Complainant

Respondent

Parties

Stephanie  Murphy

Kingdom Cleaning Services Group

Representatives

  Self-Represented

Ellen Walsh, Peninsula Business Services Ireland

Act

Complaint/Dispute 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-00054721-001

20/01/2023

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

CA-00054721-002

20/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00054721-003

20/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00054721-004

20/01/2023

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

CA-00054721-005

20/01/2023

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

CA-00054721-006

20/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054721-007

20/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00054721-008

20/01/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation.

The complainant was employed in a Service Delivery Manager role and was receiving €522 per fortnight.

Complainant

001

The complainant stated that she was not given a copy for terms and conditions in writing by the respondent.

002

The complainant submitted that she was not given copy of her amended terms and conditions in writing by the respondent.

003

The complainant accepted that the Road Transport Regulations 2012 did not apply to her.

004

The complainant submitted that she did not receive pension and benefits she was entitled to under the applicable employment regulation order

005

The complainant submitted that she was unfairly dismissed when she was dismissed by phone and that this was only followed up 15 days later with notification in writing.

006

The complainant submitted that she was not provided with equal pay and consideration in relation to her colleagues.  Although the complainant did not name a comparator nor details a ground prior to the hearing, at the hearing she provided the names of two colleagues and stated that she was making her complaint on the basis that she was Irish.

007

The complainant submitted that she was not provided with the appropriate payment regarding her minimum notice as she was dismissed by phone.

008

The complainant submitted that she was not treated same way as her full-time colleagues.

Complainant evidence:

The complainant noted that her contract of employment does not deal with the number of sites and that she was only removed from one client site which the respondent was due to lose as a client anyway. She noted that she didn't take any holidays.

Under cross examination it was put to her that she didn't submit an appeal and she responded that she had never received the letter. It was put to her that she was hired to look after the Irish portfolio but couldn't fulfil that role once she was excluded from the client site. The witness stated that the respondent did not advocate on her behalf like she wanted them to contact a named individual. In respect of the job she was offered, she noted that the job didn't suit her.

Respondent

001

The respondent submitted that the complainant was provided with written notifications of her terms and conditions of employment but also submitted but this complaint was out of time.  It submitted that she received her conditions in writing in the offer letter for the employment in 2017.

002

The respondent submitted that the complainant was provided with written notification of the changes to her terms and conditions of employment but also submitted that this complaint was made out of time.

003

The respondent submitted this complaint was not relevant to the employment of the complainant.

004

The respondent submitted that this complaint was made outside of the appropriate time frame in that it was aware of a back payment made to the complainant in June 2021.

005

The respondent submitted that the complainant was not unfairly dismissed but that she was no longer capable of carrying out the work for which she had been assigned to do. She had been removed from a client site on the instruction of the client.  It had offered her the only alternative is had available, a cleaning position, but this was not acceptable to the complainant and accordingly she was dismissed.

006

The respondent submitted that the complainant neither indicated the ground upon which she was seeking equal payment nor named any comparator to which she was seeking equal pay and accordingly this complaint was not well-founded.

007

The respondent accepted that the complainant did not receive the appropriate payment regarding her notice period and was probably due an additional week’s payment.

008

The respondent submitted that the complainant was not a fixed term worker and accordingly this complaint is misconceived.

Witness Testimony:

The first witness for the respondent was the HR manager. She outlined how there was no longer enough work for the complainant to be employed on a full-time basis because she was not now permitted to work on a particular client site. Although there was some work left three to four hours on another site it was not tenable to employ a person for the original client site alone as the hours didn't constitute a viable position for new person. Accordingly, both of these positions needed to be filled by the same person. As the complainant was not able to cover this site due to a breakdown in the relationship with the client, she was offered an alternative for the additional hours but refuse to do this role as it was a cleaning role.

The witness clarified that the complainant was not dismissed on the basis of a disciplinary issue but rather was let go on the basis of a lack of work, that is a redundancy type situation. The witness clarified that a letter of dismissal was sent to the complainant in the post but not by registered post. The letter was also hand delivered and therefore the complainant could have made an appeal, but no appeal was ever taken. In relation to the comparators, the witness stated that one was not based within Ireland and the other was in receipt of lower pay than the complainant.

Under cross examination It was put to the witness that the alternative job offer was based in Belfast and so was not valid offer for the complaint. It was put to the witness that the payment rates for the comparators were valid as they were paid from a payroll address in Ireland.

The second witness for the respondent was the Regional Director who noted that she was not the complainant’s manager at any point. She noted that her involvement concerned the grievance taken by the complainant prior to her dismissal. That grievance revolved around the issue that the complainant had with a client company. The client was not prepared to re-admit the complainant to the client site and therefore the matter could not be resolved.

Under cross examination it was put to her that she was never the complainant's manager. It was put to the witness that the complainant never received the letter of dismissal. The witness accepted that she might not have received the letter but that it was sent on by hand as well.

001 Terms of Employment (Information)

The complainant stated that she was not given a copy for terms and conditions in writing by the respondent.  The respondent submitted that the complainant was provided with written notifications of her terms and conditions of employment but also submitted but this complaint was out of time.  It submitted that she received her conditions in writing in the offer letter for the employment in 2017.  On the basis of the evidence provided, I am satisfied that the complainant was provided with a copy of her terms of employment in writing and therefore I find that this complaint is not well founded.

002 Terms of Employment (Information)

The complainant submitted that she was not given copy of her amended terms and conditions in writing by the respondent.  The respondent submitted that the complainant was provided with written notification of the changes to her terms and conditions of employment but also submitted that this complaint was made out of time.  The complainants place of work change due to the closure of one of the respondent’s premises.  Thereafter she was required to work from home.  At a minimum this should have been communicated in writing to the complainant during her employment.  It was not.   I am satisfied that the complainant has established that she was not given an amended terms and conditions of employment in writing.  Accordingly, I find that this complaint is well founded.  I consider that compensation equivalent to two weeks wages is just and equitable in relation to this breach, i.e. €522

003 Road Transport Regulations

The complainant accepted that the Road Transport Regulations 2012 did not apply to her.  Accordingly, I find that this complaint is misconceived.

004 SEO

The complainant submitted that she did not receive pension and benefits she was entitled to under the applicable employment regulation order. The respondent submitted that this complaint was made outside of the appropriate time frame in that it was aware of a back payment made to the complainant in June 2021.  From the evidence provided by the complainant, I am not satisfied that the complainant has established that the Sectoral Employment Order was breached.  Accordingly, I find that this complaint is not well founded.

005 Unfair Dismissal

The complainant submitted that she was unfairly dismissed when she was dismissed by phone and that this was only followed up 15 days later with notification in writing.  The respondent submitted that the complainant was not unfairly dismissed but that she was no longer capable of carrying out the work for which she had been assigned to do. She had been removed from a client site on the instruction of the client.  It had offered her the only alternative is had available, a cleaning position, but this was not acceptable to the complainant and accordingly she was dismissed.

An issue arose regarding the complainant and one of the respondent’s clients which resulted in the complainant not being allowed to access that client site.  This resulted in the complainant’s duties reducing to three to four hours per week.  At the same time the respondent was required to engage a person to undertake the work on the original client site.  The respondent suggested that it was untenable to retain a person on this level of employment alone.  It tried to offer alternative hours to the complainant, albeit outside the jurisdiction, but she declined to take up that role.  The respondent argued that it could not recruit a person to cover the original client site alone and it needed to be able to offer a candidate sufficient hours over the two sites.

The complainant was not in a position to undertake the role to which she had been recruited and therefor was let go.

Section 6(1) of the unfair Dismissals Act states:

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4) states

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The respondent submitted that it was left with no option but to dismiss the complainant but that the dismissal did not constitute an unfair dismissal.  Having regard to the Act, I am satisfied that following her exclusion from the client site, the complainant was not longer capable of carrying out the role to which she was recruited.  She was offered the only alternative available, a role outside the jurisdiction, which she refused.  In the circumstances, I find that the dismissal falls under Section 6(4)(a) of the Act and is not deemed to be an unfair dismissal.

006 Employment Equality – Equal Pay

The complainant submitted that she was not provided with equal pay and consideration in relation to her colleagues.  Although the complainant did not name a comparator nor details on a ground prior to the hearing, at the hearing she provided the names of two colleagues and stated that she was making her complaint on the basis that she was Irish.  The respondent submitted that the complainant neither indicated the ground upon which she was seeking equal payment nor named any comparator to which she was seeking equal pay and accordingly this complaint was not well-founded.

Of the comparators named at the hearing, one was on a lower rate of pay, the other was employed outside the jurisdiction.  In the circumstances, I find that no valid comparators were named.  Accordingly, I find that this complaint is not well founded.

007 Minimum notice

The complainant submitted that she was not provided with the appropriate payment regarding her minimum notice as she was dismissed by phone.  The respondent accepted that the complainant did not receive the appropriate payment regarding her notice period and was probably due an additional payment.  On that basis, I find that this complaint is well founded and that the Act was contravened.  The complainant is due an additional €522 for her notice of termination.

008 Fixed Term Work

The complainant submitted that she was not treated same way as her full-time colleagues. The respondent submitted that the complainant was not a fixed term worker and accordingly this complaint is misconceived.

The complainant was not on a fixed term work contract and therefore, I find that this complaint is misconceived.

001 Terms of Employment (Information)

Having regard to all the written and oral evidence presented in relation to this matter my decision is that this complaint is not well founded.

002 Terms of Employment (Information)

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is well founded, and I award the complainant compensation equivalent to two weeks wages, i.e. €522, is just and equitable in relation to this contravention

003 Road Transport Regulations

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is that this complaint is misconceived.

004 SEO

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is not well founded.

005 Unfair Dismissal

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the was not unfairly dismissed.

006 Employment Equality – Equal Pay

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that as no valid comparators were named, this complaint is not well founded.

007 Minimum notice

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is well founded and that the Act was contravened.  I direct the respondent to pay the complainant €522 compensation for the loss sustained by reason of the contravention.

008 Fixed Term Work

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is misconceived.

Terms of Employment Information – award of compensation – SEO – no breach established – Unfair Dismissal not established – Equal Pay – no valid comparator – Minimum notice – compensation awarded – Fixed term work not established.