ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050612 conjoined with ADJ 50198
Parties:
| Complainant | Respondent |
Parties | Judy Fisher | Asif Mohammed T/ A English Talks ( Amended to English Talks ) |
Representatives | Appeared In Person | Asif Muhammad (Proprietor) sole appearance on second day of hearing |
Complaints:
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-00062174-001 | 12/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00062174-002 | 12/03/2024 |
Date of Adjudication Hearing: 22 April and 29 July 2024
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
On 12 March 2024, the Complainant, a Director of Studies in a Language School submitted a complaint of Constructive Dismissal against her former Employer, at that time, listed on the complaint form as Asif Muhammed t/a English Talks. A separate complaint was submitted in relation to a claimed deficit of wages under the Payment of Wages Act, 1991. These followed two earlier complaints submitted to the WRC on 12 February 2024, while the complainant was still in active employment and marked as the conjoined case ADJ 50198.
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. She confirmed receipt of illness benefit for the amount of €2, 064, in total for that period.
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.
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Summary of Complainant’s Case:
The Complainant came to this case as a Director of Studies at a Language School operated by the Respondent. She was employed from 31 August 2018 to 8 March 2024. This date was disputed by the Respondent, who relied on 12 February 2024 as the conclusion of employment.
The Complainant worked a 35-hour week and while wages were variable and based on a daily rate, the Complainant recorded her gross pay as €3333.33 per month.
On 12 March 2024, the Complainant filed what are her 3rd and 4th complaint in these conjoined cases.
The Complainant submitted that she had experienced some problems with the drop-down menu on complaint submission, but was satisfied that she has submitted 4 live complaints before the WRC in ADJ 50198 and 50612.
CA-00062174-001 Claim for Constructive Dismissal:
The Complainant submitted that due to the conduct of her Employer that she was forced to resign her position of Director of Studies in the Respondent language school.
She sought the remedy of compensation and confirmed that she had found new work on 11 March 2024, later amended to mid-February 2024, albeit without the same tenure or hours of work.
The Complainant is a Lay Litigant, and her complaint is summarised as:
The Complainant furnished a Complaint of Constructive Dismissal, a complaint which placed her as a Director of Studies in an English Language school, English Talks. She described having held a leadership role for 13 teachers plus operational and administrative duties. The school was moving towards offering separate foundation courses and this extra leadership role required an Academic Manager. The Complainant understood that she had been designated this role, without her consent. Preparatory work for the course was unsuccessful.
As the School entered the Christmas break in 2023, the Complainant described having sustained a “mini stroke “which necessitated a weeklong hospital stay and absence from work due to sick leave to January 29, 2024. She outlined that “stress was mooted as a possible cause “
The Complainant stated that she had sought to secure a supported return to work, prior to her return, but instead was met with a heavily loaded email of demands from the Respondent superimposed on her base job.
These demands were unacceptable to the Complainant as they were not permitted in her contract of employment and approaches for her to self-fund the DELTA course was unpalatable to her.
The Complainant formulated a grievance, which was ignored by the Respondent, and she subsequently resigned during her sick leave “I was extremely concerned that continuing to be subject to such pressure could have a negative impact on my health “.
The Complainant found new work during March 2024, albeit on a reduced tenure. She sought the remedy of compensation.
On the first day of hearing, I asked the Complainant where she had drawn the Respondent Legal title Asif Muhammed t/a English Talks from? The complainant replied that she knew Asif Muhammed as the owner of the business.
Evidence given during April 22, 2024, hearing.
The Complainant outlined that on December 15, 2023, that she had suffered a stroke which she attributed to her high levels of work-related stress. She was advised to reduce stress.
She reflected that from May 2022 onwards she had been targeted with extreme pressure from the Respondent through higher levels of activity sought in relation to
Projects
Course Book Compilation, completed in June 2023.
Pursuance of Accreditation, unsuccessful in May 2022, planned to relaunch the bid.
She described being “burnt out “as this extra work needed another Teacher.
Her contract of employment had changed in May 2022 to reflect her permanent status.
The Complainant incorporated an abundance of documents, photos and text messages put forward to outline her day-to-day difficulties at the school through structural and hygiene deficits to delays in pay and contracts.
The Complainant submitted that she met with the Respondent on January 29, 2024, she presumed that she would get a chance to articulate her plan to reduce stress, but instead, she was met with more pressure.
She was pressurised to complete the DELTA training, projected costing over €3,000. The Complainant submitted that she was open to undertaking the course but not on a self-funding model.
The student profile at the school had changed by 15 hrs and 85% attendance targets for Brazilian and Turkish Visa holders.
The Complainant submitted that such was the level of her pressure at work she suffered a “mental breakdown “and availed of sick leave. She recalled having spent 9 hours crying in the aftermath of the direct engagement with Mr Asif.
She stated that the remaining teachers felt abandoned and she herself was overwhelmed with the actual and imminent workload that she feared a recurrence of her stroke. She began to doubt her capacity to stay in the job.
On February 5, 2024, the Complainant submitted a grievance, but did not receive a response within the cited 7 days.
She felt excluded as no acknowledgement was forthcoming for the work she had already completed.
The Complainant submitted that because of her treatment by the respondent “it made it impossible for me to stay “The Complainant resigned her position on 12 February 2024 .
She commenced work with another Education Body on February 19, 2024, as this suited her. She received an hourly pay of €37.56 in respect of 11.5 hrs (on average) and there was no work available during the summer months.
The Complainant had sought a reference and even that was withheld pending the WRC process. She gave brief evidence of mitigation but struggled to quantify financial loss, preferring to frame her request for a remedy on pain and suffering.
I asked the Complainant if she had considered any measures short of leaving and the Complainant confirmed that she had invested in her grievance, for which she did not receive a response. She confirmed that she completed a handover to Ms A, Administrator.
The Complainant contended that the Respondent had not advertised for a replacement Director of Studies.
The Complainant confirmed that she received 5 days paid sick leave, 20 to 27 February 2024.
The Complainant sought compensation in respect of her treatment and the untenable nature of the work. She submitted that the Respondent had not taken any responsibility for her, and he lacked accountability by his non engagement in the grievance. The Respondent had set untenable deadlines for her.
The Complainant contended that resignation was her only option.
I asked the Complainant to provide records of her Social Welfare benefits received and she obliged.
The Complainant submitted a Medical Certificate dated 22 December 2023 which excused her from driving for 1 month to 15 January 2024.
This was followed on 29 December 2023 by a GP Cert approving an absence through unspecified illness, 18 December 2023 to 29 January 2024.
This was followed by another medical certificate which approved an absence from February 1, 2024, to 7 March 2024.
The Organisational Chart pro offered placed the Complainant as a Member of the Senior Executive Management Team.
On the second day of hearing, July 29, 2024, the Complainant reappeared as a Lay Litigant and was accompanied by 4 of her former colleagues at the school.
Ms B Teacher 4.5 years January 2020 to April 2024
Ms C
Ms D
A summary of the evidence given, and clarifications sought was read into the record. The Complainant engaged on the topic of seeking clarity on the correct legal entity.
Clarification on the Identity of the Correct Legal entity:
The Complainant disputed the Respondent reliance on Phoenix Education Ltd as her employer. She did not accept the invitation to amend the title on consent as she pointed to English Talks recorded as the Respondent on her contract of employment.
The Complainant stated that.
I am confident that English Talks was my employer.
She did not extend cross examination of the Respondent on this Preliminary Issue and contended that if the Respondent proved the correct employer, she would be “happy with that “
She later submitted a Revenue generated document titled PAYE Income Tax/ Employments dated 28 August 2024.
It stated that the complainant’s employment was ceased with Phoenix Education on 31 December 2023.
“I can confirm that Parlez Pronto ltd was input as your employer in January 2024 and two payments were input for January and February 2024. These payments were deleted on 1 July 2024.
Your employment with Phoenix Education was reactivated and the two payments for January and February were re submitted in June and July respectively under Phoenix Education “
This was not accompanied by a response from the Respondent but is certainly confusing.
Substantive case:
The Complainant outlined that she had not submitted a medical report to accompany her return to work on January 29, 2024.
She disputed the amalgam of Director of Studies and Academic Manager relied on by the Respondent as she asked an open question.
“How could I be both? “She reaffirmed that Completion of DELTA was demanded of her by the Respondent, and she was simply overwhelmed by an impossible workload.
In response to the Respondent stated dissatisfaction with her attendance at work, she recalled a historic “tiff “I February 2023, where she missed a meeting and was approached to complete a micromanaged report of her work after that.
She reaffirmed that the grievance lodged on 5 February warranted a response and when not responded to within a week, she had no option but to leave.
She resigned on 12 February 2024
She confirmed that she had worked 19 and 26 February 2024 in her new work. The Complainant confirmed that she had applied for full time work at the new employer before her stroke in November 2023 and heard of her acceptance in mid-February 2024. She took the new work as a “suitable balance “to aide her recovery and ceased DSP benefit on 16 February 2024. She marked one-year financial loss as a differential in earnings as €13, 745.01.
During cross examination, the Complainant denied that the divisor for her daily rate was 49 rather than 50. She reminded Mr Asif of a verbal agreement for €161 per day and denied changing the record on the contract.
She did not accept the Respondent position that change had never occurred in her job title or that she was not a “sole operator “and others had helped.
The Complainant denied that she was formulating a plan to leave in November 2023 and had tried everything to resolve matters at the school was “burnt out “. The Complainant acknowledged that by her February 2, 2024, request for a reference, she had decided to leave “A broken down “working relationship but gave her employer a chance to resolve matters through the grievance.
On foot of the Respondent evidence. I asked the complainant to address the email of March 12, but she did not address it. The Complainant did not deny Ms As evidence on the phone conversation during her sick leave .
Ms B Teacher 4.5 years January 2020 to April 2024
Ms B reflected that she had been approached by the Respondent to take on the Academic Manager role prior to the inspection in 2022. She refused on grounds of disorganisation, but did not have written proof.
She had experienced pressure in her role from early 2023 and had availed of sick leave.
She said that she had witnesses the complainants stress and she recalled that she had spent 5 to 10 mins with the complainant in her office on the afternoon of her meeting with the other teachers, where she was shown the email dated 29 January 2024 from the Respondent and she agreed it was unreasonable
During cross examination, she was unaware of the date she met the complainant but placed it before the complainant departed on sick leave on the Thursday.
Ms B confirmed that she reported to the complainant and referred to an ongoing complaint on poor general administration and cleaning.
She accepted that these improved after the Teachers meeting.
Evidence of Ms C, Former Director of Studies at the School
Ms C worked at the School as Director of Services 2017 to 2019. She hired the Complainant.
She described the school as “dysfunctional and mismanaged with untenable workloads “
There was a void in Computerised systems. She said that she left for the same reason as described by the complainant.
During cross examination by Mr Asif, Ms C acknowledged that she was unaware of current systems at the school.
She clarified that she had been paid by Phoenix Education and that Parlez Pronto was a separate school.
Evidence of Ms D Teacher February 2018 to March 2022
Ms D confirmed that she had been offered responsibility for the foundation course on Ms Cs departure. She confirmed that she had been paid by Phoenix.
Ms D recalled a period of feeling pressurised in her employment from mid-2021. She submitted that the school seemed ill prepared for the direction it wanted to travel to and there were several staff resignations.
She herself was not permitted to reduce her hours of work and she felt disrespected.
She contended that it was unfair for the respondent to seek to tag on the Academic Manager Title to the Complainant as the book compilation was hard enough.
During cross examination, Ms D denied that she had informed the complainant of her planned return to work at the school.
In her closing remarks, Ms Fisher reflected that she had an “awful “experience in the respondent employment, which developed into work related stress. She lacked a job description and believed that the Respondent set out to deliberately make her quit her job.
The email of 31 January captured this level of disrespect and the lack of response to her grievance caused her to feel alienated, discredited and unsupported. This was not a sole viewpoint as many others “felt the same “
She had been repeatedly underpaid.
CA-00062174-002 Payment of Wages Act, 1991
The Complainant clarified that she is claiming €553.70 in unpaid wages which originated from September 2022 to September 2023.
In August 2022, both Parties agreed an upward alignment of salary to €40,000 from €38,000 (May 2022)
The contract was not reissued to reflect the agreement. The Complainant submitted that she reflected the changed rate on the time sheets she submitted but here was a lack of consistency in how these were managed.
The Complainant described a number of attempts to resolve the matter at work, but all were unsuccessful. She confirmed that she had been paid in part but the sum €553.70 remained owed to her as a contravention of the Act.
The Complainant maintained that her October 2023 pay slip should have read.
40,000 / 49 weeks/5 weeks =daily rate of €163.26 including holiday pay €3879 .17 rather than the €3542 gross received
Summary of Respondent’s Case:
The Respondent operates a number of English Language Schools in Ireland. Both claims have been disputed by the Respondent and deemed to be vexatious. The Respondent submitted a written submission on 3 July 2024. This document was written by his Solicitor, but the Respondent appeared as a Lay Litigant for the purposes of the hearing, in the company of his Administrator, Ms A, also a witness in the case. The Respondent came late to the case and his appearance followed an earlier nonappearance on 22 April 2024. I will summarise the written defence in the case of the claim for constructive dismissal. The Respondents, Mr Asif has over 10-year experience in Education and has not received a complaint from the WRC previously. The Respondent carried a deep unease regarding the Complainants performance within the job and after she left. The Respondent denied that she had been unfairly treated and instead regretted the trust they had placed in her. They restated that the complainant planned on leaving the employment as far back as November 2023 when she sought a reference for the employment, she eventually availed of.
The Respondent submitted that the complainant had deliberately overstated her level of productivity at the school. She had not carried the onerous burden as she described and there was no proven connection between her “eye stroke “being a causative factor of her job. The Respondent stated that the Complainant had aligned herself to ongoing criticism of the school after she resigned when she liaised with teachers on 12 March 2024. The Respondent requested that a record of this document already submitted be excluded as a GDPR breach as it did not carry Ms Fs consent. The Respondent took issue with the statement submitted by “Judy Fisher’s friends “as they no longer work at the school and had not filed complaints in their own right. The Respondent contended that the Respondent had offered to return the Complainant to her earlier position on teaching from February 2023 and this was not accepted. The Respondent went on to criticise the complainants “negative attitude towards her job” to the point of contention that a pattern of oral and written warnings existed, not evidenced. The Respondent held that the school had tried to manage the Complainant unsatisfactory performance and erratic attendance patterns. It was their case that the Complainant was not a good fit for the job and left as a result. The grievance relied on by the complainant was received on 5 February 2024 at 11 am and was followed by her resignation on 12 February at 9.56 am. The Respondent took issue with the Organisational charts relied on by the Complainant and submitted a counter version. The written submission made repeated criticism of the complainant’s productivity. The Respondent disputed demanding that the Complainant complete a DELTA “Diploma in Teaching English to Speakers of Other Languages “ The Respondent submitted that the Complainant misled the WRC in that regard. The Respondent submitted that the Complainant sought a reference from Ms A on 24 November 2023 and delineated an extract from text. “Can I put you down as a reference for “new employer “? Not sure if I can ask Asif. What is your job title? I ‘ll just ring him myself “ It was the Respondent position, that this was repeated with Ms A on 2 February 2024 by what’s app. Evidence of the Respondent: Mr Asif submitted that the roles of Academic Manager and Director of Studies “are one “He denied that the Complainants Day to day work was untenable for her. She had not been pressurised to undertake work not already permitted in her contract of employment. The Complainant had an uneventful probation. The Respondent had not sought to action the “non-compete clause “of the contract in the aftermath of her resignation. She failed to acknowledge that Ms A held the role as Programme Manager on the Foundation Programme.
Preliminary Issue: The Respondent submitted that the correct employer in the circumstances of this case is Phoenix Education Ltd changed from Parlez Pronto. He accepted that he had not approached the Complainant on this topic during the employment and assured the hearing that “I will fix this “ He clarified in cross examination that Phoenix Education ltd was incorporated in 2012 and Pronto Parlez in 2018. Both Companies were trading. Mr Asif gave his consent to amend the title to Phoenix. I had requested that the Respondent submit records as existent on the company Registration Office and he has not provided those records. I then requested that he submit a copy of the details returned by his company to Revenue for the Complainant in 2023 and 2024 Evidence of Ms A, Office Manager and Locum DOS Ms A has worked at the school from 9 April 2018 and is appointed as the Office Manager, with a current stand in role of Director of Services. She spoke plainly regarding the preparations for Regulatory inspection and regarded the roles of Academic Manager and Director of Studies as “the same thing “. The school partnered with the Dept of Justice and objectives were being scoped out on the 15-hr attendance requirement at the school. Ms A confirmed that she held responsibility for attendance levels rather than the complainant. She acknowledged that the Complainants predecessor used to manage students, but Mr Asif had asked that they be managed through the Office. She described her working relationship with the complainant as “good “and recalled that the complainant had stated her intention to leave when she requested a reference on November 11, 2023. In addressing the 29 January 2024 meeting attended by Mr Asif, the Complainant and Ms A, she clarified that the complainant was not approached to pay for the Delta, she was asked to provide links for the course. Ms A had not witnessed any negative treatment towards the complainant. She was sure that the Complainant had been given the option to return to teaching, if she was unhappy. She confirmed that the grievance was received on either 5 or 6 February 2024. She acknowledged that she had inherited a large number of emails after the Complainant left. Ms A referred to the email submitted by the complainant on 12 March at c 9pm. This contained a list of issues from the complainant’s own email, and it caused chaos. A response issued on 15 March 2024 but was not cc’d to teachers. During cross examination by Ms Fisher, Ms A confirmed that 12 March 2024 email was received. She confirmed that Ms Fisher had sent the link for Delta 15 minutes after the meeting where it was requested. She rebutted Ms Fishers question that she had been requested to pay for the course herself when she responded to Ms Fishers contention that with the imminent changes that DELTA was deemed essential. “He did not ask you to pay for DELTA or pay for training, it was just a request for Links at the end of the meeting “ Ms A confirmed that she was happy to provide references for the complainant. She didn’t need to clear it up the line. She clarified that she had to refer the second request in February 2024. Ms A addressed Ms Fishers questioning on the March 12 email and accepted that she had been asked to address issues. When Ms Fisher put to her that the email had not been cc’d to other teachers, Ms A reminded her that a response had been forwarded to the complainant as she had included it in her papers for this case. In addressing the complainant’s resignation, Ms A confirmed that she was aware that the complainant had difficulties in her personal life and was “really stressed out “ She recalled calling her before her resignation and the complainant told her that she had a lot of stress in her life amidst the backdrop of a house renovation. She told her to look after herself. The Complainant did complain about Mr Asif but did not ask for Ms A’s advice or input. She did not ask her to take a particular course of action. Ms A reflected on the medical documentation received from the complainant post eye complaint as the sole statement that the complainant was not to drive for a month. Evidence of Mr Asif Muhammed, CEO, Language School Mr Muhammed described having had a challenging working relationship with the Complainant. The school had serious challenges in student numbers post the Covid Pandemic and the Complainant exhibited performance issues. She became embedded in negative issues. He denied that the weekly divisor had changed from 50 to 49. He had offered the complainant an opportunity to work week 50 but the complainant refused. Wages were paid via a contract with his Accountant, but the complainant pursued him relentlessly. This was a global issue affecting others at the school. He understood that the complainant was doing ok around the 15 December 2023 when she fed back positively in the aftermath of the Christmas social outing. He submitted that the complainant had not responded when he offered her a return to teaching. He recalled meeting the complainant on her return to work and he was clear that the listing he set out was a request to monitor school activities. He had a personal illness in early February 2024 when the grievance was received. He submitted that he was shocked by the complainant’s resignation. He accepted the resignation. He submitted that the complainant had left a legacy of a pronounced disconnect between the school and its teachers. Contracts due to be issued by the complainant had not been issued. He acknowledged that the Complainant had completed the school timetable for January and February prior to her sick leave. He submitted that he was unaware that she had found new work but has since reflected that she was planning on leaving. Ms Asif denied that the contract had been amended to reflect a daily rate of €161.00. He was not aware of the phone call relayed in Ms A evidence. When asked to clarify if he had considered seeking a reconsideration of the complainant’s resignation, he stated “She wasn’t together with us, there was no point “ During cross examination by Ms Fisher, he denied that he had been requested to change the contract to €161 daily rate.When asked why he hadn’t responded to her grievance, he answered that he had been sick and was not met with a procedural time limit of one week. The Complainant was requested to put the contents of the grievance to Ms Asif, but she couldn’t locate it. Ms Asif told Ms Fisher that the course books were a shared project with three others. Ms Asif countered Ms Fishers reference to feeling pressurised when he stated that she was “never disturbed “ He stated that he had accepted the resignation as the complainant being over emotional, unco- operative, anger regarding wages and an overall disrespectful working relationship. He clarified that he had not consulted with his Board of Management of taken legal advice on receipt of the resignation. He was unaware of the complainant’s new work until the hearing. In his closing remarks, Mr Asif concluded that the complainant had failed to provide evidence that she was compelled to leave her job as a Constructive Dismissal. She had not proven a connection between her sick leave and work-related stress as there were no Medical Reports advanced. CA-00000062174-002 Payment of Wages
The Respondent rejected this claim. He relied on the undated Accountant Report for a gross pay of €39,625, daily rate €161. Holiday pay €2,898 and concluded that the complainant had been offered work for the 50th week, but she refused and claimed social welfare. Ms Asif rejected the Complainants evidence on the upward adjustment of salary to €40,000 and submitted that the handwritten 9/22 was forged. Ms Asif submitted that the complainant repeatedly misrepresented her submitted pay calculations.
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Findings and Conclusions:
I have been requested to reach decisions in both the claim for Constructive Dismissal and the claim for under payment of wages. In arriving at those decisions, I have had regard for both parties’ written submissions and in particular for the oral evidence. 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-00062174-001 Substantive Case: Claim for Constructive Dismissal. The Complainant has submitted that she was compelled to leave this employment as a direct response to the objectionable behaviour of the Respondent in her role as Director of Studies at the Language school. The Respondent has denied the claim and by way of defence pointed to a litany of occurrences where the Respondent was unhappy with the complainant’s performance in her role. I must say at the outset, that the Respondent approached the defence of this claim seeking to make a counter complaint against the complainant. He was advised that this channel was not open to him via the WRC. It was an unusual approach. Constructive Dismissal is where a set of circumstances arise where a trigger a cessation of employment through either a breach of the contract of employment or through the unreasonableness of the employer’s behaviour. The provisions are set down in Section 1(b) of the Unfair Dismissals Act. (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, It is an important remedy in the world of work. The Complainant tendered her resignation at 9.56am on Monday 12 February 2024. She referred to her unanswered grievance of a week earlier as a precis of a serious breach of contract. She gave 4 weeks’ notice to March 8, 2024, and referred to “medical leave which covers this period “ This was acknowledged by the Respondent at 10.22am the next day and confirmed that he had also been sick. He accepted the resignation, without further inquiry, as March 8, 2024. I found this to be insensitive. Both Parties approached this case with a visible urge to wound the other party. Both Parties were clearly unhappy in the employment relationship, and both remain very angry as a result. I cannot accept the various written statements submitted in both parties’ dossiers, outside those of the witness’s present at the hearing as the statements are not probative. I will say at the outset that I am satisfied that the Complainant did not have a disciplinary record and completely reject the Respondent submissions in that regard. He was on proof of those records, and none were presented. In considering a claim for Constructive Dismissal, I must consider the operation of the contract of employment and the behaviour of both Parties. That test is objective, Berber v Dunnes Stores ltd at the Supreme Court [2009] 20 ELR 61 The conduct of the Parties as a whole and the cumulative effect must be looked at. The conduct of the Employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it. I have considered the facts as both parties presented at hearing. The Complainant started as a teacher and accepted the Lead Teacher, Director of Studies role, this brought her into the inner sanctum of the Management Team. The Complainant devoted a lot of her evidence to having had a changed role foisted on her to the point where she was broken and “Burnt out “I began to look carefully at this assertion, which was denied by the Respondent. I could see from the abundance of free-standing documents submitted by the Complainant that it was a busy school and one in transition. The Respondent explained that student numbers depleted during Covid, and the school was actively relaunching and seeking new business. I can understand the Commercial backdrop. I accept the Complainant evidence that she began to feel under pressure in the aftermath of the failed inspection from May 2022. The Complainant contended that she was subsequently overburdened by unrealistic deadlines and completion of course books to accompany the quest for an expansion in classes with an eye on Accreditation. A careful read of her email of 20 November 2023, showed no sign of complainant distress in relation to her pay, just an ongoing persistent approach to secure what she believed that she had been promised in pay. It was around that time that the Complainant sought a reference on 24 November 2023. This is a clear indicative of an intention to leave, and this is an important consideration for me. On that same day, she followed up her pay but intermingled this with operational queries on the school. The Reference was provided. I found a certain amount of confusion that staff and students were being asked to operate the same grievance procedure. The duty of care to a staff member and student differs, therefore there ought to have been a dedicated staff handbook. At any rate, the complainant did not activate a grievance regarding her underpayment of wages but did keep a log of contacts and meetings with the Respondent and the matter remained unresolved. The Complainant commenced sick leave in the aftermath of the Christmas dinner on 15 December 2023. I fully understand and accept that the complainant suffered an eye complaint as detailed in her own evidence, but she has not brought forward a record of diagnosis. The Complainant has relied on a medical note raised on 14 March 2024 which postdated the employment which reflected the eye condition “may have been exacerbated by stress “It did not delineate workplace stress. I was particularly struck by the complainant’s response to my question on whether she had submitted details of any medical requirements on her return to work? There were none. It is not clear to me that she furnished a back to work certificate as it was not visible in the papers. I was also taken by the stoicism of Ms A when she told the hearing that the only medical details or descriptors of the complainant’s condition was that she was advised not to drive for a month. I have found a lack of a diagnostic clarity in the complainant’s medical condition at that time. I accept that the complainant holds an unshakeable belief that her eye condition arose from the pressure at work. However, she has not produced medical reports or provided medical evidence which endorse this view. I find for the Respondent on that point. I can accept that the complainant felt frail, vulnerable and fearful on her return to work in late January 2023. I can also accept that she was ill prepared to be met with what reads as a yearlong strategy at the school in the email issued by the Respondent at 15.46 hrs on her first day back. This was wholly insensitive, but may have been avoided , if the complainant had led with her medical supports needed on her return to work. It was clear that she was overwhelmed in what she saw as the schools in fractural deficits and shortfalls in cleanliness. I would have much preferred to have seen a back to work meeting in advance of this. The email was headed “Below are upcoming items that need to be discussed and worked on / addressed for 2024 “ This contained, in the main operational objectives for 2024, but concluded with: “Submit a weekly itemised progress report to me every Friday detailing how you allocated your time for that week also “ This was directed at the Complainant, and she responded two days later by email at 20.13 hrs and referred to having had a stress related stroke and seeking that the Respondent focus on either Accreditation, course books or the foundation courses. I found her response robust and on point. I understand the Complainant was troubled by being requested to complete the advanced coursebook. The Complainant submitted a copy of an email issued to the Teachers at 9.19 am on 2 February 2024 and excused her level of upset at the school. “But after 4 long years, I have finally reached my limit “ This was an extract but read as a “hand over of the reins “, a parting shot. The Complainant commenced sick leave. The Complainant included a medical certificate, dated 1 February 2024, which did not have a reason for her absence from 1 February 2024 to 7 March 2024 My attention was drawn to a copy of the reference issued by Ms A to the complainant at 1.06 pm on 2 February 2024. This was a highly complementary reference text. My attention is now drawn to the grievance raised by the Complainant dated 5 February 2024 on a Staff Grievance form for English Talks. It contained listed grievances on 1 pay dispute from October 2022, Pay slip for December 2023, January 2024. Unpaid. 2 Reliance on Collective concerns on pay and workloads. 3 Email of demands dated 29 January 2034 4 School Cleanliness 5 The unreasonable behaviour of Mr Asif Muhammad. The Complainant told the hearing that she wanted to give the respondent a chance to improve and to reduce her workload. “I am writing this in order to give Asif an opportunity to state how he will try to resolve these issues and how his management approach can be improved going forward “ Regrettably, the Respondent did not engage in the grievance within the time anticipated by the complainant. This prompted her resignation dated February 12 at 9.56am in response to the contended breach of contract. The Complainant served 4 weeks’ notice to March 8, 2024, and attached “medical leave which covers this period “ One day later, the Respondent accepted the resignation and countered the complainant’s contention on the DELTA course. “There is no point in discussing these matters with you as you are leaving “ Mr Asif apologised for his late response due to illness. I found the unequivocal acceptance of the resignation to fall far short of best practice and insensitive in the extreme. However, it is not disputed that the Complainant commenced new work within a number of days after this exchange of email. I have reflected on the circumstances surrounding this resignation and I find that the complainant may well have mistaken the time limits for the progression of a grievance in line with company procedures. In my opinion, the complainant would have benefitted from local representation. The Complaints procedure reflects an oral articulation followed by a record with a commitment to contact the complainant within one week with a resolution, if at all possible. The Grievance procedure incorporates a staff grievance form as relied on here. “The Complainant will receive a response within one week of the formal grievance being submitted. The maximum duration for issue of a resolution to the student is 21 days “ (note student, not staff) The next step is to make a written complaint to the Board of Management with legal advice / representation (if a legal problem) I have reflected on this confusing pathway, and I find that I am guided by the evidence of Ms A when she submitted details of her phone conversation with the complainant during her sick leave where she expressed a high level of personal stress without a request for intervention. I found Ms A to be a very credible and stoic witness. She placed a clarity on the working relationship here which I found helpful. I found a remoteness in connection to the circumstances in the case in the complainant’s witnesses, all of whom unquestionably were critical of the school and carried a lingering mistrust towards it . I fully accept that the Complainant had faced sizeable challenges in her role as Director of Service in an evolving English Talks school. I also accept that the school did not have the benefit of conducting staff appraisals which may have ironed out the build-up of pressure. I accept she felt unsupported and alone. I find that the Complainant was still active within her peer group email correspondence of March 12, 2024, refers. However, I find that the Complainant had planned to leave the school as far back as November 2023 when she sought a reference for the position, she eventually commenced in February 2024 during her notice period. I fully accept that the complainant was unhappy at the school. I also accept that relations were extremely tense between her and the Respondent. The Complainant did not address the impact of the schools offer to accommodate her back in her teacher’s role or her admission of life stress to Ms A. I was struck by this. However, just as a respondent is judged on whatever procedural pathway is applied to a dismissal, a complainant is judged on the procedural pathway applied to a resignation in a claim for constructive dismissal. The burden of proof rests on the complainant to prove that resignation was involuntary. Conway v Ulster Bank UD 1474/1981 placed a procedural obligation on a complainant who relies on an involuntary resignation . I realise that the reliance on the argument of incorrect and erratic payment of wages forms the next complaint. However, I will remark that this topic was not incorporated in a staff grievance at any time before 5 February 2024. I conclude that the governance of the school proved a real challenge to the complainant in her role of Director of Studies from 2022 onwards. I accept that she crumbled during this time. I accept that mutual trust and confidence between the parties was strained but not extinct at this point. The Complainant seemed to be weighed down by collective issues, which in turn were weaved into the staff grievance form. I accept that she felt a loyalty to her peer group. However, I also find that she made a plan to exit the school from November 2023. This is not a criticism of the complainant, who has every right to place herself on whatever career trajectory she wishes in pursuance of a good livelihood. However, I am being asked to find that her departure on 4 weeks’ notice and during sick leave was as a result of an involuntary resignation attributable to this employer. I cannot come to that conclusion on this occasion. I find that the Complainant has not met the required burden of proof on this occasion that termination of employment was her only option as the recourse to the Board of Management as outlined in the Organisational chart was not utilised within the grievance procedure. She has not provided medical evidence which linked her departure to workplace stress. I have also found that the changes outlined in the email dated 29 January 2024 by the Respondent was a journey map for 2024 not a fait accompli. I find that the complainant overstated these as she had made adequate responses during her employment.
While I have found that the Complainant was not constructively dismissed, I do not want to conclude without remarking on my concerns for the clear and present governance problems at this school. As stated, I found Ms A’s stoicism in her evidence displayed a loyalty to the school. I was particularly struck by her evidence on the complainants returned link for DELTA training 15 mins post meeting . However, works needs to be done on building positive staff relations at this school to embrace occupational safety for staff in everyday operations to avoid a repeat of the circumstances of this case re-occurring. I find that the Complainant was not constructively dismissed. CA-00062174-002 Payment of Wages Act 1991 The Complainant submitted that she had been involved in a long running dispute regarding her pay since September 2023. The Complainant raised that holiday pay was paid in money and not time. She was asked to clarify her claim for €211.74 from 15 December 2023. The Complainant gave evidence that she had accepted the position of Director of Studies in May 2022 on €38,000 per annum. She was concerned at the disparity in her pay compared with other Directors and it was her case that she negotiated a pay increase to €40,000 in September 2022 and proceeded to amend her daily rate to €161 on consent. The contract was not updated. The Complainant remained concerned regarding the inconsistency in receipt of pay slips and pay. She then realised that she had made an error on her computation of her daily rate and instead of €40,000 divided by 49 (annual divisor as school closes for Christmas, for three weeks) she returned time sheets €40,000 divided by 50 weeks, resulting in a daily deficit of €2.26 (€163 / €161) The Complainant exhibited pay slip dated 31 December 2023 where missing pay of €746.72 was paid but the daily rate had not been increased going forward. She submitted that she was still short €211.74 and a missing week. The Respondent has disputed this claim and has referred in records to extra annual leave taken, not disputed by the complainant. He also submitted that the complainant was offered work to allow the divisor to stay at 50 weeks, but she refused. The Pay slip of 31 December 2023 reflected €161.00 rate with some provision for missing pay €746.72. This suggests to me that the foundation salary of €38,000 was indeed altered as described by the complainant. The Respondent wants me to consider that the complainant was erratic in her fiscal management of her salary. I found no evidence of this and find that I reject this derisory approach by the Respondent. The Law on Payment of Wages is provided for in Section 5 of the Payment of Wages Act, 1991. Wages Section 5(6) of which comes into sharp focus here. (6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.
The High Court case of Marek Balans v Tesco Ireland ltd [2020] IEHC 55, is authority for what constitutes “properly payable “under the Act. It is my first step in this matter. I accept the complainant’s evidence that she agreed an upward adjustment of pay in September 2022 which formed the reconciliation exercise in December 2022 missing pay. I accept that she received social welfare payment for week 50 in 2022 and had availed of annual leave. I cannot find that this aspect of the claim is properly payable as these periods are outside the statutory time limit for this claim. However, I accept the complainants’ calculations on a deficit owed to her in unpaid wages as of 15 December 2023, the end of the school year. I find that the complainant was owed €211.74 at that time in wages that were properly payable, and the nonpayment constitutes a breach of Section 5 of the Act. I find the claim well founded.
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Decision:
CA-00062174-001 Claim for Constructive Dismissal Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I find the Complainant, while faced with sizeable challenges in her role in an uncertain work environment, was not constructively dismissed by the Respondent. CA-00062174-002 Payment of Wages. Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wagers Act, 1991 requires that I make a decision in relation to the complaint in accordance with section 5 of that Act. I find the claim is well founded. I order the Respondent to pay the Complainant €211.74 in just and equitable compensation for the contravention of Section 5 of the Act.
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Dated: 11th November 2024
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Correct Legal Entity, Preliminary Issue, Constructive Dismissal and Underpayment of wages. |