Complainant

Respondent

Parties

Kellie  Bermingham

C-True Opticians

Representatives

Setanta Solicitors

Cyril Keegan, HR Desk

Act

Complaint 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-00068008-001

11/12/2024

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

CA-00068008-002

11/12/2024  

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act, 1977

CA-00063316-001

06/05/2024

The Complainant commenced employment in or around 5 September 2022 as an optical assistant with the Respondent. The Complainant worked three days a week on the basis of 8 hours a day.

The Complainant asserts that the respondent failed to provide her with a contract of employment or any statement of her terms of employment.

The Complainant states that in or around March 2024, the optician that was employed with the Respondent commenced maternity leave. She states that this resulted in the Respondent’s practice not having an optometrist thereby leading to reduced business and reduced hours for staff. The Complainant states that she was still working three days a week at this juncture.

The Complainant states that in or around the last week in April 2024, herself and other staff members attended a meeting with the Director of the Respondent. During this meeting, the Director expressed concerns about the business and stated that staff may need to be temporarily laid off. The Complainant states that the Director also informed the group that they did not need to panic as the business was recruiting a new optometrist to cover the employee gone on maternity leave.    

On 2 May 2024, the Complainant met with the Director in or around 2pm to voice her concerns about the potential lay offs as she had a young daughter to support. The Director informed the Complainant that she did not know whether any lay offs would be put in place, and that she would keep the Complainant informed of the situation. The Complainant asked the Director to confirm her hours for the following week. The Director informed the Complainant that she would let her know as soon as possible.

In or around 3pm the same day, the Complainant noticed that the Director had posted a document to her public WhatsApp story. This document was a letter dated 1 May 2024 from the Respondent addressed to the Complainant informing her that she was being placed on temporary lay-off. The letter had been uploaded to the Director’s WhatsApp story and was available to be viewed by all of her contacts. It appeared that the letter had been uploaded in or around 11am that morning, prior to their earlier conversation regarding potential lay-offs. The letter was not sent to the Complainant directly.

The Complainant asserts that the letter posted on the Director’s story stated that the Complainant was being laid off from 7 May 2024 and was signed by the Director.  The Complainant messaged the Director requesting her to remove it from her story. The Director responded to the Complainant at approximately 6.25pm to apologise for posting the letter to her story, stating that she had intended to send it to her HR advisors for approval. The Complainant stated that she was upset by events and left work early. The Complainant was not scheduled to work that weekend, and 2 May 2024 was her last day of work. The Respondent did not send the letter dated 1 May to the Complainant. The Complainant had to request the letter be sent to her in order to sign on for social welfare support.

On or around the 16 May 2024, the Complainant messaged the Practice Manager of the Respondent seeking clarity on the holiday hours owed to her as she had not received a final payslip. The Complainant states that she did not receive her wages from 1 May 2024 until her employment terminated.

On or around the 9 June 2024, the Complainant messaged the Practice Manager again seeking the bank holiday pay owed to her.

It was submitted that the Respondent’s failure to provide a written contract to the Complainant meant that she was unaware of her contractual rights and protections. The Complainant submitted that the Respondent failed to provide her with work and also failed to pay her monies owed to her.

The Complainant asserts that in the absence of a contractual entitlement to do so, she was entitled to treat her employment as terminated by the Respondent which constituted an unfair dismissal. In or around 14 June 2024, the Complainant handed in her notice to the Respondent. The Complainant was not paid for the June bank holiday. The Complainant was not paid her notice period. The Complainant understands that the Respondent company continues to trade.

Unfair Dismissal Claim

The Complainant was not provided with a Contract of Employment or an Employee Handbook. As such, no contractual provision existed to allow the Respondent to place the Complainant on temporary lay-off.  It is submitted by the Complainant that no custom or practice of placing staff on lay-off existed within the Respondent so as to justify an implied right to place the Complainant on lay-off.

In ADJ-00028414, An Area Sales Manager v An Engineering Company, it was held that the removal of a clause in the Complainant’s contract allowing for lay-off could only reasonably be interpreted as an agreement that the Respondent could not unilaterally impose lay-off and this would supersede any implied term by custom and practice that might otherwise have existed.  In Industrial Yarns v Greene [1983] WJSC-HC 526, Costello J held:-

“If there is no contractual power (express or implied) in the contract of employment to suspend the operation of the contract for a limited period then by ceasing to employ an employee and refusing to pay him wages the employer has been guilty of a serious breach of contract amounting to a repudiation of it. At common law that repudiation would not automatically bring the contract of employment to an end; the employee is free to accept that the repudiation has terminated the contract or not to do so (Gunton v Richmond-upon-Thames London Borough 1980 3 W.L.R. 714 for a recent view on the effect of an employer's repudiation of the contract of employment). If he accepts the repudiation of the contract then there has been a constructive dismissal of the employee at common law and the contract has been terminated by the employer. But if the employee responds to the employers lay-off notice and adopts the lay-off procedures (instead of immediately accepting the employer's repudiation of the contract) and it is shown that the statutory condition for their initiation by the employer did not exist, then, it seems, the employee is entitled to treat the repudiation of the contract (which occurred when the cesser of employment began) as having terminated the contract of employment, and to base his claim for redundancy payment on that fact.”

In John Lawe v Irish Country Meats (Pig Meats) Limited [1998] ELR 266, White J held that absent a term in the employment contract to the contrary, the employer’s fundamental obligation is to pay the agreed remuneration for the time of work during which the employee is prepared to work. White J approved and quoted the decision of Pain J in Bond v CAV Ltd [1983] IRLR 260, which held at paragraph 50 that:

“It is therefore plain that there is no general right to lay-off without pay at common law, but such a right exists only in very limited circumstances.”

In Petkevicius v Goode Concrete [2014] IEHC 66, Kearns J held that the right to lay-off an employee without pay requires a clear basis in custom and practice of the trade. In this case, the Appellant’s contract of employment contained a clause allowing for lay-off. Kearns J distinguished this from other case law where there is either no contract or where the contract is silent on the issue of lay-off. In “Employment Law” (2023, Second Edition), Frances Meenan notes in relation to lay-off that:

“There must be provision in the contract for it to be suspended either expressly or impliedly. If there is no such term, there is a repudiation of the contract of employment by the employer and the employee would be entitled to treat himself or herself as discharged.”

The Complainant was placed on lay-off by the Respondent by letter dated 1 May 2024. It was submitted that as no contractual basis existed to place the Complainant on lay-off, the Complainant was entitled to take the letter placing her on lay-off as terminating her employment with the Respondent.  Section 6(1) of the Unfair Dismissals Act 1977 states:-

“(a) 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 Complainant states that it is not the role of the WRC to substitute its views for that of the employer but to establish whether or not the decision to dismiss fell within the “band of reasonable responses” available to an employer finding itself in the position of the within Respondent.

The English Court of Appeal in the decisions of Foley v Post Office and HSBC Bank plc v Madden [2000] 1 All ER 550 confirmed that:

“This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an appeal against, the merits of the employer’s decision to dismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

It was submitted that this principle was elaborated upon in the Court of Appeal Anglian Home Improvements v Kelly [2005] in the context of discussing British Leyland UK Ltd v Swift [1981] IRLR 91 wherein it was stated that:

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view... If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.  

The Complainant asserts that this established principle of dismissal law was accepted and cited with approval by the Irish High Court in Doyle v Asilo Commercial Limited [2008] IEHC 445 and Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229. In determination UDD2128 the Labour Court considered a case where the Respondent did not carry out any procedure in relation to a dismissal and where the decision to dismiss was taken unilaterally without any discussion with the Complainant. The Court held as follows;

The Court takes into account the provisions of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) which emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of him or her and to know any case being made against him or her and to have a fair opportunity to respond to any such case.

The extensive jurisprudence of this Court and the Employment Appeals Tribunal is to the effect that an employer contemplating disciplinary sanction against an employee is obliged to ensure the observance of fair procedure and natural justice before making a decision in relation to the matter.

In the within matter, despite the existence of a detailed disciplinary procedure which had been made known to the Appellant at the commencement of his employment, no procedure at all was followed and the decision to dismiss was taken without engagement with the employee. In addition, the Appellant was given no right to appeal his dismissal.

It may or may not be significant that the Respondent was of the understanding that, at the date of his dismissal, the Appellant did not enjoy the protection of the Act.

The Court has concluded that, in the absence of the operation of a fair procedure or any procedure at all in dismissing the Appellant, the Respondent has failed to discharge the burden resting upon it to establish that the dismissal was fair and that the dismissal was unfair as a result.

The Court has concluded that, having regard to circumstances of the matter, the appropriate redress is compensation.

The Complainant maintains that as she has over one year’s service, her dismissal was unfair. The Complainant contends that her employment was terminated without notice, without any consultation, without reason and without any regard for fair procedures.

Payment of Wages Claim

Section 5(1) of the Payment of Wages Act 1991 states that “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee unless –

(a)   The deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b)   The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)   In the case of a deduction, the employee has given his prior consent in writing to it.”

In Petkevicius v Goode Concrete [2014] IEHC 66,Kearns J held:

“There is no right to lay-off with pay. It is well established that lay-off without pay may occur where it can be established that that is the custom and practice of the trade. This custom must be reasonable, certain and notorious; Jelp J Devonald and Rosser (1906) 2 KB 728.”

It is submitted without prejudice to the Complainant’s claim that she was unfairly dismissed as of 2 May 2024, in the event that the Adjudication Officer finds that the termination of the Complainant’s employment occurred at a later date, there was no contractual provision for the non-payment of her wages. In that case, it is submitted that an unlawful deduction was made from the Complainant’s wages when she was placed on unpaid temporary lay-off. The Complainant was informed on the 1 May 2024 that she would be temporarily laid off from the 7 May 2024. As the Complainant was not given a Contract of Employment, no contractual right allowed the Respondent to place the Complainant on unpaid temporary lay-off.

It is further submitted that no custom of placing employees on unpaid lay-off existed within the Respondent’s trade such that it was so certain, reasonable and notorious to be a custom as described by Kearns J in Petkevicius v Goode Concrete as to allow the Respondent to place the Complainant on unpaid lay-off. The burden of proof rests on the Respondent to establish that such practice was so notorious and certain that a custom of unpaid lay-off existed within the optician trade.

The Complainant submits that this constituted an unlawful deduction from her wages under Section 5(1) of the Payment of Wages Act 1991 as the deduction was not authorised by statute, was not authorised by a term in her contract of employment and the Complainant did not give her consent for the deduction to be made.  The Complainant states that this deduction amounted to €2,400.

Terms and Conditions of Employment Claim

Section 3(1) of the Terms of Employment (Information) Act 1994 states that “An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”.

Section 3(1A) of the 1994 Act requires that the employer provide the employee with the core terms of their employment within five days of the commencement of their employment. The Complainant commenced employment with the Respondent in or around the 5 September 2022. It was submitted that the Complainant did not, at any time during her employment, receive a written contract of employment or a statement in writing of the core terms of her employment and consequently the Respondent breached their obligations under Section 3 of the 1994 Act in this regard.

Loss of earnings and Mitigation of loss

The Complainant’s salary was approximately €324 a week. The Complainant stated that she made great efforts to mitigate her loss of earnings during this period. The Complainant states that she also lost her working family payment from the Department of Social Welfare as she was out of work. The Complainant states that she commenced new employment on the 5 September 2024.

Conclusion

The Complainant states that she was not given a contract of employment. As such, no contractual term existed to allow the Respondent to place her on unpaid lay-off. It is further submitted that no such custom or practice existed with the Respondent’s trade to justify the placement of the Complainant on unpaid lay off. In those circumstances, it is submitted that the Complainant was entitled to take the letter dated 1 May 2024 which was posted on the Director’s WhatsApp story as repudiating her contract of employment and terminating the employment relationship.

The Complainant asserts that she has demonstrated that she was unfairly dismissed by the Respondent.

The Respondent states that in late April 2024, the Director of the Respondent company had to consider the sustainability of the business and decide on the best course of action taking into account the situation she found herself in without an optometrist/locum. It was submitted that given the situation, the Respondent did not have work for two employees, one of which is the Complainant in the within claim.

The Respondent states that the Director was and continues to make huge efforts in order to advertise, select and employ a replacement optometrist.

The Respondent states that it was clear that the business was not sustainable and a decision had to be made regarding lay-off. While the Director was concerned about the situation, she was very optimistic of finding an optometrist. However, at the same time, due consideration had to be given to the matter and it was agreed that a meeting would take place with employees in order to relay the situation to them in good faith. The meeting was held on 30 April 2024.

The Respondent states that having considered the financial status of the company and the realisation that it was not going to be possible to recruit an optometrist in the short term, in preparation, should personnel have to be laid off, a draft letter of lay-off was prepared informing of the decision to lay-off due to there being no positive advances on securing an optometrist. However, unfortunately and inadvertently, the Director posted the letter on social media and was extremely embarrassed and apologetic for this error.  The situation was further assessed on 2 May, and a decision was made to lay-off the Complainant. 

The Respondent refers to an email of resignation on behalf of the Complainant on 1 July stating that she “has found work elsewhere”. Contained within the same email is the request by the Complainant to be removed “off your books”. The Respondent states that this is quite an unambiguous statement leaving no doubt of her position at that time regarding employment status. The Respondent states that in the Complainant’s written submission to the WRC, it states that the Complainant handed in her notice in mid June.

The Respondent totally refutes that the Complainant was not furnished with a Contract of Employment.  It stated that a Contract of Employment was handed to the Complainant shortly after her employment commencement date but the Complainant did not return a signed copy to the Respondent.

The Respondent asserts that had no contract been furnished to the Complainant the decision would have been to make the Complainant redundant, rather than being obliged to pay her while on lay-off.

Payment of Wages Claim

The Respondent submits that the Complaint Form was received by the WRC on 11 December 2024 therefore this claim is out of time as the time between the alleged deduction, that being 7 May 2024, and the submission receipt date, 11 December 2024, exceeds six months. In those circumstances this claim is statute barred. The Respondent states that in any event, there was no unlawful deduction from the Complainant’s wages.   

Terms and Conditions of Employment Claim

The Respondent totally refutes that the Complainant was not furnished with a Contract of Employment. It states that the Contract was handed to the Complainant shortly after her commencement date but that the Complainant failed to return a signed copy of same to the Respondent.

 The Respondent asserts that while the Complainant has submitted that she was out of work until 5 September 2024; it is clearly evident from her notice of resignation that she had secured a job on 2 July 2024.

The Respondent further states that the Complainant has submitted evidence of job seeking during the months of July, August and September 2024; however it states that this is extremely questionable and undermines the Complainant by casting a shadow of doubt as to the integrity of the within claims.

The Respondent states that there were concerted efforts made in order to sustain the business. The business found itself in a very difficult position trying to source an optician in a short period of time, the Director was informed on the afternoon of 24 April 2024 that the current locum would no longer be in a position to do any work for the Respondent as her own employer had requested her to do full-time hours (she having agreed that she would be available to do the maternity cover for the Respondent back in November 2023) had requested that she would go full time with immediate effect, the Director of the Respondent did however try to get cover by contacting a number of optometrists who she knew to see if they would help.  The Director met with one of these on 26 April 24 and she came in on the 27 April to do some tests to see how she felt, the Director thought this went really well however the optometrist came back to the Respondent declining the offer.

The Respondent states that another optometrist was interviewed who was returning to Ireland but would not be available until end of July. The Respondent’s practice manager had also been in contact with a number of optical associations and agencies in the hope of finding some cover, there was interest from one locum and they came back to say they had taken another position so would not be available. The Respondent states that the next possibility was an optometrist awaiting his results and if he qualified, once he had his registration certification, he would possibly be able to do 2 days per week. (This would not be through until early August). 

The Respondent states that the Director personally sent out text messages to any previous locums but they either did not respond or were working in practices full- time. The Director also called a number of representatives who would be in other practices to ask them to mention that the company was looking for any cover that was available.

The Respondent states that the Director spoke with the accountant and given the decline in business in March 2023 when the optometrist was on maternity and the locum on holidays, this would be the reality going forward without an optometrist. The Director set about to find out how to proceed, she really had hoped this would be a short-term situation and opted for lay-off rather than redundancy.   A meeting was set up with the staff and HR to discuss the issues and to ensure that the correct paperwork regarding entitlements with social welfare for staff effected by the lay-offs was in place.

It was submitted that the Director was in touch with a HR company with a view to trying to have everything in place in the event no locum was found that they would have the correct paperwork in place. The Respondent states that the Director tried to send the document by email, eventually she took a photo and sent by WhatsApp when she recalled that she had not sent it, in her haste she didn’t realise that she had posted it on her story a new addition to WhatsApp of which she was unaware. The Respondent maintains that it was only later that afternoon when she had finished her meeting that she received a message from the Complainant making her aware of this. The Respondent states that the Director had to phone her nephew to ask him how to take this down but he was unaware how to do so. The Director then got assistance and managed to take this post down.

The Respondent states that the Director returned to the shop at 5.15pm (closing time is 6pm) with the intention of talking to the Complainant but when she returned, the Complainant had already walked out. The Director spoke with the other staff member informing her of the situation and giving her the lay-off letter and other paperwork. The Director states that she tried to call the Complainant but to no avail; a message was received by the Practice Manager informing the Director not to contact the Complainant and she would be seeking legal advice on the matter.

The Respondent states that the Director made every effort to communicate with the Complainant regarding her final payments and tried to convince the Complainant not to hand in her notice.       

Terms and Conditions of Employment Claim    CA-00068008-001

The claim under the Terms and Conditions of Employment Act was lodged on 11 December 2024. Accordingly, the cognisable period for this complaint is from 12 June 2024 to 11 December 2024. Having examined this complaint, I find that the Complainant has not established a breach of the legislation within the cognisable period. In those circumstances this claim is outside the 6 month time limit and is therefore statute barred.    

Payment of Wages Claim    CA-00068008-002

The claim under the Payment of Wages Act was lodged on 11 December 2024. Accordingly the cognisable period for this complaint is from 12 June 2024 to 11 December 2024. The Complainant has stated that there was an unlawful deduction from her wages on 7 May 2024. Having reviewed the within complaint, I find that the claim was submitted outside the 6 months time limit set out in the legislation. In those circumstances, this claim is statute barred.

Unfair Dismissal Claim   CA-00063316-001

The Complainant submitted that she was placed on lay-off by the Respondent by letter dated 1 May 2024 and as no contractual basis existed to place the Complainant on lay-off, she was entitled to take the letter placing her on lay-off as terminating her employment with the Respondent.

The Respondent disputes that the Complainant was ever dismissed.

The Unfair Dismissal Acts 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Section 6(1) of the Acts provides:

“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”.

As the issue of dismissal is in dispute, I am required to firstly investigate whether a dismissal within the definition above has occurred.

The Labour Court in Parkboro Developments Ltd T/a Park Engineering v Mariusz Witkowski (UDD2338) noted:

“There can be no absolute rules about [sic] is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.”

Generally a person is dismissed when the employer informs the employee clearly and explicitly that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or may reasonably be inferred as having been intended [Desmond Ryan, Redmond on Dismissal Law (3rd ed., Bloomsbury Professional, 2017) at 22.13].  Where ambiguous words are used, an objective test should be deployed to decide what was intended by the speaker (Devaney v DNT Distribution Company Ltd, UD 412/1993). In Devaney the Employment Appeals Tribunal (EAT) stated:

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

In Claddagh Ring Limited T/a Claddagh Jewellers and Mr Nima Amjadi (UDD2223), the Labour Court concluded that the Respondent did, on the balance of probability, intend to dismiss the employee when his employment was suspended (the employer submitted that the employee had been placed on lay-off) as the right to suspend the employee was not provided for in the contract of employment and was not grounded in any provision of the Redundancies Payment Act 1967 with respect to the notification requirements for lay-off. In this case, the Respondent’s decision to suspend the employee was made at least one week prior to the date of suspension/lay-off without notice to the employee, and the meaning of the terminology employed by the Respondent was not explained to the employee at the time or at any time thereafter.

In Parkboro Developments, the Labour Court stated that where dismissal was not intended, it is up to an employer “. . . to take immediate and comprehensive steps to assure the Complainant otherwise”.

Lay-off

For the purposes of the Redundancy Payments Acts 1967-2022, lay-off is defined at s 11(1) as follows:

“Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off”.

If an employer wants a lay-off not to be considered a redundancy situation, it must comply with the requirements of s 11 of the Redundancy Payments Acts, 1967-2022.

There is no definition of lay-off in the Unfair Dismissals Acts.

The fact of dismissal is in dispute in the within case. Where dismissal is in dispute, the initial burden rests with the Complainant to establish facts from which an Adjudication Officer can determine that a dismissal has occurred. I must decide whether the Complainant could reasonably and objectively understand herself to have been dismissed within the meaning of s 1(a) of the Acts as she alleges with regard to receipt of the Respondent letter dated 1 May 2022 and, relatedly, whether the Respondent intended to bring the contract of employment to an end by way of dismissal on that date.

Based on the testimony provided, I am cognisant that the Respondent found itself in a situation whereby with the loss of an optometrist, sales decreased by 82% and there were serious issues with regard to cashflow and documentary evidence in this regard was provided in submissions.   I note that a meeting was held with staff to discuss the issues/concerns and plan a strategy going forward ensuring that all paperwork was in order with regard to social welfare entitlements for staff who would be affected by the lay-offs.

I note that the Respondent accepted that she inadvertently placed the draft letter regarding lay-off on the WhatsApp platform before she had an opportunity to speak to the staff and this caused embarrassment to the Complainant who was understandably very annoyed by the turn of events. 

I am cognisant based on the testimony provided that the Respondent made concerted efforts to get a replacement optometrist in place but to no avail.

I note that one of the staff members placed on lay-off had the required service and subsequently applied for redundancy.

While the Complainant states that she did not receive a contract of employment, the Respondent stated that the contract was provided to her at the commencement of her employment but she did not sign a copy of same. The Respondent provided a copy of the contract which was dated and signed by the Director of the Respondent but there was no signature of the Complainant.

I find that the Respondent did give notice of lay-off and provided the necessary documentation in that regard. I note that the Complainant was placed on temporary lay off by letter dated 1 May  wherein it stated that the Complainant “would be placed on temporary lay off from Tuesday 7 May 2024”.

I note that the Complainant sent an email to the Respondent on 1 July tendering her resignation. In the email she stated that she “has found work elsewhere” and there is a request by the Complainant to be “removed off the books”.  

Based on the testimony provided, I am mindful that the Respondent made significant efforts to contact the Complainant requesting her to reconsider her resignation. The Respondent tried to arrange a meeting with the Complainant to discuss the matter but the Complainant refused to engage.

While the Complainant has submitted that the letter dated 1 May constituted a dismissal; having examined the totality of the evidence in the within matter, I find that the Complainant has not established facts that demonstrate that a dismissal occurred in this case.

Terms and Conditions of Employment Claim    CA-00068008-001

I find that the within claim was submitted outside the 6 months time limit set out in the legislation. In those circumstances, this claim is statute barred.

Payment of Wages Claim    CA-00068008-002

I find that the claim under the Payment of Wages Act was submitted outside the 6 months time limit set out in the legislation. In those circumstances, this claim is statute barred.

Unfair Dismissal Claim   CA-00063316-001

I find that the Complainant was not unfairly dismissed by the Respondent.

Terms and Conditions of Employment, Payment of Wages Act, Unfair Dismissals Act