Complainant

Respondent

Parties

Maria  Khan

Elm Fireplaces Ltd.

Representatives

  Self-represented

Thomas Wallace-O’Donnell BL instructed by Alan O’Callaghan, O’Callaghan Daly 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-00053172-001

08/10/2022

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

CA-00053172-002

08/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00053172-003

08/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00055616-001

21/03/2023

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

CA-00055616-002

21/03/2023

On 8 October 2022, the Complainant referred three complaints to the Director General of the WRC:

CA-00053172-001, CA-00053172-002, and CA-00053172-003.

On 21 March 2023 she referred two further complaints: CA-00055616-001 and CA-00055616-002.

On 12 December 2022, the WRC wrote to Complainant informing her that she had referred a complaint of discriminatory dismissal pursuant to section 77 of the Employment Equality Act 1998 (‘the 1998 Act’)  and a claim of unfair dismissal pursuant to the Unfair Dismissals Act 1977 (‘the 1977 Act’) and informed her that unless  before the relevant date, she withdraws the claim under the Act of 1977, her claim under the 1998 Act  insofar only as it relates to the dismissal, would be deemed to have been withdrawn.

On 13 December 2022, the Complainant replied and informed the WRC that she wished to pursue her claim under the 1977 Act and withdraw the claim under the 1998 Act.

At the adjudication hearing, the Complainant confirmed that her complaint referred to the Director General on 21 March 2023 pursuant to section 77 of the Employment Equality Acts 1998 as amended was a duplication of the complaint referred on 8 October 2022. The Complainant withdrew the complaint referred on 21 March 2023.

In the written submission received by the WRC on 3 May 2023, the Respondent submitted as follows.

The Respondent submits that an unfair dismissal occurs when an employer terminates an employee’s contract with or without notice. A dismissal is unfair for the following reasons: religious beliefs, race, colour, sexual orientation. The Complainant handed in her notice on 26  July 2022 at 14.40. In her email to the Respondent, she stated:

“€900 weekly I need with at least 2 days working from home. If you like idea, great, If not take my 2 week notice. I will finish on 7th august."

The Complainant demanded a €100 increase to her wages as well as the ability to work from home for two days a week. The Complainant gave the Respondent an ultimatum, either it meets her demands or she was handing in her notice.

In response to this Mr O’Connor confirmed to the Complainant that "The wages will remain the same as I previously told you”, and that he was willing to discuss how the Respondent could facilitate the Complainant to work from home two days a week. He stated that once "it won't impact on the productivity of the accounts department, then if we are satisfied we could come to that compromise as don't think this would be a major issue." Mr O’Connor finished the email by stating that this discussion would happen with all relevant parties present on Friday at 5.30pm.

On the same day 26 July 2022 at 10.20pm the Complainant emailed the Respondent once again confirming her last day at work:

"Rest assured will do EWSS reconciliation prior leaving Elm...." and "every bit would be in order before 7th [August]. No further argument on it as I have pile of work & I need my mind to be in proper working order".

The Respondent submits that the Complainant has been working part-time since ceasing her employment with the Respondent. Mr O'Connor provided her with a reference for her new role as requested by her and did not mention any ongoing grievances.

With regards to the email sent to the Complainant on Friday 12 August 2022, which the Complainant deemed "full of victimisation", Mr O’Connor stated in the email that the Respondent was "communicating by email as per Maria's request and would appreciate a response by 10am on Monday 15th  August". The Respondent submits that it is unclear what can be deduced as a form of victimisation from this one simple sentence.

The Respondent refers to the inaccuracies in the Complainant’s complaint form stating that “because of recent event at elm fireplaces & receipt of complaint by a team member I must take 10 days holidays otherwise I would be suspended on pay pending investigation which would take approx. 10 days"

The Respondent wrote to the Complainant as follows.

"Dear Maria,

Further to recent events at Elm Fireplaces and the receipt of a complaint from a member of the team in relation to these events we have made the following decisions:

1.        Any formal written complaint that we receive must be taken seriously and we intend to investigate this properly. We are requesting that you do not attend work at Elm Fireplaces in Loughill while this investigation is taking place. We expect that our investigation will take 10 working days. You can take the time as holidays or we can issue a suspension on full pay. For clarity, this suspension would not be a disciplinary sanction and will continue until you are notified otherwise. While on suspension you are not permitted to be on the premises or make contact with employees of Elm Fireplaces Ltd. As you are aware, we requested an informal meeting with you on Wednesday 10/08/22 at 4.50pm to discuss the issues. You refused this meeting and instead requested that we communicate in writing."

The Respondent rejects that the email was unprofessional as alleged by the Complainant.  It was sent from the official email account of the Respondent.

The Respondent submits that the Complainant proceeded to send multiple emails stating that she had rejected the email above and would be returning to work on Monday 15 August 2022 unless it was re-issued on headed paper and outlined the grounds for suspension. Mr O’Connor issued another version and emailed it on Sunday 14 August 2022.

The Complainant had been clearly told that the accounts office would be relocating on 12 August 2022 and that her return date to work would be 29 August 2022 in the new office. The Complainant had said in her complaint details that "the same method was used to bring in my attention that the accounts office had moved". This was not new information and the move was completed by 29 August 2022 as promised. Mr O'Connor emailed the accounts email (this was to be viewed by both the Complainant and her brother) at 8.50am on the morning of 29 August 2022, to confirm that the new office set up was satisfactory and asking if there were any other items required. It was noted that the Respondent was awaiting a new desk and two filing cabinets which delivery had been delayed on at this time. The Complainant’s brother emailed the Complainant at 10.58am directly to her own email account as she still had not arrived at work. The Complainant then complained that her brother had emailed her and stated that "l have nothing to do with your accounts as long as I am suspended", even though at this time she was expected at work.

The Complainant also submitted that on 3 September 2022 she had lodged a complaint with the Health and Safety Authority (‘HSA’) regarding her concerns in relation to the accounts office relocation not being adequately set up or against regulations. Two issues were noted on this complaint: 1. Inadequate ventilation in office 2. No female toilet facilities. The Respondent submits that,  following the HSA's assessment, the inspector found no issues with the accounts office set up.

In the evening of 29 August 2022, the Complainant sent an email to Mr O’Connor at 8.58pm claiming that Mr O’Connor had blackmailed her brother into communicating with the Complainant indirectly and pushing for him to be relocated back to Loughill.

The Complainant then once more insisted on a letter on headed paper be sent to her stating that her suspension was over. This was issued as requested, and the Respondent once again attempted to arrange a formal meeting with the Complainant and with independent HR representative Mr Foley present.

As  the Complainant still refused to show up for work, Mr O’Connor sent another letter on a headed paper by email stating that she would be returning to work in the new office as previously discussed. The Complainant still refused to enter the workplace and refused to meet the independent HR adviser, Mr Foley.

The Complainant was the account representative for Peninsula at the Respondent and, therefore would be aware that Peninsula only offer advice and don't send any of their own HR team to mediate cases at the workplace. In the interest of fairness, Mr O’Connor engaged an independent HR adviser.

With regards to relocating the office, the Respondent submits that this was originally the Complainant’s brother’s suggestion as he thought it would better environment for both his sister and all other office staff.

Another reason the Respondent believed the relocation would be beneficial for the Complainant was that she would have a short 10-minute commute to work as opposed to 45 minutes daily. The Respondent relies on the Complainant’s email of 11 June 2022 at 4.55pm:

"I can't ignore my travel costs especially when there are short distant opportunities available on same pay."

The Respondent submits that a meeting was held on 12 September 2022 in the new showroom with Mr O’Connor, his mother (Director 1), the Complainant and her brother in attendance, to try and once again resolve issues. At the end of the meeting, the Complainant said that she would only come back once her pay increase and working from home demands were met. Mr O’Connor told the Complainant once again that he was not going to meet these demands.

As there was no constructive engagement from the Complainant, despite repeated attempts, the Respondent was left with no option but to accept that the Complainant had resigned which was put in writing on the 26 September 2022.

The Complainant was paid until the end of October including two weeks holidays.

The Respondent submits that the reasons for a fair dismissal include conduct. There are many examples of the Complainant’s conduct being disruptive and disrespectful (e.g. email regarding the  password for the Respondent’s computer of 23 February 2022). Other examples of misconduct by the Complainant include:

·       Poor timekeeping

·       Abuse of sick leave policy

·       Refusal to carry out a reasonable request

·       Bringing the organisation into disrepute

Examples of gross misconduct by the Complainant include:

·       Abuse of trust (e.g. recording fellow employees without their knowledge or permission)

·       Serious harassment/bullying (e.g. incessant emails and WhatsApp's to Mr O’Connor badgering him at odd/late hours that were out of office hours)

·       Serious breaches of data protection policy (e.g. 21 September 2022 taking photos of private and confidential material. Then informing employees by WhatsApp message).

The Respondent had always endeavoured to resolve any issues regarding the Complainant in a fair and open manner. Due to the size of the organisation, the Respondent found previously that it was more successful to negotiate terms and conditions in an informal manner. Unfortunately, due to the Complainant's unwillingness to meet at such informal meetings, the Respondent was unable to resolve this matter to a satisfactory conclusion for both parties.

Summary of direct evidence and cross-examination of Mr O’Connor, Manager

Mr O’Connor said that the Complainant worked for some 3.5 years for the Respondent. He said that the first couple of years were perfect except him getting WhatsApp messages from the Complainant in the middle of the night. She would then not talk to him for 2 weeks if he ignored the late messages. He said that the messages were both personal and business related in nature, including a photo of a location where she said she would commit suicide.

Mr O’Connor said that in June / July 2022 there was a lot of friction in the office.

Mr O’Connor said that the Complainant’s email of 26 July 2022 threatening resignation if her demands were not met was not the first time she threatened the Respondent with her resignation. There were other occasions when she handed in her resignation previously. Mr O’Connor said that this issue was raised with the Complainant in February 2022, she took a week off over it. He was in the USA on annual leave and she would have sent him lots of WhatsApp messages.

Mr O’Connor said that the Complainant always sent him emails to show that she had other job offers.

Mr O’Connor referred to the Complainant’s email of 26 July 2022 10.20pm and said that while the Complainant was employed to deal with the accounts, which she was excellent at, she had an opinion on everyone and everything.

Mr O’Connor said that he gave the Complainant three pay increases. He said that he tipped his limit of how much he could pay a bookkeeper but he was willing to engage regarding the Complainant’s request to work from home.

Mr O’Connor said that the Complainant started doing her hours in 4 days and then take the fifth day off, it could be any day, so he needed some structure.

Mr O’Connor said that there was clash of personalities between the Complainant and her office colleague.

Mr O’Connor described the events of 2 August 2022. He said that the Complainant was standing outside the show room roaring and pretending she was her coworker, she shouted “if Colin [Mr O’Connor] rings, tell him I’m in the bathroom”. Mr O’Connor said that she was acting in an inappropriate, unprofessional manner and her behaviour was extremely erratic. He said he asked her to refrain. The Complainant then started talking about her coworker, who was about 20 feet away and could hear her. Mr O’Connor asked the Complainant to stop. The Complainant refused to do so. The coworker started crying and left. The Complainant then started talking on a loudspeaker mimicking Mr O’Connor.

Mr O’Connor said that he wanted to have a meeting with the Complainant to address her unreasonable behaviour and it was agreed that they and Mr O’Connor’s father (Director 2) would be there. However, Mr O’Connor did not manage to contact his father and he arrived around 4.45pm. He went to the Complainant’s office and they started to have an argument. The Director told the Complainant that she is “causing shit in the office” and “messing with people’s heads”. The Director said that this was not normal behaviour and that he spoke to the Complainant already about her erratic WhatsApp messages and emails to Mr O’Connor after work hours. The Director did not raise his voice. The Complainant’s brother was there and witnessed the situation. The Complainant started shouting and told her brother to pack up things as they were leaving. Mr O’Connor said that he told the Director to leave it as the conversation was going nowhere due to the Complainant’s erratic behaviour.

Mr O’Connor said that at 6.15pm he got a call from a Garda who explained to him that the Complainant turned up at the station and told her that she was assaulted. After some inquiry, the Complainant told her that she was “verbally assaulted”. The Garda asked Mr O’Connor to resolve the situation. She said that she advised the Complainant that her issue had nothing to do with Gardaí and she should try to resolve it with the Respondent. Some 30 min later the Garda rang again and said that she will write everything down as she was afraid that the situation is going to be “twisted”.

On the next day, the Complainant’s brother asked Mr O’Connor to move the accounts to the Limerick office. He said that even he could not work with his sister like that.  Mr O’Connor said that initially he was against the idea but he did not think the situation could be resolved otherwise. He said that he tried to talk to the Complainant but she would not talk to him. The Complainant’s brother suggested waiting until the Complainant’s holidays and tell her then about the move.

Mr O’Connor said that then there was an exchange of emails regarding the Complainant’s suspension.

Mr O’Connor said that it was arranged by email that he, Director 1 and the Complainant would meet on 12 September 2022. Mr O’Connor also wanted the Complainant’s brother to be present. Mr O’Connor said that he requested the Complainant not to record the meeting and she agreed. He was shocked to learn that she did record it despite his request. The Complainant arrived half an hour late and set out her conditions (€100 pay increase and 2 days working from home). She said that she did not mind, she could stay at home as long as she was paid. She would not come back until her conditions were met. During the meeting she agreed to come back and then she said she would not until she gets a wage increase. 

Mr O’Connor said that he received a complaint against the Complainant from her coworker. He said that the Respondent requested to meet with the Complainant on 10 August 2022 but she refused to meet and said that all communication should be in writing.  The Respondent then offered an informal meeting on 29 August 2022. It also offered a formal meeting with a representative if the Complainant preferred.

Mr O’Connor said that the Complainant was suspended, she did not engage in the investigation and did not return to work. Mr O’Connor said that he needed to try to run the business. As far as he was concerned, she resigned.

Mr O’Connor said that he is not a HR expert, he sought advice, he sent the letter of 26 September 2022 informing the Complainant of the acceptance of her resignation. She would not give a reason why she would not engage with the external third party.

With regards to the complaint the Complainant allegedly made against her coworker on 23 September 2022, Mr O’Connor said that the Complainant was not in for a couple of days and on her return the coworker said something along the lines: “oh you are back again”. The Complainant took exception. Mr O’Connor said that she spoke to the coworker and to the Complainant about it. As far as he was concerned, it was resolved after it was initially raised by the Complainant.

Mr O’Connor said that on 21 September 2022 he arrived at the showroom to meet a client. The Complainant was honking the horn of her car at him and shouting at him to speak to her, she told him people treated her badly. He said that she came to the car and she was verbally abusing him. He asked her not to cause a scene. She then left and showed up in the office in Limerick.

Mr O’Connor said that he drove to Limerick after he got a phone call that the Complainant arrived there. Mr O’Connor said that he did turn on recording his phone and the Complainant saw him doing that. He said it was because the Complainant’s tendency to lie, he did not want any allegations against him. He said it was the first time he recorded a situation like that, he could not deal with it.  He said that the Complainant eventually left.

Mr O’Connor said that the Complainant told him that she had been told that the office was “bugged” but he found out later that she was telling her coworkers that the office was bugged.

Mr O’Connor said that he used the term “trespassing”.

Mr O’Connor said that he did not see a video of the Complainant’s coworker allegedly abusing her. He said that the Complainant told him before that she had it recorded but he told her not to do it, that it was illegal.

Mr O’Connor said that he put all the Complainant’s belongings into a box. He said that he did not touch her prayer.

In cross-examination, Mr O’Connor said that he used the term “trespassing” as the Complainant said she would not work from the new office.

Mr O’Connor confirmed that it was the Complainant’s brother who addressed the Complainant’s erratic behaviour and suggested the move to the new office. Mr O’Connor said that the Complainant’s brother did not feel comfortable. Mr O’Connor said that he did not want the Complainant to go but she could not stay in the office, it was intolerable. When the suggestion was made to move the accounts, it was hoped that it would resolve the situation but the Complainant just kept escalating it.

Mr O’Connor said he believed he had no other option but to move the accounts. The Limerick office was not ready so he needed some time. The Complainant’s suspension was lifted as soon as the office was ready. He said that he wanted to keep the Complainant in the job but the working environment deteriorated so much he had to move accounts to another office.

With regards to the investigation of the complaint against the Complainant, Mr O’Connor said that he hired the external HR adviser. As he was on leave, he contacted the Complainant on his return. The Complainant refused to engage in any investigation. Mr O’Connor said that the HR adviser interviewed everybody else in the office. Mr O’Conor was not sure if the Complainant received a copy of the coworker’s complaint against her. Mr O’Connor said that the HR adviser did not finish his investigation, he did not issue a report as it did not conclude.

Mr O’Connor said that once the office was set up, the suspension was lifted. It was not related to the complaint by the coworker, they would not interact anymore.

Mr O’Connor said that on 12 September 2022 there was no agreement regarding the Complainant’s return on 14 September 2022 as she asked for €100 increase. He said that emails were flying afterwards. The Complainant was told that she would not be coming back to Loughill, her office was no longer there. Mr O’Connor said that the Complainant was refusing to come back until her terms and conditions were met so, in his view, she resigned.

With regards to the alleged gender discrimination, Mr O’Connor said that the Complainant and himself held a meeting with the male employee in question. The matter related to his attitude which improved afterwards. Mr O’Connor said that the individual in question was perfect with clients but had poor attitude toward other staff. He engaged in the process and improved.

Summary of direct evidence and cross-examination of the Sales Administrator and acting HR, Ms A

The witness said that the Complainant had ben looking after HR so when she resigned, the witness was trying to help.

The witness said that she knows the Complainant very well and considered her a friend. She said that the Complainant would talk a lot in the office about work, personal life, and her family. She was going through stressful time at home which was impacting her work life as well.

The witness said that the Complainant would have talked about Mr O’Connor in a non-work-related way. E.g. she would ask if the witness noticed the way Mr O’Connor allegedly looked at the Complainant in a certain way. She was happy about that and wanted confirmation from someone that he did.

The witness said that sometimes the Complainant would get very emotional about something that she would have considered trivial. She mentioned suicide. The witness said that she would not want to upset her, she was her friend.

The witness said that after she returned from her leave she noticed “atmosphere” in the office. She asked the Complainant was she OK, what was going on. She said she was fine, strong, able.

The witness said that the Complainant searched he office for “bugs” (recording and listening devices). She said she did not know what was the purpose of the Complainant recording conversations, perhaps she was trying to build up evidence.

The witness said that on 21 September 2022 she was in the yard with a customer when the Complainant arrived. She said “hi” to the Complainant. The Complainant started collecting her belongings making quite a lot of noise. The witness said that she found it hard to talk to the customer. Director 2 was there, he was quite respectful, he let her say what she wanted to say. The Complainant left, she then came back and started beeping the horn looking for reaction.

The witness said that when leaving the Complainant did not say anything about her resignation or not wanting to resign. She said, “I’ll see you all in court”.

In cross-examination, the witness confirmed that the Complainant was shouting “I’ll see you all in court”.

Summary of direct evidence and cross-examination of the accounts employee and the Complainant’s brother, Mr B

The witness said that it was the Complainant who suggested the job to him. She sorted everything out for him. She enjoyed her job and everything was fine.

The witness said that he started working for the Respondent on 13 July 2022 initially as a student.

The witness said that the Complainant had some concerns about procedural issues regarding the accounts. They both have access to the accounts email.

The witness said that he witnessed the incident with Director 2. He said that the Director asked the Complainant if she abused the coworker. He said that the Complainant was creating “shitty atmosphere”. Mr O’Connor tried to calm down the situation.

The witness said that he thought that moving the accounts to the new office would be a good solution. He said that he respects his sister. He said that, after he returned from his father’s funeral in Pakistan, he noticed that the Complainant was upset, she could have suffered from depression. She kicked him out of her house, she threw his belongings including documents outside the door of the Limerick office and made a complaint to Gardaí about him hoping he would get deported.

In cross-examination, the witness confirmed that he arrived in Ireland on 11 July 2022 and started with the Respondent on 13 or 14 July 2022. He was living with his sister at the time.

The witness confirmed that he was trying to resolve the issues and he suggested to wait and tell the Complainant about the suspension when she was back from her leave.

In the WRC complaint referral form received on 8 October 2022, the Complainant stated that she was dismissed on 7 October 2022, having been given notice of dismissal on 26 September 2022.

The Complainant stated as follows.

The Complainant submits that 10 August 2022 was her last working day, she was on annual leave on 11 and 12 August. The Complainant submits that on 12 August 2022, during her holiday, she got an email from the Respondent full of victimisation which stated that because of recent event at the Respondent and the receipt of a complaint from a team member, the Complainant must take 10 days holidays otherwise she would be suspended on pay pending investigation which would take approximately 10 days.

The Complainant submits that she requested the letter to be resent “formally”, on the Respondent’s headed paper with the employer's initials on it. Otherwise, she would resume work from Monday 15 August 2022.

The Complainant submits that she then got a formal suspension letter on 14 August 2022 to stop her entering the premises like she was a criminal. The Complainant submits that she got this unexplained and unjustified suspension for 2 weeks, while no investigation was conducted during that time nor anyone contacted her or responded to her when she requested an update.

The Complainant submits that the suspension letter also informed her about the relocation of the accounts office after on her return (on 29 August 2022). The Complainant submits that she had submitted her concerns in relation to the new location to the Health and Safety Authority (“HSA”).

The Complainant submits that she inquired about the investigation that was to be carried out as nothing happened in the given time frame. She believed that she was suspended to degrade her and to change the office location.

The Complainant submits that she received a series of nonprofessional correspondence from Mr O’Connor, Manager for over 2 months, which was stressful for her and forced her to start using anti-depressants.

The Complainant submits that she was then forced to meet with an external HR “individual” Mr Foley, which she did not want to do. She submits that the Respondent used the services of Peninsula so she believed that forcing her to meet an external HR advisor was an attempt to victimise her and to force her to leave her job.

The Complainant submits that she got another “ignorant” letter on 26 September 2022 informing her that her resignation was accepted. The Complainant asserts that she never resigned.

The Complainant submits that the Respondent used her pay rise request to ground the termination of her employment which was never the primary concern she had.

The Complainant submits that she did not attend any meeting on 15 August 2022 which was mentioned in the letter.

The Complainant submits that there was a series of incidents of discrimination, bullying and harassment by a “sales girl” (Ms B), by the Director of the Respondent and by Mr O’Connor.

The Complainant submits that on 21 September 2022 when she entered the Respondent’s premises, Mr O’Connor disrespectfully video recorded her without informing her. She noticed after some 5 minutes that she was being recorded and did the same.

The Complainant submits that Mr O’Connor plotted that day to victimise her further and saying that she was "trespassing".

The Complainant submits that the Respondent has previously used different methods so that she resigned her employment which she never did. The Respondent also tried to force her brother to be involved and to force her to ignore all unfair treatment.

The Complainant submits that she was also penalised because she told the Respondent that she would report alleged irregularities.

The Complainant submits that she asked the Respondent for a written apology for all unacceptable behaviour and victimisation. She also requested that the new premises were safe to work in, however, her requests were ignored.

The Complainant submits that she also requested a €100 per week pay rise but the Respondent offered her €50 per week. The Complainant alleged that the payment was to be non-taxable which she refused.

Summary of direct evidence and cross-examination of the Complainant

The Complainant said that she initially started in the sales department. She said that she would always do her job correctly. When she started, she said that the accounts were messy in terms of payments not made by customers. There was need for a designated accounts person.

The Complainant said that Ms A told her that one of the coworkers was paid in cash. She said it was unfair. The Complainant said that she would speak with Mr O’Connor. She said that whenever she spoke to the Director 2 about cash, procedures etc., he got annoyed.

The Complainant said that in June 2022 she spoke to Mr O’Connor about a pay rise. She attempted to leave but decided to stay. The Complainant said that everyone was happy that she stayed.

From 11 July 2022 when her brother joined, the Complainant said that she got more responsibilities. The Complainant said that her coworker, Ms B was getting a coffee every morning and she did not.

The Complainant said that she was blamed for a blown hard drive. She said that she was under too much pressure.

The Complainant said that she was not told why she was suspended. She said that there was no direct email from the Respondent to say that the suspension was lifted. She said that she was never asked to come back to work.

The Complainant said that during her absence, the Respondent used her email to send payslips to staff.

The Complainant said that Mr O’Connor emailed her about the external HR adviser. She did not want to meet him. She said that she had a bad experience with another HR professional in the past.

The Complainant said that her coworker, Ms B, was speaking to her in an inappropriate way and she complained about it in March 2022. She said that she emailed Mr O’Connor about it on 2 March 2022. She said that Mr O’Connor spoke to her about it but he did not investigate.

The Complainant said that in August / September 2022 she asked about her investigation but all the Respondent wanted was to bring her to the table to talk.

The Complainant said that she met with Mr O’Connor, Director 1, and the Complainant’s brother on 12 September 2022. She was offered €50 extra but not €100 as she had requested. She was asked would she be there tomorrow. The Complainant said that she expected to return on 14 September 2022 to the old office in Loughill but nobody expected her there.

The Complainant said that she emailed Mr O’Connor over the weekend (no copy of the email available) to ask if she was coming back on Monday.

On 19 September 2022, Mr O’Connor emailed her regarding a meeting with the HR adviser.

The Complainant said that she decided to come back to work on 21 September 2022. She went to Loughill. Director 2 did not want her to enter. There was no accounts’ computer in the office. She said that she took her stuff and left. She said bye to everyone and “see you all in court”.

The Complainant said that the Director 2 was staring at her when she was taking her prayer from the back of her door.

The Complainant said that she gave the cupboard keys to her brother but he gave them back to her at the meeting on 12 September 2022. She said that the Director 2 took them off her. She said that she gave a normal beep when she saw Mr O’Connor and told him she wanted the tag off the keys. She said that she told Mr O’Connor that the Director 2 was strange, different.

The Complainant said that she drove to the new office, Director 1 and the Complainant’s brother were there. Director 1 told the Complainant that she was trespassing and asked her to go. The Complainant showed her the email from Mr O’Connor about her return. Director 1 apologised and left. The Complainant said that she started working. Mr O’Connor arrived and he told the Complainant she was trespassing. Both of them were recording the conversation. The Complainant told Mr O’Connor to give her a letter and she would go. He said that he sent her an email that morning. Mr O’Connor started doing wages on the Complainant’s computer, she was drinking tea.

The Complainant said that Mr O’Connor gave her a letter to say that until things are sorted, she was not allowed to come to the office. She went home.

The Complainant said that the independent HR adviser contacted her but she told him not to contact her again.

The Complainant said that when she got the letter accepting her resignation, she replied to it. Then she got the letter regarding her final pay. She made the WRC complaint on the next day.

In cross-examination, the Complainant confirmed that she found a new job in January 2023. She also confirmed that, despite the Respondent’s policy not to give references, Mr O’Connor provided her with one.

It was put to the Complainant that in her correspondence she confirmed that she would leave on 7 August 2022.

It was also put to the Complainant that the move of the accounts was due to a complaint received from her coworker and the investigation that was to take place. However, there was a period that she could not work as there was no office ready.

It was put to the Complainant that after the suspension, the Respondent told her to come back to work. The Complainant said that the office was not suitable and the investigation was not carried out.

It was put to the Complainant that she did not like being told what to do. She was told that the Respondent engaged an independent HR adviser and she refused to engage. The Complainant confirmed that she was the person dealing with Peninsula and agreed that it made sense to have an external HR person. However, she said that she was 40 and had some sense, she said that she knew what would happen if she engaged in the process.

The Complainant confirmed that, after she had a chat with Mr O’Connor about the payment made in cash to one of the employees not only were her duties enhanced but also her brother was employed by the Respondent.

The Complainant was asked where was the link between her telling Mr O’Connor that she was not happy with payments in cash and her WRC case. The Complainant said that her coworker did not like her talking to Mr O’Connor and started interrupting.

With regards to the Complainant’s complaint regarding her coworker’s comment made on 2 March 2022, it was put to the Complainant that she had been out for a number of days, she considered moving to another job. When she returned her coworker said: “look at you, you are back”  and the Complainant did not like it. The Complainant confirmed that after she complained, Mr O’Connor spoke with her but she argued that he did not speak with her coworker. It was put to her that she could not have known that.

The Complainant denied that she referred to herself as a “crazy Pakistani”. She said that the Director did but in a friendly way. The Complainant was referred to an email entitled Minutes of the meeting – 18 May’22; 5:30 to 7:00pm from the Complainant to Mr O’Connor where she said: “Trust me I am not a Taliban”.  The Complainant as also referred to text messages in which she called herself a “Lady Taliban” and a “crazy Pakistani”.

It was put to the Complainant that Mr O’Connor brough a coffee for her coworker as they started at 8.30am, the Complainant was not there at that time. The Complainant said that she asked him to get a bottle of milk once and he did not.

The Complainant agreed that she handed in her notice some 10 -12 times during her employment with the Respondent because she was expected to work “as an idiot”.

The Complainant agreed that the HSA investigated her complaint regarding the Limerick office and there were no issues.

The Complainant confirmed that she once wore a hijab to work but she denied that she spoke with Mr O’Connor asking if it would be OK. The Complaint was referred to texts exchanged where the issue of her wearing a hijab was discussed.

With regard to the incident of 21 September 2022, the Complainant said she beeped once. She denied that she was shouting, roaring, that she slammed the door. She said that nobody spoke to her really. She denied that she held the horn down. She said she did not see any customers.

Dismissal

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

“dismissal”, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The Complainant alleges that she was dismissed by the Respondent, the Respondent asserts that the Complainant resigned her position. 

In Parkboro Developments Ltd T/a Park Engineering v Mariusz Witkowski UDD2338 the Labour Court noted:

“There can be no absolute rules about what is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.”

Generally, an employee is dismissed when the employer informs the employee clearly and explicitly that the contract of employment is at an end or if the circumstances leave no doubt that dismissal was intended or may reasonably be inferred as having been intended [Desmond Ryan, Redmond on Dismissal Law (3rd ed., Bloomsbury Professional, 2017) at 22.13].  Where ambiguous words are used, an objective test should be deployed to decide what was intended by the speaker.  In Devaney v DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal stated:

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus UDD 1753 the Labour Court held as follows:

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined.” 

As there is a dispute between the parties concerning whether the Complainant resigned or was dismissed, I must first examine the relevant evidence and reach a conclusion in that regard.

I consider the Labour Court determination Shinkwin v Donna Millett EED044 to be particularly instructive in relation to the matters in dispute in the instant case.

The Court first considered if the complainant’s apparent resignation ever took effect.

‘A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.’

In Shinkwin the Labour Court referenced an extract from  Dr Mary Redmond in her book Dismissal Law in Ireland  as follows:

‘When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude that the employee has resigned. However, context is everything. A resignation should not be taken at face value where in the circumstances, there were heated exchanges or where the employee was unwell at the time. The intellectual make up of the employee may also be relevant.’

The Court found that that ‘there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered. InKwik-Fit (GB) Limited v Linehan [1992] IRLR 156, the following passage appears at paragraph 31:-

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] IRLR 313). These we refer to as “special circumstances”. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively.”

In Martin v Yeoman Aggregates Ltd [1983] IRLR 48 the following finding of the EAT is recited in the headnote:-

“It is a matter of plain common sense, vital to industrial relations, that either an employer or an employee, should be given an opportunity of recanting from words spoken in the heat of the moment. It could not be accepted, as argued by the appellant, that once clear and unambiguous words are used the contract irreversibly comes to an end so that second thoughts make no difference.”’

The Court went on to say that ‘these arepersuasive authorities on the law applicable to cases such as this. They also contain sound principles of good employment practise.  An employee may make a decision which is not fully informed because they are not in a position to fully evaluate their options or they may act on a misinterpretation of something which is said or done. Where the situation is still retrievable it would be unreasonable for an employee to be denied an opportunity to recant once the true position becomes clear.’

The Court referenced approaches by the EAT in this jurisdiction in claims of unfair dismissal.

‘In Keane v Western Health Board (UD 940/1988) the claimant was aggrieved at the manner in which she was treated by a more senior employee with whom she was assigned to work. She was unaware of the existence of a procedure by which she could have processed her grievance. The claimant believed that the difficulties and stress which she was experiencing presented her with no alternative but to resign. When she became aware of other industrial relations options she sought to withdraw her resignation.

The Tribunal took the view that the claimant's resignation, viewed against the background in which it was made, could not be considered a fully informed decision or notice by her to terminate her employment. They were of the opinion that the resignation was tainted by reason of the confused state of the claimant’s mind at the time the resignation was proffered. The Tribunal concluded that in the circumstances of the case a reasonable employer would have allowed the claimant to revoke her notice and the respondent’s refusal to consider doing so amounted to a dismissal.

On the basis of these authorities, it seems clear that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken. The resignation must be withdrawn within a reasonable time which will probably be quite short. The test of reasonableness is an objective one decided in the circumstances of the case (Kwik-Fit (GB) v Linehan). It is also clear from the authorities that where an employee freely and deliberately decides to resign and subsequently changes his or her mind, the employer is under no obligation to accede to a offer to withdraw the resignation or to even to consider such an offer.’

There was no dispute that the Complainant emailed the Respondent on 26  July 2022 and made an ultimatum: a pay increase and at least two days working from home or she would leave on 7 August 2022. It was also not in dispute that it was not the first time when the Complainant threatened to resign but, in fact, she never did and the Respondent never acted on it. The Complainant’s behaviour on 26 July 2022, seemed to part of a pattern whereby she would threaten the Respondent with her resignation and neither party would take any action in that regard. Having reviewed the parties’ correspondence it appears that the Complainant quite frequently made references to her leaving or remaining in her employment with the Respondent.

I note, however, that while the Complainant referred to 7 August 2022 being her last day of employment with the Respondent, she worked past that date and the Respondent took no action in the context of her purported resignation. The Respondent subsequently engaged in the process of the investigation of the complaint against the Complainant and the office move and suspended the Complainant as of 12 August 2022 (post the alleged termination date). The exchange of correspondence ensued thereafter and in her email of 29 August 2022, the Complainant stated unambiguously: ”I am still Elm’s employee who is willing to continue working there once things are dealt fairly.”

It is, therefore, clear that while the Complainant threatened with her resignation, neither side actually considered the Complainant’s employment to be terminated on 7 August 2022.

I further note that at the meeting on 12 September 2022, the Complainant made her return to work conditional, subject to a salary increase and work from home arrangements. Mr O’Connor’s evidence was that, at the meeting, the Complainant made it very clear that she was happy to remain at home and be paid, if these conditions are not met. It is, therefore, my view that the Complainant did not resign her position on 12 September 2022 either.

The Respondent asserted that, as there was no constructive engagement from the Complainant, it was left with no option but to accept her resignation in writing on 26 September 2022.

I note that the Complainant wrote to Mr O’Connor on 11 October 2022 stating:

“this email can be ignored like all previous ones but rest assured I didn’t resign & it’s all unfair dismissal.”  

Even if I accepted that the Respondent came to a conclusion that the Complainant resigned her position, it would be prudent, particularly in light of the frequent notices of resignations that were never followed through, to follow up with the Complainant.

In reaching a conclusion in this case, I am guided by the findings of the Labour Court in DWT 1018 Rezmerita Limited v Katarzyna Uciechowska where the Court held:

‘In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case. There was also an absence of any probative independent corroboration on either side. The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities. In Miller v Ministry of Pensions [1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

“[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not”.’

Where dismissal is in dispute, the initial burden rests with the Complainant to establish facts from which an Adjudication Officer can determine that a dismissal has occurred. Having considered all the evidence and relevant legal precedents on the issue of the fact of dismissal, I am satisfied that the Complainant has discharged the burden placed upon her and I find that there was a dismissal.

Accordingly, on the balance of probabilities, I find that the Complainant was dismissed by the Respondent on 7 October 2022.

Section 6 of the Act stipulates as follows:

‘Unfair dismissal

(1) 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.

 (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(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 referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

In The Governor and the Company of Bank of Ireland v James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: 

‘It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.’

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (S.I. No. 146/2000) promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·       That employee grievances are fairly examined and processed;

·       That details of any allegations or complaints are put to the employee concerned;

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The core tenet of the Code is that all employees are entitled to fair procedures and natural justice in all of their engagements with their employer.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet, UD1294/2008. 

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited [1973] IR 388, stated that:-

‘This court in re Haughey [1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.’

Furthermore, in Bunyan v United Dominions Trust (Ireland) 1982 ILRM 404, the EAT endorsed and applied the view in the case of N.C.Watling Co Limited v Richardson 1978 IRLR 225 EAT (ICR1049) where it was stated: ‘The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether, on the evidence, before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.‘

The combined effect of the above requires me to consider whether the Respondent's decision to dismiss the Complainant was reasonable in the circumstances. It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent's position and circumstances, would have acted in the same way. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the dismissal.

I do not intend to address all the events and extensive written communication between the parties. I will, however, address the main points.

A number of events then occurred that led to the Complainant’s suspension and, eventually, the termination of her employment. It is clear both from the witnesses’ evidence and the copies of communication exhibited by both parties that the Complainant’s attitude toward the Respondent and Mr O’Connor, her manager in particular, was extraordinary. I had sight of substantial email and WhatsApp communication between the parties and the Complainant’s statement such as : “I know I wasted my time typing above shit”, “As soon as you say sorry I will finish that task or else ask some solicitor to do it for you”, “ I need you to send me sorry asap otherwise be ready for cold war”, “I am done with you”, “you would have to apologise today or else look after all…”, or calling Mr O’Connor a “looser” and “incompetent”  or even accusing him of “breathing loud “ seem to be the norm for the Complainant . The Complainant accused other staff of “digging her grave” and Mr O’Connor of dealing “cowardly” with her complaints.

The Complainant appeared to have a habit of texting or emailing her manager at late hours regarding both very personal and work-related matters, despite numerous requests to refrain from doing so. The Complainant could go from describing her marital difficulties, through expressing her feelings towards Mr O’Connor to telling him he was annoying and made her angry. It appears that the Complainant completely misconstrued an employer-employee relationship.

The communication exhibited at the hearing also shows very strained relationship the Complainant had with coworkers and her quite critical attitude toward her work colleagues.

It appears that the matter came to a head on 2 August 2022. The parties described in detail the events of 2 August 2022 following which a decision was made to move the accounts unit of the Respondent to another location of the Respondent.

Subsequently, the Respondent received a formal complaint from an employee regarding the alleged inappropriate treatment by the Complainant.

By letter of 12 August 2022, the Complainant was informed that further to the recent events in the workplace and a complaint against her that was made by a team member, the Respondent made a number of decisions. The Respondent decided to investigate the complainant against the Complainant. The Respondent anticipated that the investigation would take 10 days and the Complainant as given an option of taking annual leave and being suspended with pay. I note that the Complainant was not furnished with a copy of the complaint and no details of the complaint were disclosed to her.

The Respondent further informed the Complainant that the accounting unit would move to the Respondent’s office in Limerick. This move would be completed within 2 weeks. The reasoning for the move was explained. It was also explained that the Complainant would work the same hours but the location is nearer to her home.

The Respondent also noted that the Complainant raised some concerns and invited her to a meeting to be held on 19 August 2022 to discuss same at an informal meeting. The Complainant was also given the option of a formal meeting with her representative present. The Complainant was informed that she would “not be returning to Loughill”.

The Complainant emailed the Respondent on 13 August 2022 at 1.50 am requesting “an apology for each & every wrongful act as well as for this ignorant suspension email before 10am Monday morning…” which was followed by a list of other demands.

The Complainant replied that she was “intending to return back to office Monday morning” and requesting a signed letter on headed paper. This request was complied with.

The Complainant did not return to work “on Monday” or on 29 August 2022 when the suspension was lifted. In reply to the Respondent’s query, she responded on 29 August 2022 that she has “nothing to do with your accounts as long as I am suspended & as long as I don’t get fair treatment”. The Complainant then sent another email on 29 August 2022 at 8.58pm regarding alleged “hanky panky victimisation” she and her brother allegedly suffered and informed the Respondent that there would be no further correspondence from her.

The Respondent wrote to the Complainant on 30 August 2022, on headed paper as requested, to inform her that as she had been previously advised, her suspension was lifted and the Respondent looks forward to seeing her in the new office on 31 August 2022. The Respondent further stated that, as it was unable to find a date suitable for the Complainant during her suspension, a formal meeting with an independent HR consultant Mr Foley would be held on her return. She was informed that Mr Foley would be in contact separately regarding the meeting.

The Complainant replied by email stating that she would not work from the new location and that she was “not interested in attending meeting with your independent professional.” She then threatened the Respondent with a WRC claim if it did not “change the angle to view the situation correctly”. She also stated that the Respondent had the option to dismiss her. In her email of 30 August 2022, the Complainant refused to engage with the external HR adviser and stated that“they are same nasty as you & they harass people on your behalf”. She further put her conditions forward such as “make official apology, put the accounts back in Loughill & I can come back straight away. Otherwise no further correspondence…”

The Complainant then engaged in an email exchange between 4 and 9 September 2022 making arrangements for her or Gardaí to collect her belongings from the office in Loughill.

Mr O’Connor informed the Complainant on 31 August 2022 that she would be returning to work in the new office and this measure was necessary while the investigation was continuing. He said that it was noted from the Complainant’s emails that the atmosphere in the Loughill office was “unhealthy” and “disruptive”, and that this was consistent feedback from all team members. Mr O’Connor expressed his disappointment and urged the Complainant to engage. He noted that email correspondence can be misinterpreted and this was a matter where clarity is fundamental. Mr O’Connor further stated that should the Complainant wish to pursue a complaint with the WRC, it was her entitlement and he would make every effort to aid the WRC in its investigation.

The Respondent also wrote to the Complainant regarding the terms of her return to work which she had proposed. Mr O’Connor invited the Complainant to a meeting with the independent HR consultant on 23 September 2022.

On 26 September 2022 the Respondent again wrote to the Complainant and, in the absence of any engagement on her part, informed her that any future communication should be through the independent HR adviser. Mr O’Connor noted that at the meeting on 12 September 2022 the Complainant informed the Respondent that she would not return to work unless her wage demands and other proposals were met. The Respondent was not in a position to meet the demands. Mr O’Connor then stated that the Respondent accepted the Complainant’s resignation and her last payment would be processed on 6 October 2022. The Complainant was asked to acknowledge the acceptance of the letter and the details in the letter.

The Complainant replied stating that she was not surprised to see the letter as “we have an incompetent manager”. She further stated that she had “nothing to do” with the independent HR adviser and would not talk to a third party. She requested that there is no further correspondence from the HR adviser to her.

On 29 September 2022 the Complainant wrote to the Respondent asking to advise “employee that they shouldn’t email me at all nor my name should be used for any business communication”.

On 7 October 2022, the Respondent wrote to the Complainant confirming the final payment of two weeks’ notice and 10 days outstanding annual leave.

The Complainant then wrote to the Respondent o 11 October 2022 stating, “rest assured I didn’t resign & it’s all unfair dismissal”.

I have carefully considered the manner in which the process leading to the Complainant’s dismissal was conducted in the present case, and I am of the view that there were a number of fundamental aspects of the process which did not meet the required standards of procedural fairness.  

S.I. 146/2000 provides that “the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses”. 

Mr Des Ryan BL at para 13.72 of Redmond on Dismissal Law (3rdEd., Bloomsbury Professional, 2017) states:

“Heavy emphasis has been laid in recent case law on the duty on an employer to set out clearly allegations made against an employee from the outset, with the employer not being permitted to augment the allegations as the investigation progresses. This is because an employee is entitled to be informed at the outset of the complaint(s) being made against him or her in order to ensure he or she has a meaningful opportunity to prepare and present his or her defence.”

In Kilsaran Concrete, Kilsaran International Ltd v Vitalie Vet [2016] 27 E.L.R. 237 the Labour Court held:

“(i) It is self-evident that the rationale for the requirement that the person who is subject to a disciplinary investigation should be made fully aware of the complaint(s) against him or her is to ensure that he/she has a meaningful opportunity both to prepare and to present his/her defence to the complaint(s) (Preston v Standard Piping [1999] E.L.R. 233 refers). It is abundantly clear to the Court – and admitted by the respondent's witnesses – that the respondent's disciplinary investigation dealt with allegations that had not been formally put in writing to the complainant either at the outset of the investigation or in the course thereof. The respondent's witnesses also accepted, and the court finds, that those additional allegations were material to the decision taken to summarily dismiss the complainant and the subsequent decision taken at the appeal stage to confirm that sanction.”

The Complainant did not receive either written or oral confirmation or notification of the precise nature of the allegations of misconduct that were being levelled against her. In this regard, I note that the Complainant was informed by letter dated 12 August 2022 that a formal written complaint against her was received and she was being put on suspension with pay for the duration of investigation which would take 10 working days. It is clear from the evidence adduced that the Complainant was unaware of the precise nature of the allegations against her. I note that the Complainant was not provided with a copy of the written complaint against her. Neither was she given an opportunity to question the coworker who made the complaint.

The Complainant was placed on suspension at that juncture without having been properly informed of the nature of the allegations that were to be subject of the investigation. 

With regards to the suspension, I note that the Respondent’s Disciplinary Rules & Procedures exhibited at the hearing state that “on some occasions temporary suspension in contractual pay may be necessary in order that an uninterrupted investigation can take place. This must not be regarded as disciplinary action or a penalty of any kind”. In this case it appears that the Complainant was put on suspension due to the fact that it was decided that she should be moved to a different location to avoid any interactions with her coworkers in the Loughill office but the new office was not ready for her. This, in my view is not a compelling reason to apply suspension.  

Furthermore, I note that Mr O’Connor contacted Mr Foley, the independent HR consultant in the second week of August 2022 to conduct an impartial and transparent investigation. However, Mr Foley was on holidays for a number of weeks and was not available to commence any investigation until early September 2022. It is, therefore, clear that the suspension served no purpose in the context of the investigation of the complaint against the Complainant.

Mr Justice Noonan in the case The Governor and Company of the Bank of Ireland and James Reilly 2015 IEHC 241 held that:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 I.R. 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.”

I, therefore, have serious concerns about the Respondent utilising suspension in the circumstances.

I note that the Complainant was invited and encouraged to attend meetings with the Respondent and/or with Mr Foley, an independent HR consultant. The Complainant refused to engage other than sending demanding, threatening and, on occasion, offensive emails to Mr O’Connor. The Complainant refused to return to work unless her conditions were met.

The Respondent’ evidence was that the independent HR consultant conducted his investigation, including interviews with staff,  to a point where he was not able to progress any further due to the Complainants’ refusal to engage. However, neither the Respondent nor the Complainant received any interview notes and/or an outcome of the investigation. It is clear that the Respondent did not make, or communicate, any definitive findings in relation to the complaint against the Complainant, which could have been concluded with or without the Complainant’s participation.

In the absence of any constructive engagement on the Complainant’s part, the Respondent decided to issue a letter confirming the acceptance of her resignation. Elsewhere in my decision I found that the Complainant did not resign her position.

I find that the Respondent made continuous attempts to deal with the Complainant’s conduct. I am cognisant that it was primarily the Complainant who dealt with the HR maters in the Respondent’s organisation and that the Respondent engaged an external consultant to conduct the process related to the difficulties that arose. I am also cognisant that the Complainant did not engage and obstructed any attempts by the Respondent to resolve the matter formally or informally. In fact, some of the Complainant’s responses to the Respondent’s attempts to engage were disrespectful and offensive such as calling Mr O’Connor’s emails “idiotic” and blocking Mr O’Connor’ emails to “avoid more nonsense”.

In the circumstances, I find that the Complainant’s dismissal was procedurally unfair within the meaning of Section 6 of the Acts.

Section 7 of the Unfair Dismissal Act 1977 as amended provides in relevant part 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) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(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,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.]

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Consolidation Act 2005] in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2022], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Having regard to the circumstances of this case it is clear that the working relationship between the parties had broken down, and the remedies of reinstatement or reengagement are not appropriate forms of redress. I determine that an award of compensation is the most appropriate remedy.

The Complainant’ evidence was that she commenced new part-time employment in January 2023 on a daily rate comparable with that paid by the Respondent. The Complainant worked 3 days a week. From November 2023, the Complainant secured another job on a part-time basis, again on a daily rate comparable.

The Complainant furnished copies of emails confirming her job applications for some 8 roles in the period between 16 October 2022 and 23 November 2022, and some 16 roles in the period from 18 May 2023 to 15 November 2023. The Complainant also provided a screenshot of her email inbox showing extensive email communication, mainly but not limited to, automated responses from Indeed Apply. I accept that the Complainant made an effort to mitigate her loses.

The Act requires, in determining the amount of compensation payable, that I consider the extent to which the conduct of the Complainant contributed to her dismissal. 

I find that the Complainant substantially contributed to the set of circumstance that arose. The conduct of the Complainant in this case significantly contributed to an impasse by insisting that the Respondent must meet all her demands before she would return to work and to the Respondent’s inability to address the Complainant’s alleged misconduct in an appropriate manner. She acted unreasonably by not attending the meetings she was invited to and by refusing to engage in the investigation process. He refusal to engage bordered on obduracy.

I find the critical fact here is that the Complainant refused to return to work despite the alternative options to facilitate her so doing remaining open to her for a considerable period of time.  During this lengthy period the Complainant’s response was a blanket refusal and an insistence that her pay is increased, that she could work from home 2 days a week, and that she would not relocate. Based on the facts as presented in the within case I conclude the Complainant refused to return to work and that is an unavoidable conclusion.

In this regard, I find that the conduct of the Complainant contributed to the extent of 100% to her dismissal. 

While I have found that the dismissal of the Complainant was procedurally unfair, taking into account the Complainant’s contribution to her own dismissal, I am of the view that it is not appropriate to award any compensation in this case. 

For the reasons set out above, I decide that the Complainant was unfairly dismissed.  The complaint of unfair dismissal made pursuant to the Unfair Dismissals Acts is well founded.  I am bound to consider the Complainant’s unreasonableness in her failure to engage with the Respondent. I deem the amount of compensation which is just and equitable having regard to all of the circumstances is nil. 

The Complainant alleges that she did not receive her public holiday entitlements.

In her WRC complaint referral form the Complainant alleged that she was not paid for three public holidays: Christmas Day and St. Stephen’s Day in 2019 and New Year’s Day in 2020. At the adjudication hearing, the Complainant agreed that it could have been a mistake.

At the adjudication hearing on 17 April 2024, the Complainant also asserted that she was not paid her entitlements for the public holidays falling in April, May, on Christmas Day and St. Stephen’s Day in 2020, and St. Patrick’s Day in 2021.

The Complainant confirmed that she never worked on public holidays.

The Respondent accepted that the Complainant did not receive her public holiday entitlement for three public holidays over Christmas in 2019. However, the Respondent asserted that when the Complainant came back from her holidays, she approached Mr O’Connor about the three public holidays. She should see that it was a genuine mistake as the Complainant was not due her holiday pay over that period and therefore, Mr O’Connor forgot about the public holidays. It was agreed that the Respondent would pay the public holidays over the next three days that the Complainant was off. The Complainant was subsequently paid for them

At the adjudication hearing, the Respondent’s representative raised the issue of time limits.

The Complainant alleges that she was owed a payment for public holidays falling on Christmas Day, St. Stephen’s Day in 2019, New Year’s Day 2020,  public holidays in April, May, on Christmas Day and St. Stephen’s Day in 2020, and St. Patrick’s Day in 2021.

The Respondent rejects the claim and asserts that the only public holidays entitlement that were in error not paid to the Complainant were for Christmas Day, St. Stephen’s Day in 2019 and New Year’s Day in 2020. This was rectified and the entitlements were paid to the Complainant, albeit after she brought it to the Respondent’s attention.

The Respondent asserts that the claim is statute barred in any event.

Section 21. Entitlement in respect of public holidays of the Organisation of Working Time Act, 1997 provides 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.

Section 41 of the Workplace Relations Act stipulates in relevant parts 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 implications of the above provisions were clarified to the parties at the adjudication hearing. The Complainant did not seek an extension of the time limit.

The within complaint was referred to the Director General of the WRC on 8 October 2022. Having regard to the time limits for referral of a complaint of a contravention of section 21 of the 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 9 April 2022 to 8 October 2022.

Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit. Therefore, I conclude that I do not have jurisdiction to hear the within complaint.

I find that the compliant was submitted outside the prescribed time limit and I do not have jurisdiction to hear the within complaint. I declare that this complaint is not well founded.

On 8 October 2022, the Complainant referred her complaint to the Director General of the WRC. The Complainant asserts that she was discriminated against by the Respondent on the grounds of her gender, religion and race. She further alleges that she was victimised and harassed. The Complainants stated that the most recent date of discrimination was 21 September 2022.

On 21 March 2023, the Complainant referred an identical compliant to the Director General of the WRC. At the adjudication hearing, the Complainant clarified that the claim submitted on 21 March 2023 was a duplication of the complaint referred on 8 October 2022. However, at that time she felt able to provide more details regarding the claim. The Complainant withdrew the claim of 21 March 2023.

The Complainant submits that she provided the Respondent with many opportunities to rectify what it did to her. She submits that she always treated the Respondent like her family and the Director like her own dad. The Complainant submits that she is highly disappointed with the way he treated her on a few occasions and with the way the Manager and a coworker abused her.

The Complainant submits that there were series of incidents of discrimination but she would like to mention those which really broke her heart.

The Complainant submits that on 21 September 2022, Mr O’Connor accused her of trespassing. He defamed her by telling this to his mother over phone while he was on the way, in front of other two office members.

Mr O’Connor arrived there after few minutes and started video recording the Complainant disrespectfully without telling her. The Complainant did the same when he didn't stop. The Complainant submits that she knows that he plotted for her to be in the office for the purpose of further victimisation.

The Complainant submits that she was told that she was no longer employed by the Respondent and that not to come over which was totally false. The Complainant submits that she asked for proof of that and Mr O’Connor gave her a letter. He said that he sent her an email in the morning, which the Complainant claimed she had not received. The Complainant said that it was sent from another email address which she had already blocked.

The Complainant submits that she was suspended for 2 weeks without any basis.

The Complainant submits that she reported her concerns with regards to the Limerick office to the HSA. The Complainant submits that she was forced to resume work there after 2 weeks of suspension.

The Complainant submits that in March 2022 a long-term salesperson abused and insulted her for many minutes in front of another salesperson. She submits that she raised her concerns with her manager but it was all ignored. The Complainant submits that this was another form of discrimination and unfair treatment.

The Complainant submits that many employees suffer unfair dismissal which is not acceptable and accordingly she has reported it. The treatment she suffered is the height of discrimination / victimisation which left lifelong impact on her entire family.

Summary of direct evidence and cross-examination of the Complainant

Due to the quite disorganised and disjointed manner in which the Complainant presented her claim, the Adjudication Officer gave the Complainant an opportunity to address each of her allegations in detail at the adjudication hearing.

With regards to the alleged gender discrimination, the Complainant said that a male fitter had a clash with the Director. His behaviour was bad but he was never suspended. She said that men were shouting etc. and were never suspended. The Complainant said that Ms A was abusing her and was not suspended.

With regard to the alleged discrimination on the grounds of race, the Complainant said that Ms A was never punished for her behaviour. Also, she said that her complaint from March 2022 against a coworker was not investigated.

The Complainant also said that the Director called her a “crazy Pakistani”, which she never felt offended about. She did not provide any details as to the date or circumstances of the event in question.

With regards to the alleged discrimination on the grounds of religion, the Complainant said that she never said that men could not touch her prayer. She said that the Director took a photo of her in a hijab. She said that random comments were made about her wearing a hijab.

With regards to the alleged harassment, the Complainant said that the Respondent let others harass her. She said that there was talk that there was something going on between her and Mr O’Connor. She also said that the cleaner was joking about her.

With regards to the alleged victimisation, the Complainant said that the Respondent dismissed her after she raised her concerns. She said that Mr O’Connor was not loyal. The Complainant said that the Respondent used her brother to victimise her and infused hatred.

In cross-examination, the Complainant said that because she was suspended and another named male worked was not, she felt she was discriminated against.

She agreed that there is another Muslim working for the Respondent. She agreed that there is a diverse workforce in terms of nationalities and religion but, she said that they are treated differently than she was.

The Respondent submits as follows.

In response to claim for discrimination by reason of gender.

In this case, it is crucial to determine the specific allegations of discrimination made by the Complainant. The nature of her allegations is not clear.

The Respondent submits that there is no history or record of gender discrimination in the company. The Respondent has employed several women, including the Complainant, who has been working as an Accounts Assistant for the past three years. Additionally, the Complainant worked alongside two other women who have been employed for 19 years and 4 years, respectively. There are also two other women working in a different retail outlet.

The Directors of the Respondent are a male and a female and the management of the company is not solely male-dominated.

At the adjudication hearing, Mr O’Connor confirmed that an issue arose with a male employee who the Complainant claims was treated more favourably. The employee was perfect with customers but had a poor attitude toward other staff. The Complainant in her HR capacity and Mr O’Connor dealt with the issue. The employee engaged in the process and improved. The issue was not similar to the issues with the Complainant.

In response to claim for discrimination by reason of religion.

It is clear that the Complainant is a practising Muslim, and this was discussed during her interview and on numerous occasions when she first started with the company. The Complainant often participated in conversations with the team about her family, her values, and how she was raising her family with her husband. The Complainant’s brother is also employed in the company, and she has arranged for another brother to come and work in the company, and both are also practising Muslims.

The Respondent has no history or record of religious discrimination. It is apparent that the Complainant was comfortable discussing her religion and culture with her colleagues and had taken steps to arrange employment for her brothers in the company. This fact shows that the Respondent does not discriminate on the basis of religion.

While the predominant religion of the employees at Respondent seems to be Catholic, there is no evidence to suggest that this has been evident during the working day or that it has affected the treatment of the Complainant or any other employees of different religions.

The Respondent’s history of employing individuals of different religions, including the Complainant and her brothers, and the fact that religion has never been a factor in any treatment or decision-making can serve as a robust defence against any allegations of religious discrimination.

In response to claim for discrimination by reason of race.

It is clear that the Complainant is originally from Pakistan and has been in Ireland for 10 years. The Complainant arranged for her brother to work in the company, and she also arranged for another brother to come to Ireland and work in the company. Both brothers are also Pakistani. The predominant race of the employees at Elm Fireplaces is European. There are employees from Poland, Romania, Ukraine, China, and other diverse backgrounds.

These facts can be presented as evidence that the Respondent has no history or record of racial discrimination. It is apparent that the Complainant was comfortable enough with the Respondent's culture to recommend it to her brothers, and the fact that one brother was also hired can be presented as evidence that the company does not discriminate on the basis of race.

The Respondent has a diverse team, including employees from different countries and backgrounds. This fact can be presented as evidence that the company values and embraces diversity, and that race has never been a factor in any treatment or decision making.

In relation to the Complainant’s assertion that the Director called her a “crazy Pakistani”, the Respondent submits that the Complainant was first to refer to herself as a “crazy Pakistani” in jest, and this became an inside joke between her and the Director. Never did the Complainant mention that she found it offensive. As the Complainant stated previously, she felt like she had a father/daughter relationship with the Director and would therefore be comfortable to have this conversation if required. 

In response to claim for discrimination by reason of victimisation.

The Respondent did not engage in any victimisation of the Complainant. The Complainant was not unfairly dismissed from her job, and she received multiple pay raises during her time at the Respondent, which were largely merited. While the Complainant did ask for pay raises frequently and compared herself to others, the Respondent took these requests seriously and granted the ones that were appropriate.

In terms of the Complainant’s work conditions, the Respondent made efforts to accommodate her needs, including adjusting her work hours on a weekly basis. The Respondent also moved her office location to make her commute shorter. Despite these efforts, Complainant complained about the new work environment, but the HSA inspector found no fault with it.

When the Complainant demanded a further wage increase and threatened to leave if it was not granted, the Respondent could not comply with her demand. The company could not be held to ransom by her demands for an unreasonable wage increase. Therefore, it was reasonable for the company to assume that she was leaving voluntarily and to not comply with her latest wage demand.

Given these facts, the Respondent did not engage in any victimisation of the Complainant, nor did the Respondent treat her unfairly in any way. Therefore, the Respondent believes that the accusation of victimisation is unfounded.

In response to claim of harassment.

The Respondent did not engage in any harassment towards the Complainant. Harassment is defined as "any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment for the person'.

The Complainant did take exception to certain work practices, such as tea breaks and the way some of the sales team were treated versus accounts, but these issues do not constitute harassment.

Furthermore, the Respondent made efforts to accommodate the Complainant’s needs, such as changing her work conditions to suit her. The Respondent was willing to consider her demand to work up to two days at home as part of negotiations to resolve issues.

The Respondent also provided pay rises over the years, and the Complainant was earning €41,600 per year when she resigned. However, the Complainant constantly asked for pay rises and made unreasonable demands. When the Respondent could not meet her latest wage demand, the Complainant threatened to leave the workplace. The company could not be continually held to ransom by the Complainant. The Complainant started off on a wage of €650 per week on 4 March 2019. On 7 October 2020, her wage increased to €700 per week. On 24 July 2021 her wage increased to €800 per week.

Regarding the Complainant’s complaints about the new work environment, an HSA inspector found no fault, suggesting that the Respondent had not engaged in any conduct that could be considered harassment.

Additionally, the Complainant had a habit of contacting people at night incessantly when something was on her mind, which could be considered harassing behaviour. In light of the above, the Respondent submits that it did not engage in any harassment towards the Complainant, and any issues the Complainant had with the company were a result of her unreasonable demands and behaviour.

The Complainant referred his claim to the Director General of the WRC on 8 October 2022 alleging that she was discriminated against by the Respondent by reason of her gender and/or her religion, and/or her race. She further alleged that she was victimised and harassed by the Respondent. 

The Respondent rejects the complaints.

In reaching my decision, I have considered all the submissions and evidence both written and oral presented to me.

Discrimination

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)  (in this Act referred to as the “discriminatory grounds”) which—

(i)                  exists,

(ii)                 existed but no longer exists,

(iii)               may exist in the future, or

(iv)               is imputed to the person concerned,

Section 6(2) of the Acts defines the relevant discriminatory grounds as follows.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

8. Discrimination by employers etc.

(1) In relation to—

(a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights), (b) the same working conditions, and (c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

Harassment and sexual harassment

Section 14A provides that;-

(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer, (ii) the victim's employer, or (iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(7) (a) In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, (b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Section 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects.

Victimisation

Section 74(2) provides:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Burden of proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v Valpeters EDA0917 where it held that Section 85A: 

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The rule is required pursuant to EU law and its rationale was explained in Ntoko v Citibank [2004] ELR 116:

“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach, and which may only be in the respondent’s capacity of proof.”

As discrimination on any ground may not be overt, careful sifting and weighing-up of the evidence is required in order to determine whether a presumption of discrimination is within the range of inferences which can be reasonably drawn from the facts established on the balance of probabilities.

In Dublin Corporation v. Gibney’s EE5/1986, a prima facie case was defined as:

“evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”

The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant as follows: “It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

(i)      that she is covered by the relevant discriminatory ground(s)

(ii)    that she has been subjected to specific treatment and

(iii)  that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

Time limit

Section 77 provides as follows:

‘(5)

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

The time limits which govern the referral of complaints under the legislation are provided for in Section 77(5) of the Acts (as set out above). The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events. The latter was not argued in this case.

Therefore, in accordance with the consistent approach applied by the Labour Court in circumstances such as those that prevail in the within case, I must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint.

The Complainant referred the within complaint to the Director General of the WRC on 8 October 2022. Therefore, the cognisable period for the purpose of the complaint in accordance with the time limits provided for in Section 77 of the Acts is the six-month period prior to the referral of the complaint, namely from 9 April 2022 to 8 October 2022.

Discrimination on the grounds of gender

The Complainant alleged that she was discriminated against on the grounds of gender as her male comparator, a named employee of the Respondent, was not suspended when issues regarding his attitude arose in the workplace. The Respondent asserted that the two situations are not comparable as the employee in question, while exhibited poor attitude towards his work colleagues, engaged and improved his behaviour. In fact, it was the Complainant in her capacity of a person dealing with HR matters who assisted Mr O’Connor in the disciplinary process.

With regards to the Complainant’s assertion that men were shouting and were never suspended, the Complainant did not offer any evidence to support this assertion.

With regards to the Complainant’s assertion that Ms A was abusing her and she was not suspended, I find that Ms A is of the same gender as the Complainant and is, therefore, not a valid comparator for the purposes of this claim.

The Complainant did not proffer any evidence to show that the treatment she was subjected to was less favourable than the treatment afforded to the male comparator. She has not evidenced that– because she is a woman – she was treated adversely compared with the way her colleagues were treated.

Discrimination on the grounds of race

With regards to the Complainant’s assertion that Ms A was never punished for her behaviour, the Complainant, other than making this assertion offered no persuasive evidence in support of the assertion.

In relation to the assertion that the Complainant’s complaint of 2 March 2022 against a coworker was never investigated, I can only assume that this is as opposed to the complaint by the Complainant’s coworker which was, or at least there was an attempt to investigate it.

In that regard, I find that the Complainant never raised a complaint. I note that the Complainant emailed Mr O’Connor on 2 March 2022 letting him know that her colleagues was “so abusive a moment ago” and has “harsh attitude” and that the Complainant cannot be forced to “treat her like a boss”. Thereafter there were further emails expressing annoyance about alleged payment the coworker received. The Complainant at no stage indicated that she wished to make a complaint against the coworker. I accept the Respondent’s submission that it was the Complainant who, together with Peninsula, rolled out the Employee Safety Handbook containing policies and procedures in the Respondent organisation including an anti-bullying policy and grievance procedure. The Complainant asserted that these were not in place at the time. However, she did not dispute that it was her signature on the document exhibited by the Respondent dated 29 October 2019, confirming that she received the Employee Safety Handbook, that she understood, accepted and would comply with its contents. 

It is, therefore, clear that the Complainant was aware of the procedure but did not raise a complaint in the first place.

With regards to the Complainant’s assertion that the Director called her a “crazy Pakistani”, firstly, the Complainant did not provide any further details as to the date or circumstances of the incident(s) in question. It is, therefore, not possible to ascertain if an incident of this nature occurred in the cognisable period. Even if it was asserted that the Director called the Complainant a “crazy Pakistani” in the period from 9 April 2022 to 8 October 2022, it is important to put in in context. The Complainant, in her own evidence, said that she treated the Director as her father, that they had father-daughter relationship. She said that he called her a “crazy Pakistani” in jest, it was banter and she was not offended. While the Complainant initially denied that she did so, she did not dispute the evidence exhibited by the Respondent where, in her email and WhatsApp messages she referred to herself as a “Taliban” , a “Lady Taliban”, and indeed a “Crazy Pakistani”.  Therefore, while in general an expression of this nature could be considered discriminatory, I find that it is disingenuous of the Complainant to initiate a private joke and some time later claim it was discriminatory.

Having carefully considered the matters raised by the Complainant, I find that the Complainant did not proffer any evidence to show that, because she was of a different race, she was treated adversely compared with the way her colleagues were treated.

Discrimination on the grounds of religion

The Complainant said that the Director took a photo of her in a hijab. She said that random comments could be made about her wearing a hijab.

The Respondent asserts that the Complainant contacted Mr O’Connor on 6 December 2021 asking if he had any problem with her “doing hijab” and was there anything wrong wearing it. An exchange of messages in that regard was exhibited at the hearing. Mr O’Connor made it clear to the Complainant, that while some customers might get a surprise (the Complainant never wore a hijab before), he personally did not have a problem with that. He said that it was the Complainant’s own decision and that it was her basic human right.

Again, the Complainant did not provide any details as to when the Director took a photo of her in a hijab. However, even if this occurred in the cognisable period, in light of the relationship between the Complainant and the Director, I cannot accept that this amounts to discrimination.

In relation to the alleged “random comments” made, the Complainant did not provide any evidence in that regard.

Having carefully considered the matters raised by the Complainant, I find that the Complainant did not proffer any evidence to show that she was treated less favourably compared with the way her colleagues of a different religious belief or no religious belief were treated.

Claim of harassment

For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground.

The Complainant at the hearing outlined that she felt that the Respondent let others harass her. She said that there was talk that there was something going on between her and Mr O’Connor. She also said that the cleaner was joking about her.

The Complainant did not provide any specifics. The Complainant has failed to identify which conduct within the cognisable period or at all, is alleged to have had the purpose of violating her dignity. The Complainant in her evidence did not  point to any time or occasion when she raised allegations of harassment on grounds of race, religion or gender with the Respondent or sought to invoke protection under any of its policies.  

The Respondent advised the hearing that it has appropriate policies in place including personal harassment policy and procedures. These were rolled out by the Complainant in cooperation with Peninsula.

I am satisfied that the Complainant did not make any complaint of harassment on grounds of gender, race or religion to the Respondent and that the Respondent was not in any position to take steps to prevent or reverse the effects of any alleged harassment.

Having regard to the evidence adduced, I am satisfied that the Complainant has not presented any evidence from which I could reasonably conclude that she was subjected to harassment on the ground of her gender, race and/or religious beliefs contrary to Section 14A of the Acts. 

Claim of victimisation

With regards to the alleged victimisation, the Complainant said that the Respondent dismissed her after she raised her concerns. She said that Mr O’Connor was not loyal. The Complainant said that the Respondent used her brother to victimise her and infused hatred.

In the case of Tom Barrett -v- Department of Defence EDA1017the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out.  It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.

There was no evidence proffered to suggest that the Complainant made a protected act within the meaning of section 74(2). There was also no evidence offered as to the adverse treatment allegedly suffered by the Complainant.  For avoidance of any doubt, the Complainant withdrew her complaint of discriminatory dismissal and proceeded with an unfair dismissal claim pursuant to the Unfair Dismissals Act.

In the circumstances, I am not satisfied that the Complainant has adduced any evidence from which it could be reasonably concluded that she has been subjected to victimisation within the meaning of the Acts. 

Accordingly, I find that the Complainant has failed to establish facts from which it could be inferred that she was subjected to victimisation within the meaning of Section 74(2) of the Acts in the within case.  

I decide that

·       The Complainant has failed to establish a prima facie case of direct discrimination on the grounds of gender.

·       The Complainant has failed to establish a prima facie case of direct discrimination on the ground of race.

·       The Complainant has failed to establish a prima facie case of direct discrimination on the ground of religious beliefs.

·       the Complainant has failed to establish a prima facie case of harassment by the Respondent contrary to Section 14A of those Acts.

·       The Complainant was not subjected to victimisation contrary to Section 74(2) of the Acts.

Accordingly, I decide that the complaint is not well founded.

At the adjudication hearing, the Complainant confirmed that this complaint is a duplication of her claim pursuant to the Act submitted on 8 October 2022.

The Complainant withdrew this complaint at the adjudication hearing on 19 July 2023. She confirmed the withdrawal at the adjudication hearing on 17 April 2024.

This complaint is a duplication of the claim pursuant to the Act submitted on 8 October 2022. The Complainant withdrew this complaint at the adjudication hearing on 19 July 2023. She confirmed the withdrawal at the adjudication hearing on 17 April 2024.

This complaint is a duplication of the claim pursuant to the Act submitted on 8 October 2022. The Complainant withdrew this complaint at the adjudication hearing on 19 July 2023. She confirmed the withdrawal at the adjudication hearing on 17 April 2024.

This complaint is a duplication of the claim pursuant to the Act submitted on 8 October 2022. The Complainant withdrew this complaint at the adjudication hearing on 19 July 2023. She confirmed the withdrawal at the adjudication hearing on 17 April 2024. I, therefore, make no decision regarding this complaint as it has been disposed of.

The Complainant submits that she did not receive her paid holiday/annual leave entitlement.

In the WRC complaint referral form, the Complainant submitted that the Respondent did not pay her for the accumulated 30 days holidays which she kept for her trip to Pakistan once Covid-19 pandemic was settled.

At the adjudication hearing, the Complainant submitted that her annual leave was 31 days by the end of 2021 which comprised of holidays, some unpaid public holidays, working days during Covid-19 while on PUP, which was not paid to her at the time of her dismissal.

The Complainant submits that her week 35 of 2022 payslip shows her wages as a holiday pay which is incorrect. The time from 10 August 2022 was not her holidays.

The Complainant submits that she was the sole person since March 2019 to look after accounts and it was not feasible for her to take long holidays. The Complainant submits that she was always relaxed regarding her annual leave as she always made appropriate decisions after assessing business need herself. In return she always had flexibility to take holidays as per her own assessment.

In her direct evidence at the adjudication hearing, the Complainant stated that she was owed 6 days of annual leave for the period from January to December 2020 and 11 days for the period from January to December 2021. The Complainant was not sure how many days she was owed for the period from January to October 2022.

The Complainant alleged that she was required to work during the Covid-19 lockdown and never got time off for that.

In cross-examination it was put to the Complainant that the Respondent did not require her to come back to work during lockdown, that the Respondent simply could not keep her out.

It was further put to the Complainant that up to the last day of the hearing she asserted that she was owed leave for 2020, now she indicated that she was owed leave for 2021.

Towards the end of the last day of the adjudication hearing, the Complainant started calculating her entitlements afresh. She presented some 14 pages of printouts and calculations.

The Complainant disputed the record of WhatsApp messages exhibited by the Respondent. She said that these refer also to the days she took as days off when working four and not five days a week.

The Respondent submits that the Complainant was paid her outstanding annual leave entitlements at the termination of her employment.

The Respondent submits that it did not allow for annual leave to be carried over beyond 6 months after the relevant leave year.  

With regards to holiday pay, the Respondent paid the Complainant her two weeks' notice and her two weeks holiday pay for 2022 that was due for 2022.

The Respondent had never agreed that the Complainant on any occasion would carry over her holidays from year to year as this had been a company policy that holidays must be taken within the same year or within 6 months of the following year.

The Respondent submits that the Complainant took 14 days holidays between the start of February 2022 and the end of June 2022 for which she got paid. In addition, she was paid 10 days of annual leave on cessation of employment.

Mr O’Connor, in his evidence referred to the copies of “Wages list” document exhibited and said that he noted the Complainant’s annual leave in writing (in red) on the timesheets.

Mr O’Connor said that the Respondent always shuts down during so called “builders’ holidays” in last week of July and the first week of August.

Mr O’Connor also referred to WhatsApp messages between him and the Complainant where the Complainant confirmed the days she was taking off.

In cross-examination, Mr O’Connor said that he never knew when the Complainant was taking her leave, she was all over the place with her days and hours of work.

This is a complaint pursuant to the Organisation of Working Time Act. The complainant seeks payment in respect of her outstanding annual leave.

The parties confirmed that the annual leave year in the Respondent organisation was from 1 January to 31 December. This was also outlined in the staff handbook. The contract stipulated that holiday request form must be filled in for each holiday and it must also be displayed on the year planners in the office. It is apparent that this was not the case.

I note that the contract was silent on the matter of carrying over of annual leave. I further note that the staff handbook required all employees “to take all of your holiday entitlement in the current holiday year”. However, Mr O’Connor’s undisputed evidence was that the employees were permitted to carry over any untaken annual leave during six months following the relevant annual year.

Cognisable period

The cognisable period for complaints pursuant to section 27 is set out in section 41(6) of the Workplace Relations Act. It states: ‘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.’

Section 41(8) provides that the cognisable period can be extended by a further 6 months, should the complainant establish reasonable cause in the late presentation of the complaint. There has been nothing put forward to establish reasonable cause for the delay. 

Entitlement to annual leave

Section 19 of the Organisation of Working Time sets out the entitlement to annual leave.

19. Entitlement to annual leave

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

Section 20 provides as follows in respect of the taking of annual leave:

20. Times and pay for annual leave

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable take all or part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.

Entitlement to cesser pay

Section 23 of the Organisation of Working Time Act sets out the employee’s entitlement to cesser pay in compensation for a balance of annual leave not taken. Section 23 provides:

23. Compensation on cesser of employment

(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

(b) In this subsection—

“relevant period” means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii)—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii)—

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.

 “Leave year”, as defined in Section 2 means a year beginning on any 1st day of April.

Cesser pay is the ‘allowance in lieu’ referred to in Article 7 of the Working Time Directive. Section 23 of the Act provides that it is payable for the ‘relevant period’. Ordinarily, the ‘relevant period’ is the current leave year (as the obligation is for annual leave to be taken within the leave year). Section 23(1)(b)(ii) addresses ‘relevant period’ where the period for leave to be taken has been extended by up to 6 months, with the employee’s consent. Section 23(1)(b)(iii) addresses ‘relevant period’ where the employee accumulates annual leave while on certified sick leave.

Burden of proof

Section 25(1) of the Act requires an employer to retain records showing compliance with the Act. In relation to the applicable burden/onus of proof for claims under the Act, Section 25(4) provides:

‘Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

Although each case will turn on its own facts and the level of autonomy afforded to an employee, ultimately the employer is responsible for ensuring compliance with the Organisation of Working Time Act 1997.

The Labour Court has set-out a well-established test for interpreting the applicable burden of proof as provided for under Section 25(4) of the Act in relation to complaints brought under the Act, set out in Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311 as follows:

(1) The effect of S.25(4) of the Acts is to shift the burden of proof to the respondent in cases where records in the statutory form were not maintained.

(2) The evidential burden on a claimant requires the claimant to adduce such evidence as is available to support a stateable case of non-compliance with the relevant provision of the Act with sufficient particularity to allow the respondent to know, in broad terms, the nature of the complaint.

(3) That when the claimant has met his or her evidential burden, the respondent is required to put the records required by S.25(1) of the Act to demonstrate compliance with the relevant provision. Where such records are produced, the claimant bears the evidential and legal burden of proving that his or rights under the Acts were contravened in the manner alleged.

(4) That where forms in the prescribed form as required by S.25(1) of the Act are not produced by the respondent and the claimant has satisfied the evidential burden, the respondent carries the legal burden of proving on credible evidence and on the balance of probabilities that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge this burden, the claimant will succeed in their complaint/s under the Ac

The Complainant’s employment was terminated on 7 October 2022 and she referred her claim to the WRC on 8 October 2022.

As per section 23(1)(b)(ii) of the Act, the Complainant would have been entitled to a compensation payment for the current leave year and the leave year immediately preceding the current leave year i.e. from 1 April 2022 to 7 October 2022 and from 1 April 2021 to 31 March 2022. In that period the Complainant would have accrued 30.38 annual leave days (20 days for the full annual leave year from 1 April 2021 to 31 March 2022 and 10.38 days for 27 weeks from 1 April 2022 to the cessation date).

The Complainant exhibited a copy of an email to the Respondent dated 19 August 2022 where she provided her calculations of the outstanding annual leave. These calculations are not entirely reliable as the Complainant added public holidays allegedly not paid, time allegedly owed for working while on PUP and days when she allegedly returned to work “early”. In the email, the Complainant states that she was owed 10 days for summer 2021 (presumably the “builders’ holidays” the Respondent referred to).

The Complainant was not sure what annual leave she was owed for 2022.

I did not have the benefit of records of annual leave granted to the Complainant as set down in section 25 of the Act. The Respondent is on proof of these records. The documents presented at the hearing do not fulfil that purpose. I cannot accept these records as a cogent record of annual leave granted. Furthermore, the payslips exhibited were silent on annual leave.

I accept the Complainant’s argument that neither the Wage Lists nor the WhatsApp messages are accurate and credible records of leave accrued and taken by the Complainant. I further accept that it is not possible to ascertain whether the WhatsApp messages relate to annual leave or days off. I accept that for a period the Complainant worked 4 days a week and took the fifth day, which could vary, off.

Having said that, I note that the Complainant regularly sent emails last minute about taking days off, taking and then cancelling her annual leave. The exchange of correspondence between the Complainant and Mr O’Connor corroborates the Complainant’s evidence that she had full flexibility regarding her leave. It also supports Mr O’Connor’s evidence that he could not keep on top of the Complainant’s leave.  It is clear that the Complainant’s leave was unpredictable and changeable. The arrangement was simply not feasible and it is not surprising that it led to such level of confusion and disagreement.

In the absence of any credible records from either party, it would be unreasonable to expect an Adjudication Officer to ascertain the exact annual leave entitlements accrued and given to the Complainant. Therefore, I find, on the balance of probabilities, that the Complainant was owed 10 days of annul leave (builders’ holidays) for the period from 1 April 2021 to 31 March 2022. I cannot accept that the Complainant accrued entitlement to annual leave in return for extra days she allegedly worked.

With regards to the annual leave year from 1 April 2022 to 7 October 2022, there was no dispute that the Complainant took two days of annual leave prior to the suspension i.e. 11 and 12 August 2022. Therefore, on the balance of probabilities, I find that the Complainant would have accrued 10.38 days of leave (27 weeks in employment in the annual leave year) and is due 8.38 days of annual leave.

It was not disputed that the Respondent paid the Complainant 10 days of annual leave on termination of her employment.

I declare this complaint to be well founded. I order the Respondent to pay the Complainant an entitlement equal to 8.38 days of annual leave.

Dismissal – resignation - public holidays- annual leave-