Complainant

Respondent

Anonymised Parties

{A Complainant}

{A Family Business}

Representatives

Daithi O'Donnabhain Galvin Donegan LLP

William Wall Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054276-001

22/12/2022

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

CA-00054276-002

22/12/2022

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

CA-00054276-003

22/12/2022

The Complainant was employed with the Respondent from June 2017 until 27th June 2022.

The Complainant was employed by her relative since June 2017.

CA-00054276-001

The Complainant did not receive any terms and conditions of employment in breach of the Act.

CA-00054276-002

The Complainant worked for the Respondent on the road, gathering stock, and booking items in stock. She collected money from shops and filled delivery dockets. She worked in retail on the tills, selling to customers in the shop premises for 24-32 hours a week. The Complainant said she started work with one of her relatives in the family business at thirteen years of age. She was in school at the time, so worked at weekends and during the summer.

She worked until 27th June 2022 when she was informed by the Respondent her services were no longer required. She was asked if she will have a job and was told “no”. She was told by J she was not allowed upstairs in the premises. She rang the Respondent a few times but has not worked since.

She was unfairly dismissed and was not paid her notice. She was paid in cash and not given payslips. She did not receive a statement of terms and conditions of employment. She has not worked since.

CA-00054276-003

The Complainant did not receive any notice pay.

The Respondent disputes the complaints and says the dismissal is in dispute.

CA-00054276-001

The Respondent says the Complainant was employed from January to June 2022 on an ad hoc basis. Due to the nature of the arrangement, it was not necessary to provide a statement of terms and conditions of employment. There was no detriment to the Complainant from her failure to receive a statement of terms and conditions of employment. The Respondent relies on Philmic Ltd t/ Premier Linen Services v Petraitis (TED1616), Grant Engineering (Ireland) v Delaney (TED1728) and Irish Water v hall (TED161)

CA-00054276-002

The Complainant says she was employed since she 13 years of age which is untrue. The Complainant was given money by her relative for tasks carried out by the Complainant. It was pocket money. There was no obligation to carry out the tasks and did not create obligations between the parties.

The Complainant was taken on as an employee on 3rd January 2022. On 27th June 2022 the Complainant was dismissed, and no reason was given. The Respondent says S2 of the Unfair Dismissals Acts 1977-2015 applies and the Complainant does not have the requisite service to avail of the Unfair Dismissals Act 1977. In addition, the Complainant during the time of the employment was a member of the household and is excluded from the provisions of the Unfair Dismissals Act 1977. The Respondent is self-employed, and the place of employment is the household in which the parties resided at the time of employment.

Prior to employment in the premises, the Complainant was paid for going out in the van as pocket money from the Respondent’s own income. There was no mutuality of obligation, the Complainant chose when she wanted to work. The Complainant was not an employee.

Mr. R H said the Complainant chose when she wanted to work while she was still in school. He worked occasionally in the premises. Mr. F said the Complainant is a relative of the owner. He sent the roster by Whatsapp. The Complainant came into work when she wanted to work and was not rostered like other staff.

The Respondent said the Complainant hung up after a short conversation on 27th June 2022 and discussion of her job never came up. In 2016 he operated a flooring business and was not involved in his current business. He says the Complainant never came back to the shop premises after 27th June 2022, and there was no communication regarding work. The dismissal is in dispute.

The Respondent denies unfair dismissal and without prejudice to the foregoing says should any flaws surrounding the alleged termination of the Complainant’s employment, such issues do not necessarily negate the fairness of the outcome. The Respondent relies on the decision of Judge Linnane in Allied Irish Banks PLC v B Purcell [2012] 23 ELR 189 that “ it is not for the Employment Appeals Tribunal or this Court to ask whether it would dismiss in the circumstances, or substitute it’s view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made…” and Looney & Co Ltd v Looney UD843/84.

The Complainant is obliged to mitigate her losses as per S7 (2) (c ) of the Act and relies on the ruling in Sheehan v Continental Administration Cp. Ltd (UD858/1999). No evidence of mitigation of loss has been provided.

CA-00054276-003

The Respondent says the Complainant was paid from 27 June to 1 July 2022 and was entitled to one week’s notice. She was paid in cash and her payslip emailed.

I heard and considered the written and oral submissions and evidence of the parties and witnesses. I am anonymising the identities of the parties to this decision as there are separate in camera proceedings.

 CA-00054276-001

The Complainant was employed with the Respondent from January 2022. The Respondent admits the Complainant was not provided with a statement of terms of employment in compliance with the Act. The Respondent submits the Complainant did not suffer any detriment as a result. However, the Complainant was not aware of the grievance and disciplinary procedures applicable when an incident subsequently occurred in June 2022 which is the subject of CA-00054276-002.

The complaint is well founded, and I award the Complainant two weeks compensation for the breach of €604.00 and direct payment by the Respondent.

CA-00054276-002

The Complainant is the daughter of the Respondent. S 2 (c ) of the Unfair Dismissals Act 1977 provides the Act does not apply to any of the following persons :

“A person who is employed by his spouse, civil partner, father, mother…is a member of his employer’s household and whose place of employment is a private dwellinghouse or a farm in or on which both the employee and the employer reside”.

The Complainant says she began working for her relatives when she was thirteen years of age during the school holidays and at weekends. This is denied by the Respondent who says any tasks completed were paid as pocket money, and ad hoc. There was no employment relationship until January 2022 when she worked at the premises.

Text messages have been submitted as part of the complaint which show the Complainant was on the workplace roster in February 2022. The Complainant complains she was dismissed on 27th June 2022. The Respondent denies she was dismissed.

S2(a) of the Unfair Dismissals Act 1977 excludes complaints by individuals who have less than 12 months service with the employer. I find the Complainant was employed for a period of six months with the Respondent and is excluded from the provisions of the Act. The complaint is not well founded.

CA-00054276-003

The Complainant claims she has not been paid her notice following dismissal on 27th June 2022. Text messages provided show the Complainant was collecting her wages around 30th June 2022.

The complaint is not well founded.

CA-00054276-001

The complaint is well founded. I award the Complainant two weeks compensation for the breach of €604.00 and direct payment by the Respondent.

CA-00054276-002

The complaint is not well founded.

CA-00054276-003

The complaint is not well founded.

Family relationship, employment status