Complainant

Respondent

Parties

Siobhan  Creed

Elaines Sewing Shop

Representatives

Alicia Maher

 Donnacha McCarthy BL instructed by Michael Powell Solicitors

Act

Complaint 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-00054254-001

21/12/2022

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

CA-00054254-002

21/12/2022

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

CA-00054254-003

21/12/2022

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

CA-00054254-004

21/12/2022

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by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973(withdrawn)

CA-00054254-005

21/12/2022

On 21 December 2022, the Complainant submitted a number of employment rights complaints to the WRC. These referred to a fragmented employment period, which spanned 4 July 2019 to 28 August 2022.

On 24 July 2023, in preparation for hearing, I wrote to the complainant seeking an 0utline submission in the case.

The Complainant filed her submission prehearing, which was in turn shared with the Respondent.

The Respondent in this case operated a small sewing business based in the city and has disputed all claims.

The Respondent introduced herself to the WRC as having a significant health condition which had impacted on her business, which has since closed.

The Respondent was granted a postponement of the hearing set for July 2023. However, she was refused a second application to postpone the hearing.

The Respondent forwarded a written defence in the case prior to the hearing.

Both parties were represented at hearing. The complainant by her daughter, Ms. Alicia Maher and the respondent by Mr. Donnacha Mc Carthy, BL instructed by Michael Powell Solicitors.

The fifth complaint CA-00054254-005 on Minimum Notice was withdrawn at hearing.

As Dismissal was disputed by the Respondent, I explained that the burden of proving the dismissal rested on the complainant, who attended the hearing in the company of her daughter, Ms. Maher, as representative.

The parties were in complete conflict on the facts surrounding dismissal in the case.

To assist me in my decision making, I sought copies of the four medical certificates relied on by the complainant as submitted in evidence and both medical certs relied on by the respondent as referred to in evidence.

As the overarching era of covid pandemic weaved its way through the circumstances of this case. I requested that the complainant provide me with her entire DSP record as pertaining to the span of employment relied on in the case.

I issued a further clarification on this request prior to receiving the records on 30 August 2023.

 These records were   subsequently shared with the Respondent.

Evidence was given by both witnesses by affirmation.

The Complainant has approached this case against a long working history and experience in dressmaking and tailoring.

She commenced work with the Respondent on 4 July 2019 on a part time basis of a 3-day week at 12 euros per hour. Nett pay was introduced as €270 weekly.

The Complainants representative confirmed a break in service from 9 September 2020 to 12 May 2021 through resignation.

The Employment spanned the period of time known as the Covid Pandemic. It was the Complainant case that she had been unfairly dismissed during sick leave on 28 August 2022.

The Complainant submitted that she had been faced with an erratic work pattern during the early months of Covid and commenced on the PUP support payment when the business closed.

The Complainant carried a high level of dissatisfaction at having to manage the shop wind down alone and communicated her resignation on 9 September 2020 by what’s app, which was accepted by the respondent.

She recommenced employment with the respondent in May 2021.

On 22 August 2022, the complainant commenced sick leave for back pain. Ms. Maher outlined that on September 1, 2022, Ms. Desmond, the respondent called to the complainant’s home and presented her with flowers.

 She informed the complainant that she was under financial pressure and could not afford the wage bill in its present form and planned to close.

Ms. Desmond asked if she could take the complainant off the books during her sick leave and she would be restored on her return to health.

The complainant reluctantly agreed to this proposal but soon regretted it.

The Complainant had not been provided with a contract of employment or minimum notice or payment in lieu.

The last pay slip was dated 25 August 2022.

The Complainant sought to be placed back “on the books “. The Complainant subsequently provided cover at the shop to facilitate the respondent’s medical appointment for 2 hours. She repeated the question of seeking to be replaced “on the books “but this did not transpire.

The Complainant was troubled by the shortfall in her PRSI records caused by sick leave.

On 4 November 2022, together with her daughter, she once more approached the respondent seeking a resolution. The complainant’s daughter inquired whether a redundancy situation existed?

But was denied this.

She repeated the request to be replaced on the books on 17 November 2022.

By December 2, 2022, the complainant sought the dates of her employment tenure and was offered a return to “the books “, whenever I wanted to come back to work.” The Complainant deemed this impossible due to her ongoing illness.

On 13 December 2022, the complainant repeated the question to which the respondent removed herself from the what’s app work grouping.

A high level of confusion surrounded the employment status from August – December 2022 persisted for the complainant. She understood the shop was closed and that her date of termination was 28 August 2022 on Revenue links, but that preceded the encounter with the Respondent at her home on September 1, 2022.

Unbeknownst to the Complainant, she learned from Revenue that she had actually been restored “on the books “on 20 December 2022. This postdated the WRC referral.

She continued listed as “active employment “on Revenue in June 2022 and a cessation recorded as 28 August 2022.

The Respondent had made an earlier approach to resolve matters directly with the complainant, through an intermediary in June 2023, but was unsuccessful.

CA-00054254-001 Statement in writing in Terms of Employment

The Complainant was never provided with a statement of her terms of employment.

CA- 00054254-002 Notification in writing of change to my terms of employment

The Complainant was not notified of any changes in her terms of employment.

CA-00054254-003   Claim for unfair dismissal

The Complainant submitted that on August 28, 2022, text message, she had been dismissed during the course of her sick leave and without her knowledge.

“Won’t be employing anyone through the books, as I don’t want the commitment or expense of it hanging over me “

It is the Complainants case that she was unfairly dismissed as a result of the Respondent visit to her home on September 1, 2022.

Evidence of the Complainant

The Complainant detailed the background to her employment, where she described an extensive working environment in sewing /dress making.

She recalled that the respondent frequently mentioned that the future of the business was uncertain and that the shop faced closure.

The Complainant recalled applying for the Covid Payment in August 2020. The Respondent also applied but was unsuccessful and reduced the business to 3 days of operation.

The Complainant was very annoyed by the Respondents closure and left the business.

Eventually the complainant and respondent sought to resolve the matter and the complainant returned to work but was uncertain of the relevant date. She described the return as “strange and uncomfortable “.

Order was restored and “everything went fine “.

In August 2022, the Complainant became ill and did not work for a number of weeks. The Respondent visited her at home and enquired on her progress?

The Respondent admired and took photos of the garden. She disclosed that she had a large bill from her Accountant and that she “couldn’t keep paying her on the books “

The Respondent asked her if she could have a break from employing the complainant?

The Complainant told the hearing that she did not think as she was “to upset “She stated that she informed the respondent that “she could take me off the books “

The Respondent accepted this response and informed her that she would let the accountant know.

The Respondent added “it would be back to normal once I come back to work “

The Complainant had little to no memory of the dateline that followed but recalled that a series of text messages then followed where the complainant tried to return to work.

She understood from the respondent that her employment had been terminated but equally she covered at the shop for 5 hrs during this period post 28 August 2022.

She recalled receiving an envelope through her door. The respondent had quantified holiday pay as €300, but the complainant was not sure what she had taken out of the envelope.

The Complainant sought dates of her employment from Revenue, and these did not fit. She was horrified.

During this period, she received €134 weekly in illness benefit, which was subsequently raised to €179.

The Complainant sought payment from August 2022 as her preferred remedy in the case.

During cross examination, the complainant acknowledged that she had been happy at work. She accepted that she “went on the books “on 25 July 2019. She confirmed that she received the PUP payment to July 2020, when she resumed work.

The Complainant confirmed that she resigned by what’s app on 9 September 2020 in the face of threatened closure of business. She accepted that she resumed work in May 2021 – September 2022 and received €270 in respect of an 18-hour week.

The Complainant confirmed that she applied for Job seekers benefit on leaving the employment in 2020 and cancelled PUP. She received job seekers from 7 October 2020.

In response to Mr McCarthys inquiry, the complainant replied that she was unaware of the therapeutic value the business held for the respondent. She observed the occurrence of a lot of appointments. She was unaware of the profit status of the business.

She was aware the respondent went on sick leave on 10 August 2022 as both her and her colleagues covered the absence. The colleagues then covered her own absence during sick leave.

The complainant placed a context of the home visit of September 1, 2022, as the respondent coming to “check my welfare “She was out of work and thought she was going back there.

She confirmed that she was the sole employee who paid tax and stamp. She denied that the termination of employment was consensual when she stated:

“I wasn’t on break; I was off the books “

She confirmed that she was invited to the Christmas party but was in no fit state to attend.

The Complainant confirmed that an Advisory service had informed her that she would be unable to secure invalidity pension.

She recalled following the respondent up with her daughter, where she told the respondent that she had been wronged and requested a redundancy payment. She stated that she was unavailable for work as she continued as ill.

The Complainant clarified that she had not sought either of the alternate remedies for unfair dismissal as the complainant had told her that she was shutting down.

The Complainant contended that her dismissal was linked to being the sole employee.

“On the books “

She stated that she believed that she was on a work break and genuinely thought she would be returning.

She clarified that she was not available for work currently as she remained ill. She gave limited evidence of seeking new work in the city.

CA-00054254-004 Minimum Notice claim

In closing, Ms Maher for the complainant disputed the informality which the respondent placed on the period of employment February 2019 to July 2019. The Complainant accepted the resumed dates of May 2021 to August 2022.

Ms Maher confirmed that the complainant was very upset at how she was treated at the business and the inaccuracy surrounding her employment status and records.

The Complainant accepts that sewing jobs are available in the market.

The Complainant was sick until December 2022 but did not submit proof of this.

Records of Social Welfare reflected a three-month illness benefit paid March to June 2020

                                                               Continuous illness benefits at €182.20 from 25 August 2022 to present day of hearing.

Cumulative €8,518

The records also reflected a cumulative PUP payment of €7308 from 2020 onwards.

A careful analysis of PRSI records reflects 37 weeks plus 15 weeks credits 2020.

                                                                51 weeks in 2021

                                                                33 weeks plus 19 weeks credits in 2022.

The Respondent operated a sewing business from 2019, which has since closed in May 2023.

The Respondent, Ms Desmond has a history of sustained illness over many years before returning to run a family business in 2019. She did not know the complainant before this time.

The Respondent hired the complainant on an informal basis in February 2019 and she went “on the books “from 25 July 2019.

The preparatory submission in this case was prepared by the respondent herself. Mr Mc Carthy BL was introduced to the case on the hearing day and was welcomed as such.

I have sought to reflect the respondents own preparatory work which was augmented by Mr Mc Carthys advocacy on the day of hearing.

He summarised the respondent case as the complainant having left her employment by mutual consent on September 1, 2022.

When Covid hit in March 2020, both Ms Creed and Ms Desmond received the PUP payment. The business re-opened in July 2020.

By August 2020, Ms Creed had communicated her dissatisfaction to Ms Desmond and there was a breakdown in the working relationship, which culminated with a resignation by text on September 9, 2020.This ended the employment.

“I have sought advice from WRC. I have cancelled my covid payment, so with immediate effect, I am terminating my employment with your company “

By May 2021, both parties had made up and the complainant resumed employment.

The Respondent was struggling to maintain her own health and had a number of absences from the business when the complainant hurt her back and submitted a sick note on 29 August 2022.

The Respondent was faced with operational challenges and wanted to reduce to 3-day operations when she visited the complainant in her home to inquire whether she was on a disability payment?

She communicated her plan to move to 3 days and asked the complainant if she could take her off the books? The Complainant agreed.

The next day, the respondent informed the accountant that she would not be employing the complainant further and the business was reverting to a 3-day week.

Mr Mc Carthy has submitted that.

The Complainant and her daughter called to the shop on 4 November 2022. The Respondent had interpreted this as a social call, but the complainant’s daughter sought a redundancy payment for the complainant. This was not agreed.

The Respondent saw a change in the complainant and noted her remoteness.

The Respondent sought clarity from her Accountant on whether she could restore the complainant to her requested “on the books “position? He told her that it was her call.

On 2 December 2022, the respondent offered to place the complainant back on the books.

“I can put you back on the books whenever you want to come back?”

but was informed that she was “too sick”.

An issue began to arise about records of employment with which the complainant took Umbridge.

The Respondent exhibited a text which sought a further restoration to “the books by the complainant dated 13 December 2022

“It’s been a tough few week …. will you put me back on the books as soon as you can. I have been in touch with social welfare and as it stands, I don’t have enough contributions to qualify for the invalidity pension. I will let you know how I get on Thursday “

The Respondent responded on the next day from sick leave.

“I really don’t know if I will re-open in January and I f I do I will be sticking to the shorter week …...

The Respondent was sick at this time and was disappointed as she knew that she could not rely on the complainant to come back to work, such was her pursuance of employment records sought to formalise a continuous invalidity pension rather than a return to work.

The Respondent rejected the claim for unfair dismissal. She contended that she had established that she had agreed before taking her “off the books “

The Respondent outlined that her health had suffered, and the business was now closed.

CA-00054254-001 Statement in writing in Terms of Employment

The Respondent accepted that the complainant had not been provided with a statement of terms of employment and sought leniency in the application of any remedy in the face of an established contravention. The Respondent contended that the complainant was not prejudiced.

CA- 00054254-002 Notification in writing of change to my terms of employment

The Respondent rejected this claim and deemed it misconceived.

CA-00054254-003   Claim for unfair dismissal

The Respondent has disputed dismissal.

CA-00054254-004 Minimum Notice claim

The Respondent has disputed the claim as the complainant was not dismissed and received a payment of €300 .00 on conclusion of her employment.

Evidence of the Respondent. Ms Elaine Desmond.

Ms Desmond outlined that she had suffered ill health from 1994. She had a background in sewing and had been encouraged to diversify to support her health needs and in January 2019, she decided to re-open her Mothers Sewing business.

The business was busy from the outset. She introduced her business log of expenses in the format of the “red book “.

She described the complainant as a “fabulous employee “

She recalled that both of them received the PUP Payment. However, she subsequently applied for a “covid grant “and was unsuccessful. The business was closed May and June 2020 and the complainant received €150 per week over July and August 2020.

As PUP was based on 2018 criteria, she was refused the award on 31 August 2020 and returned to the business.

The Complainant had been permitted an outlet for her cloth masks.

The Complainant resigned on 9 September 2020. The Complainant had threatened her with WRC but stated later that she “was never going to do it “and was sorry she had complained.

There were closures at the Business between September – December 2020 and the business re opened on May 10, 2021. The Complainant returned on 13 May 2021 on 18 hrs for €270 over 3 days. She was a constant presence at the shop.

The Respondents health deteriorated, and she was advised to take 8 weeks out of work during August 2022.

The Respondent confirmed that she received two sick certs from the complainant, during her absence from the business. While the business was managed by colleagues during this period, she still visited the business.

Ms Desmond recalled September 1, 2022, as a time of great financial pressure for her. She felt compelled to return to the business to address planned cutbacks.

She visited the complainant at her home and informed her that the business was not going to last. This visit lasted 15 minutes.

She stated that she asked the complainant if she had received a disability payment? and inquired further if she was going to stay on it?

The Complainant told her that she was receiving the benefit and intended to stay on it. Ms Desmond then placed the complainant “off the books as resigned “on a weeks’ notice.

She planned to re-open the business on 3 days. The Complainant told her that she was happy to stay on sick leave. The respondent recalled that exchanges were cordial and they remained in contact September to December 2022.

The respondent confirmed that the business opened in September 2022 but returned to Hospital in October 2022.

She confirmed that she paid the complainant €300 as holiday pay in appreciation.

She recalled that the Complainant had done some sewing work of 1 or 2 days on memory teddies and alterations.

She recalled that the complainant s daughter had approached her seeking redundancy at the shop. She said that she told her that she was a sole trader, and the complainant was not entitled to redundancy.

She confirmed the last wage slip was issued as dated on 25 August 2022. She submitted that pay slips were available weekly if wanted.

She detected the first urgency from the complainant regarding her quest to be “on the books “in December 2022 when she had been refused an invalidity pension.

During cross examination, she replied to Ms Mahers question of why Ms Creed had not been on the books prior to July 2019? When she explained that February to July 2019 was a trial pay period.

In closing, Mr Mc Carthy for the Respondent

Mr Mc Carthy reflected on an exhibited photograph which captured the workforce reassembled post covid shut down. He concluded that termination of employment occurred by mutual consent on September 1, 2022.

By Autumn 2022, both Ms Creed and Ms Desmond were on sick leave.

The Respondent had not specified the reason for her sick leave.

The Respondent discussed her intention to close the business and the complainant signalled that she was content to continue on invalidity benefit.

The Respondent contended that termination occurred by mutual consent.

Ms Creed communicated her dissatisfaction much further down the line but accepted a payment of €300 cash paid as either notice or holidays.

Mr Mc Carthy pointed to the dearth in the complainant’s evidence on mitigation and contended that the complainant approached the WRC on foot of her discovery that her sought after pension did not materialise.

He distinguished the facts from Allen v Sunday Independent and the preexisting nature of the complainant’s medical condition.

He argued that the maximum remedy open to the complainant due to her admission of ongoing illness and absence of financial loss, amounted to four weeks.

He accepted that the statement of terms had not been provided to the complainant but requested a leniency in that regard. He contended that the complainant had not been prejudiced by the omission.

Mr Mc Carthy argued that the second claim on terms of employment was misconceived.

He disputed the complainants claim for two weeks minimum notice as she had resigned, was not dismissed, and had received payment in respect of annual leave.

I have been requested to arrive at four decisions in this case. In reaching these decisions, I have considered the oral evidence alongside the written submissions, inclusive of a panoply of text and what’s app messages.

I have also had regard for the PRSI records and Statement of DSP benefits paid. I do not pass any judgement on these allowances. I merely wished to understand what was claimed at what time during the circumstances of the case, more to help me understand the intentions of the parties.

I have reflected on the circumstances of this case, and I accept that the Respondent carried a complicated medical background to her role as employer.

There were times in this case that these medical conditions came to the fore and shaded the obligations I would normally expect to see in a functional employment relationship.

In writing these findings, I accept that both main players in the case, the complainant and the respondent, as a sole trader experienced periods of protracted sick leave. While the Respondent has appeared to manage her conditions and has now shut her business, the complainant remains ill and has not actively engaged in work, apart from a brief brush in the fourth quarter of 2022.

It is important for me to reflect that the employment carried a break in service through an unequivocal resignation on September 9, 2020.  The employment resumed in May 2021 and continued to a much-disputed date of conclusion of employment on September 1, 2022.

The Employer disputes dismissal and rather categorised the cessation relied on by the complainant of September 1, 2022, as a resignation by mutual consent to allow the complainant to continue on her DSP disability payment, thus providing some breathing space for the business which reconfigured to a 3-day opening some 13 days later before closing indefinitely in June 2023.

The Complainant has strongly contested this version of events and has consistently contended both through her representative and in her own evidence that she was terminated.

Firstly, I am obliged to comment on the complete absence of employment documentation which links the parties to an employment relationship.

It is clear to me that the complainant was not provided with a record of statement of terms of employment in either February or July 2019 or in May 2021 on her resumption.

I have no record of the complainant chasing this document; however, I accept the Respondent carries the obligations to execute the foundation documents of employment.

This, for me placed the complainant in a vulnerable position in a sole trader employment. Just as the business followed patterns on sewing and tailoring, so too a statement of terms of employment, if in existence could have provided a pattern of guidance on what the parties should do when challenges hit the employment relationship, as they so clearly did.

For instance, section 14 of the Unfair Dismissals Act, 1977 refers:

14. Notice to employees of procedure for, and grounds of, dismissal

(1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.

(2) Where there is an alteration in the procedure referred to in subsection (1) of this section, the employer concerned shall, within 28 days after the alteration takes effect, give to any employee concerned a notice in writing setting out the procedure as so altered.

I am satisfied that this employment was completely bereft of employment related documentation.

Covid Pandemic

I hope the parties can agree with me that there was no greater challenge to the world of work from March 2020 onwards than the covid nineteen pandemic. The circumstances of this case are firmly framed by the era of that pandemic.

While I wished the parties well for the future at the end of the hearing, I would now qualify that with a strongly worded advice to the respondent that all employment relationships must be underpinned with a statement of terms of employment. Its omission has been nothing short of catastrophic in this case for the reasons stated.

I would strongly advice that the Respondent take professional advice before considering employing anyone in the future and in maintaining any employment relationship.

I fully understand the respondents desire to relaunch a family business to boost her general wellbeing in a rehabilitative climate, however, this ought to have been more evenly balanced with a demonstration of a robust employer / employee relationship in this case.

On the Books

The term “on the books “was used frequently by both parties in this case. I recognise it as a vernacular term understood by both parties as being officially employed with direct linkage to the Department of Social Protection and Revenue. It is not a term of employment found in any of the pieces of Legislation, I have been requested to consider, but one that is very real to the participants in the case. I understand the term but distinguish it from the definition of employee and employer.

In Section 1 of the Terms of Employment (Information) Act, 1994

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], a harbour authority, a health board or an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be;

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

in Section 1 of the Unfair Dismissals Act, 1977

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative.

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], shall be deemed to be employed by the local authority;

Section 1 of the Minimum Notice and Terms of Employment Act, 1973

A“employee” means an individual who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or otherwise, and cognate expressions shall be construed accordingly.

I must make my decisions based on the application of these laws to the facts before me.

I am satisfied that both parties are comprehended by the definition of employee and employer outlined above.

CA-00054254-001 Statement in writing in Terms of Employment

Section 3 of the Act defines my jurisdiction in this claim.

Written statement of terms of employment.

3.— (1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, 

I accept that the complainant was employed in February 2019 and resigned on September 9, 2020.

She was re-employed on 13 May 2021, which is reflected in the exhibit of the smiling photograph of the parties with another worker.

Both parties accept that the required statement of terms did not issue.

I have found a subsisting and continuous breach of section 3 of the Act from February 2019.

I have found the claim well founded.

CA- 00054254-002 Notification in writing of change to my terms of employment

The complainant has argued that her working pattern was changed during the course of her sick leave in August 2022.

The respondent has disputed the complaint and called it misconceived.

My jurisdiction in this matter comes under Section 5 of the Act.

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute  other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

I must conclude that the respondent failed to inform the complainant that she was being placed on temporary lay off on September 1, 2022, and instead categorised her as dismissed.

Had that clarification been committed to writing and furnished to the complainant in accordance with the requirements of section 5, it may have assisted the parties greatly.

I find a contravention of Section 5 of the Act and find the complaint well founded.

CA-00054254-003   Claim for unfair dismissal

I have reflected on both parties’ presentations and evidence in this case. As a first step in my findings, I must be satisfied that a dismissal occurred in the case.

For illustrative purposes, a dismissal in accordance with the Unfair Dismissals Act, 1977 I defined in Section 1 of the Act as

dismissal”, in relation to an employee, means—

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

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

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.

I am being asked to consider the Respondent argument that the Complainant resigned her position following a conversation with Ms Desmond in her home, while she was on certified sick leave on September 1, 2022.

This is disputed by the Complainant, who confirmed that she agreed to continue on her statutory sick pay and not return to work on that day. Her written record that she changed position on that agreement was not reflected in either of the parties’ direct evidence.

I accept that the Respondent records exhibited at hearing reflect a partial ceremonial ending to the employment by sharing the details of closure with the accountant and onto Revenue.

It is important for me to grasp that there was no statement of resignation, no acceptance of resignation or really any inter party record of cessation of employment.

I accept that there were a multitude of text/ what’s app messages where the complainant sought to return to the framework of employment, albeit not necessarily the workplace due to her sick leave.

I was struck that job seekers benefit was not paid at any juncture of this employment, not when the employment concluded in September 2020 or even two years later in September 2022. My inquiry told me, through the complainant evidence that she claimed JSB in 2020 but not in 2022, due to illness. The Social Welfare records do not record payment of JSB at any time. I find the complainant is mistaken in her recollection in that regard.

A resignation written or oral and initiated by an employee is an act of finality and a statement of intention to leave at some appointed date.

A dismissal on the other hand is provided in the circumstances of Section 1 of the Unfair Dismissals Act 1977 and is a unilateral action.

There have been a number of historic scenarios outlined in the academic article of “That’s it, I quit “in Tara Murphys Bls, an insightful Review of Significant Irish Case Law on Disputed Resignations IELJ 2022(19(1) 4-12

She described the subject matter of the article as “cases involving resignations tendered in a pressurised situation or under a misapprehension, rather than cases involving resignations that have been tendered in circumstances amounting to constructive dismissal “and pointed to a blurring between the boundaries in both.

Ms Murphy reflects that the clarity adopted by the English Court of Appeal in Sothern v Franks Charlesly and Co [1981] IRLR 278 was applied in Ireland in the EAT case of Cafferkey v Metrotech Services ltd UD 932/1998 in a “notable sharpening of focus “

The law requires certainty, and the workplace requires healthy industrial relations to function. That is why a careful analysis must be conducted into what were the stated intentions of the parties when they met at the complainant’s home on September 1, 2022.?

I accept that a certain informality existed between the parties, however I am looking at what happened from an employment perspective?

In Shinkwin v Millet EDD044   /2004, the Labour Court found a discriminatory dismissal linked to the complainant’s twin pregnancy when a written resignation submitted was not permitted to be withdrawn on special circumstances.

The Court referred to a resignation as “a unilateral act, which if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation, “

Relying on the circumstances of a consideration of a sub section of circumstances surrounding a termination of employment in Kwik Fit (GB) ltd v Lineham [1992] IRLR 156 at para-31.

If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment. Personalities constitute an important consideration. Words may be spoken, or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual make up of the individual may be relevant …

Where special circumstances arise, it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can be properly assumed, then such enquiry is ignored at the employer’s risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the special circumstances the intention to resign was not the correct interpretation when the facts are judged objectively.

Martin and Yeoman Aggregates ltd [1983} IRLR 49 emphasised that “second thoughts” may have their place in deciding a dismissal.

The words “tired, emotional and vulnerable “come to my mind at this stage on foot of both the party’s evidence.

It was not disputed that the Respondent had a defined and pro longed physical ill health record which caused her absence from the business. This was coupled by a repeated utterance of potential closure of the business. This did not generate confidence in the complainant.

When the complainant’s illness followed the respondent’s illness in August 2022, the situation came to a head.

Sick notes

The Complainant has relied on 4 sick notes which link her to the business up to and including 25 October 2022.

She has no recall of furnishing all four certs to the respondent and was equally unclear as to the date where she worked at the business during the final quarter of 2022.

The Respondent has relied on two certs received.

I accept that the first two certs are common to both parties and there was a notable delay in furnishing the second cert on 20 September for a period 10 September -24 September 2022.

I understand this was a period of leave for the complainant, but no record of remark of relevance followed this delay by the respondent.

In other words, nobody asked why were certs being issued and submitted in an employment viewed as closed?

I am left to conclude that the certs were for DSP purposes rather than employment.

This fits with Mr Mc Carthys view that the complainant was actively exploring her eligibility to claim an invalidity DSP pension.

The Complainant did not advance any record of documentation in application for this enduring support payment. She did, however, submit that she was advised by an external party that she was ineligible for this award.

Did the Employment end on September 1, 2022?

I have already acknowledged the frailty of this employment from a documentation point of view. There was also a paucity of detail on what a disgruntled employee is meant to do in the face of a disagreement, a point ventilated in the case of constructive dismissal in Maureen Keane v Western Health Board UD 940/88, EAT.

So, what happened when the complainant agreed to host the respondent in her home on September 1, 2022?

Firstly, the complainant understood that this was a welfare visit and while she was aware of the continued uncertainty around the continual viability of the business, she was not prepared to be informed that she was no longer needed at the business.

From the Respondent viewpoint, she made enquiries whether the complainant was doing ok on her illness benefit and asked whether she wished to stay on it?

The Complainant accepts that she acquiesced to that question but did not resign her employment. she stated in her evidence.

 The Respondent asked her if she could have a break from employing the complainant?

She did not write or record a resignation, nor was she requested to do so. Instead, the Respondent formed the view that she had secured the resignation of the complainant and conveyed this to her Accountant, who did not attend the hearing.

I can accept that the respondent was greatly relieved that the obligations she felt to the complainant were now relaxed as she did not pay her after August 25, 2022, pay slip.

I accept that the complainant made strident efforts to re -open her employment by text and one meeting in November 2022.

I accept that the complainant chased a redundancy payment and was refused.

I accept that the respondent did restore the complainant on the administrative record of employees for revenue purposes. For me, this is useful information, but not determinative of a

“Change of mind “

I accept that the complainant worked at the business in time frame September 1- December 31, 2022, but I have been unable to secure clarity from either party.

I have to consider the events before me in that vein.

I have to adopt an objective viewpoint in seeking to establish if the complainant was dismissed?

The burden of proof lies with the Complainant to prove that a dismissal occurred in September 2022.

I have had a difficulty with the validity of the resignation from the outset.

1 It was not in written format.

2 It was not by consent, but rather induced by the respondent when both parties were clearly ill. This places a clear frailty on the resignation from my perspective.

3 There was no cooling off period.

4 There was no paperwork on how the resignation was processed.

I must look at what message the employer was seeking to communicate during the home visit on September 1, 2022.

I am very clear that her intended purpose, but not communicated very well was to place the complainant on temporary lay off to give her breathing space to address her financial obligations.

The Respondent contended unable to pay the complainants wages. Temporary layoff is a fall back for such an instance.

Temporary Lay Off is defined in Section 11 of the Redundancy Payments Act, 1967 as:

Lay-off and short-time.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

By then, the respondent had received one sick note and there would be more.

I have found some analogy in the circumstances of a Justice Mella Carroll decision at the High Court within O Reilly v Minister for Industry and Commerce [1997] ELR 48

The facts of this case centre on the events which befell an unsuccessful applicant for a Secretary General position in the Department of Industry and Commerce, which culminated in the incumbent candidate at competition, (the secretary General) meeting with the Assistant Secretary to map out the Plaintiffs compulsory   retirement, which was not in contemplation prior to the meeting. Mr O Reilly acquiesced and retired.

Justice Carroll heard an application by Mr O Reilly seeking a declaration that the resignation was neither voluntary nor valid.

She found that the resignation had emerged from “a misleading interview “which limited the Plaintiffs options, which was not corrected by the Secretary General and amounted to a

 “misstatement “

Carroll J held that the Dept could not rely on the letter of resignation.

I have reflected on the events as presented by the parties. I have found that the complainant was completely mis led during the home visit by the respondent on September 1, 2022. This was the wrong place, the wrong time and should have been accompanied by professional advice and at the very minimum a follow up conversation.

It is my view that the Respondent intended to place the complainant on temporary lay off to ease the pressure of the business. I am strengthened in my view of this on the lack of clarity for the purpose of paying €300 in an envelope in either annual leave or notice.

The Complainants continued ill health was at the fore front of her mind, just as the viability of the business and the administrative costs of employment were at the fore front of the respondent mind.

I cannot accept that the circumstances amount to a resignation. The home visit lasted 15 minutes and no records exist. It was supported by a gift and a commendation of the garden.

Neither can I accept that the Respondent dismissed the Complainant.

The whole discussion was just too clunky for that.

The Respondent sought to place responsibility for the complainant with the DSP rather than through the first in time employment relationship.

The circumstances are that the complainant has drifted into a continuous sick leave from which she has not returned nor has any contemplated date where her health will allow her to return to work.

This is an unenviable position.

There is no dismissal in this case, and I must conclude that the complainant must be viewed as having a live employment with the Respondent, who ceased trading May 2023.

The Respondent cannot rely on the circumstances of September 1, 2022, to capture a resignation.

Both parties were ill at this time and neither party was aware of just what amounted to a resignation or indeed a dismissal. The complainant was jostled into a decision to move off “the work pitch “temporarily.

This was a holding position that ought to have been revisited by both parties and the November meeting failed in that regard.

I appreciate that the respondent did seek to resolve matters prior to hearing but was unsuccessful.

The Complainant has been on Temporary Lay off from this business since September 1, 2022.

I fully understand the perpetual confusion that has accompanied this case on whether time spent away from the business during covid is covered for reckonable service and for access to invalidity pension or old pension. I respectfully request that the parties collaborate on this with the Department of Social Protection as there were a number of co-existing support payments and compensatory payments which did not result in PRSI credits for this extraordinary period.

The Redundancy Payment Amendment Act of 19 April 2022 is instructive in this regard.

The Complainant was not dismissed and has not been unfairly dismissed.

CA-00054254-004 Minimum Notice claim

The complainant has claimed payment in lieu of notice.

Minimum period of notice.

4.— (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.

I have found that a dismissal did not occur in this case and the contract was not terminated.

I have found the claim to be not well founded.

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.

CA-00054254-001 Statement in writing in Terms of Employment

I find this claim to be well founded.

I order the Respondent to pay the Complainant €1,080, the maximum award permitted to me as just and equitable compensation for the continuous contravention of Section 3 of the Act.

CA- 00054254-002 Notification in writing of change to my terms of employment

I find this claim to be well founded.

I order the Respondent to pay the Complainant €1,080, the maximum award permitted to me as just and equitable compensation for the contravention of Section 5 of the Act.

CA-00054254-004 Minimum Notice claim

This claim is not well founded.

CA-00054254-003   Claim for unfair dismissal

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.

I have found that the complainant was not dismissed.

Claim for unfair dismissal, statement of terms of employment, notification of change in terms, minimum notice