 April to 31 March.

Having regard to the time limits for referral of a complaint of a contravention, as set out in section 41 of the Workplace Relations Act 2015, I am satisfied that the cognisable period in respect of this complaint is the period from 24 June 2022 to 23 December 2022.  I have had regard to section 20 of the 1997 Act on the granting of annual leave to an employee and in particular section 20(1)(c) and am satisfied that the alleged contravention with which I am concerned is in respect of the leave year from 1 April 2022.

There was a dispute between the parties as to what work the complainant had worked between April and July 2022.  I do not accept that because the complainant determined her hours of work that this impacted on her right to paid annual leave.

Section 25 of the 1997 Act requires an employer to keep records to show compliance or otherwise with the provisions of the Act.  The prescribed form of records includes particulars of the days and total hours worked and any leave granted by way of annual leave in each week, including payment made in respect of the leave, of each employee concerned. 

The respondent was given an opportunity to provide any records retained pursuant to section 25 of the 1997 Act.

The complainant’s evidence was that she was undertaking work by way of meetings and calls in the period April to July 2022.  Documentation submitted on behalf of the respondent illustrated days on which the complainant engaged in work during this period.  The complainant’s evidence was that she did not receive paid annual leave.  The respondent has not provided records to show compliance with section 19 of the 1997 in respect of the complainant.  I find that the respondent has not discharged the onus on it under section 25(4) of the 1997 Act and accordingly I find that the complaint of a contravention of section 19 in respect of the 2022/2023 leave year is well founded.  I direct the respondent pay compensation to the complainant in the sum of €800.00 which I consider just and equitable having regard to all the circumstances.    

CA-00054292-007 (Organisation of Working Time Act 1997)

The complainant submitted that she never received public holiday entitlements.

Section 21 of the Organisation of Working Time Act 1997 (the “1997 Act”) provides for entitlement in respect of public holidays in relevant part as follows:-

“(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

…

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.

…”

Having regard to the time limits for referral of a complaint of a contravention of section 21 of the 1997 Act, as set out in section 41 of the Workplace Relations Act 2015, the cognisable period in respect of this complaint is the period from 24 June 2022 to 23 December 2022. 

The complainant’s employment was terminated by the respondent on 2 August 2022.  There is one holiday falling within the cognisable period, namely the first Monday in August.

There is no evidence before me that the complainant had the benefit of the public holiday falling on the first Monday in August.   There are no records evidencing the complainant having worked under the hours threshold in the 5-week period before the relevant public holiday. 

Accordingly, I find that the respondent has contravened section 21 of the 1997 Act in respect of the August public holiday and that the complaint in this regard is well founded.  I direct the respondent pay compensation to the complainant in the sum of €200.00 which I consider just and equitable having regard to all the circumstances.   

CA-00054282-008 (Payment of Wages Act 1991)

The complaint is that the complainant was dismissed without notice and did not receive the appropriate payment in lieu of notice of termination of employment.

Section 1 of the Payment of Wages Act 1991 defines, in relevant part, wages as meaning-

“… any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:…”

Having regard to the complainant’s pay arrangements in employment with the respondent, I am not satisfied there was any sum payable to the complainant upon the respondent’s termination of the contract of employment without giving prior notice of termination.

I therefore find that this complaint in relation to payment in lieu of notice is not well founded.

CA-00054292-10 (Payment of Wages Act 1991)

The first matter for consideration is the time limits for referral of a complaint under the Payment of Wages Act 1991 (the “1991 Act”), as set out in the Workplace Relations Act 2015.

Section 41 of the 2015 Act provides as follows:-

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

…

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The particulars of the complaint referred by the complainant under the 1991 Act may be summarised as follows:-

·       not having been reimbursed €405.00 for an exam taken and passed in 2021;

·       not having received a voucher with a monetary value of €300.00 for winning a sales competition in 2019;

·       an under-payment of €696.00;

·       deductions from payments referable to retention, amounting to €2,508.50 up until December 2021;

·       non-payment of €1,270.00 for July 2022;

·       non-payment of €1,294.00 for the months from January to June 2022.

The complainant also referred to non-payment of annual leave and public holidays, notice and severance pay however these complaints were also referred by the complainant under other pieces of legislation and are more properly addressed under CA-00054292-006, CA-00054292-007, CA-00054292-008 and CA-00054292-002.

Section 41(6) of the 2015 Act requires a complainant to identify a specific contravention that occurred in the six-month period before lodging a claim.  The complainant lodged her complaint with the Commission on 23 December 2022, which means the relevant six-month period is the period from 24 June 2022 to 23 December 2022.  I am not satisfied of reasonable cause such as would ground an extension of the 6-month timeframe.  

I have had regard to Health Service Executive v McDermott [2014] IEHC 331 in which Hogan J stated:-

“14 ...the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

15. 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.

16. 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 in time for the purposes of s. 6(4). If, on the other hand, the complaint were 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 time.”

Documentary evidence relating to the alleged under-payment of €696.00 was submitted in advance of the second hearing date which referenced an under-payment beginning from April 2020.

I do not have jurisdiction to entertain complaints of contraventions in 2019 and 2021.  Having regard to the decision in McDermott and section 41(6) of the 2015 Act, I do not have jurisdiction to entertain the complaints relating to a period commencing from April 2020 or from January 2022.

The specific contravention complained of in the six-month period prior to lodging a claim and in respect of which evidence was adduced at the hearing is the sum of €1,270.00 in respect of a sales settlement in July 2022.   The respondent conceded on the second hearing date that the sum of €1,270.00 is owed to the complainant however it submitted that the sum was not payable to the complainant until July / August 2023. Accordingly, it was submitted that the complaint referred in December 2022 of a contravention was premature.  

The contract of employment expressly provided for withholding of all commission payments for a period of one year following an employee’s departure to allow for possible policy cancellations and charge backs.  Accordingly, I am not satisfied that the sum of €1,270.00 was properly payable to the complainant in the period from 24 June 2022 to 23 December 2022.  I therefore find that this complaint is not well founded.

CA-00054292-011 (Organisation of Working Time Act 1997)

This complaint is a duplicate of CA-00059242-006, which was acknowledged by the complainant at the hearing.

Accordingly, I find that this complaint is not well founded.

CA-00054292-012 (Organisation of Working Time Act 1997)

This complaint is a duplicate of CA-00054292-007, which was acknowledged by the complainant at the hearing.

Accordingly, I find that this complaint is not well founded.

CA-00054292-001 (Unfair Dismissals Act 1977)

I decide that the complainant was unfairly dismissed for the reasons set out above and that the respondent shall pay to the complainant compensation of €460.00.

CA-00054292-002 (Redundancy Payments Act 1967)

For the reasons set out above, I find the complainant is not entitled to a statutory redundancy payment pursuant to section 7 of the Redundancy Payments Act 1967.  I therefore disallow the complainant’s appeal.

CA-00054292-003 (Minimum Notice & Terms of Employment Act 1973)

I find that the respondent contravened section 4(2) of the Minimum Notice & Terms of Employment Act 1973.  No award of compensation is made.

CA-00054292-004 (National Minimum Wage Act 2000)

For the reasons set out above, my decision is that the dispute is not well founded.

CA-00054292-005 (Organisation of Working Time Act 1997)

For the reasons set out above, my decision is that this complaint is not well founded.

CA-00054292-006 (Organisation of Working Time Act 1997)

I find that the complaint of a contravention of section 19 of the Organisation of Working Time Act 1997 is well founded, and I direct the respondent pay to the complainant compensation of €800.00 which I consider just and equitable having regard to all the circumstances.

CA-00054292-007 (Organisation of Working Time Act 1997)

I find that the complaint of a contravention of section 21 of the Organisation of Working Time Act 1997 is well founded, and I direct the respondent pay to the complainant compensation of €200.00 which I consider just and equitable having regard to all the circumstances.

CA-00054292-008 (Payment of Wages Act 1991)

For the reasons set out above, my decision is that the complaint is not well founded.

CA-00054292-010 (Payment of Wages Act 1991)

For the reasons set out above, my decision is that this complaint is not well founded.

CA-00054292-011 (Organisation of Working Time Act 1997)

This was a duplicate complaint.  In the circumstances, I find the complaint not well founded.

CA-00054292-012 (Organisation of Working Time Act 1997)

This was a duplicate complaint.  In the circumstances, I find the complaint not well founded.

Various complaints - Pay – Leave entitlements – Unfair dismissal – Notice – Redundancy – Statutory requirements – Time limits