Complainant

Respondent

Parties

Ying  Feng

Lantaca Limited

Complainant

Respondent

Anonymised Parties

Representatives

Richard Bowman Bowman McCabe Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043690-001

21/04/2021

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

CA-00043690-002

21/04/2021

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

CA-00043690-003

21/04/2021

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

CA-00043690-004

21/04/2021

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

CA-00043690-006

21/04/2021

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

CA-00043690-007

21/04/2021

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

CA-00043690-008

21/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00043690-009

21/04/2021

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

CA-00043690-010

21/04/2021

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

CA-00043690-011

21/04/2021

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

CA-00043690-012

21/04/2021

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

CA-00043690-013

21/04/2021

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

CA-00043690-014

21/04/2021

The Complainant is seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 and has submitted that she was paid less than the amount due (CA-00043690-001);

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1996 and has submitted that she did not receive her paid/holiday leave entitlement (CA-00043690-002);

The Complainant is seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 and has submitted that she did not receive the appropriate payment in lieu of termination (CA-00043690-003);

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1996 and has submitted that she was required to work more than the maximum permitted number of hours (CA-00043690-004);

The Complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1996 and has submitted that she did not receive her paid/holiday leave entitlement (CA-00043690-006);

The Complainant is seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 and has submitted that she did not receive a statement in writing of her terms of employment (CA-00043690-007);

The Complainant is seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 and has submitted that she was not notified of a change to her terms of employment (CA-00043690-008);

The Complainant is seeking adjudication by the Workplace Relations Commission under section  Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 and has submitted that the Respondent did not keep statutory employment records (CA-00043690-009);

The Complainant is seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 and has submitted that she did not receive a statement of her core terms in writing (CA-00043690-0010);

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 and has submitted that she was unfairly dismissed (CA-00043690-011);

The Complainant is seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act, 1967  and has submitted that she did not receive any redundancy payment (CA-00043690-012);

The Complainant is seeking adjudication by the Workplace Relations Commission under section  12  of the Minimum Notice & Terms of Employment  Act, 1993 and has submitted that she did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu thereof (CA-00043690-013);

The Complainant is seeking adjudication by the Workplace Relations Commission under section  12  of the Minimum Notice & Terms of Employment  Act, 1993 and has submitted that she did not receive all her rights during the period of notice (CA-00043690-014);

Much of this evidence was in conflict between the parties and I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.   I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute.  I can confirm I have fulfilled my obligation to make all relevant inquiries into these complaints.

The Complainant commenced employment with the Respondent on the 13th November 2017 as software developer. On the 7th October 2020 the Chief Technical Officer (CTO) of the Respondent talked to the Complainant about a possible new role with “Hereworks” of which the CTO had just been appointed as CTO. The Complainant interviewed for said position on the 15th October 2020 and accepted the job offer on the 23rd October 2020.

The Complainant submitted that the CEO of the Respondent emailed her an unsigned termination letter backdated to the 22nd October 2020 with reference to a non-existent agreement and a bonus of €1,000.00 classed as a tax-free termination pay. Ultimately, the Complainant declined the job offer on the 9th November 2020.

Following correspondence between the parties, the Complainant sent a detailed email to the Respondent on the 11th December 2020 rescinding any previous proposals and sought, inter alia, redundancy payment and unpaid salaries. The Complainant confirmed with the Revenue that her last day of employment with the Respondent was the 30th October 2020.

The Complainant submitted that she was persuaded by the Respondent to start working for another company so that they could effectively dismiss the Complainant without fair procedures and avoid making any statutory payments.

Following the hearing of this matter, the Complainant provided details of job applications and further submitted that she turned down the job offer mainly because there were great uncertainties over the job, the contract had very strict non-competitive clauses and there was a mismatch of the workload as was initially indicated.

These Complaints were received by the Workplace Relations Commission on the 21st April 2021

The Respondent submitted that the Complainant resigned her position and commenced her new employment on the 4th November 2020. It was submitted that the Complainant was not required to give notice and  the Respondent did not require notice as the new employment was imminent.

The Respondent submitted that unused holiday leave for 2018-2019 was not as applicable as her contract states that  holidays can not be carried into following year. The Respondent did accept that there was holiday leave due for 2020 but that was balanced against an extra salary payment in November 2020. The Respondent submitted that  the Complainant was not entitled to redundancy as she had resigned her position and she was never requested to work outside the hours as stated in her contract. It was further submitted that all salary deductions were correct and deducted by an external accountancy firm.

It is the Respondents position that, with the exception of monies due and owing in relation to holiday pay for 2020, the Complaints should not succeed as the Complainant resigned her position with the Respondent Company on the 23rd October 2020.

The Respondent Company ceased trading as a limited liability company in 2021 following the loss of their only client.

I have carefully listened to the evidence tendered and submissions made in the course of this hearing by both parties.

CA-00043690-011

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act  1977 which provides

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”

In the particular circumstances of this case the fact of the alleged dismissal is in dispute. The Respondent claims the Complainant resigned and the Complainant claims they were either fired or made redundant. The determination will depend on the facts of the case, the exchanges between the parties and the behaviour of parties after those exchanges.

From the evidence adduced, I am satisfied that on the 23rd October 2020, the Complainant accepted an offer of employment with “Hereworks” by email at 16:24 and accordingly resigned her position with the Respondent. The Complainant stated that she ultimately declined said position on the 9th November 2020  and n that respect, I have considered Shinkwin v Millett (ED-03-33) where the Labour Court stated

“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 a subsequent unilateral withdrawl of the resignation”.

I am satisfied the Complainant had resigned her position and accordingly this Complaint is not well founded.

Having been satisfied  that the Complainant resigned her position, the corollary is that complaints CA-00043690-0003, CA-00043690-012, CA-00043690-013 and CA-00043690-014 are not well founded.

The Complaints  CA-00043690-002 and CA-00043690-006 are overlapping and I am satisfied that the Complainant is entitled to holiday pay for 2020.

In relation to CA-00043690-001, CA-00043690-004, CA-00043690-007, CA-00043690-008, CA-00043690-009 and CA-00043690-010, and in the circumstances of this case and the submissions made, I have not been satisfied that any of these Complaints have an evidential basis.

I find that the Complaint (CA-00043690-001) made pursuant  section 6 of the Payment of Wages Act, 1991 is not well founded;

I find the Complaint (CA-00043690-002) and (CA-00043690-006) made pursuant to  section 27 of the Organisation of Working Time Act, 1996 are well founded and award the Complainant €500.00; 

I find that the Complaint (CA-00043690-003) made pursuant to  section 6 of the Payment of Wages Act, 1991 is not well founded;

I find that the Complaint (CA-00043690-004) made pursuant to  section 27 of the Organisation of Working Time Act, 1996 is not well founded;

I find that the Complainant (CA-00043690-007) made pursuant to  section 7 of the Terms of Employment (Information) Act, 1994 is not well founded ;

I find that the Complainant (CA-00043690-008) made pursuant to  section 7 of the Terms of Employment (Information) Act, 1994 is not well founded;

I find that the Complainant  (CA-00043690-009) made pursuant to  section  Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 is not well founded;

I find that the  Complainant (CA-00043690-0010) made pursuant to  section 7 of the Terms of Employment (Information) Act, 1994 is not well founded;

I find that the Complainant (CA-00043690-011) made pursuant to  Section 8 of the Unfair Dismissals Act, 1977 is not well founded is not well founded;

I find that the Complainant (CA-00043690-012) made pursuant to  section 39 of the Redundancy Payments Act, 1967 is not well founded;

I find that the Complainant (CA-00043690-013) made pursuant to  section  12  of the Minimum Notice & Terms of Employment  Act, 1993 is not well founded ;

I find that the Complainant (CA-00043690-014) made pursuant to  section  12  of the Minimum Notice & Terms of Employment  Act, 1993 is not well founded;