Complainant

Respondent

Parties

Louise  Smyth

Tanla Brook Ltd – amended with the consent of the Respondent

Representatives

Self-represented

Seán Thompson, Emerald HR & Payroll

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-00060193-001

23/11/2023

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

CA-00060193-002

23/11/2023

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

CA-00060193-003

23/11/2023

The Complainant alleges that she was unfairly dismissed by the Respondent; she was not paid her redundancy entitlement; and she did not receive a copy of her terms and conditions.

The Respondent rejects the complaints.

The Respondent submits as follows:

The Respondent company ceased trading on 29 September 2023.  However, a skeleton crew remained in place to ensure the safety of all sites on which the Respondent was working at that time.  The Respondent submits that its bank account was frozen on 29 September 2023.

At the hearing, the Mr McLaughlin said that he phoned the Complainant at the end of the September 2023 to inform her that he would have to terminate her employment as the Respondent company was no longer viable.  Mr McLaughlin confirmed that he did not engage in a consultation process in relation to the termination of the Complainant’s employment. 

Seán Thompson from Emerald HR reached out to the Complainant on 29 November 2023 to offer mediation between the Complainant and the Respondent in an effort to remedy the situation. The Complainant refused his offer.

CA-00060193-002 Redundancy

At the hearing, the Respondent confirmed that the Complainant’s redundancy payment has been paid.

CA-00060193-003 Terms & Conditions of Employment

Mr McLaughlin confirmed that he did not provide the Complainant with a copy of her terms and conditions at any stage during her employment with the Respondent company.

The Complainant submits as follows:

On 29 September 2023, the Respondent’s business bank account was frozen.   On 30 September 2023, the Complainant was locked out of the Respondent’s accountancy package.   Mr McLaughlin informed her that the Revenue Commissioners had frozen the Respondent’s bank account and that he was wrapping up the business.

On 6 October 2023, the Complainant discovered from other staff members that she was the only member of staff who had not been paid wages.  After the Complainant contacted Mr McLaughlin via WhatsApp about her unpaid wages, her wages were paid via Revolut from Mr McLaughlin’s wife to the Complainant’s husband’s Revolut account. 

On 23 October 2023 Mr McLaughlin rang the Complainant and asked to meet with her to discuss what was happening.  The next day, the Complainant texted Mr McLaughlin about the meeting but received no response.

The Complainant contends that on 25 October 2023, the Respondent’s vans were seen and photographed working at a site belonging to Mr McLaughlin.   The Complainant tried to ring Mr McLaughlin and another member of staff but did receive a response.

A contact from another company contacted the Complainant and informed her that Mr McLaughlin had a new employee who was doing her job.

On 16 and 17 November 2023, the Complainant emailed Mr Mc Laughlin after another staff member informed her that Mr McLaughlin had let her go.  The Complainant did not receive a response from Mr McLaughlin.

On 17 November 2023, the Complainant sent a registered letter to Mr McLaughlin’s home address containing an RP77 form and requesting payment of her redundancy entitlement.

On 17 November 2023, the Complainant was locked out of her work emails and the password was changed.  On 18 November 2023, Mr McLaughlin deleted the Complainant from the Respondent’s Facebook business account and blocked her on Facebook and Instagram.

On 21 November 2023, the Complainant’s registered letter to the Respondent was delivered and signed for by his wife.

On 20 and 21 November 2023, the Complainant emailed another staff member who had contacted her previously but did not receive a response.

On 20 November 2023, the Complainant received another phone call from Mr McLaughlin.  She asked him to contact her only in writing.

On 22 November 2023, the Complainant received another phone call from Mr McLaughlin.  She also received a WhatsApp message from Mr McLaughlin saying that a redundancy form would be sent to her the following day, but she did not receive the form.

On 23 November 2023, the Complainant received a WhatsApp message from Mr McLaughlin requesting the Respondent’s Revenue sign-in details from her.   On 27 November 2023, the Complainant received a further WhatsApp message from Mr McLaughlin requesting the Respondent’s Revenue sign-in details again.

On 29 November 2023, the Complainant received a phone call from Mr Seán Thompson who informed her that he was an external HR consultant working for Mr McLaughlin.  During the course of the phone call, Mr Thompson offered to hold a mediation meeting between the Complainant and Mr McLaughlin.  The Complainant refused his offer. 

On 18 December 2023, the Complainant messaged Mr McLaughlin requesting her redundancy form and letter of liquidation, but she received no response.

On 22 December 2023, the Complainant’s colleague, who was on maternity leave, received a letter from Mr McLaughlin stating that his company went into liquidation on 29 September 2023.

On 4 January 2024, the Complainant received a message from Mr McLaughlin stating that he wanted her to sign the redundancy form.

On 23 January 2024, the Complainant received a WhatsApp message from Mr McLaughlin requesting her to end her employment with the Revenue Commissioners so that her redundancy payment could be processed. She responded asking Mr McLaughlin to end her employment with the Revenue Commissioners.  On 25 January 2024, Mr McLaughlin finally responded to her messages asking him to terminate her employment to say that he would check it out and get back to her.  On 29 January 2024, Mr McLaughlin confirmed that he had terminated the Complainant’s employment on the Revenue system.  On 30 January 2024, the Complainant discovered that her employment with the Respondent was still active on Revenue.  The Complainant messaged Mr McLaughlin to query this.  He responded that he had been told that it was done and that he would let her know by 10am on 31 January 2024.  On 6 February 2024, the Complainant checked the Revenue website and discovered that her employment with the Respondent was still active.  The Complainant did not receive any further communication from Mr McLaughlin.

CA-0006193-001 Unfair Dismissal

The Complainant submits that Mr McLaughlin did not terminate her employment and that he did not give her any notice or follow correct employment law procedures.

The Complainant submits that despite informing her that he was going out of business, Mr McLaughlin continued to employ other staff and continued to trade.  The Complainant contends that Mr McLaughlin employed a new member of staff to take her place.

The Complainant refutes Mr McLaughlin’s submission that he contacted her at the end of September 2023 to inform her about the termination of her employment.  The Complainant asserted that if this was the case, then she would not have continued to contact him.

CA-00060193-002 Redundancy

At the hearing, the Complainant confirmed that she had received her redundancy payment.

CA-00060193-003 Terms & Conditions of Employment

The Complainant submits that she did not receive a statement of her terms and conditions as required under the Terms of Employment (Information) Act, 1994.

Mitigation of Loss

At the hearing, the Complainant said that she was not in a position to seek alternative employment when her employment with the Respondent was terminated due to family reasons. She confirmed that she was signed off on illness benefit from November 2023 until mid-February 2024.  She then obtained a new job at a weekly rate of €576 per week which is greater than her weekly rate when she worked for the Respondent.

CA-0006193-001 Unfair Dismissal

Legislation

Section 6(4) of the Unfair Dismissals Act, 1977 (the Act) provides as follows:

 “(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. “

Section 7(2) of the Redundancy Payments Act, 1967 states as follows:

“(2) 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—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(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, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

The application of the law in relation to the dismissal of an employee is relatively straightforward.  The burden of proof to show that a dismissal was not unfair rests with the employer who is, after all, taking the very serious action of terminating a contract of employment. The Act requires that the employer must be able to show that fair procedures were followed and that there existed substantial grounds justifying the decision to dismiss.

Procedural Framework

The first matter I must decide is if the procedural framework adopted by the Respondent is this case was in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·       That employee grievances are fairly examined and processed;

·       That details of any allegations or complaints are put to the employee concerned;

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

It is clear that the Complainant was left in a confused and uncertain state when she was not paid her weekly salary at the end of September 2023.  I note Mr McLaughlin’s assertion that he phoned the Complainant on 29 September 2023 to inform her of her redundancy.   I also note that this is disputed by the Complainant who suggests that her behaviour after 29 September 2023, when she sought clarity on her employment status and payment of her redundancy entitlement from the Respondent, gives lie to the Respondent’s assertion.  I found the Complainant to be a cogent witness who was able to provide a detailed timeline of events related to this complaint.  On balance, I prefer the Complainant’s version of events and I accept her assertion that she did not receive a phone call on 29 September 2023 informing her of her dismissal for reason of redundancy.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where Ó Dálaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Determinations including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet, UD1294/2008. 

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited [1973] IR 388, stated that:-

"This court in re Haughey [1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

Based on the totality of the evidence adduced, both written and oral, it is abundantly clear that the Respondent did not follow any procedures before coming to the decision to dismiss the Complainant.  I, therefore, find that the dismissal of the Complainant was procedurally unfair.

Substantive matters

I must now decide if the decision to dismiss was reasonable.

In Bunyan v United Dominions Trust (Ireland) 1982 ILRM 404, the EAT endorsed and applied the view in the case of N.C.Watling Co Limited -v- Richardson 1978 IRLR 225 EAT (ICR1049) where it was stated; “The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether, on the evidence, before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded’’.  

In circumstances where the fact of dismissal is not in issue, the burden of proof rests with the Respondent. Per section 6(6) of the Act, in determining for the purposes of the Acts whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds as outlined in the Act – conduct, redundancy etc., or that there were other substantial reasons justifying the dismissal.

In this case, the Respondent seems to suggest that the dismissal of the Complainant was not unfair as it resulted wholly or mainly from the redundancy of the Complainant (as provided for in section 6(4) of the Act).  In making this assertion, the Respondent is required to establish that the redundancy is a genuine one. Under section 7(2) of the Redundancy Payments Act1967, the Respondent must demonstrate that the dismissal by reason of redundancy is attributable wholly or mainly to the fact that the Respondent is ceasing to trade or proposes trading with fewer employees or that the work is to be done differently and the Complainant has not the requisite training or qualification to continue.

Even if a genuine redundancy situation exists, there is an onus on the Respondent to show that the selection of an individual was fair and reasonable arising out of a fair and transparent selection process.  The Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal of an employee.

Given that the Respondent did not engage in any procedures whatsoever in relation to the redundancy of the Complainant,  I am not satisfied, even if there was a genuine redundancy situation, that the Respondent has discharged the burden on him as an employer to show that the selection of the Complainant over and above other employees was fair and reasonable arising out of a fair and transparent selection process.  Accordingly, I find that the Complainant was unfairly selected for redundancy and, consequently, that the dismissal of the Complainant was unfair.

Redress

The Complainant informed the hearing that due to personal issues and illness that she was unable to work until mid-February 2024.  When she did resume work, she was on a higher weekly than she had been on when she worked for the Respondent. 

When calculating redress in the situation where a complainant has been ill and/or unavailable for work for all or part of the relevant period, their loss of earnings may be assessed as nil.

In this regard, I note the provisions of section 7(c)(ii) of the Act which provides that:

“If the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.”

Taking all of the circumstances into account, I am of the view that an award of 4 weeks remuneration is just and equitable in this case.

CA-00060193-002 Redundancy

At the hearing, the Complainant confirmed that she had received her redundancy payment.  Accordingly, I find that I must disallow the Complainant’s appeal that she was not paid her redundancy entitlement.

CA-00060193-003 Terms & Conditions of Employment

Section 3(1) of the Terms of Employment (Information) Act, 1994 (the Act) requires that:

“An employer shall, not later than 1 month after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

…

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

…

(ga) that the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section,]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

…

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made,

(n) the training entitlement, if any, provided by the employer,

(o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 [OJ No. L 327, 5.12.2008 p.9] on temporary agency work), when and as soon as known, and

(p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of—

(i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,

(ii) the reference hours and days within which the employee may be required to work, and

(iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and

(q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

The burden of proof under section 3(1) of the Act lies with the Respondent.  At the hearing, the Respondent confirmed that he did not provide the Complainant with her terms and conditions as required under the Act.  Accordingly, I find that Respondent breached the provisions of section 3(1) of the Act in relation to the Complainant.

Section 3(1A) of the Act requires that:

“Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) [the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;]

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week,

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer's policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee's contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

Based on the evidence of the Respondent, I find that Respondent breached the provisions of section 3(1A) of the Act in relation to the Complainant.

While I have found that the Responded breached both section 3(1) and section 3(1A) of the Act in relation to the Complainant, it should be noted that each separate infringement of section 3 of the Act does not entitle the Complainant to separate compensation. 

CA-0006193-001 Unfair Dismissal

I decide that the Complainant was unfairly dismissed and, therefore, that this complaint is well founded. 

As the Complainant had no financial loss arising from the dismissal, the maximum amount of compensation permitted under section 7(c)(ii) is 4 weeks’ remuneration.  Having regard to all the relevant circumstances, I consider it just and equitable to award the Complainant compensation in the amount of €2,160 being the equivalent of four weeks’ pay.

CA-00060193-002 Redundancy

In light of the fact that both parties confirmed at the hearing that the Complainant had received her redundancy entitlement, I decide to disallow the Complainant’s appeal.

CA-00060193-003 Terms & Conditions of Employment

In accordance with my powers under section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened section 3 of the Act and that the complaints are well founded. I order the Respondent to pay to the Complainant compensation in the amount of €2,160 being the equivalent of four weeks’ pay, the maximum payable under the Act.

Unfair Dismissals Act – no procedures; redundancy – entitlement received; no terms and conditions of employment