Complainant

Respondent

Parties

Judy  Fisher

Asif Mohammed T/A English Talks (Amended to English Talks)

Representatives

  Appeared In Person

 Asif Muhammed (second day of hearing only.)

Act

Complaints Reference No.

Date of Receipt

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

CA-00061501-001

12/02/2024

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

CA-00061501-002

12/02/2024

On 12 February 2024, the Complainant, a Director of Studies in a Language School submitted two complaints in relation to her terms and conditions of employment against her Employer, at that time, listed on the complaint form as Asif Muhammed t/a English Talks.

On March 27, 2024, the Complainant endorsed the Respondent identity as Asif Muhammed.

These complaints originated during the period of active employment and were augmented by the complaints in the conjoined case of ADJ  50612.

Both cases were conjoined and heard over both days on 22 April and 29 July 2024.

On the first day of hearing, the Respondent did not make an appearance or send a representative to the hearing.

I had explained to the Complainant that as a rule, that where the other Party did not make an appearance, the Adjudicator had scope to examine the circumstances relied by the Respondent to explain or excuse their nonappearance within 5 days of hearing and seek submissions in light of any petition to re-open the hearing.

That is what occurred in this case.

Shortly after the first day of hearing, I had followed the Complainant up seeking records of whatever social welfare records she had of monies received between August 12, 2023, and March 13, 2024, in relation to the conjoined claims in ADJ 50612.

Shortly after this, I began to receive an abundance of contact from the Respondent who submitted that he had not been on proper notice of the hearing of 22 April 2024 due to correspondence issuing to the wrong business address. He sought a resumed hearing day.

I canvassed the Complainants views on this and decided that the best course of action was to relist the hearing in light of the wrong address associated with the earlier notification.

On 29 May 2024, I wrote to both parties and confirmed my decision, offering them a

 “last “opportunity to participation in a hearing in both conjoined cases. I issued a clear direction to both parties to prepare for hearing and shared with them my plan for resumption stressing that clarity from the Companies Registration Office was needed on identification of the correct legal entity for the Respondent in the case.

The Respondent sought to postpone the resumed hearing and was refused. The Respondent submission was received prehearing.

On the first day of hearing, April 22, 2024, the Complainant presented as a Litigant in Person supported by her Partner.

On the second day of hearing, July 29, 2024, the Complainant was accompanied by three witnesses and her Partner.

On both hearing days, the Complainant affirmed her evidence as did her three witnesses.

Mr. Muhammad and his witness took the religious based oath to accompany their evidence.

As the Parties were unwilling to consent to a change in the Legal Entity at hearing, I directed the Respondent to submit the Revenue Payroll Notification he used for the Complainant on or before August 16 ,2024.

On a second attempt, I received a modified report, without the Respondent legal title on 19 August 2024.This was accompanied by the Local record of pay roll.

I later received a copy of a Revenue generated document on PAYE addressed to Ms. Fisher dated August 28, 2024.

There are two relevant procedural issues for me in this case, which warrant recording at this time.

1 Non-Appearance by the Respondent on 22 April 2024. Day 1, Hearing

2 The Correct Legal Entity of the Respondent which presented a considerable challenge during the second hearing day.

I required the Parties to give evidence on this as a Preliminary Issue and I sought further submissions from both.

The last correspondence received from the Respondent on this matter was on 19 August 2024 and 29 August 2024 from the Complainant.

The Complainant worked as a Director of Studies at the English Language School operated by the Respondent from 31 August 2019 to when she resigned her position in February 2024 and where she submitted that her employment ended on 8 March 2024.

She recorded being paid monthly at €3, 333.33 on her complaint form, which she clarified as a daily rate supported by completed time sheets. There was an 8% allowance for annual leave.

The Complainant submitted both of these complaints

whilst still in live employment on 12 February 2024.

CA-00061501-001 Terms and Conditions of Employment

On 12 February 2024, the Complainant submitted that her employer had not provided training free of charge in relation to DELTA training.

This DELTA was a new requirement for her position as a QQI requirement.

The Complainant submitted:

“The Law states “where an employer must provide training by law or a collective agreement for an employee to perform their role, such training must now be provided at no cost to the employee and take place during working hours “

While the complainant had requested support and payment to complete the DELTA, which was deemed compulsory training by the Respondent, she had not received a response to her grievance.

The Complainant gave evidence that on her return from sick leave on January 29, 2024, she was met with a demand for her to undertake the DELTA course, which previously had not been mandatory in her role and with an estimated cost of €3,000.

The Complainant confirmed that she was open to undertaking the course but not paying for it

She was placed under pressure to identify a start date within one month and she submitted that the Respondent had refused to pay for the course contrary to both EU Law

 European Union (Transparent and Predictable Working Conditions) Regulations 2022, S.I. No. 686 of 2022,

 And the contract of employment

Contract stated:

The Company will provide necessary training if required e.g. health and safety and fire etc.

However, the employee will be liable to pay the full course monies back should they resign from their position within 6 weeks from the date of the course/ training they received. The Company can waiver this condition by discretion.

The Complainant raised a grievance on this topic on 5 February 2024 and did not receive a response. She forwarded this complaint to the WRC on 12 February in the aftermath of her resignation from the school.

CA-00061501-002 Notification in writing of change in my terms of employment

On 12 February 2024, the Complainant submitted that she had not been notified in writing of a change in her terms of employment.

The Complainant submitted that her name had been submitted to QQI (Accreditation body) as the Academic Director against her will or consent.

She placed the timing of these discussions as having occurred on her first day back to work, having suffered a stroke.

By means of written submission submitted prior to the first day of hearing, the Complainant outlined that she was employed as Director of Studies, who managed and supported 8 -13 teachers at the Language School. She also carried a Human Resource and Operational role as well as occasional hands-on teaching.

The Complainant described having been diagnosed with a stroke.

She described that her role had expanded on the distribution of permanent contracts in May 2022, where both she and the teachers had opposed this expansion to writing education books. Many teachers left and this placed additional pressure on her and the complainant was overwhelmed when requested to produce workbooks to supplement course books.

These tasks were completed but the title of Academic Director was a new job and had previously been associated with another colleague.

The Complainant submitted that she had not been provided with a job description for this revised role or any specific contract of employment.

The Complainant contended that her reservations and objections to having to double job were met with “I would have to get on board with it “

The Complainant submitted that the law had been breached in this regard.

CA-00061501-001    non-provision   of training

The Respondent has denied the claim. Mr Asif confirmed that Director of studies and Academic Manager are one in the same in the world of regulated English Language Education.

Mr Asif submitted that the Complainant had refused to undertake Diploma in English Language to Speakers of other Languages, therefore the issue of refusal to pay for the course of accommodate training does not arise.

He countered that the Respondent was willing to pay for the DELTA.

CA-00061501-002 Notification in writing of change in my terms of employment

The Respondent has denied imposing a change on the Complainants statement of employment. Mr Asif relied on the clause.

He submitted that he was not required to notify the complainant of a change, when no change had occurred.

“You may be expected to carry out any additional duties that may be assigned to you by the company from time to time. The Employer reserves the right at any time during your employment to require you to undertake duties falling within your capabilities “

It is important for me to reflect that the submission of these claims coincided with the same date that the complainant submitted her resignation from her position. She acknowledged on April 22 hearing date that the circumstances of constructive dismissal were foremost in her mind.

I have addressed my need for clarity on who exactly was the complainant’s employer and I will now incorporate these findings which have led to my amending the Respondents legal title in this case.

I have already addressed the need to relist this case for hearing in the aftermath of the respondents’ nonappearance on the first day of hearing, April 22, 2024.

I must now deal with the issue of who exactly is or was the Employer in this case? During my investigation of this topic, I was alarmed at the myriads of company names freely circulated, in both parties’ submissions, when really one was all that was necessary. I am not immune to the commercial realities of the marketplace and the omnipresence of different company names in practice; however, I am obliged to be clear on the real identity of the company or person who employed the complainant in this case.

The Labour Court addressed this issue in

 Auto Depot ltd v Mateiu UDD 1954

Having regard to the foregoing and relying in particular on the High Court decision in Capital Food Emporium, the Court is fully satisfied that the correct employer has been pursued by the Complainant. The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC from July 2017. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter.In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)…. In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response “as envisaged in O’Higgins.

In that case, the Labour Court offered a cogent rationale for deciding to amend the correct legal title on the papers and proceeded to consider the substantive case.

Correct Legal Entity

I have established that in the context of the complaint form and dossier of documents relied on by the complainant and respondent that a number of different employers were named, all surprisingly which pertained to the complainant.

 1.Complaint form Asif Muhammed t/a English Talks 

 2. Pay slip 31 August 2022   Pheonix Education Ltd No 3203144KH reflected also in Revenue and Accountants Reports.

 3.Pay Slip August / November 2022 and January 2024   Parlez Pronto Ltd No 3472023DH

 4 Contract of Employment 2019 / 2020 Fixed Term English   Talks 

 5.Contract of Employment May 2022 and staff handbook English Talks

6 Letter headed Revenue dated August 2024: Employment ceased Phoenix Education 31 December 2023 and replaced by Parlez Pronto ltd to February 2024, Phoenix Education was reactivated in June and July 2024

In my early engagement with the Parties, I requested the Respondent provide CRO record details to place a clarity and reality on this very unusual employment.

It is, unquestionably, the Complainants responsibility to submit the correct legal entity in her case.

What I require is that the contract of employment and pay slip should reflect clarity in the employment relationship in case of external scrutiny, such as now.

This matter was of central importance in the Labour Court Decision in Travelodge Management ltd v Wach EDA 1511, where the Court found that the Union had relied on the incorrect entity and an award made at first instance was set aside.

On 12 March 2024 the name of the company submitted by the Complainant was Asif Muhammed T/ A English Talks

I am satisfied that the Respondent received this notification and did not dispute the legal title.

On 25 April 2024 and in the course of the Respondent seeking to receive correspondence to 19 St Patricks Hill rather than 9 St Patricks Hill, he stated “We are at 19 St Patricks Hill.

Faced with a myriad of named employers superimposed on key documents attributed to this employment, I began to probe further as I wished to be clear on who exactly was the Employer in this case. This is vital in case of appeal or a quest for enforceability of any decision, I might make.

As   standard practice, I requested the Respondent to submit the CRO records in this case from the Company Registration Office. He did not do this and gave no reason for this, apart from saying that he would fix it. He relied on Phoenix Education Ltd as the correct employer.

“On a procedural footing, I will commence the resumed hearing with a welcome clarification on the legal entity. I request that the Respondent please submit the CRO registration documentation which lists the entity “May 29, 2024

I required this information to offer clarification on why Revenue had listed the employment as Pheonix Education ltd, The contract of employment, May 2022 and staff handbook English Talks and the pay slip from January 2024 Parlez Pronto ltd.?

Added to this, I found a further layer of confusion where I found that Ms B, witness, was listed on 21 /12 /2023 as having been employed by Phoenix Education Ltd T/ A Direct English at Direct English Ireland School from 2020 to 2023. However, on the 15 March 2024 she was listed as a Parlez Pronto Ltd T/ A English Talks employee from December 2023 as “she had moved from our sister company “

In fact, all witnesses for the complainant confirmed their understanding that they had been paid by Pheonix Education ltd.

The Respondent did explain that the Company had taken over another Language school and this was reflected in the reference to associated companies in the May 2022 contract of employment.

However, I find that I have been set an unenviable task by both parties in terms of my trying to be clear on just who is the Employer for the purposes of this case. I would have preferred a more tangible due diligence process in that regard by both parties as my attempted unravelling of this conundrum has delayed my decision.

I conducted a CRO search for English Talks and found first a listing as English Talks Education ltd, a company limited by shares effective from 29 November 2023 No 752975. Company address 19 St Patricks Place, Wellington Rd, Cork

I then found English Talks No 626667, effective 3 September 2018 at 9 St Patricks Hill Cork. Trading Status: Normal

I must conclude that this latter entity is the correct Employer as it is listed on the contract of employment and relied on by the Complainant and will I proceed on that basis. I have amended the Legal Title of the Respondent as English Talks.

 I reject the Respondents evidence on Phoenix Education ltd as the Complainants employer. I am fortified in my reliance on English talks as it is stamped on the application for social welfare dated 20 December 2023, under” “Employers Official stamp “.

As already stated, I would have preferred if both Parties had applied some due diligence to this topic prior to hearing as both Parties approaches on the topic were somewhat misleading, which in turn has lengthened my Inquiry.

I have an earnest wish that clarity is applied in the case of any other employees in this school and would urge the Board of Management in tandem with the Legal Advisor and Accountant to reflect and act on this. A contract should match with a Pay Slip.

CA-00061501-001    non-provision   of training

I have been requested to arrive at a decision in this claim. In arriving at that decision, I have considered the evidence of both Parties in addition to the supplementary documents from both sides.

Section 6 G of the Terms of Employment (Information) Act, 1994 provides provisions on Mandatory training in a work setting.

Mandatory training

6G.— Where an employer is required by law or by a collective agreement to provide training to an employee to carry out the work for which he or she is employed, such training shall —

(a) be provided to the employee free of cost,

(b) count as working time, and

(c) where possible, take place during working hours.

I understand that by January 2024, the Complainant understood that she was being placed in line for a DELTA training Course to support the pursuance of Foundation courses.

I understand that she also believed that she was being placed under undue pressure to complete this. I can accept that the complainant anticipated an enforced attendance on DELTA. I accept that she furnished the link within 15 minutes of the joint meeting on her return to work.

I note the contractual provision present of “The Company will provide necessary training “

Having heard from both Parties, I am satisfied that the Complainant was not denied the provisions of Section 6(G) of the Act.

The Complainant was not a participant in a Collective Agreement, and she has not demonstrated a refusal to apply the provisions of Section 6 G by the Respondent on this occasion. The email thread of 29 January 2024 -31 January 2024 or the grievance of 5 February 2024 do not demonstrate a refusal.

I find that the claim is not well founded.

CA-00061501-002 Notification in writing of change in my terms of employment

 I appreciate that the complainant found herself in unchartered territory on her return to work in January 2024.

She feared taking on any more work as she contended that the workload had already left its mark through her eye stroke.

I understand that she held a real fear of being managed differently as reflected in the 29 January 2024 email from Ms Asif.

In considering the provisions of Section 5 of the Act, I note:

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

This provision requires that a change has occurred (past tense).

I am clear that the Parties were in discussion and disagreement regarding the title of Academic Manager vis a vis the role of Director of Services.

The bottom line here is that I have not established that the circumstances to which Section 5 applies actually occurred here. The grievance was framed on the possibility of change not the actual occurrence of that change.

“In addition to my already full-time job as Director of Studies, I would be required to take on the title of Academic Director of the foundation courses that Asif wants to start offering this year …. I was not consulted before my name was submitted to QQI… “

I have not established a contravention of Section 5 of the Act.

I find the complaint is not well founded.

Annotations

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaints in accordance with Sections   3 and 5 of that Act.

CA-00061501-001    non-provision   of training

I find the claim Is not well founded.

CA-00061501-002 Notification in writing of change in my terms of employment

I find the claim is not well founded.

Terms of Employment, training and notification of change.