Complainant

Respondent

Parties

Mayson  Shelly

Stylewise Ltd  T/A District Health and Fitness

Representatives

Dermot Duignan D&G Prevent

Jerry Lucey

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049797-001

21/04/2022

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

CA-00049797-002

21/04/2022

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

CA-00049797-003

21/04/2022

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

CA-00049797-004

21/04/2022

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

CA-00049797-005

21/04/2022

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

CA-00049797-006

21/04/2022

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

CA-00049797-007

21/04/2022

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

CA-00049797-011

21/04/2022

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

CA-00049797-012

21/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00049797-013

21/04/2022

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

CA-00049797-015

21/04/2022

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

CA-00049797-016

21/04/2022

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

CA-00049797-017

21/04/2022

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

CA-00049797-018

21/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 Withdrawn on Day 2

CA-00049797-019

21/04/2022

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

CA-00049797-020

21/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997

CA-00049797-025

21/04/2022

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

CA-00050556-001

09/05/2022

This case is concerned with a series of complaints by Mayson Shelly against her former employer, District Health and Fitness. Ms. Shelly worked as a gym worker and personal trainer from April 19th, 2021, to 28 April 2022 when she resigned. Hours of work were claimed as thirty-eight with an hourly rate of €11 50 in April 2022 giving a gross weekly wage of €418 per week. Part of the complaint/s is that the weekly hours were reduced after the Complainant returned to work in March 2022 after an absence of two weeks due to ill health post a holiday. There is a complaint of alleged unfair dismissal as a constructive dismissal and several complaints related to the terms of employment which did or did not apply during the employment. Facts and interpretations around figures were disputed at the hearing leaving much of the decision on key employment rights resting on the balance of probability. A dispute about payment for statutory holiday pay claimed by the Complainant while she was on sick pay in March 2022 escalated into issues related to a performance review on her return to work following which she maintains that in addition to a cut in her usual rostered hours, certain facilities were withdrawn. She makes a direct link between her trying to obtain her statutory sick and annual leave entitlements while on sick leave and the negative changes in her conditions of employment. During her absence on certified sick leave the Complainant continued to exchange messages with Mr. Crowe which included references to her seen driving while out of work inferring that she was fit for work. She was asked to work a weekend while not certified fit to return to work. The Complainant engaged the services of a HR Consultant who contacted her employer to agree terms for a severance of the employment relationship. Following that contact the Respondent thanked the Complainant in an email and wished her well and removed her from the internal Whats App group. However, he did not finalise the agreement with the Complainants Representative, instead appointing his own consultant to engage with the Complainant, who went out on sick leave and did not return to work. A statement of terms of employment with a grievance procedure and a staff handbook were issued to the Complainant on 21 April 2022, two days after the Whats App message regretting that things did not turn out and wishing her well. The Complainants position is that message from the Respondent meant to her that terms were agreed and she was to leave the employment non those terms agreed with her adviser. The Complainant resigned on 28 April 2022 and has alleged constructive dismissal as a breach of trust and the circumstances of her employment relationship at that stage alongside many complaints of breaches pf her employment rights. The extent of the complaints and the need to clarify resulting in the withdrawal of complaints at the first and second hearing might be all very well if a party is trying to ‘persuade’ the other party to arrive at an agreed outcome. Otherwise, it wastes a great deal of time, while adding to costs on both sides, as in this case.

1.      CA-00049797-001 – Organisation of Working Time Act 1997: Sunday Premium.

The Complainant regularly worked on Sundays. She was never informed that her hourly rate included a Sunday premium. There was no written statement of terms indicating that she was in receipt of a Sunday Premium. The statement of terms issued on 21 April 2022 referred to a requirement to work Sundays but did not specify that the hourly rate included an amount for Sunday Premium or what that premium was.

2.      CA-00049797-004 – Organisation of Working Time Act 1997: Holiday Pay/annual leave payments during her employment/ Public holiday entitlements/Response of the Employer in March 2022.

Public Holiday Pay Prior to raising the issue in March 2022, the Complainant did not receive her full payment for Public Holidays from April 2021 when she commenced employment with the Respondent. This was part of the issue she raised with the Respondent in March 2022 when she sought payment of her unpaid leave and public holiday pay from the date she started as she was on sick leave at the time and had no sick pay. No figure was provided for the amount claimed and the figure provided to the hearing by the Respondent showing an overpayment of Public Holiday Pay to the value of €77 or one day was not disputed.

Holiday Pay. The Complainant commenced employment in April 2021. Her contention is that she did not have paid holidays until they were booked for December 2021. However, these were cancelled so that she could provide cover for fellow employees who had Covid. In late February she went on a skiing trip where she suffered an injury which was covered by sick certs from 02.03.22 to 15.03.22. She received a message from Mr Crowe that it was good to see her out driving. She was told she would need to work the weekend although she was on certified sick leave. As she had no income, she sought sick pay and payment for annual leave entitlements since she commenced employment in April 2021. She also asked for payment for public holidays which were not paid in 2022. She accepts that her claim for payment of statutory sick pay was not correct at the time.  The initial reaction of the Mr Crowe was that the leave year ended on 31 December 2022 and that any untaken leave was lost. There were messages back and forth which she described as aggressive and then she was threatened with a performance review-which was something which had never been mentioned prior to seeking her statutory leave entitlements. On 7 March she was told she would be paid what she was owed in holiday pay but the amount calculated was incorrect and a message shows her doing calculations on the day of the meeting.  In her statement, the Complainant said that the net outcome was that she received nothing and was left with only stress.

When she met with Mr Crowe on 31 March after her return from sick leave, he referred  to being shook by her conduct while she was out sick, that he never had an issue with employees re money before, that she handled it badly. He brought up other issues about her sick leave, about being late for work in the past for which he had made no deduction. There were to be changes, no more ‘fag breaks’. Personal training sessions would take place during working hours, so no longer an extra payment for that work. Coffees and smoothies would incur a charge in future and there would be a reduction in hours due to Covid while at the same time saying that extra weekend cover would be recruited.

As of 13 April 2022, when she wrote a statement in support of her complaints, she had received no balance of holiday payments owed as calculated by the accountant and no payment.

The Complainant provided no details of her holiday pay or holiday pay which was owed to her. She had received a large payment into her account which she took as being holiday pay. But there was no payslip and no detail of the basis of the amount provided by the Respondent so she had no way of knowing if the calculation was correct.   As far as she is concerned, the Respondent wanted to teach her a lesson in the form of the performance review, a reduction in hours after she returned to work following sick leave, an increased workload and a reduction in other benefits, directly related to her seeking monies she felt were owed to her. The terms issued on April 21st contained references to monthly meetings while the employee was on probation and that a performance plan would be issued after each meeting. No such meetings took place during her probation so the Respondent must have been happy with her performance at the time.

 The complainant maintains that her hours of work were reduced following her return to work and after she raised the matter of her unpaid annual leave and public holidays. She described the Respondents account of her rostered hours post her return as a ‘soup of dates’. Normally she was rostered for 35+ hours. Rosters ran from Monday to Sunday. Her account of her roster following her return was as follows:

Week 13 rostered for 16 hours

Week 14 rostered for 32 hours

Week 15 rostered for 20 hours

Week 16 rostered for 20 hours

Week 17-irrelevant as this was the week of the Whats App message wishing her luck for the future.

3.      CA-00049797-005 – Organisation of Working Time Act 1997: No statement of average hourly rate of pay. The Complainant gave evidence that she never knew her hourly rate of pay as it was not stated anywhere and was not contained on the payslips.

4.      CA-00049797-015 – Organisation of Working Time Act 1997: Daily rest periods.

The Complainant gave evidence and provided dates when she did not receive an eleven break between shifts as required under the Organisation of Working Time Act. The dates consisted of seven occasions between August 9th, 2021, and February 1st, 2022. 

5.      CA-00049797-016 – Organisation of Working Time Act 1997: Breaks during hours of working time. The Complainant contends that she received no breaks away from work during her working day. Refreshments were taken on the premises as she went about her work. She took smoke breaks outside but these did not amount to her entitlement to formal breaks away from work. Sample rosters were provided as not showing any times for breaks during the day.

6.      CA-00049797-017 – Organisation of Working Time Act 1997: Holiday pay; annual leave entitlements [duplicate of 004].

The summary at 49797-004 refers.

7.      CA-00049797-018 – Organisation of Working Time Act 1997: Public holiday pay [duplicate of 005].

The summary of 49797-004 refers.

8.      CA-00049797-019 – Organisation of Working Time Act 1997: Notification of starting and finishing times in advance.

The said there were a few occasion when this occurred but as she could not remember a whole lot about the details, she was happy to withdraw the complaint.

9.      CA-00049797-020 – Organisation of Working Time Act 1997: Notification in advance of any additional hours. The complaint was that ‘I may be asked or told to for extra work on the day and during a shift’.

10.  CA-00049797-025-Organisation of Working Time Act 1997- under Section 18A. The complaint is that the Complainant was entitled to a statement of banded hours in compliance with this section of the Act.

11.  CA-00049797-002 – Payment of Wages Act 1991: Unlawful deduction from wages (reduction in contract hours) . This complaint relates to the reduction of hours which the Complainant contends was imposed on her following her return to work after sick leave-because she sought her holiday entitlements in pay from April 2021 until that date. No calculation of the amount withheld or properly payable was provided.

12.  CA-00049797-003 – Payment of Wages Act 1991: Holiday pay. This is in effect a duplicate of the complaints under the Organisation of Working Time Act 1997 at complaint 49797-004 without any additional evidence to support this complaint.  

13.  CA-00049797-006 – Terms of Employment (Information) Act: Failure to provide a written statement of terms of employment. On 19 April 2022, Mr Duignan contacted Mr Crowe on behalf of Ms Shelly. Reference was made to a complaint to the WRC and that the complaint would not be pursued if there was an agreement on a severance payment. A detailed complaint was received by the WRC on 21 April 2022. On that same date, the Respondent issued a statement of terms of employment to the Complainant for the first time. That statement had not been seen or discussed with the Complainant prior to April 2022.

14.  CA-00049797-007 – Terms of Employment (Information) Act: Notification in writing of a change in terms of employment.

Prior to her sick leave, the Complainant worked 38 - 40 hours. Following her return to work in March 2022 her hours of work were reduced without notice in breach of the previous  understandings and established hours of work.

15.  CA-00049797-011 – Terms of Employment (Information) Act: Failure to provide core terms of employment.

Prior to 21 April 2022, the Respondent failed to provide the Complainant with a statement of her core terms of work as required under the legislation.

16.  CA-00049797-013- Part Time Work Act: Change in hours to part time worker without agreement. While it is understood that this item relates to the reduction in hours following her sick leave and without her agreement, no evidence was provided to the hearing support a complaint under the Protection of Employees Part Time Work Act. 

17.  CA-00049797-012 – Section 77 of the Employment Equality Act 1998: Gender discrimination ground.

While the Complainant was on sick leave, she says that she was harassed by the Respondent in texts about her being able to drive while out sick and not working. When she returned to work, her hours were reduced. She was subjected to a performance review which is something never previously mentioned in the employment. These detriments were not applied to a named male worker who was out sick around the same time. The complaint is one of discrimination on grounds of gender.

18.  CA-00050556-001 – Section 8 of the Unfair Dismissals Act 1977: Claim of constructive dismissal. Against the background of her employment difficulties in March/April 2022, the Complainant took advice from Mr Duignan. On April 19, 2022, she sent a message to Mr Crowe as follows:

Hi Seamie. Just letting you know I’ve appointed Dermot Duignan as my representative to deal with my treatment by you in work, which I was not happy with and has caused me stress and anxiety, Dermot will be getting in touch with you.’

She was advised later on the same day by Mr Duignan that terms were agreed for her to exit the employment and that he would be meeting Mr Crowe later in the week. At 4.22 that day Mr Crowe sent a text into the work Whats App Group which appeared to her to confirm that terms were agreed and her employment was ended.

‘ Thanks a mil for all your hard work Mayson. Good luck for the future.’

This posting  was followed by Mr Crowe removing her from the internal staff Whats App Group on the same day. On the basis of the actions of Mr Crowe on 19 April and the information from Mr Duignan, the Complainant made her goodbyes to colleagues and contacted the Department of Social Protection.

 Instead of following through on the agreement, on 21 April she learned that Mr Crowe had  cancelled the planned meeting with Mr Duignan to sign off on the agreed terms. Also on 21 April at 12.36pm Mr Crowe emailed the Complainant  attaching a statement of terms, a staff handbook and a grievance procedure. At 2.26 pm she was informed by email that she was to contact a Mr Jerry Lucey  who would investigate her issues. She was told to follow the grievance procedures she received earlier that afternoon.

The Complainant was embarrassed and stressed. She was to contact someone she never heard of before. The message she received from Mr Crowe on 19 April led her to believe that her employment was terminated and agreed with Mr Crowe. She obtained another medical cert and took advice from Mr Duignan who advised her that she had no option but to resign. She could not face back to the employment after all that had happened and remained on certified sick leave until she resigned. She resigned on 28 April 2022 and was doubly confused to receive an email from Mr Crowe the following day that he had never reached an agreement with Mr Duignan, that he never knew about any resignation and inviting her to return to work. The email also said they would reluctantly accept her resignation.

As far as the Complainant was concerned, she posed the question as to how she could trust someone again who had not paid her properly, or who had not treated her fairly, reducing her hours or that her workload would not be increased again.  The reliance on the terms of the statement issued only on the 21st of April 2022 a year after she started working for the respondent was simply an effort to cover their tracks. She had not seen that document until after the Respondent was contacted by Mr Duignan and terms for her leaving were agreed as far as she was concerned. The message she received from Mr Crowe on 19 April confirmed to her that he was confirming  that her employment was ended on an agreed basis.

Mr Duignan rejected the evidence of Mr Crowe where he asserted that he received no communications from Mr Duignan other than telephone calls. In his own email of 22 April to the Respondent  he expressed shock and amazement at the actions of the Respondent which were contrary to their discussions on 19 April 2022. Also, in that email he referred to text messages which were exchanged and the arrangement re meeting later that week on the basis of a figure which was agreed between them in telephone calls. It was only after this agreement was reached that Mr Crowe sent the Whats app message to Mayson Shelly in which he wished her well in the future and then removed her from the staff Whats App group. This confirmed that they had an agreement on terms for Ms Shelly to exit the employment.

1.      CA-00049797-001 – Organisation of Working Time Act 1997: Sunday Premium.

The rate of pay was in excess of the minimum wage and included a premium payment for Sunday Working above the minimum wage – 30c per hour. The hourly rate paid to the Complainant rate increased over time.  The Complainant knew she was to work Sundays as part of the verbal contract. Ms Concannon gave evidence that every employee worked on Sundays. The accountant said that a premium for Sunday working was included in the rate. Staff knew it was included in the hourly rate.

2.      CA-00049797-004 – Organisation of Working Time Act 1997: Holiday/annual leave/public holiday entitlements/penalisation.

The Respondent calculated that a payment of €482.82 remains due to the Complainant. There was an overpayment of €77 in respect of Public Holiday pay but they were not seeking that payment.  The Respondent made an error in the calculation of holiday pay owed to the Complainant and is happy to rectify the matter.

Regarding the claim of changes in her conditions and the performance review, Mr Crowe gave evidence that, while she was absent on sick leave in March 2022, it was brought to his attention that the Complainants performance had gone downhill. The meeting on 31 March was an informal chat. He wanted to get the relationship with the Complainant ‘back on’. Regarding any reduction in hours after the Complainant returned to work, he understood that she had a back issue at the time. They were busy at the time, there was a shortage of available workers-why would they reduce the Complainants hours?

3.      CA-00049797-005 – Organisation of Working Time Act 1997: No statement of average hourly rate of pay.

4.      CA-00049797-015 – Organisation of Working Time Act 1997: Daily rest periods. No evidence was provided in respect of this issue-other than the dates and times provided by the Complainant.

5.      CA-00049797-016 – Organisation of Working Time Act 1997: Breaks during hours of work. Ms Concannon gave evidence that there were two people on the roster and they gave each other cover for breaks which were taken during the working day. Ms Concannon was satisfied that staff were getting their breaks from the staff meetings where everyone was happy and nobody raised the issue.

6.      CA-00049797-017 – Organisation of Working Time Act 1997: Holiday pay; annual leave entitlements [duplicate of 004]. The text of the reference ending 004 applies to this duplicate.

7.      CA-00049797-018 – Organisation of Working Time Act 1997: Public holiday pay [duplicate of 005]. The text of the reference ending 004 applies to this duplicate.

8.      CA-00049797-019 – Organisation of Working Time Act 1997: Withdrawn at hearing.

9.      CA-00049797-020 – Organisation of Working Time Act 1997: Notification in advance of any additional hours.

No submission was provided in response to this complaint.

10.  CA-00049797025-Organisation of Working Time Act 1997- under Section 18A

No submission was made on this complaint.

11.  CA-00049797-002 – Payment of Wages Act 1991: Unlawful deduction from wages (reduction in contract hours) See also ref ending 007. The Respondent does not accept that this is a valid complaint for the reasons set out under 007.

12.  CA-00049797-003 – Payment of Wages Act 1991: Holiday pay. See also ref ending 004 above where the complaint is conceded by the Respondent.

13.  CA-00049797-006 – Terms of Employment (Information) Act: Written statement of terms of employment.

The Respondent accepts that the Complainant has a valid claim. The failure to issue a statement of terms was an oversight. There was no intention to disadvantage the Complainant.

14.  CA-00049797-007 – Terms of Employment (Information) Act: Notification in writing of a change in terms of employment-reduction in hours.

Complaint denied. The complaint was absent for two weeks between 2nd and 15th March 2022. The Complainant was not rostered to work the first weekend claimed as a reduction as it was not known if she was going to return to work when the roster was drawn up. They were only aware that she would be returning to work for the weekend commencing 29th March. On the weekend commencing the 5th of April, the Complainant was rostered and worked 31.5 hours.  The Complainant was unavailable from April 20th due to a sick absence of three weeks before she resigned.

Mr Crowe gave evidence that Ms Concannon was in charge to the rosters and he would not have known the hours allocated to staff. He was in contact with Ms Shelly but from her responses it was not known when she was coming back to work.

Ms Concannon gave evidence regarding the receipt of medical cert. The rosters were drawn up for the week the Complainant returned to work on the basis that they did not know when she would be around. In her final week of employment, the Complainant was rostered for a full week, but she did not work any of it. There was no decision to reduce her hours.

15.  CA-00049797-011 – Terms of Employment (Information) Act: Failure to provide core terms of employment. This breach was acknowledged by Mr Crowe at the first hearing of the complaint. It was rectified after the lapse was brought to his attention by Mr Duignan.

16.  CA-00049797-019- Part Time Work Act : Change in hours to part time worker without agreement-withdrawn at hearing Day 2.

17.  CA-00049797-012 – Section 77 of the Employment Equality Act 1998: Gender discrimination.

This complaint is denied. The reason for the meeting on March 31st was the poor performance of the Complainant citing Whats app messages in July 2021. At the hearing it was stated that the comparator selected was out sick for one week with Covid.

18.  CA-00050556-001 – Section 8 of the Unfair Dismissals Act 1977: Claim of constructive dismissal.

Denied. Mr Crowe gave evidence that the purpose of the meeting on 31 March was to reset the relationship with the Complainant as he had stated in one of his messages. He had received reports of performance issues with the Complainant on the job and he was concerned. His intention was to improve performance.

The first he heard about issues after the meeting  was when he received an email from  the Complainant who referred him to Mr Duignan who rang him later that day. He was rattled by the email. He had zero idea the Complainant had personal issues with him -  he put his hands up that there was no written contract in place. Mr Crowe gave evidence in which he denied reaching an agreement with Mr Duignan who he said did ring him but did not put anything in writing at any stage. Amounts of severance were discussed. In their third and final conversation an amount was agreed, subject to him taking legal and HR advice. When he spoke to others, they asked what he had done wrong, other than not issuing terms of employment in writing. He was unhappy with a comment made by Mr Duignan  at the end of  their discussion, that a man of his age should  know better  when dealing with women. That comment on the call was heard by Ms Concannon. Under cross examination he did accept he must have overlooked an email received from Mr Duignan.  The Complainant was given the opportunity to have her issues considered by Mr Lucey but she resigned.

 Attention was brought to two messages exchanged on April 11 and 17 April 2022 which concluded with thanks a mil from Mr Crowe. There was nothing from any of her messages prior to April 19th which indicated the Complainant was suffering from stress and anxiety.

Asked why he sent the Whats App message to Mayson Shelly on 19 April thanking her and wishing her well, the witness replied that he understood that she was not returning to work, that it was fairly obvious. He had no recollection of removing the Complainant from the group Whats App.

             Regarding the discussions with Mr Duignan, the position of the Respondent is that whatever the Complainant was told and may have understood, there was no agreement finalised with Mr Duignan. Acknowledging that there were no procedures in place prior to those discussions, once they were put in place, the matter was handed over to Mr Lucey who was external to the employment. The Complainant declined to engage with Mr Lucey. The Complainant was also offered the opportunity to reconsider her resignation but she declined. There was no constructive dismissal in  circumstances where the statement of terms was issued on April 21st, 2022, the Complainant was afforded the opportunity to make any comments on the terms issued ; an external person was to hear her issues, she was invited to change her mind about resigning. There was no constructive dismissal.

Before addressing the specific complaints by way of precise findings, the following are some overall conclusions leading to the decisions across the spectrum of the complaints which remain to be decided, some of which are interlinked or duplicates.

When the series of texts between the complainant and the respondent exchanged during her period of sick leave commencing  March 1st, 2022, are examined in detail, it is clear that when it came to rights and obligations, neither party was correct in their interpretation of their own rights and obligations or those of the other party. For example, while the Complainant was correct in asserting that the statutory  holiday leave year runs from April in one year to the end of March the following year, she was not entitled to substitute holiday pay or to expect the Respondent would pay her holiday pay for a period of sick leave or in lieu of leave while she was an employee. Indeed, had he done so, the Respondent would have acted in breach of the Organisation of Working Time Act. The Respondents initial reaction to the request for payment of outstanding leave to the effect that the Complainant could not carry it forward was also incorrect. It is regrettable therefore that this dispute about holiday/public holiday pay was allowed to colour so much of what occurred in March/April 2022 in what appears to have been a good enough employment relationship up to that point in time. The Complainant now acknowledges that she was not entitled to statutory sick leave at the time of her claim to Mr Crowe  that she was indeed entitled to such payments formed part of her opinion and claims against him, at that time.

The Complainants assumption that the Respondent was not entitled to carry out a performance review even on an informal basis was also not correct. However, she was entitled to be treated fairly. And when, as is evident and is found, that review was largely in reaction to the Complainant querying and disputing her leave entitlements , then the framing of the discussion on 31 March as a ‘performance’ review in that context can be viewed less as a genuine performance review and more as reaction to her seeking her lawful entitlements, an action on the part of the Complainant which the Respondent seemed to be genuinely taken aback  and shocked by. This conclusion is supported by the clear evidence that the issues of so-called performance advised to the Respondent by Ms Concannon dated back in some instances to October 2021. The texts between Ms Shelly and Ms Concannon around the issues at that time make for interesting reading, reflecting as they do a degree of cordiality and informality not reflected in Ms Concannon’s evidence or the repeated assertions of the Complainants unreliability. That cordial informality  disappeared almost entirely while the Complainant was out sick following her skiing trip-and began insisting  that she receive her outstanding holiday/public holiday pay and sick pay. The fact and  tone of the performance review meeting and the number of changes imposed on Ms Shelly did not reflect the tone of any communications between the parties which preceded the Complainants sick leave in March 2022 and her seeking payment of statutory/annual leave payments and disputing the Respondents calculations right up to the day of that meeting.   The messages from the Respondent about her capacity to drive while she was absent on unpaid sick leave were both derogatory  in tone and completely unacceptable communications by an employer to an employee on certified sick leave, the fact of which he appeared to almost resent in some way or question at the very least. The insistence that she work at the weekend while on sick leave was way beyond the right of the Respondent as an employer. No dates were provided for the lates which Mr Crowe referred to at the review meeting and there is nothing to contradict Ms Shelly’s reply that these amounted to two in almost twelve months. No evidence was provided to rebut this claim by Ms Shelly.  A ban on smoke breaks was suddenly imposed while at the same time there was no system in place  for taking or recording statutory breaks. There was no provision for such breaks within the roster. There were no probationary reviews in 2021 where performance  issues, if they existed,  could have been addressed. The attempt by the respondent both at the meeting and subsequently in his defence to portray the Complainant as unreliable prior to March 2021 is not accepted as a plausible justification for the meeting on 31 March or the changes which followed. The Complainant did contribute to an image as unreliable towards the end of the employment relationship when at short notice she simply declared herself unavailable for ‘personal reasons’ and in the same way as she felt entitled to be late without any explanation and was seeking rights which she did not in fact have i.e., payment of sick pay and payment for annual leave while on sick leave. The Complainant may have been a less than perfect employee in some respects and her sense of her entitlements was sometimes misplaced. Nonetheless the kernel of the problems in this employment relationship was the absence of rules and regulations of the most minimal kind, one where statutory entitlements and obligations were entirely absent in the employment.

The Respondent acknowledges that no statement of terms was issued to the Complainant prior to the 19 April 2022,when contact was made by the adviser for the Complainant. The absence of such a statement by not setting out the ‘rules’ for the employment left both parties interpreting their rights and relying on external opinions. The opinion which he gave evidence as having influenced  the Respondent after he had spoken to Mr Duignan on 19 April to the effect that all he had done was not provide a statement of terms which led him to decide not to proceed with the agreement in principle, did not appreciate the seriousness of the situation. Where such terms were not agreed between the parties the Respondent was effectively making up his own rules for himself and the Complainant. He had nothing to fall back on in terms of the procedures for submitting a grievance,  sickness benefits, payment for holiday pay, payment  of a Sunday premium, hours of work, the regime for taking statutory breaks-the absence of all of which  led to a catalogue of complaints being submitted by the Complainant and where the cost was potentially  far more significant  than the revised terms offered by Mr Duignan on behalf of Ms Shelly.

It is noted that many of the  complaints were withdrawn at the first day of hearing. As a result, and taking the duplicate complaints which remained into account, the original list of complaints contained the characteristics of a tick box exercise some of which were entirely  misplaced as applying to the circumstances of the Complainant. A  number of well-founded complaints remain, nonetheless.

 There is no calculation available for the OWT  complaint on leave payments, which I found disingenuous on the part of the Complainant as it is after all her complaint.

In relation to the decision to resign, allowing that there were other factors in that decision,  many of the complaints raised were never raised while the Complainant was in the employment and while she was not obliged to do so, referring all matters to an external consultant the employer has never heard of and then and only then informing the employer that he had treated her badly is not a likely means of resolving issues. This in turn leads to  l to the conclusion that the Complainant was not seeking any resolution by mid-April 2022-simply a severance payment, and this was the agreed approach taken on her behalf by Mr Duignan. That exit approach does offend the principle of raising issues internally before referring them to an  outside body, in this case the WRC.

There are no records available which provide any details of statutory breaks, which, when allied to the detail on breaks included in the statement of terms first issued in April 2022, severely undermines the Respondents response to this complaint.

In concluding that there was a degree of penalisation against the Complainant in reaction to her raising and pursuing her rights in relation to holiday/public holiday payments, feeding into a negative attitude which was summed up in describing the Complainant as  unreliable, there is no evidence that these issues and behaviours on the part of the Respondent were related to the gender of the Complainant or that she was marked out for less favourable treatment than a male employee on grounds of gender.

Overall, I would observe that this case is proof, if proof were needed, that a meaningful employment relationship cannot be conducted either by an employer or an employee through the medium of texts and other media platforms such as Whats App and that it is extremely unwise to be so reliant of these forms of messaging. The extent of such communications provided to the hearing was extensive to say the least, running to pages of messages.

Findings on the specifics of the Complaints.

1.      CA-00049797-001 – Organisation of Working Time Act 1997: Sunday Premium.

In the absence of any agreed terms which clearly specifies that an hourly rate of pay includes Sunday Premium, an employer is in a weak position in defending a complaint that an hourly rate of pay is inclusive of Sunday Premium. This is particularly the case where the difference between the statutory minimum wage and the agreed rate is low,  or  where employees on the same rate of pay are rostered differently for Sundays i.e., some may work only Sundays, some regularly, some not at all yet they are all on the same rate of pay. In this case, the Respondent employer did not issue any statement of terms or core terms specifying that the agreed rate of pay included a premium for working on a Sunday. They argue the rate was above the minimum wage. However, the minimum wage is what is says, a minimum rate and a payment in excess of that rate may exist for various reasons. Of particular significance in deciding this complaint, is that, when the Respondent did issue a statement of terms in April 2022, there was no reference to Sunday Premium being included in the rate of pay, an important point made on behalf of the Complainant at the hearing. In the circumstances of this case, I find the Respondent did not pay or provide for a payment of Sunday Premium in the hourly rate of pay of the Complainant. In other words, there is still no contract which clearly states that the rate of pay is the same for all hours and includes an element for Sunday Premium or what that element is.

The relevant or cognisable date for the purposes of this complaint is 22 October 2021 to 21 April 2022,six months prior to the receipt of the complaint by the WRC.

The Respondent is to pay the Complainant €300 compensation in respect of the breach of Section 14 of the Organisation of Working Time Act,1997,failure to pay a premium for Sunday Working.

2.      CA-00049797-004 – Organisation of Working Time Act 1997: Holiday/annual leave/public holiday entitlements/penalisation.

The Respondent has calculated an outstanding amount of holiday pay of € 482.82 owed to the Complainant following a previous payment in 2022. In the absence of any other calculation by the Complainant, the amount proposed by the Respondent is accepted. I note there is no amount owed to the Complainant in respect of Public Holiday Pay according to the Respondent calculations and this statement is accepted.

An amount of €1500 compensation is justified in circumstances where the Respondent did react very negatively to the Complainant seeking what she understood at the time were her statutory entitlements in terms of paid holiday pay while she was on sick leave.  Her claiming her entitlements led to a meeting on 31 March which while it was dressed up as a performance review meeting, given there was a reduction in her hours on her return from sick leave, an additional workload during working hours and negative changes in what might be described as perks, those actions cannot be completely uncoupled from the Respondents reaction to being challenged regarding monies claimed by an employee. These adverse changes  occurred in circumstances where there was no indication of his expressed concerns or those changes prior to the Complainant going on sick leave and insisting that she was owed money by the Respondent. The amount of €1500 is compensation for being penalised for exercising her rights under the Organisation of Working Time Act 1997 in March 2022. That both parties were incorrect in their understanding of the relevant legislation makes no difference to the reasoning or the finding. It is the negative reaction of the Respondent which justifies the payment of compensation.

For future reference ,the statutory annual leave year is April 1 to March 31st. The Respondent is not entitled to wipe out an employees accrued annual leave where they have made no provision for the employee to take their leave, including any balance owed at year end.

3.      CA-00049797-005 – Organisation of Working Time Act 1997: No statement of average hourly rate of pay.

I am satisfied the Complainant knew her hourly rate of pay as a set rate for each hour worked. This complaint is not well founded. 

4.      CA-00049797-015 – Organisation of Working Time Act 1997: Daily rest periods.

The  records submitted by the Complainant provide support for her contention   that there were occasions when she did not receive the eleven-hour break between the end of one shift and the starting time of the next shift. This occurred on those shifts ending at 9pm and commencing at 6am the following day on four occasions during the cognisable period. This a breach of the health and safety protections afforded to employees by the Organisation of Working Time Act 1997. Noting the Respondent was  the subject of a subsequent  inspection by the WRC where they were found to be compliant with the  legislation relevant to this employment, an amount of €500 compensation is considered appropriate in the case of the Complainant and to ensure that the Respondent ensures that this unlawful practice does not re-occur.

The complaint is well founded.

5.      CA-00049797-016 – Organisation of Working Time Act 1997: Breaks during hours of work.

In the statement of terms issued to the Complainant in April 2022, the Respondent has included a term which would have obliged the Complainant, and other employees to record their own break times. The length of break times, when they were to be taken and where they were to be recorded is not specified. No evidence was presented to the hearing to the effect that such clear terms and arrangements existed when the Complainant submitted a complaint to the WRC. Neither is there anything which suggests whether or not smoke breaks were part of the breaks regime or indeed when and how employees were to take breaks away from their work and where. The different shift patterns did allow for some potential cover when there were two employees rostered. Nonetheless, apart from their being two people present, there was no evidence of any guidelines to employees as to cover arrangements specifically for statutory  breaks to allow them to take those breaks away from their work. .

On balance, whereas I can accept the Complainant did have some access to breaks, there is insufficient evidence that these breaks were of a frequency and duration and times which provided her with her statutory break entitlement on each shift she worked. I therefore find the complaint is well founded. Finding that the complaint is well founded means that this was a serious and ongoing breach of the Respondents  health and safety obligations to the Complainant and to ensure that he takes those obligations seriously in the future, compensation of €2400 is considered appropriate in the circumstances.

6.      CA-00049797-017 – Organisation of Working Time Act 1997: Holiday pay; annual leave entitlements [duplicate of 004].

Duplicate complaint- the terms of the Decision at CA-00049797-004 encompass this complaint.

For the record and to provide a decision as I am required to do, this numbered complaint is not well founded as an additional complaint.

7.      CA-00049797-018 – Organisation of Working Time Act 1997: Public holiday pay [duplicate of 004]. Duplicate complaint-the terms of the Decision at CA-00049797-004 encompass this complaint. For the record only, this numbered complaint is not well founded as an additional complaint.

8.      CA-00049797-019 – Organisation of Working Time Act 1997: Notification of starting and finishing times in advance. Withdrawn at hearing

9.      CA-00049797-020 – Organisation of Working Time Act 1997: Notification in advance of any additional hours.

No evidence was presented by the Complainant to suggest that this complaint is any different to that decided at CA-00049797-020 and which provide the basis for a different finding. For the record, the complaint is not well founded.

10.  CA-00049797025-Organisation of Working Time Act 1997- under Section 18A

This section of the legislation related to banded hours is not relevant to the employment arrangements for the Complainants employment at any stage. The complaint is not well founded.

11.  CA-00049797-002 – Payment of Wages Act 1991: Unlawful deduction from wages (reduction in contract hours) This complaint is addressed under CA-00049797-004. An additional claim of a deduction properly payable for a reduction in contract hours is not well founded.

12.  CA-00049797-003 – Payment of Wages Act 1991: Holiday pay. This complaint is addressed under CA-00049797-004. An additional claim of a deduction of an amount properly payable for annual leave or public holiday pay is not well founded.

13.  CA-00049797-006 – Terms of Employment (Information) Act: No written statement of terms of employment.

The complaint that the Respondent failed to provide a statement of terms of employment  during the cognisable period as required by the legislation  is conceded. Section 7 of the legislation in place in April 2022 provides for a maximum amount of compensation of four weeks gross pay for breaches of the Act where those breaches represent a failure to provide the details of the statements at different stages of the employment or failures other than penalisation under this Act. On this basis  €1672 compensation is calculated on the basis of a gross maximum pay of €418 per week.

14.  CA-00049797-007 – Terms of Employment (Information) Act: Notification in writing of a change in terms of employment.

This refers to the reduction in hours and other changes following the complainants return to work in March 2022 and the meeting on 31 March 2022. That those changes were imposed without her agreement is accepted. While they may have been short term in the weeks following her return to work, the records are clear and indisputable. That Mr Crowe is said by the Complainant to have referred to a reduction in her hours at the meeting on 31 March is supported by the statement of terms which issued in April 2022 where the hours previously in excess of 30 hours were reduced to a floor of 20 hours per week.   Compensation is incorporated into 006 above.

15.  CA-00049797-011 – Terms of Employment (Information) Act: Failure to provide core terms of employment.

This complaint is well founded and not disputed by the Respondent. Compensation for this breach is incorporated into the decision at 006 above.

16.  CA-00049797-013- Part Time Work Act : Withdrawn at hearing Day 2.

17.  CA-00049797-012 – Section 77 of the Employment Equality Act 1998: Gender discrimination.

The response to this complaint by the Respondent that the comparator was only out for one week and had Covid bordered on vacant as a defence against such a serious complaint. Nonetheless the Complainant has done little more than make an accusation based on gender in circumstances where she has established facts which support a complaint that there was a penalisation and a detriment as a direct consequence of her seeking what she understood as her rights under the Organisation of Working Time Act 1997 in respect of untaken annual leave entitlements. There is no doubt but that the Complainant was treated differently to a male employee who was out sick in that she was not subjected to texts questioning her fitness for work based on her driving while absent, or had her hours reduced on her return to work or had additional duties added to her work  or was generally criticised and had perks removed on her return to work. These conclusions and the evidence in general lead in turn to the conclusion that the Respondents treatment of the Complainant was highly personalised and directed at her based her attempts to assert her rights, rather than on her gender. This conclusion  led in turn to a finding of  a well-founded complaint of penalisation under the Organisation of Working Time Act.  And leads in turn to the finding that the complaint of discrimination under the Employment Equality Act 1977 is misconceived and therefore not well founded.

18.  CA-00050556-001 – Section 8 of the Unfair Dismissals Act 1977: Claim of constructive dismissal.

The  Complainants assumption that the Respondent was obliged to deal with her appointed representative is not correct, although it is clear he did do so before changing his mind. And her objection to dealing an external person she never heard of, as in Mr Lucey, is a bit rich when she had expected her employer to do exactly the same in respect of Mr Duignan.  It might have been wiser to await the formality of a written agreement containing details of a payment plan, but it is accepted that based on the actions of the Mr Crowe on 19 April in his communications with the Complainant, it was not unreasonable for her to conclude that the employment relationship was terminated by mutual agreement on that date. There may have been some details to be resolved with Mr Duignan around the payment plan later that week. I am however satisfied that an agreed sum was decided between Mr Crowe and Mr Duignan in their discussions. In his message to the Complainant and in his removing her from the staff Whats App group, the Respondent was signalling an end to the employment relationship on an agreed basis.  The Respondent argues that there was no final agreement and that once an external person was appointed and procedures were put in place, the Complainant was obliged to exhaust those procedures before making a complaint of constructive dismissal  and as she was offered the opportunity to do so, her claim of a justified constructive dismissal must fail. In more usual circumstances, the contention of the Respondent would succeed. However, the communications by the Respondent on 19 April are the crucial test in this case. When an employer indicates to an employee there is a closure of an employment relationship on an agreed basis and then simply changes his or her mind with impunity, and then,  without any dialogue whatsoever introduces an entirely new statement of terms of employment and his own adviser into the scenario, a grievous breach of trust occurs or at least actions which the employee is entitled to regard as a grievous breach of trust. Expecting that an employee would then exhaust those entirely new procedures before resigning is not a reasonable application of the usual procedural test in cases of constructive dismissal. This conclusion  allows for the fact that many of the original issues referred to  the WRC had not been raised internally prior to April 19, 2022, and, moreover, had no basis in law.  On balance however, the complaint of constructive dismissal is well founded.

In terms of redress, compensation is the only feasible redress as sought by both parties. The compensation awarded is very limited, partly because the Complainant had clearly decided in advance of 19 April 2022 to seek a paid  exit route through the services of Mr Duignan. Additionally,  no evidence is available as to when the Complainant obtained alternative work on the expiry of her sick certs, what efforts were made by her to obtain work, whether there were losses and when she became available for work given that she had submitted sick certs after 19 April 2022 and never returned to work. Compensation of €850 is the appropriate amount of redress

1.      CA-00049797-001 – Organisation of Working Time Act 1997: Sunday Premium.

This complaint by the Complainant Mayson Shelly against the Respondent Stylewise Ltd is well founded. The Respondent is to pay the Complainant €300 in compensation.

2.      CA-00049797-004 – Organisation of Working Time Act 1997: Holiday/annual leave/public holiday entitlements/penalisation.

This complaint by Mayson Shelly against the Respondent Stylewise Ltd is well founded. The Respondent is to pay the Complainant €482.82 in unpaid annual leave entitlements and an additional €1500 in compensation in respect of the breaches of the Act under these headings.  

3.      CA-00049797-005 – Organisation of Working Time Act 1997: No statement of average hourly rate of pay.

 This complaint by the Complainant Mayson Shelly against the Respondent Stylewise Ltd is not well founded.

4.      CA-00049797-015 – Organisation of Working Time Act 1997: Daily rest periods.

This complaint by Mayson Shelly against the Respondent Stylewise Ltd is well founded. The Respondent is to pay the Complainant €500 in compensation.

5.      CA-00049797-016 – Organisation of Working Time Act 1997: Breaks during hours of work.

This complaint by Mayson Shelly against the Respondent Stylewise Ltd is well founded. The Respondent is to pay the Complainant €2400 in compensation.

6.      CA-00049797-017 – Organisation of Working Time Act 1997: Holiday pay; annual leave entitlements [duplicate of 004].

This complaint by Mayson Shelly is a duplicate of CA-00049797-004 and as such is not well founded as a complaint for separate or additional redress to the decision at  004 which includes all aspects of the complaints under this legislation. For this reason, the complaint is not well founded.

7.      CA-00049797-018 – Organisation of Working Time Act 1997: Public holiday pay [duplicate of 005].

This complaint is a duplicate of CA-00049797 - 005 and as such is not well founded as a  complaint for separate or additional  redress to the decision at 004 which includes all aspects of the complaints under this legislation. For this reason, the complaint is not well founded.

8.      CA-00049797-020 – Organisation of Working Time Act 1997: Notification in advance of any additional hours.

This complaint by the Complainant Mayson Shelly against Stylewise Ltd is not well founded.

9.      CA-00049797-025-Organisation of Working Time Act 1997- under Section 18A

This complaint by the Complainant Mayson Shelly against the Respondent Stylewise Ltd is not well founded.

10.  CA-00049797-002 – Payment of Wages Act 1991: Unlawful deduction from wages (reduction in contract hours)

This complaint by the Complainant Mason Shelly against the Respondent Stylewise Ltd   is well founded. As redress is awarded in respect of the penalisation breach under the Organisation of Working Time Act at CA-00049797-004 -an additional award of compensation is not decided under the Payment of Wages Act 1991.

11.  CA-00049797-003 – Payment of Wages Act 1991: Holiday pay.

As any outstanding payments in respect of holiday pay are addressed and  decided under CA-00049797-004,this is not a well-founded complaint under the Payment of Wages Act 1991.

12.  CA-00049797-006 – Terms of Employment (Information) Act: Written statement of terms of employment.

13.  CA-00049797-007 – Terms of Employment (Information) Act: Notification in writing of a change in terms of employment.

14.  CA-00049797-011 – Terms of Employment (Information) Act: Failure to provide core terms of employment.

These complaints by Mayson Shelly against the Respondent, Stylewise Ltd  under the Terms of Employment Information Act 1994 as amended, are well founded. Compensation of a total of €1672 is to be paid to the Complainant by the Respondent in respect of these complaints. 

15.  CA-00049797-012 – Section 77 of the Employment Equality Act 1998: Gender discrimination.

This complaint of discrimination by Mayson Shelly against the Respondent Stylewise Ltd is not well founded.

16.  CA-00050556-001 – Section 8 of the Unfair Dismissals Act 1977: Claim of constructive dismissal.

The complaint of constructive dismissal made by the Complainant Mayson Shelly against the Respondent Stylewise Ltd is well founded. The Respondent is to pay the Complainant €850 in compensation by way of redress.

Constructive dismissal/terms of employment including change/Breaches of Organisation of Working Time Act-holiday pay-breaks notice of start and finish times and  discriminatory treatment on grounds of gender.