Worker

Employer

Anonymised Parties

An Employee

A Laundry Operator

Representatives

  Appeared In Person, Day 1 of hearing.

Appeared In Person, with support on Day 2 of hearing

David Gaffney, Solicitor, Day 1 of hearing, off record from November 23, 2023

No Appearance by or on behalf of the Employer on the second day of hearing  

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 - 00001043

24/01/2023

On 24 January 2023, the Worker, in this case submitted a Dispute to the WRC. The claim was categorised as an Industrial Relations Dispute as:

A complaint in relation to disciplinary sanctions up to and including dismissal.

On 20 February 2023 the WRC notified the Employer of the Dispute and her right to object to an investigation under Section 13 of the Industrial Relations Act, 1969. That same day, the Employer signed a declaration that she did not object to an investigation of the dispute by an Adjudication Officer.

The Dispute was scheduled for hearing on 10 July 2023 in Cork WRC Office.

The Worker introduced herself as presenting her own case.

Prior to hearing the Worker sought to sub poena a witness to hearing. On 3 July 2023, I wrote to the Worker and explained there was no power available to her to compel witness attendance at an Industrial Relations Dispute before the WRC. I explained that I would be investigating a dispute between a worker and employer in private, the outcome would then be anonymised in my eventual Recommendation.

I requested a brief outline of chronology in the case.

The Worker sent in an extensive dossier of documents prehearing inclusive of the requested chronology of events which informed the Dispute.

The Employer did not furnish an outline of her response in response to the claims made.

The Employer attended the first day of hearing on July 10, 2023, and was represented by her Solicitor, David Gaffney.

On that day, the parties both set out their respective positions in relation to the dispute. This revealed a very fraught, combative and uncertain working relationship.

When I inquired as to what would fix things between the parties? both parties agreed to take a couple of weeks and resume at WRC on July 26, 2023, 2pm to seek to work together towards an agreed position going forward.

In the meantime, the Employer was requested to provide.

The contract of employment

Staff handbook

System around annual leave

The status of allegations on the company phone

The resumed hearing of July 26, 2023, did not proceed as the Worker secured a postponement on medical grounds. The reconvened hearing did not proceed either in September 2023 as the Employer secured a postponement on medical grounds.

On Wednesday, November 15, 2023, the Worker forwarded a copy of an email attributed to the Employer sent at 01.29 hrs on Friday, November 10, 2023, which read:

Following on from your unauthorised holidays taken in January and February of this year (prior to submission of medical certificates) it has left me with no alternative but to terminate your contract with the X business. This decision has been calculated on the 5-week period that has since been named as your protest weeks.

This decision has not been made easily but following legal advice and considerable consideration I have justified this behaviour as uncalled for and generated from unconfirmed sources ………”

The email concluded with good wishes for the future.

The Employers Solicitor went off record on 23 November 2023.

The case was resumed for February 19, 2024. On this occasion, the Worker attended with a Support person and despite my delaying the hearing for 30 minutes, the Employer did not make an appearance or provide any reason for her absence.

I explained the 5-day waiting period normally associated to a nonappearance by either Party at hearing.

After the hearing had concluded, I received an email from the Employer to the Administrative area of PRU, which referred to the invitation to the resumed hearing.

“I apologise   for, but I did not receive this till now. It went straight to my spam and came up as a reminder a few hours ago. I am unable to make this appointment due to illness. I will be out of work for the forthcoming months ………….”

This email was not linked to a medical certificate to support the message.

I found this correspondence to be unhelpful and as the employer had always received WRC correspondence without issue in the past, I felt it extremely unlikely that spam filter had obstructed her attendance. I interpreted this message as a statement of avoidance. The Employer was fully aware that a medical certificate was necessary in securing a postponement as she had complied with that WRC rule in September 2023.

I have decided that as valuable time has been lost in this case and the worker has reported that her employment has been terminated by the Employer on November 10, 2023, I think it wise that I conclude my role in this case through a timely Recommendation directed at both parties simultaneously. The employment appears over from my lens.

It is open to the parties to then either accept my Recommendation or appeal to the Labour Court.

The Worker has been employed as a Shop Employee at the Employer Laundrette and Dry Cleaners since January 2009. She recorded that she was a full-time employee in receipt of an agreed €533.00 per week gross. Some part time attendance occurred also.

The claim before the WRC originated from a period of fragmented payments of wages and annual leave to the worker which had caused her some unease. She believed that she had been singled out by her employer.

 As she had pursued a commitment to receive payment of wages and accommodate annual leave on time, she found that the Employer turned against her, and the employment relationship broke down completely.  The Worker did not have a disciplinary sanction applied but she did fear for her emotional and physical safety at the shop.

The Worker submitted that she had been faced with unfounded allegations surrounding the use of a company phone which she had denied.

She also had concerns regarding her health and safety at the shop.

The claim came to the WRC following a “protest period “where the worker had stayed out of work to draw attention to her intolerance for late payments of wages. She had tried to have this time recognised as annual leave but was unsuccessful.  This period had been prefaced by personal illness and bereavement for the Worker.

The Worker approached the WRC to secure stability in the employment relationship surrounding some keys areas.

1 contract of employment

2 staff handbooks

3 annual leave

4 payments of salary as agreed.

5 personal safeties

6 clarifications on the allegation of interfering with the company phone

The Employer agreed to provide the contract and handbook but had not done so prior to the February 2024 resumed hearing. She also agreed to clarify the allegations around the company phone recorded in her letter dated 19 January 2023. This had not occurred.

On the day of the resumed hearing, the worker attended with her chosen support. She acknowledged that she had found the first day of hearing very challenging and needed time to prepare for a resumed hearing.

 By September 2023, she said she was ready to move forward in exploring a mutually agreeable resolution and was disappointed that the hearing was postponed.

She argued that she had not received any of the documents which the employer had agreed to provide at the first day of hearing.

The Worker said that she had approached the Employer with her back to work certificate in mid-October 2023 and the sole response she received was notification of her dismissal dated 10 November 2023.

The Worker did not exhibit this cert but confirmed that she had sent it to the Employer. She had not appealed this verdict.

The Worker confirmed that she has since found new work with the support of positive testaments from former employers. She said she is relieved to receive her wages in full and on time.

She contended that she carried a live trauma from her exposure to the injustices of her former employer. She worried about the Employers discussions about her with others as she resided in the vicinity of the business. She said the unjustified allegations had “floored her “and arose as a collateral attack on her seeking to stabilise her employment relationship.

The Worker confirmed that the Employer is still trading.

I asked the worker what resolution she was now seeking in this dispute?

She stated that.

1 She was owed 70 hrs annual leave at €13.00 per hour plus annual leave during sick leave, x 8 months.

2 She was owed €856.74 gross pay.

3 She sought a declaration from her former employer that there were no live allegations against her in regard to the company phone.

The Worker summarised that the employment had a detrimental impact on her. She found it difficult to articulate that impact, which she attributed to an enduring trauma.

The Employer operates a Launderette and Dry-Cleaning business. She has accepted the employment dates relied on by the Worker in the case.

She has, however, disputed the claims made by the Worker as being misconceived and misunderstood. She asked for some understanding from the WRC that she was operating a business in a challenging financial period.

The Employer confirmed that she had engaged with the WRC Inspectorate on the workers employment.

The Employer presented a letter dated 19 January 2023 which she issued to the worker while she herself was covering her absence.  The contents were in response to what’s apps from the Worker.

1 wage were delayed as she was tied to the business covering the workers unauthorised absence.

2 staff handbook was signed by the worker 28 September 2022

3 Holiday hours were currently being reviewed by auditors.

4 holidays had been calculated on a full-time basis for the worker, yet she was part time. Report to follow to WRC and Employer Advisors.

5 Refusal to pay wages for unauthorised absence in January 2023.

6 Holidays managed on an App which worker controlled herself.

7 Employees who were employed by the Employer “took part in sexually natured calls and acted as “call girls “on a phone registered to my name and my business “Statement made to Gardai.

The letter concluded:

“It was you mentioned to bring in the services of the WRC and this has been done and they will be strict with the following of procedure and handbooks along with all other matters which is what you have requested, and they will be dealing with all matters going forward “

The present claim was submitted by the Worker to the WRC on 24 January 2023, some five days later.

During the first day of hearing, through her representative, the employer seemed quite focussed on clarifying her position as an employer.

She contended that the workers petition for unpaid wages and annual leave were misconceived. She confirmed that there were circumstances where wages were late, but they were always paid.

She took issue with the workers pursuance of annual leave at the levels claimed and explained that her enforced absence from the business had been disruptive. She stated that she had a genuine understanding that the worker was going “on disability “from February 2023.

The Employer confirmed that she also wished to see an improvement in the working relationship.

She was clear that her business phone had been intercepted with input of a sexual nature, but she had not attributed this solely to the worker and was prepared to offer clarifications in preparation for a resumed hearing two weeks later.

She agreed to issue a contract of employment, staff handbook, record of annual leave taken and a clarification around the business phone interruptions.

Unfortunately, these did not follow.

The Employer secured a postponement from the September 2023 hearing and was absent from the resumed hearing in February 2024.

I would have liked to have met the Employer again, if only to validate the email purported to terminate the very employment, that I was requested by both parties to try and recommend a mutual path forward.  

I accept that Industrial Relations in Ireland runs on a voluntary footing. However, the Employer could have forwarded notice of her withdrawal from the process first agreed on July 10, 2023.Instead, she abandoned the hearing .

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

My role in this case is set out in Section 13 of the Industrial Relations Act 1969

Rights commissioners/ Adjudicators.

13.— (1) 

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

As the parties can see, the only outcome open to me is in the absence of a settled dispute, permits me to make a recommendation on the merit of the dispute.

I have no role in   making an order for annual leave, unfair dismissal or unpaid wages under the Industrial Relations Act 1969. I have explained this to the Worker on the second hearing day.

I have moved forward in finalising this decision  and sharing it with the parties as it is clear to me that the Employer has abandoned the Industrial Relations process . I have no need to await the passing of 5 days before I conclude my feedback in the case .

This is an unusual dispute. In listening to the parties during the first day of hearing, I did have concerns regarding the viability of the employment relationship, so deep was the conflict between the parties. That was the reason, I asked the parties how they saw this matter being resolved? I was happy to work with them both on trying, at the very least to restore some viability to this employment relationship.

I identified an employment without a visible contract, staff handbook, proper payment regimes or a readily identifiable dossier of how the employment operated.

This was a frail employment with a broadening chasm between a long serving employee and an employer clearly trying to keep the show on the road, albeit without the tools I normally look for and see to navigate that journey.

By the time , the case came before the WRC in late January 2023, the worker had decided to radicalise her approach to seeking continuity of pay on time and access to annual leave by stepping away from the workplace .Her strategic approach sought to have that absence covered by annual leave to which the employer did not agree . In this I found some courage in making a stand, but equally an underestimation of her employer’s avoidance in dealing with the employment.

However, it was the 19 January 2023 letter exchanged by the Employer to the Complainant that changed everything. The Worker saw this as a collateral attack on her radical approach. The Employer did not isolate the fault to the worker but does not seem to have done anything to stop this interference by changing a number / phone.

I find that when the Employer agreed to submit a clarification on these allegations on the company phone and did not honour this at WRC, that she acted in bad faith which was wholly indicative of a failing employment relationship. An early clarification here or an investigation would have gone a long way to resolving this matter, which has clearly pained the worker.

The claim before the WRC, initially described as a disciplinary sanction is really that the employment relationship had collapsed between the parties and sadly that crystallised by the email purported to have originated from the Employer terminating the employment. I have no means of validating this.

The Worker reflected that she felt intimidated by her Employer to the point where she just couldn’t go along with the poor employment practices.

I would have preferred to have seen the worker supported much earlier by an approved representative / counsel.

The situation was ripe for an able intermediary.

However, two points are of immediate concern to me. The email which reflected a termination of employment is timed at 1.29 am and it reads at first glance as a penalisation   against the worker in her seeking to advance her case before the WRC.

I had reminded the parties on leaving the first hearing, that confidentiality was preserved until we met again. The term protest week was identified by me as Adjudicator.

By the time of this email, if accurate , the worker had been on sick leave for over 8 months, a dismissal during sick leave on foot of a notification of her intention to return to work, while still  under the auspices of the WRC is a very grave matter and not the actions of a fair or reasonable employer.

I am troubled that the Worker believed that she was under Garda scrutiny until she herself attend the Garda Station and learned that she was not a person of interest for the Gardai regarding the company phone.

The Employers absence from hearing without a medical certificate shows a disregard for a long-term employee and the States Institutions. This situation requires a firm and purposeful Recommendation.

I have found merit in this dispute.

A broken employment relationship