Complainant

Respondent

Parties

Clodagh  Rodgers

Bonamy Limited, trading as Rockhill House Estate

Representatives

  In person

John Molloy, Managing Director of the Respondent

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-00066566-001

09/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00066566-002

09/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00066566-003

09/10/2024

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

CA-00066566-004

09/10/2024

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

CA-00066566-005

09/10/2024

At the commencement of the Adjudication hearing on 18/12/24 the status of the complaints was clarified as follows:

CA-00066566-001 this complaint was withdrawn

CA-00066566-002 this complaint was withdrawn

CA-00066566-003 this complaint was pursued

CA-00066566-004 this complaint was pursued

CA-00066566-005 this complaint was withdrawn

CA-00066566-003

This is a complaint under the Carer’s Leave Act.

The Complainant gave evidence under oath as follows:

She commenced work for the Respondent, a luxury hotel in Letterkenny, Co. Donegal, on 3 August 2023 and was promoted to Duty Manager in November 2023.

After over a year of work on Tuesday 10 September 2024, she received bad news about her mother, who that day was undergoing heart surgery in Galway University Hospital. She was informed by hospital staff that her mother had suffered a stroke during the surgery. She contacted the Respondent (owner and general manager) John Molloy straight away to explain what had happened and that she needed to travel from Donegal to Galway. She finished work and travelled to Galway the following morning.

On Wednesday 11 September she emailed John Molloy to advise that her mother was worse than previously thought and that and that she would need to take leave from work to care for her. She did not know how much leave she would need and advised him that if he needed to release her employment from her employment she would understand.

John Molloy suggested that they arrange to meet when she returned from Galway, to which she agreed.

The Complainant said that she was up-front with John Molloy from the start, given that her mother would need long term care and it was only fair to be clear to him about that.

John Molloy and the Complainant arranged to meet, initially on Wednesday 18 of September which was then changed by John Molloy to Friday 20 September 2024, at Rockhill Hotel Estate.

At that meeting on 20 September the Complainant gave him an update about her mother. She told him that her mother’s house would need to be modified to cater for her needs, post-stroke.  She advised John Molloy that she intended to go on sick leave operative from 16 September until 16 October 2024, but that 16 October would be her last day working for him. She asked him to sign a Carer’s Leave form so that she could apply for Carer’s benefit, which she expected would be paid to in one months’ time and in the meantime, she could receive illness benefit. John Molloy told her that he was not happy that she was leaving her job without giving him any notice. She responded that she had no option. She felt that this was a strange reaction. She then gathered her belongings and left.

Later that day she forwarded the GP certificate to the Respondent accountant. This certified her as being sick from 16 September until 16 October 2024. She also sent a Carer’s Benefit form for him to sign which indicated a final work date of 16 October.

Mr. Molloy responded to her the following Tuesday, 24 September. In this email he advised the Complainant that her last day of work had been the 10 September and that he would not facilitate any arrangement to bridge her employment with social welfare payment until 16 October as if she was on sick leave, when she was not. Caring for her mother was not the same as the Complainant being sick. He advised that he would not sign a Carer’s Leave application form,  which reflected an incorrect end date. He stated that she had resigned her position at the meeting on 20 September and that because he was no longer her employer, he no longer had any obligation to sign her Carer’s Benefit application, particularly given that the dates that she was asserting were incorrect.

The Complainant could not understand why John Molloy responded in this way. She was in a crisis with her mother. She simply was asking that he accept that she had given him notice on 20 September that her last date would be 16 October. She does not accept that she resigned at that meeting. Keeping her on the books as an employee for a month from 16 September – 16 October 2024 to allow her receive illness benefit for a month before the Carer’s Benefit would be paid to her was not an unreasonable thing to ask. There was no fraud as the Respondent was suggesting.  Her GP had certified her as being unable to attend work, he was not qualified or entitled to look behind that certification, to suggest that she was not sick. She was suffering great stress at this time and was unable to work because her obligation to look after her mother. This was a much greater priority than her desire to keep working.  She thinks that he was just annoyed that he was being left in the lurch with no duty management cover, but what could she do?

She accepted that she was giving him little notice, but she was within her rights to give him one month notice of her intention not to return after 16 October and claim Carers Leave from then.

She could have pretended to him that she would return on 16 October to get him to sign the form but she did not do that, because she felt that would have been unfair on him.  If she had done that her Carer’s Benefit would have been processed more quickly because he would have signed the application form. But she chose not to do that because that would not have been straight with him and would not have given him any notice that she would be leaving. She thought that it would be fairer to let him know in advance.  

She denies resigning at the meeting on 20 September. She told John Molloy that she would be resigning on 16 October 2014. She had a contractual obligation to give him 2 months notice and gave him one month. He should have signed the form as she asked.

She is so upset at this unnecessary unfair treatment after working so hard. She had so much to deal with that year, to deny her a simple request the way he did was inexcusably mean hearted at a difficult time for her.

CA-00066566-004

The Complainant was not paid for the Wednesday, Thursday and Friday of the week commencing 9 September 2024, the week she had to go Galway on the Wednesday morning. She worked the Monday and Tuesday but despite having a sick pay policy in her employment contract, which she had not availed of, the Respondent refused to pay her for the Wednesday, Thursday or Friday. And did not even tell her that he was going to do this or explain why since then.

She had worked hard for the Respondent, sometimes doing 60 hours and week. Her sons had nearly died of collapsed lungs the previous January 2024. At that time, she took time off work but was paid her weekly salary in full, not out of any generosity on the part of John Molloy but because she had worked so hard between August and January, she had already built up time off in lieu of overtime (TOIL) that she did not need to take force majeure leave or holidays or sick leave at that time. That shows how hard she worked in the 6 months prior to January 2024.

John Molloy is wrong to question whether she was sick in September 2024. She was sick with worry and had a GP note confirming this citing “family issues.” John Molloy had no right to question if she was sick or not or to question whether she really needed to mind her mother following her stroke. His whole approach was offensive. At the Adjudication hearing he again suggested that she did not really have to leave the job to mind her mother. What does John Molloy know about her domestic arrangements and who within her family was or was not free to mind her mother.

The Complainant withdrew three of her complaints at the hearing. One of which was a complaint under the Parental Leave Act. She withdrew is on the basis that she accepted that she was not a parent and instead pursued the complaint under the Payment of Wages Act.

But she believes that she should have been paid for the three days (Wednesday, Thursday and Friday) in the week commencing 9 September based on the emergency situation or alternatively allowing her to use the company sick pay policy to cover the three days.

In respect of her complaints she accepted that under the law she may not be entitled, but these complaints were not about money. They were brought because she was treated so badly at the end of her employment at a time that John Molloy knew that she was under great stress and upset. 

John Molloy, owner and Managing Director of the Respondent gave the following evidence under oath.

The Complainant resigned her position at the meeting that he had with the Complainant on 20 September 2024.

He was not prepared to facilitate a fraud whereby the Complainant was claiming to be sick, when in fact she was not sick but instead had decided to care for her ailing mother. She herself was not sick. He explained this at the meeting.  

He told her at the meeting that because she had resigned from her employment, operational from 16 October (but would not work until then) he was not obliged either to pay her sick leave or sign a Carer’s benefit application. But he certainly was not prepared to sign a Carer’s benefit application which stated that her employment ended on 16 October, when this was a fiction.

There was nothing to prevent the Complainant having resigned, from going to the Department of Social Protection (DSP) to seek Carer’s Benefit. He accepted that this would mean that she would not receive a bridging pay to cover the time until she received it but given that she was not longer employed by him, that was not his concern, and he would not facilitate defrauding the DSP.

The Complainant left him in the lurch in September 2024. He had spent considerable time training the Complainant as a Duty Manager given that she had no hospitality experience before she started working for him. He facilitated her need for leave in January 2024 when her sons were ill, but September 2024 was an extremely busy period for the business. If her mother was discharged to Letterkenny hospital from Galway, as he was told was happening, there was no need for her to be at the hospital at her bedside all the time. It would have been possible to work some hours. She refused to consider any continuation of her work, even on a part time basis at this time. He accepted that he was not happy at the meeting on 20 September 2024 and that his minutes reflect that he was not happy about the lack of notice.

But the meeting on 20 September 2024 ended amicably. He believed that she understood that he would not facilitate a fictional sick period of a month. The Company procedure with respect to taking Carer’s Leave did not encompass what the Complainant was suggesting. She would need to be an employee to obtain Carer’s Leave but was not since she resigned on 20 September.

Furthermore, when he accompanied the Complainant to collect her belongings from her work desk, she lifted the desk chair with her, as if to take it with her. When he asked her what she was doing she said that it was her own chair to help with her sore back.  He accepts that it was in fact her chair.

The GP certificate was sent to his accountant one hour after the meeting on 20 September 2024. She did not send the certificate to himself. John Molloy believed that this was a deliberate sleight of hand to get the Respondent accountant to sign the form which contained inaccurate dates, which would have implicated the Respondent to defraud DSP.

The Complainant would have had the GP cert when she met him that morning, but she chose not to show it to him.  John Molloy wrote to the Complainant on 24 September advising her clearly that as she had resigned her position on 20 September and as her last working day was 11 September, he would not countenance signing a Carer’s Lave form which stated her end date as being 16 October 2024, when that was not accurate.

The Complainant never asked for force majeure leave the week that she left to go to Galway. As she did not ask, she was not entitled to avail of it.

John Molloy stated that he treated the Complainant very well. In previous instances of ill health within her family he gave her the leave that she required. He used TOIL work hours to pay her for leave days. He paid her a summer bonus. And when he did the calculation of her wages, he had overpaid her by €600.

These complaints are unfounded and should be dismissed.

This was an unusually disputatious adjudication hearing, given the facts.

At the start of the hearing the Complainant withdrew three out of the five complaints that were issued, following a discussion by this Adjudicator.

Of those two complaints which were pursued the Complainant advised that even if the Adjudicator found that these had no legal basis to provide relief, she only really wanted an apology/ acknowledgement that the way her end of employment had been dealt with by John Molloy had been very badly handled.

Given the Complainant’s assertions (that for the year that she had worked for the Respondent, she had worked hard, was respectful to her employer, was reliable, had passed her probation, that there were no complaints about her work and that she entered a crisis in September 2024, when her mother suffered a stroke during heart surgery – on top of what had already been a very difficult year for her, during which both her sons had both nearly died) none of which were disputed by the Respondent witness, Mr. Molloy, it is unusual, given the low level relief that was ultimately being sought by the Complainant,  that the opportunity that was suggested by the Adjudicator to consider a resolution outside the adversarial adjudicative process, was rejected out of hand by the Respondent.   

Nonetheless, my jurisdiction is to decide whether there has been a breach under the Acts complained of. I will now turn to each of the complaints.

CA-00066566-003 (Carer’s Leave)

I am satisfied that the Respondent, John Molloy was informed by the Complainant on 20 September that she intended to resign her position on 16 October, after a period of sick leave which ran from 16 September under 16 October.) I accept that the reason that the Complainant wished for this arrangement was because that would mean that would allow her to receive illness benefit for a month which would then lead into Carer’s benefit, so that she would not be without an income while she cared for her mother.

 I accept that the sick certificate was dated 18 September and was back dated to encompass from 16 September. I accept that the Respondent disputed the fact that the Complainant was sick and that he did not wish to facilitate what he regarded as a fraud on the DSP, whereby she would receive illness benefit even though it was not she who was ill.

As I accept that the Complainant told her employer on 20 September that she would not be returning to work from that day onwards and would officially resign on 16 October, while that could have been treated as the Complainant serving one months’ notice of her intention to resign as opposed to being a resignation of itself,  given that she candidly admitted that she would not be working out her notice (contrary to what the Respondent wanted) it was not unreasonable for him to treat her admission on 20 September as being a resignation then and there, without any notice, which contravened her contractual notice and the statutory notice period of one week.

Following her resignation, the Complainant was no longer employed by the Respondent and while the Respondent, could have agreed to sign the form as her former employer  - as is permitted by the Carer’s Leave Act -  as she was no longer employer by the Respondent I am satisfied that he was not obliged to sign the form.

For the above reason I am satisfied that no breach occurred under the Carer’s Leave Act and that this complaint is not well founded.

CA-00066566-004 (Payment of Wages)

The Complainant submits that she was entitled to be paid for the remainder of the week commencing 9 September. She says that she was always paid for the full week, even if she did not work a full week, because she had built up TOIL.

Another complaint (002) under the Parental Leave Act which was withdrawn on the basis that she accepted that she was not a parent. It was not clear at the commencement of the hearing that she was claiming force majeure leave for the three days following the 10 September 2024. I do not blame the Complainant for this. She is not legally represented. Had she been, I have no doubt that her advisor could have clarified that the complaint was being brought under section 13 and not what was erroneously understood as being under section 6 of that Act.

By way of alternative, she claims that she should have been paid sick pay for this week, given that sick pay is available to her under her contract, but the Respondent denies that she was sick then and she did not provide any evidence of sickness for that period.

To succeed under the Payment of Wages Act I need to be satisfied that there was an unlawful deduction from the Complainant’s wages.

The right to force majeure leave is provided for in the Parental Leave Act.

A WRC complaint form is not a statutory form and if, during the course of a hearing a right becomes identified, albeit under the wrong legislation, if an Adjudicator is satisfied that the Respondent is on notice of the correct complaint, the Adjudicator may deal with the complaint as having been brought under the correct Act. This must apply even more so when a complaint was brought under the correct act but through misunderstanding of the nature of that complaint, it was withdrawn at the start of the hearing.

I am satisfied that the Complainant was entitled to take force majeure leave from her work on 11 September. I am satisfied that the Complainant was an employee until she resigned on 20 September 2024.

I am satisfied that the conditions of force majeure leave were all in place at the material time– the Complainants mother (parent) suffered a life-threatening stroke. This gave rise to a need for the Complainant’s immediate presence at Galway Hospital where her mother was being treated in intensive care.

The email that the Complainant sent to the Respondent on 11 September substantively complied with the formalities to claim force majeure leave under SI 454/1998. The name and address of the employer were known; the Complainant’s name was known; the identification of the injury party was known and identified; the location of the injured party was known and identified; the relationship of the Complainant to the injured party and the dates that she was taking leave – all of these were either known already to the Respondent or were included in this email.

The Respondent defence to this argument is that force majeure leave was never asked for. The fact that the words “force majeure leave” were not used by the Complainant in the email of 11 September is not determinative, given that all the other criteria for entitlement were met.

Once this email was sent to the Respondent, it is surprising to me that the Respondent did not himself advise the Complainant of her right to take force majeure leave given the acute circumstances that prevailed.

I am satisfied that the Respondent’s failure to pay the Complainant force majeure leave for three days following 10 September is capable of being decided either as an unlawful deduction from her wages (under the Payment of Wages Act) or alternatively that it arises as a breach of the Parental Leave Act which the Respondent was on notice of and which this complaint may be considered under, given that the Respondent was on notice of the withdrawn PLA complaint and addressed that in his submission.

Based on the above findings I am satisfied that the Complainant was entitled to 3 days of force majeure leave in the days that followed 10 September 2024 when she was required to immediately go to Galway Hospital. She took leave on those days and was not paid a salary for three of those days. I consider this to be a breach of her statutory right to force majeure leave and the failure to pay her for three days of the leave period that she took, amounted to an unlawful deduction from her wages. To conclude I am satisfied that complaint CA-00066566-004 is upheld as either a breach of the Parental Leave Act or as a breach under the Payment of Wages Act.

I find this complaint to be well founded.

I award the Complainant 3 days gross salary, €285.00 which I have calculated on the basis of a weekly salary of €572 based on a six-day week.

CA-00066566-003 (Carer’s Leave)

This complaint is not well founded

CA-00066566-004 (Payment of Wages)

This complaint is well founded. I award the Complainant 3 days gross salary, €285.00.