Complainant

Respondent

Parties

Mary  O'Dell

Layer Digital Solutions Limited

Complainant

Respondent

Anonymised Parties

Representatives

Conor McCrave, Setanta Solicitors

 Did not attend.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059026-001

26/09/2023

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

CA-00059026-002

26/09/2023

The Complainant commenced employment with the Respondent on 8 April 2021. The Complainant’s role was as a Senior Client Delivery Manager. Employment ended on 4th September 2023.

This complaint was received by the Workplace Relations Commission on 26TH September 2023.

Background and factual matters:

·       The Complainant commenced employment for the Respondent on 8 April 2021. The Complainant’s role was as a Senior Client Delivery Manager. Her gross base annual salary was €99,750.

·       The Complainant was also made a member of the Company's Defined Contribution Pension Scheme, where the company agreed to match her contribution up to a maximum level equivalent to 5% of her annual gross salary.

·       The Complainant last received her salary on or around the 28th of April 2023, she last received a matched pension contribution from the company in or around March 2023. Her contribution to her pension is deducted from her salary, she was not able to make personal contributions to her pension since April 2023 until the termination of her employment.

·       Other colleagues of the Complainant in the company had similar issues regarding non-payment of wages. The Respondent has been a Respondent to several similar complaints in recent months.

·       A zoom call was arranged in May of 2023, between the company and members of staff in Lebanon. The Complainant was not invited to participate in this meeting, she was informed that missed salary had been discussed. She was further informed that the company was attempting to finalise a loan from a Saudi company, and they planned to address the salary issue after it had been finalised.

·       These matters caused serious morale issues and she attempted to contact the HR Director, Jacqueline Haddad Zakka. The Complainant emailed her on or around 23 May 2023 and asked for an update. She received no response.

·       On or around 26 May 2023 the Complainant sent a further email to Roy Zakka (CEO) and Jacqueline Haddad Zakka notifying them that there were significant anticipated issues from company clients due to the funding issues & poor morale. She received no response.

·       The Complainant did not receive expected wages on the 26th of May 2023, and she did not receive further payment from the company after April 2023.

·       On or around the 29th of May 2023 the Complainant was informed by colleagues in the Irish Staff that they had been made redundant via email, and they had been taken off the company's system prior to receipt of said emails.

·       On May 30th an internal meeting was scheduled to discuss strategy on behalf of a major client. However, this meeting was cancelled 10 minutes prior to beginning. Given the imminence of the meeting and the importance of the particular client, this cancellation caused the Complainant significant stress.

·       The Complainant contacted the Business Development Manager, Khader Mashriqi who had originally set up the meeting. He agreed to reschedule the meeting but the Complainant’s line manager, Paul Cunningham was not to be invited to this subsequent meeting. The Complainant enquired why he was not invited but her concerns were dismissed. This led to an awkward interaction with Mr. Cunningham as he contacted the Complainant to find out why he had not been invited. She later received a call from Paul informing her that he had been dismissed.

·       The Complainant sent an email to Mr. Zakka and Jacqueline Haddad Zakka putting them on notice of the stress and awkwardness that she had been forced to endure as a result of these last-minute changes and dismissals. She informed them that such stress was having a detrimental effect on her health. She also reminded them of the funding situation and requested the courtesy of responding to her emails. She also requested that they keep her informed of any relevant developments.

·       On or around the 30th of May Roy Zakka responded by email informing the Complainant that he was taking over Paul Cunningham’s responsibilities and promised to call that afternoon. The Complainant took that call and Mr. Zakka acted in a completely unprofessional manner. He made derogatory remarks about Irish people and spoke negatively about the performance of line manager Paul Cunningham appearing to place blame upon him for the circumstances in Mr. Zakka’s own company. The Complainant asked about the funding issue but was not provided a satisfactory answer.

·       On or around the 5th of June 2023 at 19:10, on an Irish bank holiday, Roy Zakka sent an email to the Complainant at short notice for a zoom meeting at 19:30 that same day. Given that it was a bank holiday in Ireland and the short notice, she did not see the email and was unable to attend.

·       On the following day she sent an email to Mr. Zakka seeking an update. She did not receive an answer, so she sent a further email. Mr. Zakka responded by saying the company was due to receive funding by the end of the month and could facilitate a call the next day.

·       At this time, the Complainant had still not been paid any wages, was suffering from financial insecurity and was afraid that she would lose her job. This caused the Complainant significant stress, she was also affected by the abrupt redundancy of a number of colleagues, conveyed by impersonal emails, which made her feel undervalued.

·       On the 21st of June 2023 the Complainant sent invites to a zoom meeting to Roy Zakka, Jacqueline Haddad Zakka, the Chief Technology Officer George Yazbek, Business Development Manager Khader Mashriqi and two Project Managers Christian Sutherland and Temitayo Ajayi. This meeting was organised against the backdrop of increasing stress levels and notable erosion of morale and motivation across the teams. The Complainant sought guidance as to how to navigate these changes with external clients.

·       Roy Zakka responded to the invite by telling the Complainant to cancel it and informing her that he and Jacqueline Haddad Zakka would speak to her directly. On the 23rd of June 2023 the Complainant had a meeting with Roy and Joyce Feghali, a Senior Project Manager. During this meeting the Complainant felt that there was a sentiment that her concerns were disproportionately magnified. Roy proposed that anyone who remained employed by the company was accepting of the situation.

·       The Complainant felt that there may be retaliation including termination of her employment should any further concerns be raised. She was not paid during June 2023 either.

·       On the 3rd of July 2023 she sent a further email to Roy Zakka and Jacqueline Haddad Zakka, informing them that she had not received any salary for a what then amounted to 10 weeks, she also informed them that she had not received pension contributions from the company.

·       The Complainant again put them on notice that the financial and emotional distress caused by their actions had taken a significant toll on her health and wellbeing.

·       The company had also sent out an ill-timed employee survey asking employees to advise on how the company could improve. The Complainant felt that this was short sighted. She stated in the email that the primary focus should be paying their employees.

·       On or around the 3rd of July 2023 Jacqueline Haddad Zakka sent the Complainant an email, it stated that Jacqueline and Roy were in the same situation and Roy was working day and night to conclude the funding issue.

·       She also used an inappropriate line of argument and invoked the fact that they were responsible for more than 70 families and their children. She stated that they were unable to sleep at night and claimed that they had never and would never turn their backs on their employees and contractors as "that's not our values".

·       The Complainant felt deeply hurt by this email and there was no attempt to address her concerns. The email was personal and inappropriate. It attempted to evoke sympathy and guilt by mentioning personal and family responsibilities to silence her professional concerns. It compared her concerns to that of Roy and Jacqueline's, to diminish hers in comparison. It was also avoidant of any concrete answer or assurance. The email also addressed the survey issue by stating they were sent out automatically and asked, "Do you think I'm that inconsiderate", this was unnecessarily confrontational.

·       The Complainant did not respond as she wanted to avoid interpersonal escalation, but she did not feel her concerns had been addressed and the email made her feel worse.

·       On or around the 4th of July 2023, Roy Zakka sent an email to all Layer Digital employees stating that the new investors would be completing due diligence exercises and subsequently funds would be transferred to the company.

·       On the 18th of July 2023 the Complainant followed up on her email to Roy Zakka and Jacqueline Haddad Zakka. The Complainant notified them that no update had been received in respect of the investors since the 4th of July. She reminded them that she had not received salary for three months, she clearly informed them that this caused significant financial hardship and was a violation of her employment contract.

·       Roy Zakka responded on the same day that there had been no updates however they were hoping to have funding by the end of the month. The Complainant followed up with another email regarding her unpaid wages and desire for transparency.

·       On the 25th of July the Complainant was signed off on sick leave, she emailed Roy Zakka to inform him of this.

·       On or around the 27th of July 2023 the Complaint sent an email to Roy Zakka stating that as she had received no communication to the contrary, she understood that she would be receiving all unpaid outstanding salary along with outstanding pension contributions by end of month.

·       Mr. Zakka replied on the same day stating that the company was still working on securing their financing and they would send a general update when that happens.

·       The Complainant replied on the same day notifying Mr. Zakka that it was less than 3 days away from 31st of July 2023, she sought clarification as to whether she would be paid by then or whether the payment date would be extended.

·       Mr. Zakka then replied stating funding had not yet been secured but once it had, he would communicate to the Complainant when he would be able to pay outstanding salaries.

·       On the 2nd of August 2023 the Complainant received a "Google verification notification". She attempted to log into her work google account and received a notification that her password had been changed. This action had occurred for other colleagues before their termination.

·       The Complainant was on sick leave during that time. The Complainant’s Solicitors sent a letter on the 4th of August putting the company on notice of her concerns. The Complainant also formally opened a grievance through that letter. The letter also served as a protected disclosure made to the company under the Protected Disclosures Act 2014.

·       The company have committed a fundamental breach of the employment contract by not fairly compensating the Complainant for work which she has completed.

·       The complainant’s solicitors informed the company that their conduct was in breach of The Payment of Wages Act 1991, section 5(6), which prohibits any unlawful deductions from an employee's wages, including non-payment of wages. The company has failed to compensate the Complainant for her work since April 2023, they have failed to make pension contributions since March 2023. They have failed to satisfactorily address concerns raised in emails of 23rd May 2023, 26th May 2023, 30th May 2023, 5th June 2023, 21st June 2023, 23rd June 2023, 3rd July 2023, 18th July 2023, 25th July 2023 and 27th July 2023. They have made things worse with their lack of transparency, abrasive and derogatory comments, and their obfuscation in relation to pay.

·       They have failed to investigate her grievance or make any indication that they would. The Respondent has failed to make any response to the Complainant’s protected disclosure.

·       The company logged the Complainant out of her google work account, meaning she no longer has access, a similar process happened before her colleagues were made redundant. The Respondent have failed to respond to her correspondence of 4th August 2023

·       The Complainant’s solicitors wrote to the company on the 4th of September 2023, notifying them that due to their failure to address her concerns and the breach of contract caused by their failure to pay her wages since April 2023, she had no recourse but to deem her employment as terminated.

·       As a result of these significant breaches, and their resulting impact on the Complainant’s financial security and obligations, as well as the detrimental repercussions for her health and wellbeing, it is necessary to bring this complaint before the WRC for adjudication.

The Law.

Section 6(1) of the 1977 Act states: -

·       “(a) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

·       The adjudication officer will note that it is not the role of the WRC to substitute its views for that of the employer but to establish whether or not the decision to dismiss fell within the “band of reasonable responses” available to an employer finding itself in the position of the within Respondent.

·       The English Court of Appeal in the decisions of Foley v Post Office and HSBC Bank plc v Madden [2000] 1 All ER 550 confirmed that: -

“This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer’s decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

·       This principle was elaborated upon in the Court of Appeal Anglian Home Improvements v Kelly[2005] in the context of discussing British Leyland UK Ltd v Swift [1981] IRLR 91 wherein it wasstated that: -

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view…another quite reasonably take a different view... If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.

·       This well-established principle of dismissal law was accepted and cited with approval by the

Irish High Court in Doyle v Asilo Commercial Limited [2008] IEHC 445 and Governor and

Company of the Bank of Ireland v Reilly [2015] 26 ELR 229.

·       In determination UDD2128 the Labour Court considered a case where any respondent did not carry out any procedure in relation to a dismissal and where the decision to dismiss was taken unilaterally without any discussion with the complainant at all.

The Court set out:

·       The Court takes into account the provisions of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) which emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of him or her and to know any case being made against him or her and to have a fair opportunity to respond to any such case.

The extensive jurisprudence of this Court and the Employment Appeals Tribunal is to the effect that an employer contemplating disciplinary sanction against an employee is obliged to ensure the observance of fair procedure and natural justice before making a decision in relation to the matter.

In the within matter, despite the existence of a detailed disciplinary procedure which had been made known to the Appellant at the commencement of his employment, no procedure at all was followed and the decision to dismiss was taken without engagement with the employee. In addition, the Appellant was given no right to appeal his dismissal.

It may or may not be significant that the Respondent was of the understanding that, at the date of his dismissal, the Appellant did not enjoy the protection of the Act.

The Court has concluded that, in the absence of the operation of a fair procedure or any procedure at all in dismissing the Appellant, the Respondent has failed to discharge the burden resting upon it to establish that the dismissal was fair and that the dismissal was unfair as a result.

The Court has concluded that, having regard to circumstances of the matter, the appropriate redress is compensation.

·       The Complainant has not been paid since April 2023. The Respondent has ignored all

communication from the Complainant. In the absence of pay and any engagement by the

Respondent for several months, the Complainant is entitled to treat her employment as

terminated by the Respondent.

·       The Complainant has been dismissed by the Respondent without notice, explanation or fair

process. The Complainant has over 12 months service with the Respondent. The Complainant’s dismissal was unfair. The termination of the Complainant’s employment was conducted in breach of the Unfair Dismissals Act.

Pay.

Section 5 of the Payment of Wages Act 1991 provides that:

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any

payment from an employee) unless—

(2) An employer shall not make a deduction from the wages of an employee in respect of-

(a) an act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply   or provision of which is necessary to the employment,

Unless-

(i) the deduction is required or authorized to be made by virtue of a term (whether express or

implied and, if express, whether oral or in writing) of the contract of employment made

between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances

(including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has

been furnished with -

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and   

iv) in case the deduction is in respect of an act or omission of the employee, the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as foresaid, the deduction is of an amount not exceeding the cost to the employer of the goods or service, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

Section 5(6) of the Act states;

Where—

(a) 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), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion

(after making any such deductions as aforesaid) are paid to the employee,

·       The Complainant worked for the Respondent from April 2021 until 4 September 2023.

·       She did not receive remuneration from the Respondent from April 2023 until the termination of her employment in September 2023.

·       The Complainant is owed €33,250.00 in unpaid wages for that time period. This figure

increases to 41,562.50 when comprising of one months’ notice.

·       The Complainant is owed €2909.38 into her pension fund from March 2023.

·       The Complainant is owed holiday pay of €2,660.00.

·       The Respondent has neglected to pay the owed remuneration to the Complainant in breach of the Payment of Wages Act.

Loss of earnings.

·       The Complainant’s employment with the Respondent terminated on 4 September 2023.

·       She has been out of work since that date.

·       The Complainant has attempted to mitigate her losses by applying for roles on websites such

as Indeed and LinkedIn. The Complainant has engaged several recruitment agencies such CPL.

·       The Complainant has attended several interviews including an interview on 4 March 2024.

·       The Complainant’s gross salary was €99,750. The Complainant has been out of work since

September 2024. This is 6 months’ salary.

·       €99,750 divided by 12 is 8312.50. 6 x 8312.50= €49,875.

·       Her pension contributions were 5% of her monthly salary. This figure is €2,493.75.

 Conclusion.

·       The Respondent failed to pay the Complainant’s wages from April 2023 until her employment terminated in September 2023.

·       The Complainant was logged out of her work google access. The Respondent has refused to engage with the Complainant. The Complainant has deemed her employment as terminated

and the Respondent has failed to provide notice, cause or explanation.

·       This is an unfair dismissal.

The Respondent did not attend the scheduled hearing of the complaint.

I am satisfied that a letter dated 18th January 2024 was sent to the Respondent. This letter contained the arrangements for the hearing of the complaint i.e. Date, time and venue.

The Respondent has also failed to provide the Workplace Relations Commission with any explanation in relation to their non-attendance.  

I was impressed by the professional way the Complainant provided her evidence.

CA – 00059026 – 001 – Complaint submitted under section 8 of the Unfair Dismissals Act 1977.

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee.  The first is “the contract” test where the employee argues “entitlement” to terminate the contract. Secondly, the employee may allege that he or she satisfies the Act’s “reasonableness” test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment but its conduct may be nonetheless unreasonable.

The Contract Test.

The breach of contract being alleged must be either a significant breach going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

The Reasonableness Test.

In adjudicating on claims involving this test the Workplace Relations Commission will look at the conduct of employer as well as of employee, although the greater emphasis will be on the former. As earlier referred to, it will be relevant whether the dismissal was reasonable in the light of all the circumstances.

In the instant case the employer has failed and failed miserably in both tests. I now conclude that the complaint as presented under section 8 of the Unfair Dismissals Act, 1977 is well founded and order the Respondent to pay the Complainant compensation of €52,368.75.

Such compensation should be paid within 42 days from the date of this decision.

CA – 00059026 – 002 – Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The complaint as presented is well founded and I now order the Respondent to pay the Complainant the sum of €38,819.38 representing the unpaid wages that she is due. This amount should be paid to the complainant within 42 days from the date of this decision and is in addition to the compensation outlined above.

CA – 00059026 – 001 – Complaint submitted under section 8 of the Unfair Dismissals Act 1977.

I now conclude that the complaint as presented under section 8 of the Unfair Dismissals Act, 1977 is well founded and order the Respondent to pay the Complainant compensation of €52,368.75.

Such compensation should be paid within 42 days from the date of this decision.

CA – 00059026 – 002 – Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The complaint as presented is well founded and I now order the Respondent to pay the Complainant the sum of €38,819.38 representing the unpaid wages that she is due. This amount should be paid to the complainant within 42 days from the date of this decision and is in addition to the compensation outlined above.