ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010188
Robin McKenna IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 05/12/2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41 of the Workplace Relations Act and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The complainant had been employed as an office administrator by the respondent company since April 1996. The complainant worked 35 hours per week with gross weekly pay of €728.40. Issues had arisen in the workplace which eventually resulted in the complainant going on certified sick leave on 17 May 2017. The complainant received a P45 Form and final payslip in the post on 23 August 2017. Payment in respect of annual leave and Public Holidays were incorrect.
Summary of Complainant’s Case:
The complainant was on certified sick leave due to work related stress since 17 May 2017 caused by long term workplace harassment.
A complaint in respect of this treatment had been lodged with the WRC under the Industrial Relations Act.
The complainant was sent a P45 Form together with a final payslip in the post on 23 August 2017. There was no explanation as to why the complainant was being dismissed. The P45 stated that the day of cessation was 9 August 2017.
The complainant had not received any notice of her dismissal.
The complainant was not paid the correct amount due for annual leave.
The complainant was not paid for two Public Holidays that occurred whilst on sick leave.
Summary of Respondent’s Case:
The complainant went out on sick leave on 17 May 2017 and her medical certificate stated that the reason for her absence was work related stress.
The complainant sent emails to the Managing Director complaining about the way she felt that she was being treated by his daughter who was also a Director of the respondent company.
Further certificates were submitted by the complainant, the final one being on 23 June 2017 to cover a period of 4 weeks. Further emails were also sent to the Managing Director by the complainant in relation to her treatment in the workplace.
Another Director met with the complainant in early August to see how she was feeling. During this meeting the complainant advised the Director that she would not be returning to work.
The complainant’s employment was terminated as per her request with effect from 9 August 2017.
Findings and Conclusions:
The background to this case is that the complainant had been working for the respondent company for in excess of twenty years. The company had been set up by the present Managing Director and it had grown over time. In latter years the MD had begun to spend more time living overseas and members of his family, who were also Directors of the company, became more involved in the day to day running of the business. The complainant had been involved in the clerical and administrative part of the company from the beginning and dealt with important facets of the business. Indeed the respondent’s own submission states that the complainant was regarded as a key figure and had recently been given a pay rise.
The daughter of the MD began working in the office around 2002. The complainant stated that the daughter’s attitude had caused problems over the years and that the complainant would have to speak to the MD in this regard. The MD, whilst spending more time living abroad, still retained control of the business as regards decision making, etc. The complainant felt that the daughter would on occasions attempt to take control of staff even though the MD had informed staff that she was not in charge. The final straw for the complainant was an incident in mid – May 2017 that had seen the telephone lines and email being cut off and a dispute arising in relation as to why the telephone bill had been overlooked. The complainant said that the daughter started shouting at her and that eventually she felt that she had to leave the building. The complainant sent an email to the MD and went to her doctor who certified her as suffering from work related stress. The complainant in the next few weeks sent further sick certs to the MD explaining that the workplace difficulties needed to be resolved and requesting that he contact her. When no response was received to these emails the complainant lodged a complaint with the WRC with regard to the issues under the Industrial Relations Act 1969. The complainant was still on sick leave when her employment terminated in August 2017.
The first issue in contention is whether or not the complainant resigned from her position as stated by the respondent. The respondent’s position was that this had happened when a Director of the company had met with the complainant and that during the meeting the complainant had verbally stated that she would not be returning to work. The complainant in evidence denied that she had ever stated that she was resigning from her position. She further stated that her understanding of the meeting was that it was an informal one-to-one meeting in a local cafe arranged by text messages with one of the family with whom she had a good relationship and who wanted to make contact with her. The Director involved in the meeting was not present at the hearing to give evidence. The respondent accepted that no resignation in writing was ever received by them from the complainant.
In all these circumstances I have to accept the evidence of the complainant that she did not tender her resignation at that meeting. It would be highly unusual and very unwise for an employer to accept an uncorroborated verbal resignation at an informal meeting from any employee much less from a trusted employee of twenty years’ service. This lack of procedure is compounded by the fact that the next communication received from the respondent on 23 August 2017 is a P45 Form stating that the complainant’s employment ceased on 9 August 2017 together with a payslip for outstanding payments due to her. There was no cover letter. It was stated in evidence that the decision to issue the P45 Form was made by the Managing Director who was still abroad at that time. I find therefore that the termination of the complainant’s employment amounted to a dismissal.
Section 6(1) of the Unfair Dismissals Act states:
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.
The only grounds advanced by the respondent was that the complainant had resigned. No other grounds for the dismissal were put forward by the respondent.
With regard to the complaint in relation to annual leave underpayment the respondent’s representative stated that having reviewed their records it was calculated that the complainant was owed 3.47 days in annual leave entitlement. The complainant accepted that this was correct. The complaint in relation to the complainant being owed for two Public Holidays was conceded by the respondent.
The complainant also lodged a complaint under the Payment of Wages Act, 1991, in relation to the issue of not receiving the appropriate payment in lieu of notice. Section 1 of that Act includes the following in the definition of “wages”:
(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior noticeof the termination, being a sum paid in lieu of notice.
The appropriate prior notice in this case is set out in Section 4 of the Minimum Notice and Terms of Employment Act, 1973:
An employer shall, in order to terminate the contract of employment of an employee who has been in continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section
In the case of the complainant this is 8 weeks. The complainant had been absent from employment on sick leave since 17 May 2017. There was no formal agreement in the company for payment during sick leave but the complainant stated that she had a verbal agreement with the MD whereby she was paid for the first two weeks of illness. She had received this payment in respect of the illness in question. At the time of the termination of her employment therefore the complainant was not in receipt of any payment from the respondent company. According to her own evidence she was still unfit for work at the time her employment was terminated. The respondent’s representative submitted that as the complainant was on unpaid leave at the time of her resignation no payment in lieu is due. I have already found that the complainant did not resign. As noted the complainant received no other correspondence from the respondent apart from the P45 Form and wage slip. The P45 gave the date of cessation as 9 August but the documentation was not received by the complainant until 23 August 2017. The date on which the complainant was given notice is therefore 23 August 2017. I note from documentation supplied by the complainant that she commenced seeking employment with effect from 12 September 2017 and that therefore the complainant was available for work from that date. Section 5 of the Minimum Notice and Terms of Employment Act provides for the rights of employees during a period of notice as set out in the Second Schedule of that Act. Paragraph 2(a)(i) of the Schedule states:
An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided by his employer.
The period from 23 August 2017 until 12 September 2017 is a period of 3 weeks when the complainant was not available for work and for which, under the terms of her contract, she was not due payment. The payment in lieu of notice that is due to the complainant is 5 weeks’ pay.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint No. CA-00013284-001:
This is a complaint under the Unfair Dismissals Act, 1977 – 2015. It would appear that there was a complete disregard for the fact that a long serving employee had gone on sick leave and had been certified as suffering from work-related stress. The respondent’s own submission refers to the complainant as a “key person within the day to day operation of the company” who had recently been awarded a significant pay increase. The complainant attempted to communicate with the Managing Director, who apparently was the only person in the respondent company who was the decision maker. The MD did not reply to these communications. There appears to have been a lack of a recognised managerial structure within the company in his absence. There was also a complete lack of HR policies and procedures within the company. As referred to above I cannot accept that the complainant resigned and therefore find that the termination of the complainant’s employment amounted to an unfair dismissal. I note that the complainant, according to her own evidence, was still unfit for work at the time of her dismissal but did begin seeking employment in mid – September. Having regard to all the circumstances I order the respondent to pay to the complainant the sum of €35,000.00 as compensation in this regard.
Complaint No. CA-00013284-002:
This is a complaint under the Organisation of Working Time Act, 1997, in respect of payment due for annual leave. As noted above the respondent accepted that there was money due in this regard and it was accepted by the parties that this amounted to 3.47 days. I therefore find that this complaint is well founded and require the respondent to pay to the complainant the sum of €505.51 in this regard.
Complaint No. CA-00013284-003:
This is a complaint under the Organisation of Working Time Act, 1997, in respect of payment due for two Public Holidays. As noted above the respondent accepted that there was money due in this regard. I therefore find that this complaint is well founded and require the respondent to pay to the complainant the sum of €291.36 in this regard.
Complaint No. CA-00013284-004:
This is a complaint under the Payment of Wages Act, 1991, in respect of the non – payment of money due in lieu of notice. As noted above I find that the complainant is entitled to compensation amounting to the equivalent of 5 weeks’ pay and I require the respondent to pay to the complainant the sum of €3,642.00 in this regard.
I note that I have been advised by the respondent’s representative following the hearing that payment in respect of Complaints CA-00013284-002 / 3 have been made.