Complainant

Respondent

Parties

Carmel  Egan

Eamonn Moran Ltd

Representatives

Kemple Gormley Solicitors

Louise Troy BL instructed by Byrne and O'Sullivan Solicitors

Act

Complainant/Dispute Reference No.

Date of Receipt

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

CA-00054060-001

08/12/2022

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

CA-00054060-003

08/12/2022

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

CA-00054060-004

08/12/2022

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

CA-00054060-005

08/12/2022

The Complainant was employed as an Administrator from January 1 2017 to October 21st 2022.

The Complainant sought compensation for unfair dismissal, not being paid a monthly wage, no notice pay and the non provision of a written contract. The Complainant was also a Director and Company Secretary of the Respondent.

This case concerns a dispute from the Complainant seeking Adjudication under Section 8 of the Unfair Dismissal act 1977, Section 6 of the payment of Wages Act 1991 and Section 7 of the Terms of employment (Information ) Act 1994.

The Complainant first entered into employment with the Respondent in 2006 approx. The Respondent at the time was a sole trader. The Complainant was in a personal relationship with Mr. Eamonn Moran for approx. 20 years and the Complainant and the Respondent have a child together who is 17 years old. The Complainant and Mr. Eamonn Moran lived together as cohabitants until September 2022 when the personal relationship irrevocably broke down.

 On the 3rd of January 2017, Eamonn Moran limited was incorporated. The business of said company is freight transport by road. The company has a registered address in Ballinasloe Co. Galway which is also the family home of the Complainant and Mr. Eamonn Moran.

The Complainant was named as a director and company secretary of Eamonn Moran limited on the  4th January 2017. Mr. Eamonn Moran was named as director on the 4th January 2017. Mr Eamonn Moran carries out the duties of managing director and the Complainant carried out the duties of an executive director. On the 7th March 2017, the Complainant furnished the Respondent with working capital seed money in the amount of 20,000.00 Euro.

 The Complainant was never given a written contract from the Respondent, despite the obligation on the Respondent to provide same.

The Complainant did not receive payslips from the Respondent, despite the obligation on the Respondent to provide same. The Complainant was paid a monthly gross wages of 1,944.91 Euro and after tax and all other lawful deductions, the net amount was 1,733.33 Euro.

When the relationship between the Respondent and the Complainant broke down in September 2022, the Complainant continued to carry out her duties to the company. The Complainant took holidays in November 2022 amounting to 7 days, said holidays were agreed with the Respondent on the 7th October 2022. In November 2022, the Complainant was in the process of setting up an account with Revenue and the Complainant contacted the Respondent’s accountant to ask for copies of her payslips. She was advised by a member of staff that she no longer worked for the Respondent on the 2nd December. The Complainant was removed as director and company secretary from the Respondent company on the 2nd December 2022, without prior notice or warning of same. The Complainant did not receive any payment in lieu of notice as no notice was served.

The Complainant has been in receipt of Job seekers benefit since 27th January 2023. The rate of job seekers payment received by the Complainant is 220.00 Euro with an increase of 50.00 Euro due to having one dependant. The total amount received weekly is 270.00 euro. The Complainant to date, has been unable to secure employment elsewhere.

The Complainant claimed that she was unfairly dismissed under Section 8 of the Unfair Dismissal act 1977. The Complainant claimed that she has not received renumeration and that she did not receive any payment in lieu of Notice of termination from employment from the Respondent under Section 6 of the Payment of Wages Act 1991.The Complainant claimed that she did not receive a statement in writing of her terms of employment under Section 7 of the Terms of employment (Information) Act 1994.

The Complainant was a director and company secretary of Eamonn Moran limited since the 4th January 2017 to 2nd December 2022. The Complainant in her capacity as director was actively involved in the day–to–day management of the company, not a casual part time employee as claimed by the Respondent. The Complainant has carried out her duties as director in September 2022. The Complainant did not resign from her position as director.

The Complainant did not start working, as alleged, for a different haulage firm at any stage during her employment or after she was unfairly dismissed.  The entity referred to by the Respondent, Nestor haulage Ltd, according to a company search does not exist, therefore the Complainant could not be an employee of a fictitious company. The Complainant did not take up any employment with any rival haulage company and by the nature of same could not possibly divulge any confidential information or secrets of the trade.

The Complainant was not in receipt of any wage from any other employment. The Complainant accepts that a payment in the amount of 1,733.33 Euro was received on the 7th November 2022 from the Respondent for wages for October 2022.

Section 6 (4) does not apply to the Complainant. The Complainant was not employed by another company during or after her dismissal. The Complainant did not leave the job of her own volition. The Complainant was competent of performing her work as an executive director, her conduct was never in question and she received no warning or Performance improvement plans in relation to same, she was not made redundant and she was able to continue with her work and showed up to do so. The role of an executive director is the running the day-to-day business of the company and the Respondent states same in their submissions.

The Complainant has been on job seekers benefit since January 2023. In light of same, the position taken by the Respondent was unfair and done so with malice. We would contend that no reasonable employer would dismiss an employee due to a personal relationship breaking down and on that basis, the Complainant referred to the reasonableness test that the Respondent is intending on relying on. The Complainant did not create a conflict of interest in respect of her employment.

 The Complainant agrees that the employment was borne out of the personal relationship. The Complainant disputes that it was casual in nature. The Complainant was vital to the day to day running of the company and such as evident from the fact that when the company was incorporated she was made both a director and company secretary of the company. The Complainant argued that neither of those positions are casual in nature. The Respondent, in their capacity as an incorporated company, is under a statutory obligation to provide written terms of employment to a director, as to any other employee. It is the responsibility of the Respondent to provide a written contract or if an oral agreement, a memo or note of the agreed upon terms.

The procedure for removal of a director section 146 of the Companies Act 2014 states; A company may remove a director from office using the procedure set out in section 146 of the Companies Act 2014 (the 2014 Act). This procedure must be strictly observed and is quite protracted as extended notice is required to be given of the extraordinary general meeting (EGM) at which the resolution is to be proposed. Unless the directors themselves propose the resolution, the member(s) must give extended notice of at least 28 days’ notice to the company that an ordinary resolution is to be proposed at an EGM to remove a director. On receipt of that notice, the company must send a copy to the relevant director immediately. A Board meeting should be held to convene the EGM. 21 clear days’ notice of the EGM should be given to members. This 21 day notice period can be within the 28 day notice period referred to above. The relevant director may make written representations to the company and request that the representations be communicated to the members The Board may also make representation to the members on whether the board support or disagree with the proposed resolution. The relevant director is entitled to speak at the EGM. A vacancy created by the removal of a director can be filled at the EGM or , if the company's constitution allows, can be subsequently filled by the board of directors as a casual vacancy If the ordinary resolution is passed at the EGM, a form B10 should be filed at the CRO and the statutory register written up and headed paper updated It is important to note that section 147 of the 2014 Act provides that the removal of a director under section 146 is without prejudice to any rights or remedies available to the director in relation to his or her removal. Removal of a director of a single member company Section 196(2) of the 2014 Act expressly provides that a sole member may remove a director by written resolution and without holding an EGM. However, any removal of a director under that section is subject not only to section 147 of the 2014 Act, but also to “the requirements of procedural fairness”. The  Removal of a director where the director is also an employee of the company has a requirement for procedural fairness will arise where, for example, a director has a contract of employment with the company. The right to remove a director is without prejudice to any rights that the director may have in contract or under statute as an employee. Before commencing the removal process, the company should take legal and employment law advice as an employed director may have contractual or employment rights and could potentially have grounds for a claim against the company if the dismissal is deemed unfair. If the director is also a shareholder then they may also have a remedy for oppression in the conduct of the company’s affairs under minority protection.

The company’s constitution Section 147 of the 2014 Act also provides that section 146 does not derogate from any other power which may exist to remove a director, and which might be contained in a company’s constitution. This includes any right for, by way of example, the board to remove a director by writing. Companies with more than one shareholder should consider whether their constitutions should include additional, and more administratively efficient methods of removing directors.

 The Representative requested that the Adjudicator, in its consideration of this application, support the position of the Complainant insofar as the Respondent has breached Section 8 of the Unfair Dismissal act 1977, Section 6 of the payment of Wages Act 1991 and Section 7 of the Terms of employment (Information ) Act 1994. In usual circumstances when a conflict between a company like the Respondent and one of its directors like the Complainant arises, the standard industry practice is by way of managing the situation by seeking to have the director resign, their position voluntarily. The standard industry practice in relation to this is completed by way of a severance package. The Representative argued that the Respondent, in addition to the breaches under the Unfair Dismissal act 1977, Payment of Wages Act 1991 and Terms of employment (Information) Act 1994, the Respondent breached their duty owed under the removal of a director as set out by section 146 of the Companies Act 2014.

The Respondent is the Managing Director of Eamonn Moran Ltd, the company to which the proceedings herein refer.  The Company is a transport company which operates a fleet of articulated haulage trucks.

The Complainant worked on a casual basis as a personal assistant to the Managing Director of Eamonn Moran Ltd, hereinafter referred to, as ‘the company’. The parties were in a personal relationship for a period of twenty years wherein the Complainant offered administrative and personal assistance to the Managing Director in the day-today operation of the business.

The Respondent was in a personal relationship with the Complainant for a period of over twenty years. The parties were not married however, they did co-habited under the same roof. The Respondent submitted that the Complainant commenced working for the Respondent approximately 13 years as an administrative and personal Assistant to him. The Respondent contended that the Complainant was working on a casual part-time basis for the Company. In general, her duties were assisting with answering emails, occasionally collecting parts for the company and other basis general office duties. The Complainant also had the use of the company jeep wherein, all Tax, insurance and fuel costs were all paid for by the Company and the Complainant had no outlay in that regard.

In or about September 2022, the Complainant ceased to carry out any further duties connected to her role at the Company. The Complainant had in fact commenced employment at a different haulage firm. The Respondents submitted that it was in fact the Complainant that gave no notice to the Respondent that she was resigning from her position at Eamonn Moran Ltd. From the beginning of September 2022, she failed to report to or carry out any duties at the company. The Respondent confirmed that he received no written or verbal notification from the Complainant that she was no longer returning to work. The Respondent submitted that at no time did he formally dismiss the Complainant, she simply failed to report to employment from September 2022.

The Respondent submitted that at this time, the Complainant had, in fact, taken up alternative employment as a driver for Nestor Haulage Ltd. The Respondent submitted that she was in receipt of a wage from Nestor Haulage Ltd. The Respondent submitted that the Complainant did not carry out any administrative duties for the Respondent or the Company from September 2022.  The Respondent paid the Complainant for the work which she had completed for the Company. The final payment was made to the Complainant on the 7th of November 2022.

The Complainant continued to have use of the Company Jeep up until the end of December 2022 wherein the tax and sundries were paid for by Eamonn Moran Ltd.

The Respondent robustly disputed the contention that he engaged in “Financial Coercion” as alleged by the Complainant. He submitted that all of his professional interactions and dealings with the Complainant were professional at all times. The Respondent further submitted that he paid to the Complainant what was due and owing to her as regards the work and duties she carried out for him but that the Complainant in fact, decided to take up employment within a different firm. The Respondent denied that there is any income outstanding to the Complainant. The Respondent denied that the Compliant was unfairly dismissed.

The Respondent disputes that contention that the Complainant was ‘unfairly dismissed’ from her position at the company. The Respondent contended that the Complainant left the job of her own volition to take up employment elsewhere. The Respondent submitted and relied on section 6 (4) of the Unfair Dismissals Act 1977, wherein the Act provides:

“(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.”

The Respondent contended that the conduct of the Complainant was such that she could not be deemed unfairly dismissed from her position at the company as she left voluntarily and without notice to the Respondent to take up alternative paid employment at Nestor Haulage Ltd. Even though the Complainant had not attended work since September 2022, the company still paid her wages up until the 7th of November 2022.

The Respondent submitted that the position taken by the company was reasonable in all of the circumstances due to the conduct of the Complainant. In particular and notwithstanding, she commenced paid employment with another haulage firm. Taking the circumstances into consideration, in particular the fact that the Complainant failed to turn up for work or carry out her duties, it was submitted that it was reasonable in the circumstances to conclude that the Complainant had resigned her position to take up different employment. The Respondent contended that this clearly demonstrates that there was a breakdown of the relationship between the employee and employer.

The reasonableness test was referred to in the decision of Allied Irish Bank v Purcell [2012] 23 ELR 189, where in the Honourable Ms. Justice Linnane considered the scope of reasonableness test to be applied in such cases; ‘Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93: “The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

The Respondent submitted that the Complainant created a conflict of interest in respect of her employment with a rival haulage company. An employee has a duty not to act in a manner with might be construed as competing with their employer. The Respondent submitted that in accepting employment from a rival haulage company the Complainant created a significant risk to the company in respect of confidential information and/or the exposure of trade secrets. The Respondent submitted that this conduct alone made the Complainant position untenable at the company.

In Meehan, Employment Law [2ed 2023], at paragraph 20.168, reference is made to two cases in respect of a conflict of interest where the tribunal deemed a person’s dismissal was fair in the circumstances.  ‘In Shortt v Smurfit Corrugated Ireland Ltd, the Complainant was employed as a specialist designer of rubber stereos, which are used in the printing of cardboard boxes. It was established that he was providing a similar service to the company’s competitors and the tribunal upheld his dismissal. The tribunal also took a dim view of a Complainant who worked as a butcher in a co-operative store and then established his own butcher’s shop only yards away from his employer.(which is reference to Whitty v Waterford Co-Operative Ltd (UD/192/1986) and (UD/764/1986)’

The Respondent submitted that the employment was borne out of the personal relationship between the parties and was casual in nature. At no stage of the employment did the Complainant request any terms and conditions of her employment with the company. The Respondent has no such record in writing or otherwise of the Complainant requesting a contract from the Company.

The Respondent confirmed that the Complainant was paid monthly in respect of her employment with the firm. The Respondent submitted that the company has paid all wages outstanding to the Complainant in respect of her employment up to 7th November 2022. The Respondent submitted that the Complainant made no complaint about unpaid wages until December 2022.

The Respondent submitted the following legal argument;

Claim for failure to provide terms and conditions as under s7 of the terms of the terms of employment(information) Act  

It has been submitted by the Complainant that she did not receive in writing her terms and conditions of pay. The Complainant has also submitted that she was a director of the company Eamonn Moran Ltd since 2017. As a director of the company, it was submitted that the Complainant is subject to the statutory provisions as set out in Part 5 of the Companies Act 2014, as amended (hereinafter referred to as the Act). The duty under this act apply to each person as a director.  The relevant sections of the Act are referenced below. 

The Company Law Act 2014, Part 5: 

s. 223 Duty of each director

(1)It is the duty of each director of a company to ensure that this Act is complied with by the company.

s.224 Directors to have regard to interests of employees

(2)     (1) The matters to which the directors of a company are to have regard in the performance of their functions shall include the interests of the company’s employees in general, as well as the interests of its members.

(3)     (2) Accordingly, the duty imposed by this section on the directors shall be owed by them to the company (and the company alone) and shall be enforceable in the same way as any other fiduciary duty owed to a company by its directors.

 The s224 of the Act, states that directors have regard to the interests of employee which, it is submitted ensuring that matters such as providing terms and conditions are complied with. The Respondent submits that the Complainant was acting as both a director and an employee within the company. The Complainant has maintained this position and therefore, has a duty as both herself as an employee of the company and as director to exercise the duties outlined in the statutory provisions.  The Complainant has submitted that as an employee of the Company she was entitled to have a written contract of her Terms and Conditions of employment. However, as she was also a director of the company, wherein she was obliged to provide the terms and conditions of employment to employees as per her obligations under statute. She now claims that she was not or did not provide or ensure that she had written terms and conditions of employment. It is submitted by the Respondent that this is a failure of her duty as a director to an employee even though she is that employee. It was her obligation to ensure the interests of employees and therefore, should have provided herself with terms and conditions of employment.  The Respondent submitted that the Complainant in raising this as a claim is, in fact, seeking to gain a benefit from her own failure as director to ensure her interests were met as an employee.  The Respondent submitted that the Complainant should not succeed on her claim in relation to s7 of the Terms of Employment Act, as it would be inherently unfair and detrimental to the company for her to benefit on the basis of her own failure as a director to uphold her duty to employees.

Claims in relation to the Unfair Dismissal Act, 1977  As previously outlined the Complainant left the Respondents company, without notice, to work for a Mr. David Nestor. Despite telling the Respondent this and with whom she shares a home, the Complainant has denied the existence of Mr David Nestor company and claimed it is a fiction.  However, Mr David Nestor is the managing director of a company called David Nestor Freight Services (DNFS) which is essentially a similar business to the Respondent. It should be noted they also provide haulage services. This service is very clearly outlined on the website of Mr Nestor. Due to the fact that that the parties were in a personal relationship as well as an employment relationship, the Complainant regularly communicated to the Respondent with respect to her interactions with Mr Nestor and the nature of their employment relationship. She previously disclosed in or about September 2022, that she was working as a driver for Mr Nestor within his company. She previously disclosed that she was receiving money from Mr. Nestor to the Respondent. The Complainant has not disclosed any of her bank accounts or financial statements in either in these proceedings or other litigation. The Respondent also noted from her submissions, that when she contacted the company’s accountants, that she was “setting up an account with Revenue”. The Complainant failed to elaborate further in her submissions to the nature of why she was setting up a Revenue account.  The Respondent denied to that the Complainant is at any loss as she has abandoned her position at Eamonn Moran Ltd to take alternative employment at a rival company. He notes that the Complainant has submitted in evidence that she is in receipt of Social Welfare. The Respondent further submits that demonstrates that if the Complainant is at any loss, which the Respondent denies that she is, she has demonstrated that she has failed to mitigate her losses in the last year. 

Claim in relation to s6 of the Payment of Wages Act 1991. 

The Complainant had not worked with the Company since September 2022 wherein she received her final paycheck in November 2022. The Respondent submitted that he has fully complied with the above Act. 

In her submissions, the Complainant has outlined the procedure for the removal of a director of a company, though has not applied it to the complaints which are the subject of these proceedings. The Respondent submits that this is not relevant to the within proceedings which deal exclusively with the Complainant’s employment at the Company. It should be noted that no such complaint was raised in the original form submitted to the Workplace Relations Commission. In any event, the Respondent submits that the Workplace Relations Commission is not the appropriate forum to raise such issues relating to procedures under the Company Law Acts.  

The Respondent made further submission to the serious allegations raised in the Complainant’s submissions that he has acted in a malicious manner towards the Complainant. The Respondent denied utterly that any action taken by him in relation to the Complainant’s employment was carried out as a result of any malice. The Respondent contended that the Complainant received excellent treatment as an employee of the company until she, of her own volition, left the company to take up employment elsewhere. The Respondent submitted, that following her departure, the Complainant made a complaint to the Workplace Relations Commission about work practices at the company. The Company was subject to an audit and passed the audit to the satisfaction of the WRC. The Respondent submitted that the complaint made by the Complainant was vexatious and designed to cause damage to the reputation of his business. The Respondent submitted that further complaints were made against the accountancy firm which looks after his affairs, and to the Road Safety Authority in relation to practices at the business. It should be noted that all audits determined that practices and procedures incorporated at the business were in accordance with legislation and good practice.

In the Respondent’s initial submissions, he emphasised that further to the above, the Complainant had taken up employment with a rival company. 

In a concerning development, in June 2023, a company computer, went missing from the home office of the parties. The computer was in a home office of the property that the parties shared, and no other employees of the company have access to that office. The Respondent immediately reported the loss of the computer to Gardai as sensitive information concerning the company was stored on the hard drive of the computer.

In conclusion the Respondent submitted that the Complainant left her position at Eamonn Moran Ltd to take up a position at another haulage firm without any notice to her employers. The Respondent did not unfairly dismiss the Complainant but rather she abandoned her position without giving any notice, written or otherwise to the Respondent or the company. It was submitted that on this basis the conduct of the Complainant was such that her position at the company was not tenable.

Unfair Dismissal complaint CA-00054060-001

The Law.

“6.1. 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 a 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 a 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 under statute.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a 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 Respondents position was the Complainant left the business voluntarily and began work for another haulage firm immediately. The Respondent submitted there was no letter of dismissal as none took place but also accepted there was no letter of resignation.  The Respondent argued no grievance had been submitted by the Complainant regarding her dismissal to the Company.

Mr. Moran gave evidence for the Respondent. He advised he was the CEO of the company and it was engaged in meat haulage and had two trucks. He advised the Complainant worked for him and sent emails and collected parts. He advised she commenced these duties about 6 or 7 years ago. He advised prior to that she collected drivers when necessary. He advised the Complainant was paid by cheque and there were no payslips. He advised he stopped payment in September 2022 when he alleged the Complainant started work with Nestor Haulage in September or October 2022. He advised the Complainant had the use of a 70K jeep working for Nestor Haulage and the jeep was registered to Mr. Nestor, was a Land Rover discovery and was 3 or 4 years old. He advised there had been no conversation between him and the Complainant since she reported him to the WRC. He advised his daughter had taken over sending emails on his behalf. He advised he looked after the parts himself and the Complainant had no role in that. He advised he was not sure if the Complainant was being paid by Mr. Nestor and she was gone a lot of the time. He advised the Complainant returned the company car in December 2022.

Mr. Moran was cross examined by the Complainant Representative and stated he started the business as a sole trader and set up the company in 2017. He confirmed the Complainant provided 20,000 Euros as seed capital and this had been paid back to her. He confirmed the Complainant was a Director and Company Secretary until 2022. He advised the Complainant send emails, collected parts and a driver now and again.  Mr. Moran stated he was responsible for the operation of the day to day business. Mr. Moran stated he took it for granted the Complainant was working for David Nestor. It was put to Mr. Moran the Complainant dealt with emails on October 7th, and twice on October 18th 2022. Mr. Morn confirmed the Complainant worked for him In October but agreed the Complainant then told him she was going on holidays. Mr. Moran was asked was he aware the Complainant was currently unemployed and he replied how do you know when she has a jeep outside provided by Mr. Nestor. Mr. Moran was informed the Complainant had evidence from Social Welfare and Revenue she was not working. Mr. Moran was asked how the Complainant was removed as a Director and he had no reply.  Mr. Moran was asked was he aware the Complainant was removed as Company Secretary on the CRO on December 2nd 2022 and Lisa Moran appointed on the same date.  Mr. Moran had no reply. Mr. Moran was asked was he aware that the Complainant had not removed herself as a Director. Mr. Moran had no reply.  Mr. Moran was asked was he aware that the Complainant had been told by the Accountants office on December 2nd 2022 that she no longer worked for the company. Mr. Moran made no reply. Mr. Moran was asked was he aware of any substantial grounds for the Complainants dismissal and he replied that she had stopped talking to him, the relationship had broken down and he confirmed she had never given the Complainant a warning letter.  Mr. Moran was asked if the working relationship had broken down whey he did not issue any warning letter to the Complainant and he made no reply.

Mr. Moran was redirected by his Representative and asked about the ownership of the business. Mr. Moran advised the Complainant was not a shareholder and had received no formal request for holidays in November or before and all discussions regarding holidays were verbal.

The Complainant gave evidence she started working in the Company in 2017 and it started in 2005 as a sole trader. She confirmed she and the Owner lived together and the business address was the same as the family home. She advised she did emails from the family home as it was the office also and sometimes collected drivers. She advised she also did the VAT.  She advised she was available 7 days a week for work and on September 13th 2022 the personal relationship between her and Mr. Moran broke down.  She advised on December 2nd 2022 she rang the Accountants office regarding a VAT issue and spoke to a Ms G, and Ms G discussed with the Complainant a payslip and then discussed a copy of the company accounts. A further discussion took place later that day by phone and the Complainant was sent on a payslip dated October 21st and that this was her last payslip as the firm was told by Mr. Moran she no longer worked for the company. The Complainant stated she was conducting work as normal at this point. The Complainant stated she met Mr. Moran on October 7th and told him she was going on holidays and there was no issue with work and that she believed she was an employee up to December 2nd 2022. The Complainant advised she had no knowledge of resigning from the company, had not wrote a letter of resignation and only became aware of this suggestion later.  The Complainant advised she had never received any warnings and nothing warranted her removal as a Director and Company Secretary.  The Complainant advised she was unemployed and had to upskill her computer knowledge and as she lived in a remote rural area it was difficult to get employment and she had to bring her son to school each day. The Complainant was asked what she drove and confirmed it was a 191 jeep owned by David Nestor and confirmed she had never worked or did work for David Nestor and advised she never told Mr. Moran she worked or Mr. Nestor.

The Complainant was cross examined by the Respondent Representative and advised she had very little computer knowledge, the work was small but she was on call seven days a week and sometimes three times a day she had to collect parts or collect a driver from the creamery. The complainant was asked did she start work for Mr. Nestor in August 2022 and the Complainant stated no. The Complainant confirmed the jeep was on loan from Mr. Nestor and there was no lease document. The Complainant was asked did she take over work done by her sister for Mr. Nestor and the Complainant advised she did not. It was put to the Complainant that from September 2022 she was working for someone else and she advised Mr. Nestor’s  business was based mainly in Dublin. It was put to the Complainant she had training in handling dogs and she confirmed she had. It was put to the Complainant she could set this up as a business and the Complainant stated she had no access to kennels. The Complainant agreed to provide bank statements to verify she was not employed/paid by Mr. Nestor or his company. This was subsequently supplied to the Respondent.

Mr. Nestor gave evidence to the Hearing. He advised the Complainant never worked for or was employed by him in any way. He advised he has two personal drivers due to a medical condition. Mr. Nestor advised he is visually impaired. Mr. Nestor advised his company has over 10 million in assets and gave the use of the Land Drover jeep, which is owned by his company,  to the Complainant as he was a friend of the family and aware of her difficult situation. He advised the jeep was provided free and had low mileage and he had no problem helping out and there was no requirement for anything in return. Mr. Nestor was asked was he aware if the Complainant was employed and he advised he understood she was on job seekers allowance.  Mr. Nestor advised the Jeep is insured by the company and pays for the running costs of the jeep. He again confirmed the Complainant did not work for him.

The Accountant for the Respondent, Mr. Darren Goode, at the request of the Complainant Representative was requested and agreed to attend a second hearing. Mr. Goode was asked was his firm the Accountants for the Respondent and he replied yes and he did the VAT, Accounts, Payroll and company office duties.  Mr. Goode was asked was he aware of the purpose of a B10 form to change a person as Director and his reply was yes. Mr. Goode was asked did he complete these type of forms for the Respondent and he replied yes. Mr. Goode was asked to review the document removing the Complainant as Director from the company. Mr. Goode was informed that Mr. Moran had told the hearing he did not instruct the removal of the Complainant but did not know who did it. Mr. Goode was informed Mr. Moran stated he had no knowledge of the document. Initially Mr. Goode advised that Mr. Moran was aware he was presenting the document to the CRO and the company did the document but then changed his view and stated this was a company law matter and not an employment law matter and he would need legal advice on the issue before giving his final answer to the Hearing. At this point the Representative for the Complainant sought to have Mr. Goode declared a hostile witness. Post the Hearing the Complainant Representative was given the opportunity to request a further hearing, after Mr. Good had obtained legal advice, but the Representative declined the invitation.  

In assessing this complaint, the first issue which is obvious is that the breakdown in a personal relationship is difficult for all concerned and compounded when the two parties were employees of the same Company and one has claimed unfair dismissal.  It is highly regrettable the parties could not have resolved this situation through mediation and amicably.

The Respondents main case was that the Complainant left of her own accord and was not dismissed and had obtained employment with another haulage company. The Complainants main case was she was informed by the Respondents accountants firm that her employment had been terminated. Either way no internal grievance procedure was initiated by the Complainant and this would normally seriously affect the review of a unfair dismissal case but in practical terms the initiation of  a grievance procedure against her partners firm  may not have been realistic in these circumstances. There was no letter of resignation nor any letter of dismissal which leaves the situation lacking a written sequence of events or clarity on what happened when the employment ended. What is definite, is that no matter how it happened, and the Complainant did not initiate it, she was removed as a Director and as Company Secretary of the Company in December 2022.  However the relevance of this to the assessment of the situation is limited but it is impractical to think this happened without Mr. Moran’s knowledge or consent.

The allegation that the Complainant took up a position with the other haulage firm was never proven and totally credibly denied by the owner of the particular haulage firm, Nestor Haulage,  which the Complainant was supposed to have taken up employment with in September/October 2022. Mr. Moran used this argument as a major part of the Respondents case and it proved not to be justified. The issue of the provision of a jeep to the Complainant from Mr. Nestor was explained and a copy of a written agreement between him and the Complainant was subsequently supplied where the Complainant will have to reimburse Mr. Nestor at some point for the use of the Jeep.

In considering this complaint in the round, I have reached the conclusion that the employment relationship ended because the personal relationship had come to an end and the couple could not work with each other anymore. it is not clear from all the evidence submitted if a dismissal or resignation took place but what is sure is that the employment relationship ended abruptly. What is clear is as the Respondent stated the Complainant just left but he did not write to her to confirm her resignation nor did the Complainant, as she stated, when she found out her employment was terminated through the Accountancy firm make any efforts to be reinstated or challenge this decision at the time she learnt of the decision. While I accept that the personal relationship breakdown may have significantly influenced the actions of the parties at the time but this does not exonerate both from doing what a normal employer or employee would do in similar circumstances.

The Complainants loss is in the order of twenty three thousand euros todate and she has not achieved employment at the time of the Hearing so her loss may continue for a further 12 months. However, the Complainants reasons for not seeking or obtaining employment were very weak and this lack of effort/focus to obtain employment mitigates against any possible compensation claim.

The law states that a dismissal is unfair unless the company can show they had substantial grounds for a dismissal. I accept the Respondent denies a dismissal took place but in weighing up the situation I prefer the evidence of the Complainant, but only to a degree, that a termination of her employment was initiated by the Respondent without her consent. Her “willingness” to accept the situation as presented is a weakness in her argument.  In assessing the amount of compensation I am conscious of the contribution of the personal breakdown to the situation and the lack of effort by the Complainant to seek alternative employment and the quantum of the award should reflect these circumstances.  Having considered all the evidence, I find the Complainant was unfairly dismissed and the appropriate amount of compensation, to reflect the unique circumstances of this case, is 10,000 Euros.

Payment of Wages Law

Payment of Wages complaint CA-00054060-003

The Complainant alleged she was not pad for the month of November 2022 and claimed her monthly wages of 1944.91 Gross. The Respondent stated the Complainant was voluntarily not at work in November and thus was not due any wages for the month and that she had left the employment voluntarily in September 2022. The Respondent did not have records of work times.  I am guided in this decision by my decision under the Unfair Dismissals Act. Legitimate deductions from wages of employees are defined in Section 5 of the Payment of Wages Act 1991. Based on the evidence before me I decide the Complainant was employed in November 2022 and the Complainant was not paid wages that were properly due to her of 1944.91 (gross) Euros.   I award the Complainant 1944.91 Euros.

Payment of Wages complaint CA-00054060-004

The Complainant alleged she was not given any notice of the termination of her employment and was not paid the required notice pay under statue.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks”

On the evidence presented to me the Complainants employment was terminated without notice and notice pay was properly payable to the Complainant. As she had more than 5 years but less than years service she was entitled to notice pay of four weeks. I award the Complainant four weeks pay at 452.30 Euros per week amounting to 1,809.22 Euros.

Terms of employment complaint CA-00054060-005

The Law

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

With regard to complaint number CA-00054060-003 under the Payment of Wages Act 1991 I find in favour of the Complainant and award her 1944.91 Euros.

With regard to complaint number CA-00054060-004 under the Payment of Wages Act 1991 I find in favour of the Complainant and award her 1809.22 Euros.

With regard to complaint number CA-00054060-005 under the Terms of Employment (Information) Act 1994 I find in favour of the Complainant and determine no award is just and equitable in the circumstances.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. With regard to complaint number CA-00054060-001, I find the Complainant was unfairly dismissed and award her 10,000 Euros.

Unfair dismissal