Complainant

Respondent

Parties

Ann  Walsh

 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 39 of the Redundancy Payments Act, 1967

CA-00060158-001

21/11/2023

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

CA-00060158-002

21/11/2023

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

CA-00060158-003

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 after the hearing was finished, 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 3 August 2021. She thoroughly enjoyed her job and got on very well with all colleagues and with the owner of Respondent business, Ms Deirdre Phelan. She normally worked two 8-hour days each week and was paid €11.50 per hour. The Complainant outlined that it was a pleasure to work at the store and interact with her colleagues whom she regarded as friends.

The Complainant attended for work as normal on 13 October 2023. She was rostered to work with another colleague (“Ms C”). 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. In response to a question on whether 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. The Complainant described feeling very hurt and disrespected given the manner of her abrupt dismissal.

The Complainant outlined that she felt she got on well with the owner and that there were no real concerns before this date, other than an email received from Ms Phelan advising the Complainant and two other employees on work related WhatsApp group that she did not appreciate employees speaking about the business in public and that they were being given a verbal warning. The Complainant was upset about this and contacted Ms Phelan who then said that none of the content of the email related to the Complainant.

Ms Phelan told the Complainant in the weeks before her dismissal that the business was not going well. The store was closed every Wednesday before the Complainant was let go. Also, in the weeks before her dismissal, the Respondent stopped paying the Complainant during her lunch break. Initially her pay was reduced by 30 minutes but then by an hour. Ms Phelan did not consult with the Complainant in relation to this deduction and gave her no notice of it. The Complainant calculated that she is owed €63 in wages. The Complainant outlined that, as far as she is aware, no new staff have been recruited since the termination of her employment.

The Complainant accepted that there may have a been a redundancy situation. She outlined that if Ms Phelan had taken the time to speak to her properly, she would have understood if the Respondent was experiencing trading difficulties or needed fewer staff and she would have supported whatever business decisions she had to make. The Complainant stated that she did receive a very pleasant text from Ms Phelan some days after her dismissal so she did not think that Ms Phelan harboured any ill will against her. The Complainant said the manner of her dismissal affected her confidence for several months after. She is not currently working but is in receipt of the state pension.

There was no attendance at the hearing by, or on behalf of, the Respondent. Ms Phelan, on behalf of the Respondent, emailed the WRC after 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 in the weeks before her dismissal.

CA-00060158-001 – 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 accepted at the hearing that the Respondent may have been experiencing trading difficulties, and that she would have understood if redundancies were necessary. 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, on balance I am satisfied that the 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: 3 August 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-00060158-002 – 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-00060158-003 – 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 but in the weeks before her dismissal, the Respondent stopped paying her during lunch breaks. Initially her pay was reduced by 30 minutes but then by an hour. Further, Ms Phelan did not consult with the Complainant in relation to this change and gave her no notice of it. The Complainant calculated that she is owed €69 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 was properly payable to the Complainant and that the failure to pay the Complainant for her lunch breaks 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 €69.

CA-00060158-001

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: 3 August 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-00060158-002

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

CA-00060158-003

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 €69.

Redundancy. Unfair Dismissal. Unlawful deduction of wages.