EMPLOYMENT APPEALS TRIBUNAL
Ciaran Collins/Big Adventure Islands Limited T/A The Adventure Islands
UNFAIR DISMISSALS ACTS 1977 TO 2007
PAYMENT OF WAGES ACT 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr. D. Morrison
Mr M. McGarry
heard this claim at Castlebar on 10th May 2016 and 26th July 2016 and 25th October 2016
Claimant: Mr. Michael Monahan, Solicitor, 47 John Street, Sligo
Respondent: Mr Boguslaw McArdle, Patrick J Durcan & Co, Solicitors, James St, Westport, Co Mayo
This case came before the Tribunal as a constructive dismissal claim against the respondent under the Unfair Dismissals Acts 1977 to 2007 and an employee appeal against the recommendation of a Rights Commissioner ref: r-151358-pw-14 under the Payment of Wages Act 1991, ref: r-151360-te-14 under the Terms of Employment (Information) Act 1994 to 2012 and ref: r-151362-wt-14 under the Organisation of Working Time Act 1997.
The Tribunal accepts jurisdiction to hear all claims against the named respondent except the appeal of the Rights Commissioner Recommendation ref: r-151358-pw-14 under the Payment of Wages Act 1991 as Sec 7(2)(b) was not complied with by the appellant.
The claimant was in college studying outdoor education in October 2011 when she was informed that a company in Westport was looking for an archery instructor. She met with the respondent owner (CC) and he gave her brief instruction and they agreed a wage of €10 per hour and a minimum of €40.00. The claimant did the archery and combat sessions for the respondent; sometimes CC called into college with a cash payment and other times her payment would be in her account. In April 2012 CC asked again if the claimant was available for work, she accepted and the arrangement continued.
When the office manager suddenly resigned, the claimant said she would help out. The office manager wasn’t replaced. A wage of €500 per week for 40hrs was agreed. The claimant worked more and more hours as the respondent became busier, through June, July and August there was no problem getting paid her wages. In August 2012 the claimant was making the decision whether to go back to college and do an honours degree. CC told her that she could learn a lot from him as he had built many adventure businesses. The claimant decided to stay working for the respondent business, and the same wage of €500 was agreed with the addition of 5% shares. The claimant was eager to be in the outdoor adventure business and believed that CC could teach her, and she could be part of a growing business she believed in.
In October 2012 the respondent applied for a LEADER grant. He told the claimant that he needed her to become a director of the business as he personally had ‘tax clearance issues’ so had to resign as a director in order to get the grant. The claimant had no knowledge about company law but knew that being a director was a position of responsibility. The claimant refused to become a director twice, but finally accepted, as she trusted CC. There were no board meetings ever held.
In November 2012 CC told the claimant that he could no longer pay her but that as a director with shares she eventually would get the money and instructed her to claim social welfare. The claimant queried this instruction as she was working, but CC said that as she wasn’t getting paid for her work, it was legal. CC would not allow the claimant to get a part-time job as he thought it would look bad for the business as she was a director. It was agreed with CC that he owed her €3000 back pay for 2012 and she was owed €20,000 for 2013 and €25,000 for 2014. The claimant did send emails to CC to this effect, but he kept her laptop and when it was returned a lot of her documents had been deleted.
The LEADER grant of €100,000 was approved, but in order to secure it the respondent had to put up a % of the loan. Micro-Finance gives loans to small businesses for this purpose. Micro-Finance agreed the loan for the respondent, but only if the claimant would personally indemnify it. The claimant refused, but after CC put her under pressure and said he would get his solicitor to write a letter saying the company would indemnify the loan after the claimant secured it, she agreed; CC never got the letter from his solicitor.
The claimant tried to take one day off a week, but CC got her a company phone so she could always be contacted. CC wanted to put a tracker on the claimant’s phone. She agreed as he told her he just wanted to test it before putting it on his wife’s phone. The claimant queried why CC didn’t take a wage from the company as he was paying his mortgage and all his personal expenses out of the company account. CC said he put the money into the company so he can “do what he wants”.
In October 2013 a meeting was held with CC, the claimant and 2 other shareholders. CC’s wife, the final shareholder was not present. At this meeting the claimant was offered an additional 5% shares, the claimant had more access to the accounts at this stage and could see the loss. CC asked her to claim social welfare again. The claimant got 3 days social welfare and CC was supposed to pay her for the other 2 days, but this didn’t happen.
In January 2014 CC did not pay the claimant any wages and she was finding it difficult to live. CC had taking in ‘woofers’ and suggested that they move into the claimant’s house and he would contribute towards the rent; he never contributed to the rent. As the claimant couldn’t pay her rent CC said she could move into the office which had a spare room. The claimant moved into the office and gave up her house. There was an apartment attached to the office which CC’s family lived in and she had access to their bathroom and kitchen. She started babysitting for CC’s family when the au-pair wasn’t available.
The claimant trusted CC completely and she had put her “heart and soul” into the business and had sacrificed so much that she couldn’t leave her employment. She believed CC when he told her about all his other successful ventures and thought this would be the same.
In March 2014 CC and his family were moving out of the apartment in Westport to a house in Castlebar and asked the claimant to move with them. CC indicated that this would save her money and she could babysit for her rent. The claimant still contributed to household expenses. At this stage the claimant found herself in the middle of family disputes and CC started taking his anger out on her. CC regularly shouted at her and told her it was her fault the business was being lost. The claimant often worked 8am to 10pm 6 days a week. By April 2014 if the claimant wasn’t working in the office she was working in CC’s home and felt totally exploited and belittled by his conduct. While CC was on holiday for 2 weeks in May 2014 the claimant was left to run the business by herself and felt stressed and exhausted by the end of the month, but was afraid to ask CC for any time off.
In and around this time CC said he wanted to get a small company van as he thought it would be good for the image of the business. The business already had a large company van and CC also used the claimant’s car. CC did not seem to be concerned with paying any of the claimant’s wages. CC came up with the plan to trade in the claimant’s car against a company van and in that way the tax could be claimed back by the company and the van could be purchased for very little. The claimant refused as her car was her only remaining asset. CC pressured and bullied the claimant non stop at home and at work for 3 weeks before she finally agreed to give up her car. It transpired that CC had the transaction already set up with the garage because as soon as she handed over the keys they got a brand new 141 van. The claimant thought it was strange that she didn’t have to sign any paperwork for the van but she discovered that he had taken her car and put the van in his name personally. CC said he had to put it in his name to claim the VAT back and would get his solicitor to write a letter confirming that the claimant owned the van; again this did not happen.
The claimant realised that she was fully at the mercy of CC. She had no home, no car. She wasn’t being paid. She worked a lot of hours in the office then spent the remainder of her time working in CC’s home. CC was prone to angry outbursts to both the claimant and the volunteer staff. CC denied her access to the van saying that if they went to Westport together it would save on fuel. This meant that the claimant could no longer go to the gym before work and had to wait for CC to finish in the pub before driving him home. When the claimant told CC that as she mostly owned the van she should be able to use it he got angry and said he never agreed to that, the claimant realised she had made a massive mistake.
The situation with the van continued over the summer of 2014. Although CC had access to his wife’s car and the other large company van he often took the claimant’s van without telling her, leaving her stranded either at work in Westport or in his home in Castlebar without any means of going anywhere.
CC’s treatment of the claimant deteriorated even further. There was a stag party booked in to stay on the island accommodation. CC was away and asked the claimant to stay in the house on the island to cook and look after the stag party. The claimant was very uncomfortable with this as she would be alone with 12 men having a stag party, he refused to allow anyone else to go with her. CC got very annoyed and said if anyone drowned she would be liable as a director. He then said ‘what’s the worst that can happen, they could rape you but if it happens you can get them arrested.’
To save money CC took on more and more volunteers instead of qualified instructors. There were 2 safety incidents as a result; one person slipped on ground they should not have been on and on a second occasion CC observed a sailing lesson, as the qualified person, from the house on the Island. There were also a number of complaints from the female volunteers about CC’s inappropriate behaviour. Anyone who complained about CC or the working conditions were let go.
In August 2014 the claimant’s mental health started to really suffer but she was getting some money, so this helped keep her going. CC and his wife were fighting a lot and the claimant was “stuck in the middle” while looking after their children. The claimant attended her GP who certified her sick with stress for two weeks. CC responded by saying, ‘your joking you can’t go on two weeks leave.’ He suggested that she work as an instructor and do less office hours. The claimant said she was certified sick so it wouldn’t be safe.
The fact that CC wouldn’t permit the claimant to take sick leave and that she felt that she had committed fraud with both Social Welfare and Revenue, led the claimant to write a letter of resignation as director of the respondent to CC. (A revenue audit had taken place that raised some ‘anomalies’ in the business accounts. The claimant realised she had signed paperwork for the LEADER grant she shouldn’t have.)
The claimant gave the letter to CC and he accepted her resignation as Director as it was always only supposed to be temporary. The claimant then asked for wages. CC said he couldn’t pay her so she should claim social welfare. The claimant refused, so CC asked if she would become the au-pair for his family; she declined this offer also. The claimant informed Micro-Finance that she had left the respondent’s employment and that CC would be taking over the indemnity.
CC then told the claimant that as she was no longer a director she had to return the van or her shares. The claimant told CC that he could deduct €5,000 from her back pay for the shares or €10,000 for the van. He then accused her of stealing the van and computer. By text at 9.07am on the 2nd of September 2014 the respondent said, “(claimant) did you access the office after I told you that you were finished. Where are the items that belong to the company?” CC attempted to call the claimant and then sent another text saying, “I will be reporting the phone and laptop stolen at 10am if you don’t confirm you are returning it”. A further message stated “Do I need to change the locks now” and a final text saying, “Call me please before all this goes down the toilet. It still can be fixed for you to walk away with no hassle. The other option is not worth even thinking about.” CC is a reserve guard so the claimant believed he would report her. She had to remove all her belongings from CC’s house. When she finished she left the keys and got a text to say she had no permission to enter the home.
CC then followed the claimant to her friend’s house where she was staying. He blocked her from the driveway and banged on the windows while she was in the van and started taking photographs of her. CC’s wife then arrived in her car and blocked the claimant from behind and “started giving out”. The claimant was trapped and had to call the guards. The claimant went to the guards and gave a statement about the incident. The claimant got a new job 6 weeks later but CC kept coming into the shop. The sergeant came in to check on the claimant and said he would have a word with CC and instruct him to stay away from the claimant and the shop.
There were no internal procedures in place. The claimant’s employment started with a verbal agreement and that is how the employment relationship continued.
The two co-Directors (CC) and (TC) gave evidence. Both stated the claimant “knew what she was doing” at all times. She was in charge of the office and the company finances and as Office Manager she organised the payment of wages for the employees, including herself. CC agreed that he had paid the claimant in cash on one or two occasions but had not personally paid her her wages. The claimant also allocated her own hours of work. CC told the Tribunal that he had, on numerous occasions, told her to go home early but she had not.
In respect of a contract of employment, CC told the Tribunal that part of the claimant’s duties was to draw up and submit contracts of employment for the respondent’s staff, and therefore could not understand why the claimant stated she had not received one herself. CC stated that the claimant was issued a contract, but he could not produce a copy of this contract to the Tribunal.
CC denied that he had treated the claimant badly or had made the claimant perform the duties as she had outlined in her evidence. He had not coerced her in trading in her car for a company van or to sign documents to become the company secretary. CC agreed that he had signed certain forms for the Department of Social Protection for the claimant but had not done so for fraudulent purposes.
When put to him regarding the claimant being listed as a guarantor for a company loan, he replied that the claimant had been willing to sign the documentation at the time. When asked why her name had not been removed from the documentation for a considerable time after she terminated her employment, he replied that removing guarantors from loan documentation was difficult.
In this case the Tribunal have to consider three appeals of a Rights Commissioner’s recommendation and a claim for unfair dismissal before this Tribunal to consider.
The claimant states the conditions she had to work under, the stress she was suffering due to lack of wages received, the loss of her home and her car and the undue pressure she was put under by the respondent, gave her no alternative but to terminate her own employment.
The respondent contends the claimant was well aware of the actions she undertook to become company secretary and guarantor of a company loan. As Office Manager she organised the payment of staff wages and the compilation of contracts of employment for employees being tantamount to organising her own wages and contract of employment. The respondent also states there was no pressure put on the claimant to sell her car or move out of her home and into the respondent’s home. It had been a suggestion on their part.
Having considered the entirety of the sworn evidence, and submissions adduced over the three days of this hearing, the Tribunal finds the claimant had no alternative but to terminate her employment. Accordingly, the Tribunal awards the sum of €6,100.00 (six thousand one hundred euro) under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal also awards the sum of €2,600, this being twenty days annual leave and five public holidays under the Organisation of Working Time Act, 1997.
In respect of the appeal under the Terms of Employment (Information) Act, 1994 to 2012 the Tribunal finds there was no conclusive evidence adduced to clarify whether the claimant had not received a written contract of employment or terms and conditions of employment. Therefore the appeal must fail.
In respect of the appeal under the Payment of Wages Act, 1991 Section 7(2)(b) of the provides as follows:
7. - (1) A party concerned may appeal to the Tribunal from a decision of a rights commissioner under section 6 and, if he does so, the Tribunal shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.
(2) An appeal under this section shall be initiated by a party by his giving, within 6 weeks of the date on which the decision to which it relates was communicated to him—
(a) a notice in writing to the Tribunal containing such particulars (if any) as may be specified in regulations under subsection (3) and stating the intention of the party concerned to appeal against the decision, and
(b) a copy of the notice to the other party concerned.
The Tribunal finds that the claimant did not furnish a notice in writing to the respondent within 6 weeks of the date of the decision by the Rights Commissioner being communicated to them as required by section 7(2)(b) of the Payment of Wages, Act, 1991. Compliance with section 7(2)(b) of the Payment of Wages, Act, 1991 is a mandatory statutory requirement for the making of a valid appeal to the Tribunal and as a result of this non-compliance with the sub-section, the Tribunal finds that it has no jurisdiction to deal with the appeal from the recommendation of the Rights Commissioner.
Sealed with the Seal of the
Employment Appeals Tribunal