Complainant

Respondent

Parties

Susanna  Givernaud

Connolly Accountants & Business Advisors Ltd (In liquidation)

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

No attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00061762-001

24/02/2024

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adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 WITHDRAWN

CA-00061762-002

24/02/2024

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seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 WITHDRAWN

CA-00061762-003

24/02/2024

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

CA-00061762-004

24/02/2024

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

CA-00061762-005

24/02/2024

The Complainant commenced employment on the 4th of July 2022 and finished with the Respondent on the 25th of August 2023. A complaint was submitted to the WRC on the 24th of February 2024. The complaint form indicated complaints under the Payment of Wages Act 1991 concerning an over deduction of a pension contribution; the Organisation of Working Time Act concerned with working hours; a complaint of discrimination on grounds of family status and conditions of employment; a complaint under the Terms of Employment (Information) Act – a two-page document not being a proper contract of employment; and a complaint of constructive dismissal under the Unfair Dismissals Act 1977. During the course of the hearing there was a discussion with the Complainant concerning time limits in relation to the Organisation of Working Time Act as the issues in relation to hours of work had occurred no later than February/March 2023 when the Complainant went on a combination of annual leave and then maternity leave. The Complainant agreed at the hearing that the complaints were out of time and were therefore withdrawn. Regarding the complaint under the Employment Equality Act at the hearing the Complainant stated that the issue for her was that of unfair dismissal and the complaints of discrimination were not pursued at the hearing and are also regarded as withdrawn.

The Complainant’s rate of pay at the conclusion of her employment was €5,000 per month gross and €3,867.10 net.

Payment of Wages Act 1991

The Complainant gave evidence that she was in a pension scheme which provided for a deduction of 6% of her wages as her contribution. That contribution was to be based on basic pay. She worked overtime during 2022 which was to be paid for in February 2023 so that she could have four weeks paid leave at that time. She did not receive her payslip for that period until the 31st of August 2023 which is when she realised that there was a pension contribution for her overtime. On the 31st of August she received her payslip for February 2023 and on the same day she sought a correction of the payslip and a refund of €250 gross (€125 net). Efforts to have the payment restored were unsuccessful. She contacted the pension provider who stated that the error could be corrected by the employer, but this did not happen.

Terms of Employment (Information) Act 1994

On the 20th of October 2022 the Complainant received a letter from the employer confirming her position as that of Practice Manager on a salary of €60,000. This was the second position which the Complainant held in the employment as she had commenced in the employment as a Practice Accountant. The Complainants complaint is that she never received a full statement of terms and conditions of employment.

Organisation of Working Time Act

Withdrawn.

Employment Equality Act

Withdrawn.

Unfair Dismissals Act

This is a complaint of constructive dismissal. The Complainant gave an account of extensive hours which she worked in the employment until March 2023. In February 2023 she took paid leave to have her baby. The issues which form the basis of the difficulties experienced by the Complainant and which led to her decision to resign commenced in and around February 2023 while she was on maternity leave and then in March 2023. The correspondence between the parties centres on the 3rd of March 2023 concerning the Complainant’s role when she would return to work following her maternity leave. Her discussions took place with a Declan Connolly who in an email of the 3rd of March 2023 stated:

“I believe your plans are to return to work on the 20th of March. Unfortunately I’m driving back to the UK on that date. As discussed I have been reviewing how the office has been running whilst I have been there. As agreed it is best that J [another employee] focuses on the day to day running of the office and staff and your primary focus will be to produce accounts. You will need to liaise with J and ensure she gets all the data you require.”

The Complainant responded to this email by stating that she was prepared to work as Practice Accountant under certain conditions noting that this would be the third contract change with the Respondent since she commenced employment. She gave evidence that she commenced as an accountant, was later promoted to practice manager and in March 2023 she was being told she was to revert to practice accountant. Declan Connolly replied that it would be best if she concentrated on her maternity leave while her position as set out in the email of 03/03/23 at 10.44 was considered. There followed some email exchanges around the maternity leave. There was no conclusion to the discussions regarding the terms under which the Complainant would return to work as a practice accountant. Subsequently the Complainant decided to take a longer period of maternity leave and was due to return in August 2023. It is her evidence that she had a telephone call with the HR person who stated that instructions had been left by Declan Connolly that the Complainant was to work closely with another employee J as she had been managing the practice and this would continue. She responded that she did not feel that this was fair and subsequently submitted her resignation on the basis of the conversation with Declan Connolly the previous March which she now felt was to become reality, i.e. she was to be downgraded but the conditions under which she was to work as she had requested in March 2023 were not agreed or in place. In the circumstances she felt she had no option but to resign. An email of the 28th of August 2023 from HR was opened to the Complainant for her response where that email stated: “I am very sorry to hear that you won’t be returning, we were all looking forward to your return and having you back as Practice Manager.” Reference was made to her health issues appreciating that the Complainant was putting her health first. She was also thanked for her hard work. The Complainant replied that what was stated in the email of the 28th of August regarding her return as Practice Manager was not reflected in the telephone conversation where the HR Manager stated that J would be taking over the running of the office which was her role as the Practice Manager and which was also consistent with what Declan Connolly had stated to her in his emails the previous March 2023. The Complainant also spoke about the manner in which J treated her when she went to the office to collect her belongings on the 1st of September 2023 where she described being challenged about removing her own belongings from the office by J which again she saw as consistent with the view of the latter that she was in fact in charge of the office. The Complainant did subsequently receive a telephone call from G who apologised for the whole situation and what had happened. He had intervened in the office on the day in question. There was no contact from Declan Connolly about her decision to resign.

The Respondent did not attend the hearing and the only material available for consideration was the documentation provided by the Complainant  authored by the Respondent and that was taken into account in arriving at my decision in this matter.

Payment of Wages Act 1991

Accepting the evidence of the Complainant that the pension provider agreed with her that  there was an over deduction of a pension contribution from her wages, it is difficult to see why this could not rectified by the Respondent in some way. As the pension contribution would other wise have been fully taxable as wages the nett amount from the gross overreduction of €250 is put at 66% leaving an amount to be repaid of €165.

Terms of Employment Act 1994

The statement of terms of employment issued to the Complainant on 22 October 2022 contained a clause that within one month of the Complainant commencing as practice manager, a statement of the main terms would issue. This did not occur and therefore the Complainant has  a valid complaint under the terms of employment act in that she did not receive a full statement of terms within one month of commencing in the role as practice manager. That failure to issue a complete set of terms and conditions is significant in that the Complainant never receive confirmation of the terms of the pension scheme, or paid leave including maternity leave. The sum of  €2500 in compensation is justified in the circumstances.

Unfair Dismissals Act 1977

The following is the definition of what is known as a constructive dismissal i.e. the type complained of by the Complainant in this case.

(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

 The sworn evidence of the Complainant together with the contents of the emails of March 3rd, 2023, leads me to conclude that she was justified in concluding that Mr Connolly no longer wished her to have responsibility for those aspects of the role in terms of oversight as laid out in the contract of October 2022 when she was appointed as practice manager. Oversight inevitably meant oversight of the work of others in the practice. The failure of Mr Connolly to confirm in March that her essential terms of employment would remain in place and equally his failure to contact her again in August 2023 when it was know she would be returning  to work together with the references to the role of J on her return were sufficient in my view for the Complainant to conclude that her role was  altered without her agreement and also without agreement on either her revised role, or how that role would interact with that of J. The essential term of any contract, that of trust was broken by the Respondent which in turn justified the actions of the Complainant and entitles her to a finding that she was indeed constructively dismissed by the Respondent. In arriving at this conclusion, the absence of any direct contact from Mr Connolly in which he reversed his decision of the previous March is notable in this case and adds to the conclusion that his decision that J would take over certain of the Complainants function was the one in place when the Complainant returned to work. If this conclusion does not reflect the Respondents position in August 2023, a direct conversation with the Complainant could have avoided the resignation of the Complainant.

Compensation is the only feasible form of redress in this case where the employment is in any event in liquidation. Noting that the Complainant obtained work within a short period after the end of August 2023, compensation is limited to a maximum of four weeks pay.

Compensation of €5000 is appropriate in the circumstances.

CA-00061762-001 Payment of Wages Act 1991 as amended

This Complaint by Susanna Givernaud against the Respondent is well founded. A sum of€165 nett is to be paid to the Complainant by the Respondent(in liquidation)

CA-00061762-004 Terms of Employment Act 1994 as amended

This complaint by Susanna Givernaud against the Respondent is well founded. A sum of €2500 in compensation is to be paid to the Complainant by the Respondent(in liquidation).

CA-00061762-005 Unfair Dismissals Act 1977 as amended

The complaint of constructive dismissal by Susanna Giveraud is well founded. The Respondent is to pay a sum of €5000 compensation to the Complainant.

Over deduction from wages; Failure to issue full statement of terms of employment; Constructive Dismissal