Complainant

Respondent

Parties

Megan  Clarke

Parcel King Parcel King

Complainant

Respondent

Anonymised Parties

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Representatives

  complainant

 Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00061272-001

25/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061272-002

25/01/2024

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

CA-00061272-003

25/01/2024

The complainant alleges that she was dismissed by the respondent while on maternity leave.  She has taken the case under the Unfair Dismissals Act.  Evidence was given under oath/affirmation by the complainant, Ms Megan Clake and on behalf of the respondent by Mr Emeka Ikwukeme.  Evidence was subject to cross examination. Submissions received were considered by me as part of my adjudication.  The complaint form also contained additional allegations which were considered by me under the appropriate sections of the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997.

The complainant was informed by her employer that Parcel King was taking over the company.  She  went on Maternity leave in May 2023.  She was working from home for the company and going to the office on working days. Nobody told her that she was not working for Parcel King. The company closed down in August 2023 and did not notify the complainant that she would not have a job to return to after her maternity was finished. In addition the complainant is due wages for work that she performed for the company during her maternity leave.  The company issued the complainant with false payslips with her wages on them but she did not receive any money. The complainant is also owed holiday pay and bank holidays pay etc and also her redundancy payment. The complainant tried on numerous occasions to contact her employer but to no avail as he refused to answer her calls and messages.

The respondent denies that it employed the complainant.  Any actions it took were on behalf of the actual employer Noble Point.  The respondent made several payments to the complainant in respect of Social Welfare entitlements plus some additional money.  The additional payments ceased when the respondent saw that the complainant was not doing any work.  Any payments made were on the instruction of Noble Point.  The respondent took over the business in April 2023 and some employees transferred over.

The business was closed down as a result of the actions of a third party.

Complaints

The complaint was submitted via the online WRC complaint form.

Included in the complaint is the complainant’s assertion that the respondent unfairly dismissed her, that he did not pay her for work done, that he did not pay her holidays due and that he did not pay her redundancy.  The only box ticked on the complaint form related to Unfair Dismissal. 

I note the finding of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370 that;

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.

The effect of this decision is that if a complainant did not tick the appropriate box in a complaint form this does not prevent me from hearing the additional complaints under the appropriate Act(s) if it is clear from the narrative in the complaint form that there are such complaints.  In the case before me it is clear from the complaint form that the complainant is making allegations to be considered under the Unfair Dismissals Act 1977,  The Payment of Wages Act 1991 and The Organisation of Working Time Act 1997.

CA-00061272-001

In evidence the respondent confirmed that he took over the business in April 2023 and some employees transferred over. The respondent in evidence stated that he was not the employer of the complainant and that he issued the payslips at the behest of the former employer. It is clear that he did not fully understand the legal implications for existing staff, and his obligations to them,  resulting from the takeover.  However, from his own evidence  it is clear that he took over the business and therefore legally, he took over the employment of the complainant. In these circumstances I find that he was the employer and that the complainant was unfairly dismissed.

 In relation to redress in the form of compensation the Unfair Dismissals Act in Section 7 states;

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

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

Financial loss, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Act, 1967.

In her evidence the complainant stated that she applied for two positions and she was not actively looking for work as she has a young child.  In these circumstances the complainant has failed to mitigate her loss.  However, she has lost potential statutory redundancy which would be calculated based on her employment commencing on 14 Feb 2018 and ending on 1 Aug 2023 and equates to €6,888.  This therefore is the amount in compensation to which she is entitled for the unfair dismissal.

CA-00061272-002

The complainant did not get compensated for annual leave from 1 January 2023 until 18 Aug 2023 or for public holidays which fell during her maternity leave (four days).  Under the Organisation of Working Time Act 1997, she is owed for 17.3 days which equates to €2000.

CA-00061272-003

It is clear from the evidence of the complainant and supporting documentation that the respondent issued her with payslips but did not actually pay her.  Based on her evidence and supporting documentation I am satisfied that the amount owed under the Payment of Wages Act 1991 is €1000.

CA-00061272-001; The complainant was unfairly dismissed and I order the respondent to pay the complainant €6,888 in compensation

CA-00061272-002; Under Section 27 of the Organisation of Working Time Act, 1997 I find the complaint is well founded and I order the respondent to pay the complainant €2000 in respect of untaken holidays.

CA-00061272-003; Under Section 6 of the Payment of Wages Act, 1991 I find that the respondent is in breach of the Act and I order the respondent to pay the complainant €1000.

Unfair dismissal, payment of wages, holiday pay