CORRECTION ORDER

ISSUED PURSUANT TO SECTION 41 (16) OF THE WORKPLACE RELATIONS ACT 2015

16) An adjudication officer may, by notice in writing given to the parties to a complaint or dispute to which this section applies, correct any mistake (including any omission) of an administrative or clerical nature in a decision under this section in relation to that complaint or dispute.

This Order corrects the original Decision  issued on March 25, 2019 and  the Correction Order issued on December 1, 2023 and should be read in conjunction with that Decision and Correction Order 

I am informed by both Parties that this matter is at enforcement stage before the District Court , next sitting, May 3, 2024 .

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00015232

Parties:

Complaints: 

Date of Adjudication Hearing:  05/12/2018

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, r Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint (s to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint (s

Preliminary Issue(name)

The respondent submitted that corrected name of respondent was the correct name of the respondent and respondent as named on the complaint form is not a legal entity The complaint form was amended accordingly.

CA-00019818-001 Unfair Dismissal Act1977

Background:

The claimant submitted that she worked for the respondent, as an Administrative lead, from September 2009 until her dismissal in January 2018. The claimant stated that she received no notice or pay in lieu of notice prior to her dismissal. The claimant is seeking Adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973. The claimant had in excess of 8 years’ service with the respondent.  

The respondent submitted that the claimant never worked for them (respondent) and should it be found that she was an employee then she was summarily dismissed for gross misconduct arising out of her involvement in the embezzlement of funds from the respondent. The respondent’s representative placed on record his displeasure at not being allowed to put questions to the claimant which involved (her)views of another party not part of these proceedings

The respondent produced 4 witnesses to support their position that the claimant did not work for the company.

Findings

Both parties made extensive written and verbal submissions at the hearing

Witnesses were called to give evidence on behalf of the respondent and they were also crossexamined by the claimant’s representative.

The claimant also gave evidence and she was cross-examined by the respondents’ representative only on the issue before the adjudicator.

Key principles of employment

The starting point for determining employment status is to look at whether there is a contract between the parties. If there is no contract – and remember, a contract can be verbal as well as written – there is no employment relationship. If a contract does exist, the next item to establish is whether it is a contract of employment. For a contract of employment, three key elements must be present:

1. an employee must be under an obligation to perform the work personally;

• B there must be mutuality of obligation between the parties involved; and
• C the employer must have a sufficient right of control over the employee.

However, the Employment Appeal Tribunal (EAT) held that once the employer offered work and the claimant accepted it, the worker was obliged to carry it out personally in return for payment and there was, therefore, the requisite mutuality of obligation.

I find that the business was built on relationships between the respondent and the accountant. I find that in evidence the respondent (NOD) stated that the accountant asked if he(respondent) could employ his partner to carry out work and the respondent (NOD) agreed to this request. 

I find the respondent had a number of offices at different locations which were rarely if ever used.

I find that the working arrangements were extremely flexible between office and other locations (i.e. home)

I find that the claimant was employed by the respondent, she was not provided with a contract of employment. 

I find that she carried out work on behalf of the respondent mostly from her home 

I find that the claimant has been in the respondent’s employment for 9 years and this has been proven by returns made to the revenue(P35) along with her P60’s and P45 that she received.

I find not only did the claimant demonstrate a good working knowledge of what her position entailed, and this was supported with documents containing her signature. 

I find the respondent’s argument stated by witness no 2(DOD) that he forged the claimant’s signature onto these documents somewhat questionable.

I find if she was not an employee why did her signature appear on these documents from 2011 up to 2017?

I find that in a Company Management structure illustration supplied at the hearing the claimant’s name is in as administrator.

I also find that witnesses for the respondent who stated that they had never seen the claimant at her place of work, stated under cross-examination that they had not seen other witnesses (at the same place of work).

I find that when the respondent was asked if the claimant had embezzled funds or whether the claimant was facing charges for the same, the respondent clearly answered “no”, this clearly contradicts the contents of a letter sent by the respondents representatives to the Workplace Relations Commission, dated 9th July 2018  which states, ”We confirm that we will be defending these proceedings on the basis that,(claimant), never worked for the respondent  however if it is found that she was an employee then she was summarily dismissed for gross misconduct arising out of her involvement in the embezzlement of funds from the Company” .

I also find however that the one witness, not present, could have provided a substantial amount of clarity to the disputed issues before the Adjudicator.

I find that the absence of this witness does have an adverse effect on the claimant’s situation.

I find that other issues are being dealt with by the relevant authorities

I find in dealing with claims for unfair dismissal the onus and burden of proof rests with the respondent in this instance and as such procedures in line with the interest of natural justice and fairness should have been applied and were not, and as such I find that on the balance of probabilities, the claimant was unfairly dismissed.

Decision:

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.

I find the claimant was Unfairly Dismissed and I award her 6 months’ salary.

Ca-00019818-002

Minimum Notice & Terms of Employment Act, 1973

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the claimant based on her service has an entitlement to 4 weeks of pay.

Dated:   March 25th 2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

ADJUDICATION OFFICER DECISION CORRECTION ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997

This Order corrects the original Decision issued on 25/03/19 and should be read in conjunction with that Decision.

Adjudication Reference:  ADJ-00015232

Parties:

Complaints: 

Date of Adjudication Hearing:  05/12/2018

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, r Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint (s to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint (s

Preliminary Issue(name)

The respondent submitted that corrected name of respondent was the correct name of the respondent and respondent as named on the complaint form is not a legal entity The complaint form was amended accordingly.

CA-00019818-001 Unfair Dismissal Act1977

Background:

The claimant submitted that she worked for the respondent, as an Administrative lead, from September 2009 until her dismissal in January 2018. The claimant stated that she received no notice or pay in lieu of notice prior to her dismissal. The claimant is seeking Adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973. The claimant had in excess of 8 years’ service with the respondent.  

The respondent submitted that the claimant never worked for them (respondent) and should it be found that she was an employee then she was summarily dismissed for gross misconduct arising out of her involvement in the embezzlement of funds from the respondent. The respondent’s representative placed on record his displeasure at not being allowed to put questions to the claimant which involved (her)views of another party not part of these proceedings

The respondent produced 4 witnesses to support their position that the claimant did not work for the company.

Findings

Both parties made extensive written and verbal submissions at the hearing

Witnesses were called to give evidence on behalf of the respondent and they were also crossexamined by the claimant’s representative.

The claimant also gave evidence and she was cross-examined by the respondents’ representative only on the issue before the adjudicator.

Key principles of employment

The starting point for determining employment status is to look at whether there is a contract between the parties. If there is no contract – and remember, a contract can be verbal as well as written – there is no employment relationship. If a contract does exist, the next item to establish is whether it is a contract of employment. For a contract of employment, three key elements must be present:

1. an employee must be under an obligation to perform the work personally;

• B there must be mutuality of obligation between the parties involved; and
• C the employer must have a sufficient right of control over the employee.

However, the Employment Appeal Tribunal (EAT) held that once the employer offered work and the claimant accepted it, the worker was obliged to carry it out personally in return for payment and there was, therefore, the requisite mutuality of obligation.

I find that the business was built on relationships between the respondent and the accountant. I find that in evidence the respondent (NOD) stated that the accountant asked if he(respondent) could employ his partner to carry out work and the respondent (NOD) agreed to this request. 

I find the respondent had a number of offices at different locations which were rarely if ever used.

I find that the working arrangements were extremely flexible between office and other locations (i.e. home)

I find that the claimant was employed by the respondent, she was not provided with a contract of employment. 

I find that she carried out work on behalf of the respondent mostly from her home 

I find that the claimant has been in the respondent’s employment for 9 years and this has been proven by returns made to the revenue(P35) along with her P60’s and P45 that she received.

I find not only did the claimant demonstrate a good working knowledge of what her position entailed, and this was supported with documents containing her signature. 

I find the respondent’s argument stated by witness no 2(DOD) that he forged the claimant’s signature onto these documents somewhat questionable.

I find if she was not an employee why did her signature appear on these documents from 2011 up to 2017?

I find that in a Company Management structure illustration supplied at the hearing the claimant’s name is in as administrator.

I also find that witnesses for the respondent who stated that they had never seen the claimant at her place of work, stated under cross-examination that they had not seen other witnesses (at the same place of work).

I find that when the respondent was asked if the claimant had embezzled funds or whether the claimant was facing charges for the same, the respondent clearly answered “no”, this clearly contradicts the contents of a letter sent by the respondents representatives to the Workplace Relations Commission, dated 9th July 2018  which states, ”We confirm that we will be defending these proceedings on the basis that,(claimant), never worked for the respondent  however if it is found that she was an employee then she was summarily dismissed for gross misconduct arising out of her involvement in the embezzlement of funds from the Company” .

I also find however that the one witness, not present, could have provided a substantial amount of clarity to the disputed issues before the Adjudicator.

I find that the absence of this witness does have an adverse effect on the claimant’s situation.

I find that other issues are being dealt with by the relevant authorities

I find in dealing with claims for unfair dismissal the onus and burden of proof rests with the respondent in this instance and as such procedures in line with the interest of natural justice and fairness should have been applied and were not, and as such I find that on the balance of probabilities, the claimant was unfairly dismissed.

Decision:

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. I find the claimant was Unfairly Dismissed and I award her 6 months’ salary €30,000

Ca-00019818-002

Minimum Notice & Terms of Employment Act, 1973

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the claimant based on her service has an entitlement to 4 weeks of pay of €5000 gross

(€3230.00 net)

Dated:   March 25th 2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Key Words:

Key Words:

April 24 , 2024 .

I come to this process as an Adjudicator and as  direct result of the application made by the Respondent Representatives on November 27 , 2023 to amend the awards made in the above decisions in terms gross to nett figures .

This matter is currently before the District Court for enforcement purposes .

 In light of the foregoing, we would call upon you once again to issue a further Correction Order which reflects the Complainant’s actual loss, being the sum of €19,380 (€3,230 x 6) in respect of the unfair dismissals claim and €3,230 for her claim under the Minimum Notice and Terms of Employment Act, 1973. 

I am an Adjudicator , but have not had seisin of this case prior to December 2023 .

On 21 December , 2023 , I wrote to each party and requested a response to my correspondence  “ early in the New Year “  

As you can see, I have been asked to consider if this matter can be resolved with the parties?  

I would be grateful for your response and any suggested way forward in the matter early in the New Year, please.

On 12 January , 2024, the Respondent responded and confirmed the matter was ongoing at the District court , but no official document of request had arisen from this Court .

On March 8, 2024 , the Complainant side offered a welcome clarification and suggestion for the way forward .

With a view to finally resolving matters, we have no objection to the Respondent’s proposal for a second Correction Order issuing to include the net sum awarded to our client under the Unfair Dismissals Act 1977.

I have reflected on these sequential correspondence and now make a final Correction Order in this case .

Decision:

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.

I find the claimant was Unfairly Dismissed . I award her 26 weeks compensation for financial loss to  the amount of  €30,000 gross  and €19,380, nett .

CA-00019818-002

Minimum Notice & Terms of Employment Act, 1973

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under  Schedule 6 of that Act .

Section 12 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to the complaint in accordance with Section 4 of that Act .

I make a Direction that the Respondent pay the Complainant the amount of €5,000( gross), €3,230 (nett)  for the loss sustained by her by reason of the contravention .

I make this Correction Order to assist both parties to finalise this matter at the District Court. 

Adjudicator :   Patsy Doyle 

Date :  25th March 2019

Correction Order , Section 41(6)  Workplace Relations Act , 2015