ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050369
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | An Employer |
Representatives | John Connellan BC Law |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00061680-001 | 20/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00061680-002 | 20/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00061680-003 | 20/02/2024 |
Date of Adjudication Hearing: 16/12/2024
Workplace Relations Commission Adjudication Officer: Patricia Owens
Procedure:
On 20 February 2024 the Complainant referred 3 complaints to the Workplace Relations Commission pursuant to Section 8 of the Unfair Dismissals Act, 1977, pursuant to Section 7 of the Terms of Employment (Information) Act, 1994 and pursuant to Section 27 of the Organisation of Working Time Act, 1977.
In accordance with Section 41 of the Workplace Relations Act, 2015 and following referral of the complaints to me by the Director General a hearing was scheduled for 16 December 2024, to afford the parties an opportunity to be heard by me and to present to me any evidence they deemed relevant.
In deference to the Supreme Court ruling, Zalewski V Ireland and the WRC [2021] IESC 24, the parties were informed in advance that the hearing would normally be in public, testimony under oath or affirmation would be required and full cross examination of all witnesses would be provided for.
The Complainant attended and was represented by Mr. John Connellan, Solicitor. She was accompanied by a friend.
There was no appearance by or on behalf of the Respondent at the hearing and no contact was made to explain the absence.
The required affirmation/oath was administered to the Complainant prior to her testimony. The legal perils of committing perjury were explained.
Preliminary Issue:
The Complainant sought that the hearing would be held in private, and the decision arising be anonymised. The request was based on the fact that the owner of the Respondent company and the Complainant had been partners and had a child together, the evidence relating to the complaints was relevant to other legal proceedings and the children’s identity should be protected.
I have exercised my discretion in this matter and confirmed my agreement to anonymise the decision in all the circumstances.
Background:
The Complainant was employed in the Respondent company from 16 December 2021 until the termination of her employment on 30 September 2023. The Complainant alleged that she never received a contract or terms of employment, that her dismissal was summary in nature and that she was not given rest breaks or her holiday entitlement. The Respondent is a provider of recycling services. There was no appearance by or on behalf of the Respondent at the hearing and the Respondent did not provide any response to the complaints.
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Summary of Complainant’s Case:
CA-00061680-001 In her complaint form, the Complainant outlined that she and the Director of the Respondent company were in a relationship and resided together and that they were parents to a child together. She submitted that she worked in the business developed by them. She further submitted that in August 2023, whilst on holiday together, the Complainant discovered that her partner had downloaded the dating/casual sex app, Grindr, which is specifically orientated for LGBGTQ+ community. She submitted that it was clear to her that her partner was engaged in prolific casual homosexual encounters/liaisons. She stated that she confronted her partner who in turn terminated her employment, ended their relationship and moved out, leaving her without employment or financial support.
CA-00061680-002 In her complaint form, the Complainant submitted that she was never given a contract of employment.
CA-00061680-003 In her complaint form, the Complainant submitted that she was not given rest breaks or her holiday entitlement.
General At hearing the Complainant outlined that she had been employed by the Respondent since 16 December 2021 and that she had taken on the role of Company Secretary in December 2021. She confirmed that she was never given a contract of employment, that she worked from home for most of the time and that she was never given any specific rest days. She stated that when her fiancé set up the business, he actively encouraged her to give up her job and to work for him.
She stated that when they were on a family holiday in July 2023, she saw a message from Grinder & Escort Ireland on his phone, that she confronted him in relation to the message while on holiday, that the situation was very stressful and that she wanted to separate when they got back to Dublin. The Complainant outlined that her partner planned to undergo treatment for sex and other addiction and that he wanted her to be involved in that programme. She advised that she did not want to participate in the programme and advised him accordingly.
The Complainant stated that soon after she received a letter from the Respondent asking her to resign her position as company secretary and to return the company laptop and car. The Complainant advised that she had traded in her own car when they bought the company car. The Complainant advised that she did not respond to that letter but that when she got up one morning, she realised that the car had been removed overnight from in front of her home. She stated that some of her personal belongings were in the car and that it was insured in her name. She stated that on that morning she was in a panic about having to get the children to school and she advised that her mother, who is a pensioner, used some of her savings to purchase a car for the Complainant so that she would have transport for the children’s activities. The Complainant advised that her salary was due to be paid in mid-November but that no monies were received into her account and that she was just left with no income to provide for herself or her children. She stated that she had to contact social welfare and that pending sanction for payments she had to rely on support from Women’s Aid and the St Vincent de Paul to provide for her and her children’s basic needs. She expressed her gratitude to both organisations for their support. The Complainant also advised that she was reduced to having to sell household items to try to keep up with payments due on loans etc. She further advised that she and her two children had medical insurance that had been paid by her partner and that during this time the Respondent stopped paying the insurance for her and one of the children. The Complainant advised that she had accumulated a lot of debt and that she could only get part-time work as a medical secretary because of her family commitments. She stated that she had applied for a position within the Gardai, and she hoped this would be regularise in due course. The Complainant advised the hearing that the Respondent had set up another company and had threatened that in the event of an adverse finding, he would put the existing company into liquidation. The Complainant advised that she had suffered not just her loss of earnings, but that she was also at the loss of the car and her pension scheme. She confirmed that her health insurance had not been through the Respondent company but rather had been paid by her former partner.
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Summary of Respondent’s Case:
There was no appearance by or on behalf of the Respondent at the hearing and the Respondent did not provide any response to the complaints.
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Findings and Conclusions:
CA-00061680-001 I noted the Complainant contention that she was summarily dismissed by the Respondent from her position as company secretary and I noted the details outlined in her submission, together with her oral evidence at hearing. I am satisfied based on documentation provided by the Complainant that she was employed by the Respondent and that her employment was terminated on 30 September 2023. I was satisfied that notice containing the details of the date, time and place of the hearing had been properly communicated to the Respondent.
As no further communication was received at the time of finalising this decision to explain the absence of the Respondent and in the context that I am satisfied that the said Respondent was informed in writing of the arrangements for the hearing; in the absence of any evidence to the contrary being adduced before me I must conclude that the within complaint is well-founded and I decide accordingly.
CA-00061680-002 I noted the Complainant’s evidence given under oath that she was never given a contract of employment.
I was satisfied that notice containing the details of the date, time and place of the hearing had been properly communicated to the Respondent.
As no further communication was received at the time of finalising this decision to explain the absence of the Respondent and in the context that I am satisfied that the said Respondent was informed in writing of the arrangements for the hearing; in the absence of any evidence to the contrary being adduced before me I must conclude that the within complaint is well-founded and I decide accordingly.
CA-00061680-003 I noted the Complainant’s contention that she was not given rest breaks or her holiday entitlement. I noted that the Complainant confirmed at hearing that she worked primarily from home and that she did avail of a 2-week summer holiday.
I was satisfied that notice containing the details of the date, time and place of the hearing had been properly communicated to the Respondent.
As no further communication was received at the time of finalising this decision to explain the absence of the Respondent and in the context that I am satisfied that the said Respondent was informed in writing of the arrangements for the hearing; in the absence of any evidence to the contrary being adduced before me I must conclude that the within complaint is well-founded and I decide accordingly.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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.
CA-00061680-001 I have found that the within complaint is well-founded. I noted the payslips and Revenue documentation provided to support the Complainant’s position that her loss of earnings equated to €63,362.00. I further noted that she had found alternative employment and was no longer unemployed but was employed on a part-time basis while she continued pursuing options for full time employment. I noted that the Complainant was at the loss of the use of a company car which she equated to the loss of €30,000. In all the circumstance it is my decision that the Respondent is to pay the Complainant the sum of €93,362.00 as compensation for the losses arising from her dismissal.
CA-00061680-002 I have found that the within complaint is well-founded. I noted that the Complainant’s weekly salary was €928, and I therefore decide that the Respondent must pay the Complainant the sum of €3712 as compensation for the breach of the Act.
CA-00061680-003 I have found that the within complaint is well-founded.
Taking into account that in the normal course of events a person working from home has a significant degree of control over their own rest periods and taking into account the 2 weeks leave availed of each year by the Complainant it is my decision that the Respondent must pay the Complainant the sum of €2000 as compensation for the breaches of the Act.
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Dated: 02-04-25
Workplace Relations Commission Adjudication Officer: Patricia Owens
Key Words:
Unfair dismissal, no statement of terms and conditions, rest breaks, holiday entitlement |