Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Peter Murphy McInnes Dunne Murphy LLP

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002239

19/02/2024

The Worker is the co-founder of a sustainability consultancy company (“Company A”). In 2023 the Employer sought to acquire Company A. In the course of that engagement the Employer hired the Worker. She was offered employment on the 14th of September 2023 and began on the 18th of September 2023.

The Worker was not the primary negotiator on behalf of Company A and was not an employee of Company A. That process was led by the other founder and ultimately fell apart. However, by that time the Worker had already commenced working for the Employer.

The Worker attended the hearing represented by her solicitor. He made comprehensive submissions on her behalf and highlighted the relevant correspondence between the parties.

The Employer declined to attend the hearing. For the sake of transparency, the Complainant’s solicitor outlined their arguments to me in the hearing and referred to their correspondence.

In conducting my investigation, I have taken into account all relevant submissions presented to me.

I have reviewed the correspondence between the Worker and the Employer, the Worker’s contract of employment and the limited company records available to the Worker. These all show that she had started working for the Employer from the 18th of September.

It appears that when the talks with Company A ceased the Employer adopted the position that the Worker had never been an employee of theirs. This was despite the fact that she had started some three weeks previously. When she challenged this, they offered her a €5000 termination payment but maintained their position that she was not an employee.

The Employer also outlined view that the Worker’s employment was contingent on the acquisition of Company A. As the Worker pointed out this was never a term in her contract or the offer letter and there was a “whole agreement” clause in her contract. Even if it was the case that such a condition was in place it would not entitle the Employer to refuse to pay the Worker for work already undertaken and entitlements already accrued at the time of termination.

In later correspondence the Employer began to argue that the Worker was never entitled to take up their position with them as they had an interest in a third party, Company A, that conflicted with her role. It was a precondition of her employment, as set out in the letter of offer, that she had no such obligations. The Worker does not think that her involvement in Company A would stop her from properly performing her duties with the Employer. She points out that the Employer was on notice of her involvement with Company A when she took up her employment and raised no objection. The suggestion that she had not met this precondition was only put forward after they sought to terminate her. Again, even if I were to accept the Employer’s argument regarding the Worker’s role in Company A it would not entitle them to refuse to pay the Worker for work already undertaken and entitlements already accrued at the time of her termination.

The Worker believes her role with the Employer was not contingent on the acquisition of Company A, that it was necessary in its own right and that she was qualified to carry it out. However, she understands the Employers position in terminating her employment because of the failure to acquire Company A. She does not agree with that position and has established a case for unfair dismissal, but she does not seek compensation for the decision to dismiss her.

She found the untruthful assertion that she was never their employee upsetting and felt she had to stand up to it.

The Worker had a total renumeration package of €176,000. She calculates the monies owing to her by virtue of her contract, that being salary, accrued leave and notice as being €42,640.

She seeks a recommendation that sum be paid to her. Having regard to all the circumstances I am satisfied that this is warranted.