Complainant

Respondent

Parties

Margaret  Conway

 Beyond Beautiful Boutique Ltd t/a Tiffany

Representatives

  Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00060157-001

21/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00060157-002

21/11/2023

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

CA-00060157-003

21/11/2023

The Complainant contends she was made redundant or unfairly dismissed on 13 October 2023. The Complainant contends the Respondent made an unlawful deduction from her wages in the weeks before her dismissal. The Respondent did not attend the hearing, but in an email sent to the WRC shortly before the hearing commenced, the Respondent appears to acknowledge that the Complainant’s position was redundant and also committed to reimbursing the Complainant for salary deductions.

Oral Testimony of the Complainant (under oath)

The Complainant commenced employment with the Respondent on 2 March 2021. She initially worked four days per week but reduced this to two days per week. The Complainant normally worked two 8-hour days each week and was paid €11.50 per hour. The Complainant outlined that another colleague was let go in January 2023 and was not replaced.  The Complainant normally was paid during her lunch break and for an extra 30 minutes at the end of the day in case customers remained after closing time. In the weeks before her dismissal, the Respondent stopped paying for the lunch break and this extra 30 minutes. No notice was given of this change. The Complainant outlined that she is owed 7 hours pay.

The Complainant outlined how Ms Phelan appeared to be annoyed with her on occasion and that the atmosphere at the store changed after Ms Phelan’s mother began working there in 2023. Cameras were installed in the store and over the till. The Complainant was often singled out by Ms Phelan’s mother and she felt that she could not do anything correctly for her. Boxes of shoes were often overturned and the Complainant felt this was done by Ms Phelan’s mother. Ms Phelan asked to meet the Complainant at a hotel on 21 August 2023. Ms Phelan told the Complainant that she was negative and asked her if she was happy working at the store. The Complainant said she was but ventilated her disappointment at not being facilitated in swapping hours so she could attend an appointment. The Complainant felt that Ms Phelan wanted her to resign that day, but she did not offer to do so.

The Complainant attended for work as normal on 13 October 2023. She was rostered to work with Ms Walsh. Ms Phelan called both of them into the stock room before the store opened and advised them that business was not going well and that she was letting the two of them go. The Complainant asked if they were entitled to a redundancy payment, Ms Phelan said “well if I can’t afford to pay your wages, I can’t afford to pay you redundancy”. The Complainant was asked to take her belonging with her and leave. She was distraught about the manner of the dismissal and went to the Citizens Information for advice.

Oral Testimony of Ms Walsh (under oath)

Ms Walsh outlined that the shop manager was let go in January 2023 and was not replaced. The Complainant spoke to Ms Phelan about this at the time. Ms Phelan said “I am sorry it had to be done. Margaret is next to go”. Ms Walsh outlined that she said to Ms Phelan she did not think that was an appropriate thing to say to her. Ms Phelan did not respond. Ms Walsh outlined that she felt Ms Phelan’s mother was “playing” with the Complainant.

There was no attendance at the hearing by, or on behalf of, the Respondent. Ms Phelan, on behalf of the Respondent, emailed the WRC shortly before the hearing commenced. In this email, Ms Phelan outlined inter alia that the Complainant was aware of the financial difficulties the business was in and that letting the Complainant go was a tough and long overdue decision that should have been made sooner. Ms Phelan also outlined that she had no option but to reduce wages and that she would reimburse the Complainant, out of her personal account, for the reduction in her wages.

CA-00060157-002 – Complaint under the Redundancy Payments Act, 1967

Relevant Law

The Redundancy Payments Acts 1967 – 2022 (“the Acts”) sets out the general right to a redundancy payment. Section 7(1) provides:

“An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided— (a) he has been employed for the requisite period, and (b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date”.

Section 7(5) of the Acts provides:

“In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) . . . .”

Section 7(2) of the Acts provides:

“For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to— (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise . . . .”

Findings

The Complainant outlined that she believed she was unfairly dismissed. I agree with the Complainant that the manner in which her dismissal was communicated to her was far from satisfactory. Having listened carefully to the oral testimony of the Complainant, while I accept the evidence of the Complainant that Ms Phelan’s mother may have taken a dislike to her, on balance, I am satisfied that the business was experiencing financial difficulties in 2023 and that Complainant was dismissed by reason of redundancy.

I find the Complainant’s employment was terminated by reason of redundancy within the meaning of s 7(2)(c) of the Redundancy Payments Act, 1967, and that the Complainant is entitled to a redundancy payment in accordance with the following criteria:

Employment start date: 2 March 2021.

Employment end date: 13 October 2023.

Gross weekly remuneration: €184.

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00060157-001  - Complaint under the Unfair Dismissals Act, 1977

I find the Complainant was dismissed by reason of redundancy. Therefore, the claim under the Unfair Dismissals Act, 1977 is not well-founded.

CA-00060157-003 – Complaint under the Payment of Wages Act, 1991

Relevant Law

Section 5(1) of the Payment of Wages Act 1991 (“the 1991 Act”) provides that an employer shall not make a deduction from the wages of an employee unless the deduction is required or authorised to be made by virtue of any statute or term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or the employee has given his prior consent in writing to it. 

Section 5(6)(a) of the 1991 Act provides:

“Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act) . . . then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6(1) of the 1991 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55, outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

Findings

The uncontested evidence of the Complainant was that she was normally paid during lunch breaks and for an extra 30 minutes in the evening, but in the weeks before her dismissal, the Respondent stopped paying her for this time. Ms Phelan did not consult with the Complainant in relation to this change and gave her no notice of it. The Complainant submitted that she is owed 7 hours pay (€80.50) in wages. I note in the email to the WRC dated 11 April 2024, Ms Phelan stated that she was going to reimburse the salary “that I reduced on them . . . ”.

I find that payment of wages during lunch breaks and for an extra 30 minutes in the evening was properly payable to the Complainant and that the failure to pay the Complainant for this time constitutes an unlawful deduction within the meaning of the 1991 Act. Therefore, I find this complaint is well-founded and I direct the respondent to pay the complainant compensation of €80.50.

CA-00060157-002

I decide the Complainant is entitled to a redundancy payment under the Redundancy Payments Act, 1967 in accordance with the following criteria:

Employment start date: 2 March 2021.

Employment end date: 13 October 2023.

Gross weekly remuneration: €184.

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00060157-001

I decide the claim under the Unfair Dismissals Act, 1977 is not well-founded.

CA-00060157-003

I decide the complaint under the Payment of Wages Act, 1991 is well-founded and I direct the respondent to pay the Complainant compensation of €80.50.

Redundancy. Unfair Dismissal. Unlawful deduction of wages.