Complainant

Respondent

Parties

Seamus  Brett

Peter Mooney & Co Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Mr. Maurice Osbourne BL, instructed by Burns Nowlan Solicitors

Mr. Vincent Nolan BL, instructed by Patrick J Farrell & Company Solicitors

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-00055818-001

29/03/2023

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

CA-00055818-002

29/03/2023

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

CA-00055818-003

29/03/2023

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

CA-00055818-004

29/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00055818-005

29/03/2023

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

CA-00055818-006

29/03/2023

The Complainant commenced employment with the Respondent on 1st January 1987. The Complainant was a permanent, full-time employee in receipt of an average weekly payment of €720.00. The Complainant’s employment terminated on 30th September 2022.

On 29th March 2023, the Complainant referred the present set of complaints to the Commission. Herein, he alleged that he had been unfairly dismissed without due process or cause, that he was discriminated against on the grounds of his age and that he did not receive a statement of terms of employment. In disputing the Complainant’s primary allegations, the Respondent submitted that the Complainant’s employment was terminated following an extended period of absence on the part of the Complainant.

A hearing in relation to this matter was convened for, and finalised on, 6th November 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested during the hearing itself. The Complainant gave evidence in support of his allegations, while a managing director for the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

One issue as to my jurisdiction to hear the a particular complaint was raised by the Adjudicator in the course of the proceedings. This will be discussed individually below.

The Complainant is a long-standing employee of the Respondent organisation, having commenced employment in 1987. At all relevant times the Complainant was engaged as a “stores administrator” and received an average weekly payment of €720.00. In March 2020, the Complainant commenced a period of lay-off as a result of the restrictions arising from the Covid-19 pandemic. During this period, the Complainant continued to complete some of his role remotely.

In April 2020, the Complainant’s rate of pay was unilaterally reduced to €100 per week. When the Complainant raised this issue with the Managing Director of the Respondent, his concerns were dismissed and he was simply informed to “get on with it”. In June of 2020, the Respondent requested that the Complainant return to the physical place of work. At this point, the Complainant had concerns regarding his personal well-being and enquired as to whether a risk assessment had been carried out by the Respondent. Again, the Managing Director of the Respondent dismissed the Complainant’s concerns in this regard and requested that he discontinue working remotely. The Complainant was duly removed from the Respondent’s payroll in July 2020 and remained on continuing lay-off thereafter.

In October 2020, the Complainant made enquiries with the Respondent as to the status of his employment. At this point, the Managing Director of the Respondent informed the Complainant that as far as he was aware, the Complainant was “cocooning”, and would return to employment as soon as it was safe to do so. During this meeting the Complainant observed several members of staff interacting without appropriate personal protection equipment. The Complainant also noted that a risk assessment had not been carried out by the Respondent at this point.

In March 2021, the Respondent again requested that the Complainant attend the workplace to discuss his employment situation. While the Complainant was anxious to have such a meeting, at that time a 5KM travel restriction was in place, and the Complainant could not attend the meeting without breaching the same. In such circumstances the Complainant requested that the meeting be adjourned to a later date.

In September 2021, the Complainant observed an advertisement for his role placed in the local paper. Following the same, he instructed a form of solicitors to act on his behalf. In correspondence issued thereafter, the Complainant’s solicitor advised that he was willing to work from home. Notwithstanding their overtures on his behalf, the Respondent elected to unlawfully terminate the Complainant’s employment on 30th September 2022.

By submission, the Complainant stated that in circumstances whereby the fact of dismissal is not in dispute, it falls to the Respondent to demonstrate that the same was fair for the purposes of the present Act. Notwithstanding the same, the Complainant submitted that the Respondent summarily dismissed the Complainant by way of correspondence while negotiations were ongoing regarding his return to employment. In such circumstances, the Complainant sought to be re-instated to his role and sought damages for the loss of earnings suffered in the interim. In addition to the foregoing, the Complainant sought recovery of the wages unlawfully deducted during the initial lock-down period.

Regarding the complaint under the Employment Equality Act, the Complainant stated that the reduction in wages imposed during the initial period of lock-down, and continuing to the date of termination of employment, occurred as a consequence of his age. In support of this allegation, the Complainant referred to a comparator that, in their view, did not suffer such a deduction. In such circumstances, the Complainant submitted that the same constituted “discrimination” for the purposes of the impleaded Act.

At the outset, the Respondent denied the Complainant’s allegations on a procedural and substantive basis.

While the Respondent agreed that the Complainant had been engaged by the organisation since 1987, they submitted that a break in service rendered the Complainant’s correct commencement date as 19th April 2004. They further submitted that the Complainant was a long-standing, exemplary employee who continued to be held in high esteem by the Respondent.

The Managing Director of the Respondent agreed that the Complainant commenced a period of lay-off prior to the commencement of the restriction arising from the Covid-10 pandemic. Prior to commencing this lay-off, the Complainant cleared out his work cabinet and stated that he “might not be back”. While the Complainant was contacted by phone on a few occasions whilst at home, it was denied that he was working from home during this period. Following the imposition of the full lockdown restrictions in late March 2020, the Respondent business ceased operations and all staff were placed on the relevant state support scheme. While the Complainant had been receiving full wages until this point, following the temporary closure of the Respondent’s business he was paid a sum of €100 per week, in recognition of his long service. While other members of staff availed of the TWSS scheme, unfortunately the initial cut-off for such applicants was 65 years of age, rendering the Complainant outside the terms of the same. When the rules in respect of the same changed in May 2020, the Complainant was then entered onto this scheme.

In June 2020, the Complainant visited the Respondent’s premises. At this point, the office manager for the Respondent informed the Complainant that the business had returned to full capacity and that, as a consequence of the same, the TWSS payment would cease shortly thereafter. During a conversation with the managing director, the Complainant advised that he felt that he could not return to work at this juncture. In this regard, the managing director informed the Complainant that his job would remain open for the following months and that he was welcome to return at any time. In evidence, the managing director denied that he ever asked the Complainant to “get on with it” or any words to that effect.

Thereafter, no communication was received from the Complainant until March 2021. At this time, the Complainant issued a registered letter enquiring as to whether he still had a role or whether he had been made redundant. By response, the Respondent advised that he had not been dismissed or made redundant, and that his role remained open for him. In this regard, the Respondent suggested a meeting to discuss the matter in person. By response, the Complainant advised that he was interested in returning to his role, however the travel restrictions in place at the relevant time meant that he could not travel for a meeting for this purpose. 

By further correspondence dated 26th April 2021, the Respondent again asked the Complainant to confirm his intentions regarding his return to work. This correspondence stated that the Complainant could correspond by email should he prefer and assured the Complainant that all relevant health and safety guidelines were being adhered to. No contemporaneous response was received to this correspondence.

Some four months later, in August 2021, the Complainant’s solicitors issued correspondence alleging that the Complainant was not permitted to return to work. As this was clearly not the case, the Respondent replied on 3rd September stating that the Complainant’s role remained open and that he was await a meeting with the Complainant to discuss the same. Again, no contemporaneous response was received to this correspondence.

In May 2022, almost eight months later, the Respondent received correspondence from the Complainant’s solicitor. This correspondence enquired as to the date on which the Complainant could return to his duties. By response, the Respondent restated that the Complainant’s role remained open for him and that he was, at all times, welcome to return to the same. The correspondence further set out the dates on which the Respondent sought a meeting to confirm the Complainant’s return to work. In this regard, the Respondent requested that the Complainant contact the managing director within four weeks so as to facilitate his return. Again, no response was received to this correspondence.

In August 2022, the Respondent formed the view that the Complainant had been given numerous opportunities to return to work and had simply failed to do so. While he did indicate that he was willing to return, each time a meeting respect of the same was suggested, the Complainant would not engage with the same. In these circumstances, the managing director issued correspondence on 24th August 2022 stating that they assumed that the Complainant had no intention of returning to work. In such circumstances, the Respondent stated that if the Complainant did not reply by 30th September 2022, a period of five weeks, then they would proceed to terminate the contract of employment. This correspondence again re-iterated that the Complainant was welcome to return to work should he express his intention to do so. Unfortunately, no response was received to this correspondence, with the next communication from the Respondence being the notification of the present complaint. In such circumstances, the Respondent reluctantly terminated the Complainant’s contract of employment on 30th September 2022.

Having regard to the foregoing, the Respondent submitted that the presumption of the Complainant’s resignation was a reasonable and warranted development in the circumstances. They stated that they gave the Complainant every chance to return to work and attempted to organise numerous meetings in this respect. In this regard, they submitted that the dismissal of the Complainant should be deemed to be not unfair for the purposes of the present act.

Regarding the complaint under the Employment Equality Acts, the Respondent submitted that the Complainant had failed to establish a prima facie case that might raise a presumption of discrimination. In this regard, they submitted that the Complainant received a payment of €100 per week whilst absent from work as a goodwill gesture and in recognition of his long service. They stated that the same had nothing to do with his age or any other discriminatory factor.

Finally, the Respondent conceded that the Complainant did not receive a contract of employment during the currency of his employment.

CA-00055818-001 Complaint under the Unfair Dismissals Acts

In the present case, the Respondent has submitted that the Complainant refused to return to his employment following a period of almost two and a half years of absence. In such circumstances they submitted that the Complainant effectively abandoned his employment, and in such circumstances, his dismissal should be deemed to be fair for the purposes of the present Act. In contesting this position, the Complainant has submitted that the Respondent failed to facilitate his return, and that he had valid health and safety concerns that were not addressed. They further submitted that the Respondent terminated the Complainant’s employment without recourse to any form of procedure and, as such, the dismissal should be deemed to be unfair.

In this regard, Section 1 of the Unfair Dismissals Act (as amended), defines “dismissal” in the following terms,

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

Regarding the instant case, it is apparent that the Complainant commenced a period of lay-off as a consequence of the restrictions arising from the covid-19 pandemic. In June 2020, the Complainant attended his place of work and met with the office manager and the managing director of the Respondent to discuss his potential return to work. While a conflict of evidence exists as to what was said during this meeting, it is common case the Complainant advised that he would not be in a position to return at this juncture. At this point, the evidence of both witnesses for the Respondent was that they had returned to operation at full capacity and were in a position to offer work to the Complainant.

In this regard, Section 11 of the Redundancy Payments Act states that lay-off occurs whereby,

“…an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do…”

Having regard to the foregoing, it is apparent that following the meeting in June 2020, the Complainant was no longer placed on lay-off, as defined in the statute, but was absent due to his own concerns regarding the spread of the Covid-19 pandemic.

Thereafter, it is apparent that the Respondent sought to meet with the Complainant on four different occasions to determine whether he intended to return to work and on what basis he intended to do so. On each of these occasions, the Complainant either cancelled the proposed meeting, or failed to respond entirely. While the Complainant raised some issues regarding statements attributed to the managing director, and the Respondent’s failure to adhere to the relevant health and safety guidelines, these matters could have been discussed with the Respondent during any of the proposed meetings regarding his return to work. In the event that the Complainant remained dissatisfied with the response following any of these meeting, it was within his gift to raise the specific issue in writing and allow the Respondent an opportunity to resolve the same.

In August 2022, the Respondent formed the view that the Complainant must either commit to commencing the process regarding his return to work, or that his employment would be deemed to be terminated. This correspondence allowed for a lengthy period in which the Complainant simply had to respond to either confirm his return or to indicate his intention to meet with the Respondent to discuss the same. In circumstances whereby no response was received at all during this period, the Respondent deemed his employment to be terminated.

Having regard to the sequence of events outlined above, the Respondent submitted that the Complainant had effectively abandoned his employment and processed his termination as a resignation on his part.

In the matter of Millett -v- Sherkin [2004] 15 E.L.R. 319, the Labour Court held that,

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation.”

Having regard to the instant case, it is apparent that the Complainant did not express any intention to terminate his employment. Indeed, it is apparent that the opposite is the case, in that the Complainant positively stated his intention to return to employment on a number of occasions. In this respect, the Respondent submitted that the Complainant, by virtue of his failure to respond to their correspondence, abandoned his employment and no longer intended to be held by the terms of the same.

In this regard, In Redmond on Dismissal Law, Ryan, 3rd Ed, 2017 at para 22.25, relying on the UK case of Kwik-Fit (GB) Ltd v Linehan [1992] IRLR 156, it was stated that in relation to the apparent abandonment of employment,

“The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.”

In the matter of Tina Casey v Dunnes Stores [2003] 14 E.L.R. 313, the Employment Appeals Tribunal held as follows,

“For a dismissal to occur an employment contract must be deliberately, purposefully and knowingly terminated by either the employer or the employee or alternatively, the contract of employment must expire of itself or for some reason, whether or not that reason is fair, proper, reasonable and/or just. Termination is understood to mean ‘coming to an end’ and this import should be communicated to either party, directly or indirectly, or must be understood by virtue of the nature and extent of the circumstances of the case, or reasonably inferred therefrom.”

Again, it is apparent from the factual matrix presented by the parties that the Complainant did not evidence any intention of terminating his employment. While it is apparent that the Complainant did fail to respond to the Respondent’s communications, this cannot be said to automatically result in the abandonment of his employment, particularly in circumstances whereby he had previously positively expressed his intention to return some time previous.

From the submission presented by the Respondent, it is apparent that they formed the view that they could not continue to employ the Complainant in circumstances whereby he would not take active steps to facilitate his return to work. In this regard, they issued the Complainant with an ultimatum of responding by a certain date, failing which his employment would be deemed to be terminated. In this regard it is noted that, “Employment law” Meehan, 2014 at 20.68 states that,

“It should be noted that there is no provision for “self-dismissal”. In other words, an employer cannot state to an employee that if that employee does not do something or does not come in to work, it is deemed to be a “self-dismissal”. There is no such thing; either the employer or the employee must actually terminate the contract of employment.”

In this regard, it is noted that this passage has been quoted with approval, and the prohibition against “self-dismissal” has been upheld in this forum, most recently in the matter of A School Cleaner -v- A Contract Cleaning Company ADJ-00019068. Here, the Adjudicator held that,

“…there is no such thing as ‘self-dismissal’; there is dismissal or there is resignation/constructive dismissal. I have found that the complainant did not resign. The question is, therefore, whether the respondent can show that there were substantial grounds to justify the complainant’s dismissal.”

Regarding the present case, it is apparent that the Respondent formed the opinion that the Complainant either could not, or would not, return to employment. In such circumstances the dismissal of the Complainant occurs as a matter of conduct or capability, both of which involve a process the Respondent did not undertake. While the Respondent may well believe that such a process was futile, given that the Complainant did not reply to their most recent correspondence, this position effectively serves to prejudice the outcome of the same and is, ultimately, speculative.

By submission issued following the hearing, the Respondent submitted that the Complainant had not actually worked for the Respondent for a period of three years prior to his termination, and as such, he did not have the service required for the Act.

In this regard, the Respondent referred to the First Schedule of the Minimum Notice and Terms of Employment Act. Specifically, they referred to Section 1 of the Schedule, which provides that,

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.”

Having considered the foregoing, I cannot agree with the Respondent in this respect. Subsection B, quoted above, refers to the termination of employment by “voluntarily leaving”. This provision clearly relates to resignation on the part of an employee, and is subject to the authorities referenced above, rather than an absence from work.

Having regard to the foregoing, I find that the Complainant was unfairly dismissed. Notwithstanding the foregoing, I note that Section 2(F) of the Acts empowers me to consider the “extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.” In the present, the dismissal of the Complainant occurred as a consequence of his failure to respond to clear and unambiguous correspondence issued by the Respondent. It is further noted that this correspondence was issued following a lengthy period of uncertified absence on the part of the Complainant. As noted above, it was entirely within the Complainant’s gift to simply respond to the correspondence and commence the process regarding his return to work. While I have found that the dismissal of the Complainant was unfair for the purposes of the impleaded Act, I further find that the Complainant substantially contributed by the same by his failure to engage with the Respondent.

CA-00055818-002 Complaint under the Payment of Wages Act

Regarding this complaint, the Complainant alleged that he did not receive notice of the termination of his employment. Regarding the sequence of events presented it is apparent that the Respondent gave the Complainant approximately five weeks of notice of the prospective termination of his employment. In circumstances whereby the Complainant was entitled to six weeks’ notice of the termination of his employment, I find that the Complainant is well-founded.

CA-00055818-003 Complaint under the Terms of Employment (Information) Act

In circumstances whereby the Complainant did not receive a statement of terms of employment at any point of his engagement with the Respondent, I find that this complaint is well-founded.

CA-00055818-004 Complaint under the Terms of Employment (Information) Act

This complaint is a duplicate of matter listed above. In such circumstances I find that the complaint is not well-founded.

CA-00055818-005 Complaint under the Employment Equality Act

Regarding this particular complaint, the Complainant has alleged that he was discriminated against on the grounds of his age. In this regard, the Complainant submitted that his wages were unilaterally and significantly reduced to the sum of €100 per week in April 2020, with the deductions continuing until his dismissal in September 2022. In this regard, he submitted that this deduction in wages occurred on the grounds of his age. He further submitted that his role was advertised and then awarded to a much younger employee thereafter.

In this regard, Section 6 of the Employment Equality Act prohibits discrimination any discriminatory ground.

Subsection (1)(a) of that Section provides that,

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(h) provides that race, colour, nationality or ethnic or national origins are included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps:

1.       “It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

2.       If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.   If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In the matter of Cork City Council v McCarthy EDA 0821 the Labour Court held as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Regarding the present case, the Complainant has submitted that his wages were reduced from €720 to €100 per week. The Complainant stated that reduction occurred as a consequence of his age and submitted that other, younger employees were not subject to the same deduction.

In denying this allegation, the Respondent submitted that the reduction in the Complainant’s wages had nothing to do with the Complainant’s age or any other discriminatory ground. They stated that for the entire cognisable period for the purposes of the present Act, and for a good deal of time prior to the same, the Complainant was absent from work. While the Complainant’s absence initially arose as a consequence of lay-off, they submitted that this period had long expired and that the Complainant was simply absent from work for an extended period of time. During the Complainant’s absence, the Respondent paid him the sum of €100 per week in recognition of his long service, however they stated that he had no entitlement to wages at all, given that he was not working during this period. Regarding the assignment of the Complainant’s role to another member of staff, they stated that the Complainant’s duties had to be taken up by someone within the organisation. In this respect they submitted that the age of the person was immaterial and did not, in any way, influence their decision.

Having regard to the foregoing, I find that the Complainant has not established the primary facts from which a presumption of discrimination may be inferred. During the cognisable period of the purposes of the present Act, it is common case that the Complainant was absent from work, and had been for some time.

In the matter of Fuller -v- Minister for Agriculture [2008] IEHC 95, Gillian J. referred to the following passage,

“There was no contract to pay it unless it was earned. If she had not worked at all during the week, though the contract for service remained, she would not have been entitled to any payment; and could it be said that when, being entitled to nothing, she was paid nothing, the non-payment was an offence under the Act?...The non-payment took nothing from her to which, in any view, she had become entitled, or to which, when the week ended, she could have ever become entitled. It was simply withholding payment of what she had not earned, and never could earn.”

Having regard to the foregoing, it is apparent that the Complainant was not entitled to the payment of his wages in circumstances whereby he had not attended work. While the Complainant did receive a payment of €100 per week during this period, I accept the Respondent’s evidence that this was a discretionary payment made to the Complainant in recognition of his lengthy service. Having regard to the totality of the evidence presented, I find that no facts have been established that might give rise to any presumption that this reduction in wages occurred due to any other factors outside of the Complainant’s non-attendance or on the basis of the Complainant’s age.

Regarding the allegation that the Complainant’s duties were assigned to a younger member of staff, in circumstances whereby the Complainant was absent for an extended period of time, it is inevitable that his duties would be transferred. Having regard to the totality of the evidence presented, I again find that no facts have been established that might give rise to any presumption that this transfer occurred on the basis of the Complainant’s age.

CA-00055818-006 Complaint under the Payment of Wages Act

Regarding this complaint, the Complainant had alleged that the reduction in the Complainant’s wages to €100 constituted an illegal deduction for the purposes of the impleaded Act. In this regard, the Complainant sought compensation for the lengthy reduction in his wages on foot of the same.

Having regard to the foregoing, it is apparent that the Complainant is seeking to recover alleged deductions from his wages for a period of almost three years prior to the referral of his complaint.

Section 6(6) of the Workplace Relations Act 2015 provides that,

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 6(8) provides that,

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In the matter of Health Service Executive -v- McDermott 2014 [IEHC} 331, Hogan J. held that,

“For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

Following from the example cited by Hogan J. cited above, a complaint that is framed in such a manner whereby the commencement of the specific complaint (as opposed to the breach) falls outside the relevant period, will render the entire matter to be out of time. In circumstances whereby the complaint is framed as commencing in April 2020, and the complaint was referred in March 2023, I find that the same is out of time for these purposes.

CA-00055818-001 Complaint under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. In circumstances whereby relations between the parties have apparently broken down, I find that compensation is the most appropriate form of remedy.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard, the Complainant stated that he had not worked since his dismissal and had accrued substantial losses as a consequence of the same. Notwithstanding the same, the Complainant failed to provide substantive evidence of his efforts to secure employment following his dismissal. Having regard to the foregoing, and the Complainant’s contribution to his dismissal, I award the sum of €5,000 in respect of his losses to date.

CA-00055818-002 Complaint under the Payment of Wages Act

I find that the Complainant is well-founded.

Regarding redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed. In this regard, I award the Complainant the sum of €720.  This payment should be subject to all normal deductions as income.

CA-00055818-003 Complaint under the Terms of Employment (Information) Act

I find that the complaint is well-founded.

I find that the complaint is well-founded, and consequently the Complainant’s application succeeds.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks’ remuneration in respect of breach of the Act. Having regard to the totality of the evidence presented, I award the Complainant the sum of €2,880, or four week’s remuneration, in compensation.

CA-00055818-004 Complaint under the Terms of Employment (Information) Act

I find that the complain is not well-founded.

CA-00055818-005 Complaint under the Employment Equality Act

I find that the Respondent did not discriminate against the Complainant and the complaint is not well-founded.

CA-00055818-006 Complaint under the Payment of Wages Act

I find that the complaint is not well-founded.

Dismissal, Termination, Age Related Discrimination, Wages, McDermott