Complainant

Respondent

Parties

Sarah  Duggan

 Posie Photography Ltd.

Representatives

Michael Lane, Michael Lane & Co. Solicitors

Katie Moran, Director

Act

Complaint Reference No.

Date of Receipt

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

CA-00059670-001

29/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059670-002

29/10/2023

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

CA-00059670-003

29/10/2023

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

CA-00059670-004

29/10/2023

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

CA-00059670-005

29/10/2023

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

CA-00059670-006

29/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059670-007

29/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059670-008

29/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059670-009

29/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059670-010

29/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00059670-011

29/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059670-012

29/10/2023

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

CA-00059670-013

29/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00059670-014

29/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00059670-015

29/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00059670-016

29/10/2023

The Complainant commenced her employment with the Respondent on 10 May 2021. Her employment terminated on 9 June 2024. On 29 October 2023 she referred her claims to the Director General of the WRC.

The Respondent provided written responses to each of the complaints with supporting documentation on 27 May 2024 and on 21 January 2025.

There was no written submission provided by the Complainant prior to the adjudication hearing. The Complainant arrived late to the adjudication hearing. The hearing was delayed by some one hour. At that stage, the Complainant informed the hearing that her father, who travelled separately, had her written submission. However, he was further delayed. The Complainant’s father arrived at 11.22am. The Complainant requested a recess to allow her to search for the written submission. The Complainant had no copies of her submission for either the Adjudication Officer or the Respondent. At the hearing, copies were arranged, and the hearing was briefly adjourned to give Ms Moran of the Respondent an opportunity to familiarise herself with the Complainant’s submission. While noting that the Complainant’s submission was late and incomplete, the Respondent expressed its preference for the hearing to continue. The hearing proceeded.

At the end of the hearing both parties confirmed that they had the opportunity to present their respective case.

The Complainant submits that she did not receive the appropriate payment in lieu of notice of termination of her employment.

In her direct evidence at the adjudication hearing, the Complainant confirmed that she resigned her position.

The Respondent rejects the claim.

In her direct evidence, Ms Moran said that the Complainant’s last day at work was on 28 October 2022, she did not work after that day as she was either sick or absent without leave.  Ms Moran said that the Complainant furnished her resignation letter on 29 April 2023. The letter makes no mention of a notice.

Payment of Wages Act 1991

The Payment of Wages Act 1991 (hereinafter referred to as “the 1991 Act”) provides the following definition of “wages” at section 1:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(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 notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i)               any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii)             any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii)            any payment referable to the employee's redundancy,

(iv)            any payment to the employee otherwise than in his capacity as an employee,

(v)              any payment in kind or benefit in kind,

(vi)            any payment by way of tips or gratuities.

Sections 5(1) and 5(6) of the 1991 Act provide:

5(1) 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.

(2) …

(3) …

(4) …

(5) …

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The non-payment of wages that are properly payable to an employee is an unlawful deduction by the employer. This definition also makes it clear that payments in lieu of notice i.e. such moneys which the employee would have earned as wages had he worked out his notice are ‘wages’. The question to be decided is whether the wages claimed were properly payable.

The Complainant gave evidence that she resigned her position. Ahe asserted that she had to resign due to the conduct of her employer. The High Court has confirmed that an employee who has resigned from their employment in circumstances of a constructive dismissal cannot succeed in a claim for minimum notice and the question of minimum notice could not have arisen (Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] E.L.R. 49).

I declare this complaint to be not well founded.

The Complainant submits that she worked 10 or more hours a day and she did not get breaks.

The Complainant submits that she worked many extra unpaid hours to fulfil her workload. She submits that as the clients were not spaced out for adequate breaks, more often than not got no lunch breaks and never got a small break. She would often have to eat her sandwich while she was with clients.

The Complainant submits that the Respondent referred in its submission to an email regarding a Covid-19 protocol. However, the Complainant’s position is that her workload was significantly different in that period i.e. 2.5 years prior to the end of her employment.

The Complainant submits that the Respondent’s reliance on the email is an attempt to remain consistent in its lies that the Complainant’s hours and workload were the same so the Respondent can hide the fact that the Complainant was not able to have any breaks more often than not simply because she had so many things to manage.

In her direct evidence, the Complainant said that in 2021 she would have worked from 5am/6am to 2am and she would not get a break. The Complainant said that she was medically certified unfit for work after her accident on 28 October 2022 until 9 June 2023 and did not work in that period.

The Respondent rejects the claim. The Respondent submits that, in the absence of any specifics such as dates, it is impossible to reply to the claim.

In the written submissions, the Respondent submitted that there was sufficient time in between clients for a break. The Respondent asserted that the hours were not “10 or more per day”. The Respondent exhibited a copy of calendar that showed the times and clients booked, for example: 12:30pm - 1:30pm, a named client (60-minute appointment); 2pm - 3pm, a named client (60-minute appointment).

The Respondent questioned the large workload the Complainant referred to. The Respondent submits that the Complainant’s role was to show the clients their images.

The Respondent submits that the Complainant was a sales assistant, her role was important in keeping the wheels turning in the business. The Respondent offered the clients instant viewings which were extremely popular. Ms Moran’s role was to take the photographs, and the Complainant would sell the photographs instantly (straight after the photo shoot in a separate area called the viewing room).

The Respondent submits that a typical day schedule would be: 10:30am - first client arrives – Ms Moran does the photoshoot 12pm – the Complainant takes over and shows the first client their images and sells them (a task that would take 45 minutes , finishing circa 1pm) 1:30pm - second client arrives -Ms Moran does the photoshoot 3pm – the Complainant’s duties as above.

The Respondent submits that there is ample space of 2 hours where the Complainant could finish recording the sale, tidy the viewing area, have a 45-minute break and be back to start the next client.

The Respondent submits that she explained the way she ran the business in an email that she sent to the Complainant on 10 July 2020. As there was a big gap in between clients, the Complainant requested that instead of doing viewings instantly, that she would book them over 2 days during the week, and bring them back to the studio (which sometimes was infeasible as clients would travel even over 2 hours to have a photoshoot). She resorted to doing online sales, over Google Meets. This change was a request by the Complainant. The Respondent referred to an email confirming same. The Respondent submits that as the business owner, she had spent a lot of money renovating the viewing room and her business was popular due to having instant viewings. It was not in her best interest to make the clients come back another day and it was not a good business move. However, she made it possible on the Complainant’s request.

Ms Moran referred to an email to the Complainant of 11 November 2022 where she states:

‘my recent change in hours I now only earn €65 per week currently at Posie Photography

This was a request on your behalf for your own hours to be reduced due to your own personal reasons. I'd love to have you in more and I have requested you'd be in every time the clients are in to showcase their images however you did deny this and preferred your set days. I am more than happy to accommodate your change of hours as per your request. Unlike any other employer which I have had and I'm sure you'd agree - I am very flexible on everyone's situation regarding their hours and I do bend over backwards to meet those requests happily.’

In her direct evidence, Ms Moran said that the Complainant’s last day at work was on 28 October 2022, she did not work after that day as she was either sick or absent without leave.  Ms Moran said that the Complainant furnished her resignation letter on 29 April 2023.

The Complainant has claimed that she was not afforded her statutory entitlement to rests breaks at work as required by section 12 of the Act. Section 12 provides as follows:

12.— (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The Complainant referred her complaint to the Director General of the Workplace Relations Commission pursuant to the Organisation of Working Time Act 1997 on 29 October 2023.

Section 41 of the Workplace Relations Act 2015 states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

By application of the time limit provided for at section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 30 April 2023 to 29 October 2023.

There was no dispute that the Complainant did not work during the cognisable period.

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Complainant did not seek an extension of the time limit for the referral of this complainant. However, even if she had, and an extension had been granted, her complainant would not have been lodged within the time limits imposed by section 41 of the Workplace Relations Act 2015, as amended.

I declare this complaint to be not well founded.

The Complainant alleges that on 30 June 2023, the Respondent has not paid her or has paid her less than the amount due to her. The Complainant submits that it is difficult to give the exact total monetary value because there are holidays that were not paid and are still due, statutory sick pay that she had never received, and a redundancy payment.

The Complainant submits that the Respondent was aware of the entitlement to statutory sick leave. The Respondent never reached out to help her in any way whatsoever with physio costs, with pay to help her through Christmas, etc. The Complainant submits that the Respondent was aware that she had no money for heating and food. The Complainant further asserts that she was not aware that the Respondent did not offer sick pay as there was no contract or a policy in place. The Complainant only found out that there was no paid sick leave when she had her accident. The Complainant submits that it was terrible form of the Respondent not to assist her in any way.

The Complainant submits that she was treated differently to other employees who were paid their holiday entitlements when out sick.

The Complainant further submits that she was made redundant. She was a “studio worker” as opposed to a “pop-up studio” worker. The Complainant submits that after the Respondent opened the pop-up studio in 2021, she would have gone there to help but she was “the studio staff”. The pop-up studio had separate staff.

The Complainant submits that she was made redundant and was not informed of the fact that her place of work closed. The Complainant did not receive the Respondent’s email as her email did not work. The Complainant submits that the Respondent did not telephone her to discuss alternatives. While the Respondent argues that there was work for the Complainant at the pop-up studio, the Complainant argued that she was not employed at the pop-up place. The Complainant submits that the Respondent enquired about her return to work but she could not return as, in her view, there was no place for her to return to.

The Complainant submits that she was not sure of the email exhibited by the Respondent which was sent to her on 9 March 2023 was ‘real’. She argued that the Respondent should have received bounceback emails as her own email did not work. The Complainant submits that the email is irrelevant in any event as she was a studio worker, a manager and there was no studio for her to work at. The Complainant submits that even if she was offered a role in the pop-up, it was not a suitable alternative for her with travelling and managing her injuries.

The Complainant submits that she was accused of being absent without leave. The Complainant submits that she was medically certified from the accident to the date when she handed in her notice. The only time there was some delay was due to the Respondent’s own doing, especially when the Complainant’s email was not working. However, it is not the case that there were days that were not covered by a medical cert. 

In her direct evidence, the Complainant said that she could not provide a figure as to how much she thought she was owed. The Complainant was allowed a short recess to review her notes and clarify what amounts she was claiming that she was owed. She could not provide any details or estimates of the alleged non-payment or underpayment.

She said that her employment terminated on 9 June 2023, the next payroll would have been on 14 June 2023 as she was paid weekly on Wednesday. She was not sure why she alleged that the payment was due to her on 30 June 2023.

The Complainant said that in the HR system, she had 13.20 hours of annual leave accrued. She argued that she did not take any leave until 2023. She said that the Respondent inaccurately recorded that the Complainant took two weeks of annual leave by 10 hours a week in 2022. However, she never took leave. She should have 23.2 hours left in December 2022.

In her direct evidence, the Complainant alleged that she did not receive her statutory sick pay. The Complainant also alleged that she was entitled to a redundancy payment as the Respondent closed the business without any discussion with her. The Complainant confirmed that she resigned her position.

The Complainant said that she was paid €108 gross per week when she worked 10 hours. This was reduced to €65 gross for six hours work per week. The Complainants then said that she worked 40 hours as a manager and then 6 hours with clients. She was not paid for the hours she worked. She said that she was genuinely obsessed with the job and felt deep friendship towards the Respondent. She was happy to do it even though she was not asked by the Respondent to do so.

The Respondent submits that it is difficult to respond to the Complainant’s allegations without any specifics.

With regards to the statutory sick pay, the Respondent submits that the Complainant was away without leave a lot from her last day working (28 October 2022) until she handed in her resignation dated 29 April 2023. Over this 6-month period, the Respondent requested that she emailed or posted in her sick certificates and had to remind her many times to do so.

The Respondent submits that she was advised by her HR team that she was not obliged to pay sick pay in 2022. If the Complainant is due the statutory sick pay in line with the new law for 2023, it would be 3 days as per the guidelines on the Citizens Information webpage.

The Respondent submits that she has taken the liberty of contacting Citizens Information to calculate the Complainant’s statutory sick pay. The calculations presented:  €38.50 * 3 = €115.50 due.

With regards to annual leave, the Respondent submits that the Complainant’s total hours worked in 2022: 398.5 hours (as per Sage Payslips);   holiday hours earned: = (398.5*8%) = 31.88 hours holiday hours taken: = 30 taken

Holiday hours due: 1.88 hours x €11p/h = €20.68 due

The Respondent submits that it was a miscalculation, as the spreadsheet showed ‘-1.88 hours’, it was assumed that the Complainant owed the holiday hours, not the other way around.

Regarding the alleged redundancy, the Respondent submits that the Complainant was not made redundant. The Respondent closed one out of two studios whilst Ms Moran was on maternity leave (from 1 April 2023). However, that did not make the Complainant’s role redundant. The Respondent referred to an email that was sent to the Complainant on 9 March 2023 regarding her return to work:

“I will be on maternity leave as of 1st April which I want to update you on, so when you're ready to return to work please email here so I can organise a return to work meeting and ensure your needs are met.

Please do not post any further correspondence to 148 Maiden Street - if it is necessary please post to: [address provided].

Email is preferred purely as it's more efficient. As I previously said if you are having trouble with an email I would suggest to set up a new one and update me here with that.

The studio on Maiden Street is also set to close on 31.03.23 so please do not send anything there. When the meeting takes place for your return to work I will be able to answer any questions you may have. My main priority is to ensure your well-being and be able to accommodate any needs to may have following your extended leave.”

At the adjudication hearing the Ms Moran agreed that she did not pay the Complainant her sick leave in 2023 and agreed that she would have been liable for three days in 2023.

With regards to annual leave, Ms Moran said that the Complainant took 30 hours leave in August 2022. She was on sick leave or absence without leave from October 2022 and had no entitlement to further leave. The annual leave year runs from January to December.

Ms Moran said that she did not keep records of hours worked and the Complainant was paid €35 per client.

The Complainant claims that she was not paid all her annual leave entitlements, her sick leave and her redundancy.

In line with the definition of ‘wages’ at section 1 of the Payment of Wages Act, 1991 (quoted above), holiday and sick pay are encompassed by the Act. However, any payment referable to the employee's redundancy shall not be regarded as wages for the purposes of this definition.

Statutory Sick Pay

The Sick Leave Act 2022 came into effect on 1 January 2023. Itprovides for a statutory sick pay scheme for all employees.In 2023 there was an entitlement to 3 days paid sick leave. There was no dispute that the Complainant did not receive any payment with regard to her sick leave absence.

Statutory Instrument 607 of 2022 Sick Leave Act 2022 (Prescribed Daily Rate of Payment) Regulations 2022 fixes the daily rate of statutory sick pay at €110 or 70% of the employee’s gross daily rate of pay, whichever is the lesser.  

In the absence of any records in respect of the Complainant’s hour of work and pay it is not possible to ascertain the exact value of the Complainant’s entitlements. All my findings are made on the balance of probabilities.

I note that the Complainant in her email of 18 November 2022 requested the Respondent to confirm her hours of work. She provided ‘the content using their criteria of the letter for the government requirements in relation to my current medical needs’ as follows:

‘To whom it concerns Sarah J Duggan is an employee at posie photography Ltd and is currently working 6 hours per week and her wages are €65.’

I note that in there are a number of emails from which it appears that the Complainant worked two days a week. For example, an email of 9 November 2022 from the Respondent to the Complainant states:

‘This payment is for hours worked: Monday 24th Oct & I am paying the full day if worked Friday 28th October (day of the accident) to help you as much as I can’.

Similarly, an email of 10 June 2020 (albeit I do accept the Complainant’s assertion that it was sent during the pandemic) states:

‘Start date:

29th July 2020

And every Wednesday & Friday from then on (unless cancellations / holidays etc!)’

An email of 24 June 2020 states ‘the clients you meet twice a week…’

In the WRC complaint referral form dated 29 October 2023, the Complainant also stated that she worked 10 hours per week, which she claimed were subsequently reduced to six.

It is not my role to attempt to unearth records supporting the position of either party. It is up to each party to present relevant information and evidence in a manner that is plausible and understandable. In the absence of an accurate record, I find, on the balance of probabilities that the Complainant worked initially 10 and, subsequently, six hours per week over two working days. The Complainant’s rate of pay appears to be some €65 per week (some €10.83 per hour). I note that the national minimum wage from 1 January 2022 to 31 December 2022 was €10.50 per hour andfrom 1 January 2023 to December 2023 it was €11.30 gross per hour.

On that basis, I find that in 2023 the Complainant would have been entitled to three days of statutory sick pay calculated at three hours * €11.30 *70% each, totalling €71.19.

Annual leave

While this complaint was referred under the Payment of Wages Act 1991 the Complainant’s entitlement to annual leave stems from the Organisation of Working Time Act 1997 which provides as follows:

Entitlement to annual leave.

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee’s entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

In relation to taking annual leave, section 20 of the 1997 Act provides as follows:-

“(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

 (a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I)                  is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II)                has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.”

Compensation on cesser of employment.

23.—(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection—

"relevant period" means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.

A leave year for the purpose of the 1997 Act is the period from 1 April to 31 March.

Cesser pay is the ‘allowance in lieu’ referred to in the Working Time Directive. Section 23 of the Act provides that it is payable for the ‘relevant period’. Typically, the ‘relevant period’ is the current leave year (as the obligation is for annual leave to be taken within the leave year).  Section 23(1)(b)(iii) addresses ‘relevant period’ where the employee accumulates annual leave while on certified sick leave.

The effect of section 23 means that on termination of employment payment in lieu of untaken accrued annual leave will apply to leave which was untaken as a result of certified illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the year during which the statutory leave entitlement accrued.

Burden of proof

Section 25(1) of the Act requires an employer to retain records showing compliance with the Act. In relation to the applicable burden/onus of proof for claims under the Act, section 25(4) provides:

‘Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

Although each case will turn on its own facts and the level of autonomy afforded to an employee, ultimately the employer is responsible for ensuring compliance with the Organisation of Working Time Act 1997.

In Jakonis Antanas v Nolan Transport (2011) 22 ELR 311 the Labour Court has set out a well-established test for interpreting the applicable burden of proof as provided for under section 25(4) of the Act in relation to complaints brought under the Act as follows:

(1) The effect of section 25(4) of the Acts is to shift the burden of proof to the respondent in cases where records in the statutory form were not maintained.

(2) The evidential burden on a claimant requires the claimant to adduce such evidence as is available to support a stateable case of non-compliance with the relevant provision of the Act with sufficient particularity to allow the respondent to know, in broad terms, the nature of the complaint.

(3) That when the claimant has met his or her evidential burden, the respondent is required to put the records required by section 25(1) of the Act to demonstrate compliance with the relevant provision. Where such records are produced, the claimant bears the evidential and legal burden of proving that his or rights under the Acts were contravened in the manner alleged.

(4) That where forms in the prescribed form as required by section 25(1) of the Act are not produced by the respondent and the claimant has satisfied the evidential burden, the respondent carries the legal burden of proving on credible evidence and on the balance of probabilities that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge this burden, the claimant will succeed in their complaint/s under the Act.

The Complainant is seeking payment of the untaken annual leave accrued that was due to her on the cessation of her employment. The Complainant did not provide any specifics as to the amount of leave she has accrued or taken. She submitted that she did not take any leave.

There were no reliable records offered of the Complainant’s hours of work, her sick certificates or indeed her pay. Any finding can, therefore, be made only on the basis of what was put before me.

I note that the draft contract that was sent to the Complainant in January 2023 does not permit holidays to be carried forward. While there was no documentary evidence furnished with regards to the matter of carryover of annual leave prior to January 2023, it seems that the arrangement was quite casual, and the Complainant had no difficulty with carrying over her annual leave to the next annual leave year.

The Complainant resigned her position by way of her written resignation on 29 April 2023. The correspondence between the parties confirms that her resignation was accepted with effect on 9 June 2023 on the expiry of her final medical certificate.

This complaint was referred to the WRC on 29 October 2023.  The complaint has been presented within the 6-month timeframe provided in section 41(6) of the Workplace Relations Act 2015. 

The Complainant was absent from work from 28 October 2022.

The Complainant argued that she did not take any annual leave. At the hearing she exhibited a document showing that as of 28 December 2022 her entitlement was 23.20 hours.

The Respondent asserted that the Complainant had worked some 398.5 hours in 2022. Therefore, on the basis of 8% of holiday hours, she would have accrued 31.88 hours. The Respondent asserted that the Complainant took 30 hours leave. While the Respondent offered no records of annual leave to support this proposition, I note that the Complainant’s own email dated 9 June 2022, the Complainant asked: ‘…if it would be ok for me to take Tuesday as one of my days holidays? I know I have never taken a days holidays since starting at Posie so it would be breaking my record!!!’ The Respondent replied on 10 June 2022 stating: ‘No panic at all! I hope all is well. I’ll mark it in the calendar now Mind yourself’.

In the email of 8 November 2022, the Complainant states:

‘I never had a day that I was out sick in Posie Photography which is a crazy record or a days holidays until August this year-another crazy record!’

‘again, I know that I did not take any holidays since starting at Posie Photography and that I never booked anything off on the payroll websites or requested from you directly until this year except for the few days in August of this year so we can sort that out soon also too so we have that straight’.

It appears, therefore, that the Complainant did take leave in August 2022, as asserted by the Respondent, and on the Tuesday in June 2022 referred to above. It appears that the Respondent marked annual leave in a calendar. Regrettably, no record of annual leave was exhibited at the hearing.

On the basis that the Complainant worked 10 hours per week, which was, as per email exchange of November 2022, reduced “recently” to six hours per week, I accept the Respondent’s assertion that in some 43 weeks of 2022, the Complainant worked 398.5 hours (average of 9.27 hours per week). As the annual leave year for the purposes of the Act runs from 1 April to 31 March, I find that without the 13 weeks period from 1 January to 31 March 2022, the Complainant would have worked approximately 278 hours up to October 2022. Her annual leave entitlement would therefore be 22.24 hours.

From 28 October 2022 until her resignation with effect on 10 June 2023 the Complainant was absent from work.

I note the wording of section 20 (1)(c)(iii) (II) refers to the provision of a medical certificate to the employer in the following terms; - “ has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer”. There is a clear obligation upon an employee who seeks to rely on section 20 (1)(c)(iii) to provide a medical certificate from a doctor in respect of that illness to their employer.

While the Respondent asserted that the Complainant was absent without leave on occasions, no specifics were provided. The Complainant argued that she furnished the Respondent with medical certs for the whole period in question.

I note that a number of emails to the Respondent contain medical certificates in attachments. The Complainant emailed the Respondent the initial certificate, after the accident on 28 October 2022. From the perusal of the emails, I note that on 15 November 2022, the Respondent emailed the Complainant ‘Can you let me know if your medical certificate has been extended as I see here it expired 11.11.22’. The Complainant forwarded it on the same day. The Respondent emailed the Complainant on 1 February 2023 inquiring about her medical certificates and requesting medical certificates backdated to December 2022.  At the adjudication hearing, Ms Moran confirmed that she had medical certificates for the period from 19 December 2022 to 5 April 2024. The Complainant’s email of 18 May 2023 contains a copy of the ‘final medical certificate’.  At the adjudication hearing, the Complainant provided copies of two medical certificates for the period from 16 March 2023 to 31 May 2023 and 12 May 2023 to 9 June 2023.

I find, on the balance of probabilities, that the Complainant was medically certified as unfit to work for the period from 28 October 2022 to 9 June 2023, some 32 weeks.  

Consequently, I find that the Complainant is entitled to a cesser payment of 15.36 hours (32 weeks* 6 hours* 8%) for the outstanding annual leave accrued during the specified periods of certified sick leave as set out above.

The Complainant’s accrued leave for the period in question would therefore be 22.24 hours for the period 1 April 2022 to 27 October 2022 and 15.36 hours from 28 October 2022 to 10 June 2023, totaling 37.6 hours. The Complainant’s evidence as to the leave taken was inconsistent with her own emails and, for that reason, I accept the Respondent’s assertion that the Complainant took 30 hours of annual leave in total. Consequently, she is owed 7.6 hours of leave accrued and not taken.

As the national minimum rate of pay increased in January 2023, my calculations are based on the rate applicable at that time of €11.30 per hour.

I declare this complaint to be partly well founded.

I direct the Respondent to pay the Complainant €71.19 in respect of her statutory sick leave entitlement.

I direct the Respondent the pay the Complainant €85.88 in respect to a cesser payment for the outstanding annual leave accrued.

In the WRC complaint referral form, the Complainant alleged that the Respondent has made an unlawful deduction from her wages and/or tips and gratuities. The Complainant’s initial form was incomplete and was returned to her to complete. The Complainant replied on 4 December 2023 clarifying that the Respondent deducted €30 at some stage during the week of 19 October 2022.

The Complainant did not address this claim in her written submission.

The Respondent submits that there was not enough information in this complaint for the Respondent to respond.

The Complainant alleges that at some stage during the week of 19 October 2022 (17-22 October 2022) the Respondent unlawfully deducted €30 from her wages.

The time limits for submitting claims to the Workplace Relations Commission are set out in section 41 of the Workplace Relations Act 2015 which provides that:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The claim relates to an alleged deduction made during the week of 17-22 October 2022. Therefore, pursuant to section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must have been submitted to the WRC at some stage by 16-21 April 2023, at the latest depending on the actual date of the alleged deduction.  In this case, the initiating complaint referral form was received by the WRC on 29 October 2023.

I find, therefore, that the complaint has been lodged outside the time limits prescribed by section 41(6) of the Workplace Relations Act 2015. 

As the complaint was referred to the Director General of the WRC outside the time limits prescribed by the Act, I have no jurisdiction to inquire into it. I declare this complaint to be not well founded.

In the WRC complaint referral form, the Complainant alleged that the Respondent has not paid her or has paid her less than the amount due to her.

The Complainant stated that the monetary value of wages not received was €1; monetary value of holiday pay not received was €1; monetary value of notice not received was €1.

The Complainant further stated that it was difficult to give the exact overall figure as there were holidays due, statutory sick pay, and redundancy. The Complainant further stated that she would seek assistance in getting an accurate figure in respect of same.

The Complainant’s initial form was incomplete and was returned to her to complete. The Complainant replied on 4 December 2023 clarifying that she should have received the payment by the end of 10 June 2023.

The Complainant did not address this claim in her written submission.

At the adjudication hearing, the Complainant confirmed that this claim is a duplication of claim CA-00059670-003 above.

The Respondent submits that this complaint has already been answered in complaint CA-00059670-003. To this date the Respondent has yet to receive a monetary figure or the full complaint.

The Complainant conceded that the claim is a duplication of her claim bearing the reference number CA-00059670-003 dealt with above.

The matter of the alleged deductions has been dealt with in the claim bearing the reference number CA-00059670-003 above and has been disposed of. Therefore, I declare this complaint to be not well founded.

In the WRC complaint form, the Complainant alleged that she did not receive the appropriate payment in lieu of notice of termination of her employment. In the Complaint Specific Details or Statement section, the Complainant stated that she did not receive any payments owed to her or redundancy.

In her written submission regarding this claim, the Complainant asserted that she was owed statutory sick pay, redundancy and holidays.

The Complainant said at the hearing that this claim is duplication of claim CA-00059670-001 above.

The Respondent submits that this complaint has already been answered in complaint CA-00059670-001 and -003. To this date the Respondent has yet to receive a monetary figure or the full complaint.

The Complainant conceded at the adjudication hearing that the matter of notice entitlement is a duplicate of a claim bearing reference number CA-00059670-001 above.

The matters of redundancy, statutory sick pay and holiday pay that were commented on in the Complaint Specific Details or Statement section and in the Complainant’s written submission have been addressed elsewhere in this decision.

As all the matters have been dealt with in CA-00059670-001, CA-00059670-003, and CA-00059670-015 they have been disposed of. I declare this complaint to be not well founded.

In the WRC complaint referral form, the Complainant alleged that she was required to work more than the maximum permitted number of hours.

The Complainant asserted that her workload was huge, and she had a lot of responsibility on her shoulders. She had to do many extra hours to meet the workload, and the multiple tasks and roles required of her. She asserted that she worked hundreds of hours that she was not paid for because she had a lot of passion for her job and had a close relationship with her boss. The Complainant submitted that it was particularly difficult during a period when a hard drive with pictures was broken and when the Respondent travelled abroad for an extended period. The Complainant submitted that she took on the role of a manager at that point. While it was not formally assigned to her, it happened by virtue of the fact that the Respondent travelled abroad and she was left with all the responsibility. The Complainant submitted that at that time she worked 19-20 hours per day. The Complainant said that she was barely sleeping, and her parents told her that her eyes were literally hanging out of her head.

The Complainant submitted that she was very invested to ensure that clients were looked after and the place was back in order. The Complainant submitted that when the Respondent came back everything was done and up to date. The Complainant submitted that the Respondent will never have any idea of the full extent and the blood, sweat and tears that went into making it possible to the detriment of her health.

At the adjudication hearing, in her direct evidence, the Complainant said that this claim was incorrect as she did not work over 48 hours in the last year or so of her employment.

The Respondent submits that it is difficult to address this complaint without enough information. The Respondent submits that the Complainant was a studio assistant, her role was outlined to her in an email provided above and she was not required to work excessive hours.

The time limits for submitting claims to the Workplace Relations Commission are set out in section 41 of the Workplace Relations Act 2015 which provides that:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The initiating complaints referral form was received by the WRC on 29 October 2023. Therefore, the cognisable time period for the purposes of this claim is from 30 April 2023 to 29 October 2023. The Complainant was absent from work from 28 October 2022 until her resignation with effect on 9 June 2023 and, therefore, she could not be required to work more than the maximum permitted number of hours in the cognisable period.

I declare this complaint to be not well founded.

In the WRC complaint referral form, the Complainant alleged that she worked excessive night hours. She alleged that she worked many nights until 1am-2am ‘on her own time’, unpaid.

The Complainant further submitted that she had to work many times late into the night making boxes, packing parcels, cleaning, and organising clients, especially when the Respondent went abroad for ages and the Complainant was left with the whole business on her shoulders. The Complainant submitted that she worked from 6am until 1am-2am, getting 4 hours sleep and back into work again to try to save the business at that time. At many other stages she had to work late on her own clock to get the work done.

In her written submission, the Complainant asserted that the document presented by the Respondent is irrelevant as it shows a schedule relating to Covid-19 and also from the time when she was just completing viewings.

The Complainant submitted that she was not just a sales assistant or a studio assistant as claimed by the Respondent. She had to stay on late into the night, particularly due to the hard drive issue and backlog of pop-up clients.

The Complainant submitted that the Respondent had her completely manipulated and she cared so much for their friendship that she did it without any complaining. 

In her direct evidence, the Complainant said that in 2021 when the Respondent was away for up to a month, she would have brought photos home to edit them. She said that she could not say that the Respondent asked her to do so, she just felt that she should have done it.

The Respondent submits that her photography studio operated usually between 10am - 4pm. There was not one client that the Respondent had at “1/2am”.

The Complainant has never complained to the Respondent about her working hours, and she has been a fantastic member of the team. Her role was a sales assistant - to sell images to clients that the Respondent took which originally was a same day viewing. However, due to the Complainant’s request, she booked in her viewings on a different day. Evidence has been given on her role as above.

In her direct evidence, Ms Moran said that the Complainant was never required to work excessive hours or work at night.

The time limits for submitting claims to the Workplace Relations Commission are set out in section 41 of the Workplace Relations Act 2015 which provides that:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The initiating complaint referral form was received by the WRC on 29 October 2023. Therefore, the cognisable time period for the purposes of this claim is from 30 April 2023 to 29 October 2023. The Complainant was absent from work from 28 October 2022 until her resignation with effect on 9 June 2023. Therefore, she could not have worked excessive night hours in the cognisable period.

I declare this complaint to be not well founded.

In the WRC complaint referral form, the Complainant alleged that she did not receive a statement in writing on her terms of employment.

In her written submission, the Complainant submitted that she never received a contract. The Complainant submitted that she did not receive any DocuSign from the Respondent in January 2023 as she had issues with her email. The Complainant submitted that the document shared by the Respondent has no signature. The Complainant submitted that the contract and handbook were created in 2023, after her accident in October 2022.

The Complainant asserted that there were never contracts in place and she never received a physical copy of the contract. The Complainant submitted that her email did not work at the time, and she did not receive the documents by email. The Complainant said that her email was fixed around the end of May 2023 and emails started coming through at that stage.

The Complainant submitted that the Respondent refers to an ‘updated’ contract, but she had never received a contract, and one cannot update something that does not exist.

The Complainant submitted that she could not have come to the Respondent and talked about her contract as the contract was created after the accident in October 2022. The Complainant asserted that she did not see it until the WRC claim was lodged.

The Complainant submitted that Ms Moran sent her a text message stating that she needed to raise a formal procedure, and that Ms Moran had sent a package to the Complainant. The Complainant disputed that the statement obtained from An Post by the Respondent was accurate. She submitted that there is nothing stating that it was her father who received the post. The Complainant asserted that Ms Moran informed her that she had sent a package to her but never stated what was it, which the Complainant found strange. The Complainant submitted that the Respondent never provided her with the tracking number of the package.

The Complainant said that she went to the business’s door with her queries, but she was not allowed into the building. The Complainant asserted that Ms Moran did not show her the supposed text message from An Post nor did she provide the Complainant with the name of the person who said that her father signed for the parcel.

The Complainant further asserted that there are many Duggans in the area. The Complainant argued that there was no information as to who was the man who signed for the parcel and the poor postman was under pressure to give an answer he clearly knew nothing about.

In her direct evidence, the Complainant said that she only received her terms and conditions of employment after she gave her resignation. She conceded that the Respondent could have emailed it before, but she had no access to her email. She said that emails were not coming through as there was no memory for new emails. The Respondent should have got a bounce back email.

The Complainant exhibited an undated screenshot of her attempt to compose email with a message: ‘Not enough storage. To make room for sending emails, get storage or remove items from Google Photos, Drive or Gmail.’

The Complainant also exhibited a document dated 6 June 2023 which stated:

‘Recipient inbox full

Your message couldn’t be delivered to…@....com. Their inbox is full or it’s getting too much mail right now’.

The Complainant’s father, Mr Leo Duggan gave sworn evidence stating that he did not receive a letter addressed to the Complainant on the day in question.

The Respondent submits that the Complainant received her contract in person.  The Respondent further submits that in January 2023, Ms Moran sent an updated version of the contract to the Complainant to let her know that the studio would have CCTV on site.  This document was sent via DocuSign and by registered post.

In her direct evidence Ms Moran said that due to the Complainant’s erratic behaviour, she was advised to install CCTV and change the locks. She said that in January 2023 she sent by post and by email (DocuSign) an updated contract reflecting the CCTV in place.

Ms Moran exhibited a copy of DocuSign Certificate of Completion showing 23 pages document entitled ‘Handbook.docx, Sarah Duggan.docx.’ sent from the Respondent’s email to the Complainant’s email on 27 January 2023 at 1.57am.

The Respondent exhibited a signed confirmation from An Post stating that ‘on the 7th of February 2023, I delivered a reg to Duggans in Sugarhill. A man signed for it that opened the door. To my knowledge the letter was successfully delivered.’ The note was signed and dated.

Ms Moran also provided a tracking number for the letter with timestamp 7 February 2023 at 15.28.

The Respondent exhibited a document dated 7 April 2023 showing delivery statistics of her email to the Complainant’s original address. The report states that that her emails sent to the Complainant’s original email address was delivered and opened, and that there were no ‘bounced’ emails.

This is a complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994. The Complainant alleged that she did not receive a statement in writing of her terms of employment as required by section 3(1) of the Act.

As at the commencement of the Complainant’s employment in May 2021, Section 3(1) of the Terms of Employment (Information) Act 1994 provided that

‘An employer shall, not later than 2 months 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,’ as listed therein. 

The Act was subsequently amended on 16 December 2022 to give effect to the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. No. 686 of 2022). The reduction from two months was effected by regulation 5(a)(i). Regulation 6 inserted section 3A:

Form of statement to be provided

A statement furnished by an employer under section 3, 4, 5, 6, 6E or 6F shall be—

(a) signed and dated by or on behalf of the employer,

(b) in writing, and

(c) transmitted on paper or, provided that the information is accessible to the employee, that it can be stored and printed, and that the employer retains proof of transmission or receipt, in electronic form.

Section 41 of the Workplace Relations Act 2015, quoted above provides that an employee may present a complaint to the Director General of the Workplace Relations Commission that his/her employer has contravened section 3 of the Terms of Employment (Information) Act 1994. Any such complaint should be presented to the Director General before the expiration of the six months period beginning on the date of contravention to which the complaint relates.

A contravention of section 3 is ‘a subsisting contravention that endures so long after the initial two month period the employee remains an employee not in possession of a statement’ (see: An Animal Carer v A Charity ADJ-0009820 and An Employee v A Company ADJ-00012491).  Once a statement was provided, time started to run. If no statement was provided at any stage during the employment relationship, and this came to an end, the employee could refer a complaint within six months from the last day of their employment.

It was in dispute between the parties whether or not the Complainant received a written statement of her terms of employment at the commencement of her employment with the Respondent. There was no evidence put before me to confirm that she did.

However, from the perusal of the email exchanges between the parties, it appears that from around 9 November 2022 the Respondent raised the matter of the terms of the Complainant’s contract:

‘Once you're back we can discuss term of your contract and have that updated for the New Year so you are aware of holiday entitlements and statutory sick pay.’

The Complainant reverted on 10 November stating that she had never received a contract and the ‘updated’ one would be the first one. This was not objected to by the Respondent in its replying emails. On that basis, I find, on the balance of probabilities, that the Complainant was not furnished with a written statement of her terms of employment at the commencement of her employment or in the period until November 2022. It is clear, however, that from November 2022 onwards the Respondent made an effort to rectify this. In fact, in her email of 11 November 2022, Ms Moran stated:

‘Regarding a contract I will get a copy of that in the post once I'm back in office next week’.

I note that any email correspondence sent to the Complainant from as far back as 2019 was sent to the same email address.

I note that on 27 January 2023 the Respondent emailed the Complainant a copy of her ‘Contract of Employment. Statement of terms and conditions of employment’ for signature and a copy of the Handbook via DocuSign. The Complainant failed to access the documents.

The Complainant asserted that her inbox was full and as a result she did not receive the Respondent’s email. The Complainant furnished a copy of an email report dated 6 June 2023 stating that a message could not be delivered to her original email address. The document stated:

‘Recipient inbox full

Your message couldn’t be delivered to…@....com. Their inbox is full or it’s getting too much mail right now’.

I accept that the Complainant might have experienced some difficulties with her email address. However, it is not clear when the difficulties commenced as the report exhibited by the Complainant is dated 6 June 2023.  I note that the Complainant’s resignation letter was sent on 29 April 2023 from a new email address. It would be my view that, in circumstances where an extensive communication between the parties was held primarily by email, a prudent employee would make their employer aware of any difficulties with its accessibility as a matter of urgency. It is regrettable that the Complainant did not alert the Respondent and did not provide the Respondent with an alternative email address as soon as she realised the technical difficulties she experienced or that she did not clear her email inbox to allow for incoming emails. Either of these steps could have helped the parties to deal with the matter complained of in this claim. Furthermore, I note that the technical issue with the Complainant’s email was repaired at some stage. The Complainant said in her evidence that it was around the end of May 2023 when the email started coming through. However, she also said that she never saw the terms of employment until she received the Respondent’s submission to the WRC. I note that she also relied on the document from June 2023 stating that her email was full and not working.

I further note that the Respondent sent a copy of the document to the Complainant’s home address by registered post. While An Post confirmed that the letter was delivered, the Complainant argued that it was never received. The Complainant’s father gave sworn evidence that he did not sign for it. The Complainant suggested that An Post, for an unknown reason, departed from its standard procedure of leaving a notice if there was no one available to accept a package or returning it to sender if it was uncalled for. I cannot accept the Complainant’s assertion that An Post issued the Respondent with a confirmation of delivery on the basis that ‘this poor postman was under pressure to give an answer’.

Even if the Complainant deliberately or not, did not access the Respondent’s email with the written statement of her terms of employment, the letter containing same was delivered to her home address.

Having said that, I note that the copy of the Contract of Employment Statement of terms and conditions of employment document exhibited at the hearing does not meet the requirements set out in the Act. Most importantly, the document is not signed by the Respondent, it is not dated, and each page is crossed with the word ‘VOID’.

I note that the Respondent made attempts, albeit inadequate, to rectify the situation. It is apparent that the circumstances such as the Complainant being on a long-term absence (but in regular email communication with the Respondent) and the deterioration of the relationship were not conducive to a constructive dialog in that regard. It is regrettable that the Complainant’s actions such as her failure to access her email, her failure to provide an alternative email address and her failure to access postal correspondence were uncooperative at best, if not obstructive.

However, there can be no doubt that the Act places the responsibility on the employer to furnish its employees with written terms of employment. Having carefully considered the above I have concluded that the statement, as required under section 3(1) of the Terms of Employment (Information) Act 1994 was not issued to the Complainant.

Section 7 of the Act lists the redress options available to an Adjudication Officer in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either— (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

Having carefully considered the circumstance of this case, I concluded that compensation is the appropriate redress in this case.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant compensation of €65, equivalent to an average of one week’s pay.

In her WRC complaint referral form, the Complainant alleged that she was not notified in writing of a change to her terms of employment.

In the Complaint Specific Details or Statement part of the form, the Complainant submitted that she never had a contract so when things changed in terms of hours, she had nothing to refer to. She was never even notified about the Respondent closing her place of work and being made redundant.  

In her written submission, the Complainant made references to the alleged redundancy. She submitted that the Respondent asked her about her plans to return to work. However, her place of work was not there.

In her direct evidence, the Complainant clarified that the change she complains of was the reduction of her hours of work from 10 to 6 per week in October 2022.

The Respondent submits that the Complainant’s hours of work were changed from 10 to six at the Complainant’s request. The Respondent referred to the parties’ emails of 10 and 11 November 2022 in that regard. In her email, the Respondent stated:

‘This was a request on your behalf for your own hours to be reduced due to your own personal reasons. I'd love to have you in more and I have requested you'd be in every time the clients are in to showcase their images however you did deny this and preferred your set days. I am more than happy to accommodate your change of hours as per your request. Unlike any other employer which I have had and I'm sure you'd agree - I am very flexible on everyone's situation regarding their hours and I do bend over backwards to meet those requests happily.’

Section 5 of the Terms of Employment (Information) Act, 1994 provides as follows:

Notification of changes

(1)

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2)

Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute other than a registered employment agreement or employment regulation order or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

The Complainant alleges that at some stage in October 2022, her hours of work were changed, and she was not notified in writing of the change.

The time limits for submitting claims to the Workplace Relations Commission are set out in section 41(6) of the Workplace Relations Act 2015, as amended, which provides that:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I note that the Complainant’s hours of work changed at some stage in October 2022. The Complainant was absent from work from 28 October 2022 and, therefore, it must be assumed (in the absence of any specific details) that the change occurred on or before 28 October 2022, at the latest. Therefore, under section 41(6) of the Workplace Relations Act 2015, as amended, the initiating complaint referral form must be submitted to the WRC by 27 April 2023, at the latest.  In this case, the initiating complaint referral form was received by the WRC on 29 October 2023.

I find, therefore, that this complaint has been lodged outside the time limits prescribed by section 41(6) of the Workplace Relations Act 2015. 

Accordingly, I find that I do not have the jurisdiction to hear this complaint.

I declare this complaint to be not well founded.

In the WRC complaint referral form, the Complainant alleged that the Respondent is not keeping statutory employment records.

The Complainant submitted that when she phoned the Revenue Commissioners to ask about her status, she was told that the Respondent had her registered three different times under different employment IDs. The Complainant thought that was so strange so she could only assume that the Respondent must not be keeping accurate records.

At the adjudication hearing, the Complainant confirmed that she was not a mobile worker.

The Respondent rejects the claim.

The European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 apply to mobile workers and those engaged in international road transport activities.  

The Complainant conceded that her employment did not come within the scope of the Regulations.

No evidence has been presented to support a claim under the Regulations and, therefore, I must find that this complaint is not well founded.

I declare this complaint to be not well founded.

In the WRC complaint referral form, the Complainant alleged that she did not receive a statement of her core terms in writing.

The Complainant submits that she never, from the day that she walked into Posie Photography, did receive a contract or terms or anything like that.

The Complainant submits that her email was not working so she did not receive a contract by email.

The Respondent submits that in January 2023, an updated contract was emailed via DocuSign and sent by registered post to the Complainant.

Section 3(1A) of the Act, without prejudice to subsection (1) of section 3 of the Act, requires an employer to give or cause to be given to the employee, not later than 5 days after the commencement of an employee's employment with the employer, a statement in writing containing listed particulars of the terms of the employee's employment.

I find that the Respondent has not furnished the Complainant with a written statement of her terms of employment as required by section 3(1A).

Section 7 of the Act lists the redress options available to an Adjudication Officer in relation to a complaint of a contravention of section 3. Having carefully considered the circumstance of this case, I concluded that compensation is the appropriate redress in this case.

I declare this complaint to be well founded. Ì direct the Respondent t pay the Complainant €65 in compensation, which is the equivalent to an average of one week’s pay.

In the WRC complaint referral form, the Complainant alleged that she had to leave her job due to the conduct of her employer. She sought compensation.

In the complaint form, the Complainant submitted that she was injured in the workplace and Ms Moran changed towards her, changing her days of work, treating her differently and eventually cutting her hours also. The Complainant asserted that the Respondent held meetings about her behind her back, changed the locks in the door of her place of work and told her that she was not permitted to come into the building on numerous occasions. The Complainant asserted that the Respondent made false allegations against her and lied about her accident.

The Complainant further asserted that the Respondent did not want to sign a social welfare form for her, and it was coming up to the Christmas period.  The Respondent was going to leave the Complainant at Christmas time with zero income from any source. The Complainant had to come to the door on the Respondent’s final day of work and it was a freezing cold day. The Complainant submitted that she was made stand outside in the freezing cold whilst the Respondent made phone calls before signing the form. The Respondent told her that she wasn’t happy signing the form after the Complainant asked for the company stamp.

The Complainant submitted that the Respondent sent her an email later that day falsely accusing her of editing a document which was a to do list that was used in work. The Respondent also said that she wanted to remind the Complainant that she was not permitted to go into the office.

The Complainant submitted that when she asked if she could get her holiday pay to help her over the Christmas while she recovered, the Respondent lied and said that that she had no holidays. The Respondent did not provide any sick pay or any assistance over the period after the Complainant had her accident and was trying to recover.

The Complainant submits that hearing all the things that were going on, she started to get a lot of anxiety. She tried to push it aside in the hopes that she was worrying unnecessarily. The Complainant submits that she tried to reach out to Ms Moran, invited her for a meal etc. The Complainant submitted that staff were supposed to go for a work meal that they had been waiting for for a couple of years and the Respondent had it cancelled.

The Complainant submitted that, after the Respondent had falsely accused her of editing a document, lied, refused her holidays and stressed her out with the medical certificates, it started to appear to her that something very sinister was going on.  

The Complainant submitted that she had to wait days for replies to her emails. She was accused of being late with medical certs and the Respondent pressurised her regarding her home address.

The Complainant submits that the Respondent said that she sent a parcel to her father’s house. The Complainant submitted that she did not know what was in the parcel and her father never received any parcel. The Respondent did not provide a tracking number for the parcel.

The Complainant submitted that she was hoping things would eventually come back to normal, that the Respondent would start treating her right and that she would be back at work soon because she loved her job.

The Complainant submitted that it became more and more apparent that she was not welcome. She submitted that one day she was passing the door, and the Respondent had a letter for social welfare that the Complainant needed. The Complainant’s family were still awaiting the tracking number of the postal correspondence. The Complainant knocked on the door, she did not go in because the Respondent had said that she was not permitted to come into the building. The Complainant submitted that she congratulated Ms Moran on her bump as she was significantly pregnant at that point. The Complainant asked her for the letter and the tracking number. Ms Moran said she didn’t have them, then she said that she had no printers which the Complainant was shocked about because there were two printers. The Complainant submitted that she asked Ms Moran what was the name on the receipt. The Complainant asserted that Ms Moran started to get snappy with her and then asked her to leave even though she was not inside the building.

The Complainant submitted that she had no way of contacting Ms Moran as a few days prior she said that the Complainant could not text her anymore and the Complainant was having an issue with her email. The Complainant submitted that Ms Moran told her not to turn up unannounced. The Complainant submitted hat she needed the letter for social welfare, and she was hoping that Ms Moran would put her elderly parents at ease by providing the tracking number but she did not. Instead, she said that she did not want to meet the Complainant and asked her to leave. The Complainant submitted that she agreed to leave and as she was turning to leave, she asked:  may I ask why you didn’t want to meet me? The Complainant submitted that she said it very calmly and gently. The Complainant submitted that Ms Moran said that she was going to walk out too. The Complainant thought that she was walking out with her together, but Ms Moran walked very fast to the charity shop across the way and caused a huge scene.

The Complainant submitted that she was really worried at that point because she had not entered the building, raised her voice, said or done anything out of the way, used profanity or anything so she thought that it must be related to something else.

The Complainant submitted that she ended up having a breakdown that night and had to go to ShannonDoc because she just could not cope any more with the treatment of her. The Complainant submitted that she feared any communication with Ms Moran. The Complainant’s friend submitted her further medical certificates because the Complainant was afraid of what she was capable of at that point.

The Complainant thought that maybe one day they would get to sit down, and she still hoped to get back to her job. She thought that Ms Moran would be on maternity leave, and would then be back in her position.

The Complainant submitted that she loved her job and needed it also. She loved working with her coworkers and the people in town and with the kids. However, after everything, she ended up having to go to counselling and take stomach tablets because of the stress. At that point the Respondent had made it impossible for her to return to much loved job.

The Complainant submitted that the final straw was people questioning her about what had happened even though she had not said or done anything but Ms Moran tried to destroy her name.

The Complainant submitted that then she found out that her place of work was closing and the Respondent had not contacted her to let her know that she would be made redundant. Instead, it was put on social media, and she had to hear from someone else that her place of work was closing. The Complainant submitted that she did not get a call, a text, nothing, after all of the time bending over backwards in her job. The Complainant was absolutely devastated, an absolute shell of a person.

The Complainant submitted that Ms Moran had tried every tactic to get rid of her, reducing her hours, telling lies, avoiding meeting her, making it so difficult for the Complainant to have any income at Christmas, not helping her in any way shape or form in that respect. The Respondent then tried to destroy her name by pulling stunts and false allegations etc. and telling the Complainant that she was not permitted into the building with no grounds.

The Complainant submits that the Respondent’s behaviour made it absolutely impossible for her in the end and she had no other choice but to resign.

In her written submissions the Complainant confirmed that her last day of employment was 10 June 2023.

The Complainant submitted that she intended to return to work after her accident. She submitted that she had news about the return but the Respondent did not grant her even a phone call or a meeting to discuss. The Complainant submitted that she had no choice but to resign.

The Complainant submitted that the Respondent asserted that the Complainant was asked to reconsider her resignation. This was a clear stunt. The Complainant submitted that the Respondent framed her. The Respondent only allowed her to communicate through Gardaí and, at that point, the Complainant was terrified of her.

The Complainant submitted that the Respondent mistreated her after her accident; lied about the accident and the surrounding circumstances; lied about the Complainant’s medical card; held meetings about the Complainant without her being present; ignored, avoided and refused to meet with the Complainant despite numerous appeals; did not want to give the Complainant any financial aid over Christmas; did not allow the Complainant into the building; accused her of being AWOL; lied about the contract; refused to provide the tracking number of the package allegedly signed for by the Complainant’s father; lied to people about the Complainant; closed the Complainant’s place of work and cut off any communication with the Complainant; pulled a stunt while pregnant to make the Complainant look like she had done something to her when the Complainant was coming to the door to collect a letter or a tracking number; not allowing any communication except through Gardaí.

The Complainant submits that the above were the grounds for constructive dismissal.

The Complainant submits that she would be in her job and had news regarding her return, however, the Respondent never allowed her any space to communicate this. The Respondent made her return an absolute impossibility. The Respondent’s behaviour caused the Complainant a breakdown.

The Complainant submits that the Respondent’s offer to meet her after her resignation was a game. The Respondent did not want to meet her when she reached out.

The Complainant submits that she did not take up any employment since her dismissal. She did partake in courses and completed a training course with Ayesha White Photography. This was interrupted due to the Complainant’s health difficulties caused by stress and injury when working with the Respondent.

The Complainant submits that there were reviews on the internet that mention her name. This was because she had to partake in training which involved assisting, shadowing and observing Ayesha working on shoots and learning how to conduct various types of shoots, so her name is present as acknowledgement from clients of her presence and assistance during the shoots.

The Complainant submits that she did not go to Ayesha’s studio with the purpose of getting employment. She submits that she went to collect picture for her bother and the Respondent was trying to make it look like she was not returning to work for her. The Complainant submits that her intention was always to get well and return to work for the Respondent. The Complainant submits that she did tell Ms Bentaiba of Ayesha studio to keep her in mind if she was looking for someone in the future. This was because the Complainant feared that she might be left without employment.

The Complainant submits that she still hung on to hope that the Respondent would meet her and it would all go away. She had no intention of leaving her job. The level of investment she had put into this job and workplace was second to none and she had absolutely no intention of leaving.

The Complainant submits that the Respondent accused her of wanting to share the Respondent’s intellectual property. The Complainant submits that she has no clue what the Respondent means by that. The Complainant submits that she has a lot of knowledge in photography and running of a business but there was nothing about the Respondent that was special or different to any other photography business.

The Complainant submits that at the time she had a medical card.

The Complainant described in detail her recollection of the accident in the workplace. The Complainant submits that it was a workplace accident and she requested the Respondent to fill out a form for the Department of Social Protection. However, the Respondent was not happy filling it out. The Complainant submits that she was left with no income and no social welfare support as a result.

The Complainant further submits that the Respondent’s allegation regarding a security breach was another disgusting allegation. The Complainant submits that once Ms Moran heard of her being in the studio to collect a package, she used it as an opportune time to try to frame her in some way.

In her direct evidence, the Complainant said that from the time of the accident at work, the Respondent made it very awkward, she became very cold. They had a great relationship up to then.

The Complainant said that she loved her job and wanted to get back to work. She said that around Christmas time she was told that there would be no financial assistance given to her.

The Complainant said that she was advised to get an illness benefit form filled out by her employer, she attempted to have it signed by the Respondent a few times. She said that she explained to the Respondent that she had no heating, no presents for her parents, she had no money. The Complainant said that the Respondent did not want to sign the form. The Complainant said that when she went to the workplace on 16 December 2022, she was told that she was not allowed in. The Complainant said that the Respondent made her wait outside while the Respondent rang her advisers. It was clear to her that she was not welcome, and she was hurt by that.

The Complainant said that when she got the form signed, she got an email telling her that she was not to come to the office while on sick leave. The Complainant said that she was accused of editing documents in the workplace.

The Complainant said that she tried many times to meet up, they were authentic friends, it was a deep relationship, and she did care about the Respondent and about the business. Ms Moran told her that she was too busy etc.

The Complainant said that the Respondent told her that she sent something by registered post but her family did not receive anything. She said that her email was fixed in May/June 2023 and only then the email with contract came through.

The Complainant said that the Respondent told her to communicate through Gardaí.

The Complainant said that in March /April 2023, the Respondent announced on social media that she would be closing down.

The Complainant said that she decided to resign. She said that she never had a handbook. She said that in 2021 when she started working as a manager, she had access to the HR Portal but she never accessed it and never saw a handbook.

In reply to the Adjudication Officer’s query, the Complainant said that on 15 May 2023 she received an email from the Respondent regarding her resignation and she confirmed that the handbook was attached. The Complainant conceded that she did look at it. However, when asked by the Adjudication Officer, the Complainant said that she did not know what a grievance was.

Regarding mitigation of her loss, the Complainant said that she started new employment in February 2024. She was out sick until 1 February 2024. She said that her studies suffered and she needed that time. She started her employment on 1 February 2024 on a salary higher than that with the Respondent. The Complainant admitted that she did a day or two of training / experience in June 2023.

Summary of direct evidence and cross-examination of Ms Kristina Bentaiba, owner of Ayesha Studio

The Witness said that she had a baby in October 2022 and in April/May 2023 was looking for staff. She said that it takes a few months to train a person. The Witness said that the Complainant did 1-2 hours of training every now and then. She did some unpaid training in October/November 2022 and then in June/July 2023.

In cross-examination the Witness was asked why she waited until February 2024 to employ someone if she was looking for staff in January 2023. The Witness said that she has to make sure that her staff are highly trained as they deal with newborn babies.

Summary of direct evidence of Mr Leo Duggan, the Complainant’s father

Mr Duggan said that he did not receive the package that allegedly was signed for by him. He said that there was no attempt to deliver a letter to his address.

In the written submission the Respondent submitted that the Complainant’s last day in the studio was 28 October 2022. On the morning of 28 October 2022, the Complainant requested that she was paid more “cash in hand” so it would look like she was earning less than she was so she could re-apply for either a Medical Card or other benefit from the Department of Social Protection. The Respondent refused this request. The Respondent submits that the Complainant was not happy with this decision.

The Respondents submits that moments later she heard a thud. When she looked towards her office, Ms Moran saw the Complainant sitting in the middle of the floor. She appeared to have missed her footing when going to sit down and instead, fell straight down to the floor. Ms Moran immediately asked if she was ok, to which she replied that she was fine (no loss of consciousness). Ms Moran offered the Complainant to sit on the sofa in her viewing room. The Complainant rested for a while and at no stage had any symptoms that made Ms Moran immediately worried, but after some time she said that she was leaving. Ms Moran texted the Complainant later that afternoon to check on her welfare. The Complainant’s texts back would be very long, so Ms Moran requested the conversation to be moved to email so she could reply during business hours.

The Respondent submits that the Complainant made it clear that she could not do her job at that time as she was told to avoid screens. Ms Moran was confused by this as her texts and emails were extremely and unnecessarily long.

The Respondent referred to the initial email thread between the parties and the Complainant’s email of 4 November 2022 in particular showing how lengthy her emails were whilst saying that she could not look at screens.

The Respondent submits that Ms Moran’s only request was that the Complainant either posted or emailed her doctor’s notes, so she was certified sick from work. The Complainant denied this simple request many times, either emailing in late, posting late. Her only obligation was to keep her sick notes covering her absence, there was nothing further the Respondent needed from her.

The Respondent submits that the Complainant was absent without leave from December 2022 through to February 2023.  The Respondent referred to an email of 14 February 2023 regarding the Complainant’s absence without leave.

The Respondent submits that the Complainant requested to fill out a form from the Department of Social Protection, to which Ms Moran responded to many times to either post or email it to her. However, the Complainant insisted on having the form completed in person.

The Respondent conceded that she made it clear to the Complainant that she was not permitted into the studio whilst on sick leave, as there was no work that she needed to do and to do so would impair her rest and her return to work. This was for her own safety and wellbeing. The Respondent referred to an email Ms Moran sent to the Complainant in that regard.

With regards to the changed locks, the Respondent submits that there had been a security breach following the Complainant’s last day at work on 28 October 2023. The Respondent’s emails had been accessed through “a new device”. Ms Moran held meetings with her team members for a fact-finding session. The conclusion was that on 19 November 2023 the Complainant had entered the studio and stayed in Ms Moran’s office for approximately 1 hour. During this time, she had access to both her business and personal files which was a huge invasion of privacy. As the Complainant was either absent without leave or on sick leave, the Respondent was not permitted to bring her in for a fact-finding meeting as to do so would have impeded her recovery and her return to work. The Respondent submits that it had to wait to talk to her when she was fit to return to work. As this never arose, the Respondent never had the opportunity to discuss why she was in the office during sick leave, and what she was doing on the PC (screen time) for over an hour.

The Respondent submits that there was a series of events that the Complainant had created over the course of 6 months from her last day in studio until her resignation on 29 April 2023. These include the Complainant not following simple instruction to keep her sick notes up to date, entering the studio without permission, and most recently entering Ms Moran’s studio, refusing to leave even though she was asked several times. On that occasion, Ms Moran had to seek refuge in the shop across the road as the Complainant caused her an anxiety attack whilst 7 months pregnant. The team at the shop politely asked the Complainant to leave their shop and she refused saying “I have rights, she’s my boss, I’m entitled to a meeting with her!!!”. The Respondent exhibited an email she received from the Complainant which showed her aggressive and impolite behaviour towards Ms Moran.

Ms Moran in her evidence said that her only request was that the Complainant keeps her updated. She said that the Complainant would send her texts very late at night. Ms Moran requested her not to do any editing or come to work.

Ms Moran said that she told the Complainant in her email to give her any paperwork she needed to have signed.

Ms Moran said that she engaged a HR company in 2019, a new HR company took over in 2021. Contracts were given at the start of employment and there was a handbook in place.

Ms Moran said that when the Complainant handed in her notice, she asked her to reconsider, to meet and talk but she refused. Ms Moran said that she thought the Complainant started her new job earlier than February 2024.

As the Complainant is claiming constructive dismissal, the burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

“dismissal”, in relation to an employee, means—

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests.

Denning J summarised the ‘contract test’ as follows: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.’

The reasonableness test assesses the conduct of the employer and whether it ‘…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.’

According to the Supreme Court in Berber v Dunnes Stores [2009] ELR 61: ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

In Berber v Dunnes Stores the Supreme Court held that

‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.’

In both situations, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract or render it reasonable for them to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

It is well established and a generally accepted proposition that employees who claim that they have been constructively dismissed must show that they have initiated and exhausted the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare. This is clearly set out in Reid v. Oracle EMEA Ltd.UD1350/2014 where the EAT stated:

‘It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.’

In the case of Conway v Ulster Bank Ltd UD 474/1981 the Employment Appeals Tribunal found that: “the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd UD720/2006 the Employment Appeals Tribunal stated:

‘We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.’

Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employee resignations.  Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981.  In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’” 

The burden of proof in constructive dismissal cases is firmly on the Complainant. In Nicola Coffey v Connect Family Resource Centre Ltd. UD 1126/2014 it was held by the Employment Appeals Tribunal that ‘the bar for constructive dismissal is very high.’

There was no dispute that the Complainant commenced her employment with the Respondent on 10 May 2021. The Complainant resigned her employment by email sent on 29 April 2023 with effect on 9 June 2023, following the expiry of her medical certificate.

The Complainant alleges that she was entitled to resign her employment due the behaviour of the Respondent. More specifically,  the Complainant alleged that Ms Moran mistreated her after her accident; lied about the accident and the surrounding circumstances; lied about the Complainant’s medical card; held meetings about the Complainant without her present; ignored, avoided and refused to meet with the Complainant despite numerous appeals; did not want to give the Complainant any financial aid over Christmas; did not allow the Complainant into the building; accused her of being AWOL; lied about the contract; refused to provide tracking number of the package allegedly signed for by the Complainant’s father; lied to people about the Complainant; closed the Complainant’s place of work and cut off any communication with the Complainant; pulled a stunt while pregnant to make the Complainant look like she had done something to her when the Complainant was coming to the door to collect a letter or a tracking number; did not allow any communication except through Gardaí.

The Complainant made a variety of vague allegations against Ms Moran. It is clear that the parties’ interpretation of the events leading to the Complainant’s resignation differs greatly. 

It appears that the Complainant was of the impression that she had, as she called it, “deep” relationship and ”great and very close relationship and deep honesty” with Ms Moran, she considered herself an employee and “very close friend”. It appears that she believed that this relationship merited somewhat special treatment, particularly post the incident on 28 October 2022.

The Complainant repeatedly emailed the Respondent asking for financial support, suggesting that the business was “doing amazing financially” and that “it wasn't a lot to assist with at a time of great need”. The Complainant seemed to be also disappointed with the lack of an immediate response to her emails.

I note that Ms Moran repeatedly expressed her appreciation for the Complainant e.g. in her email 11 November 2022 to the Complainant she stated:

‘I am of course wishing you a speedy recovery and I have messaged on various occasions to see how you are.’

‘…my appreciation for you as you know you're a very valued member of the team! Your absence is missed from myself & my clients and we all hope you make a speedy recovery.’

‘I am very concerned about your welfare and I am sorry if you think otherwise.’

‘I do hope you make a quick recovery as you are sorely missed.’

However, it seems that from November 2022 the Complainant felt ‘undervalued, under appreciated, uncared for and not treated fairly as your employee and I would always say - very close friend-alike.’ ‘If you had fallen at work I'd be checking in with you all the time and bringing you things to aid your recovery.’

It is clear that from then on, the relationship deteriorated.

While I appreciate that the Complainant might have felt disappointed, her allegations against the Respondent such as ‘she lied, ignored, avoided and refused to meet’ are not supported by any cogent evidence.

I do not accept that the Complainant was barred from her place of work. She was simply reminded that she should not be at her workplace while on certified sick leave. There was nothing sinister in this request and Ms Moran explained it in her email of 6 December 2022:

‘Just a polite note to say whilst on certified sick leave it is not permitted to come in to the office. This is for your own well being & safety it wouldn't be conducive to aid your recovery.’

I cannot accept that the Respondent refused to deal with the Complainant’s forms. Rather, she was asked not to visit the studio with the forms but to email or post any documents required.

On 13 December 2022 Ms Moran emailed the Complainant:

‘Any documents you need filling in please attach to this email or pop in the post and I will ensure I will fill out what is needed from me. Any documents needing my attention I will ensure they're completed ASAP for you, but please bear in mind that I am out of office from this Friday 16th Dec - 9th January on annual leave.’

The Complainant clearly took an exception to with what she seems to view as the Respondent’s lack of empathy.

I accept that the Respondent emailed a staff handbook to the Complainant on 27 January 2023. The Complainant, by choice or otherwise, did not open the document. The handbook was also sent by post to the Complainant on 7 February 2023. The matter of whether or not the post was delivered was discussed elsewhere in this decision. I note that the document had the word “VOID” across the pages.

The Complainant put her resignation in a lengthy email listing a litany of allegations such as horrendous mistreatment, ill treatment, pain and suffering caused, hurt and damage, emotional torture and physical suffering.

The Respondent replied to the Complainant and asked her to reconsider her resignation. Ms Moran noted her concern that “there could be some underlying issues in respect of your employment with us, which we need to address.” M Moran took “this opportunity to remind you of the importance of airing any concerns which you may have, and to resolve matters through the formal process.” She again forwarded the handbook to the Complainant and asked the Complainant to raise a formal grievance should she wished to do so.

Ms Moran made it clear that should the Complainant decide not to retract her resignation the Respondent would respect her wishes and process the termination of her employment and forward any monies which may be outstanding.

The Complainant replied to Ms Moran on 19 May 2023 stating that she did not know what ‘grievance’ meant. She stated:

‘If it’s about death and you have mistaken a recent death in our area as being relating to me, it wasn’t so I haven’t had any deaths in my family and friends thank God so this obviously isn’t relevant anyway. unless it means death of the job or something I don't know.’

‘I don’t know what a grievance procedure is? Is that in relation to death as I have never seen or received a grievance procedure so I honestly don’t know what that means.’

The Complainant stated that she did not believe that the Respondent wanted her back. The Complainant stated that “This is beyond repair. The damage you have caused me is insurmountable” and that she “just knew in [her] heart and soul that there was something really really terrible and sinister going on and [she] could not shake the feeling.” The Complainant believed that “Everything pointed to me not having a job to go to in future.”

The Complainant then requested Ms Moran not to respond to her email. She said that she did not want to hear from the Respondent and was not going back and forth in emails. The Complainant further stated that her family did not grant the Respondent permission for posting anything to her home address and she did not want to receive phone calls, texts or otherwise from Ms Moran directly or through her family/partner or through the Complainant’s  family/friends or on social media. The Complainant requested the Respondent to refrain from sending her” letters, postcards, attachments - anything.”

The Complainant’s resignation was unambiguous. I note that the Respondent asked her to reconsider and follow the grievance procedure to address any concerns she might have. Even if it was accepted that the Complainant failed to access the email of January 2023 and the post of February 2023, the handbook with the grievance procedure was forwarded to her again after she emailed her resignation. It is implausible to say that, in circumstances where she came to a conclusion that she must resign her position, and having been invited by the Respondent to utilise a grievance process, and admittedly, having looked at the handbook, she did not understand what a grievance process was. Yet, she failed to invoke the procedure. 

It is generally accepted that employees who claim that they have been constructively dismissed must show that they have substantially utilised the grievance procedure before resigning from their employment.

The Complainant was in possession of the handbook that outlined a grievance procedure. Even at the time of her resignation, Ms Moran invited the Complainant to utilise the process. I find that the Complainant’s failure to use the Respondent’s grievance procedure was fatal to her claim of constructive dismissal and similarly to the EAT’s finding in Conway v Ulster Bank Ltd. UD 474/1981, I find that the Complainant ‘did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.’

In the circumstances and on the basis of a reasonable and objective analysis and careful consideration of the facts of this case, I find that the Complainant resigned from her employment of her own volition and was not constructively dismissed within the meaning of section 1 of the Unfair Dismissals Act, 1977. 

The Complainant has not discharged the burden placed on her by the Act. I am not persuaded by the Complainant that resignation was her only option.  Accordingly, I find that she has failed to establish she was constructively dismissed, and her complaint cannot succeed.

Having considered the submissions of both parties and all of the evidence adduced at the adjudication hearing, I decide that the complaint of alleged unfair dismissal is not well founded.

The Complainant alleges that she has been discriminated against by the Respondent by reason of her civil status in conditions of employment. The most recent date of discrimination was stated as 18 April 2023.

The Complainant submits that she was discriminated against because she was not treated equally regarding redundancy. The Respondent contacted the Complainant’s coworker, had a call with them about the place of work being closed but the Complainant did not get a phone call and had to find out through social media even though she was a manager and the longest serving employee by the time this occurred.

At the adjudication hearing in her direct evidence, the Complainant said that her coworker received a phone call in March 2023 that the place of employment was closing. The Complainant said that while her coworker was married and pregnant, she did not think it was because of her civil status but she was convinced that for some reason she was treated differently.

The Complainant said that she had a new email address in April 2023. She said that the Respondent sent her an email about the closure of the studio in March 2023 to the old address which had not enough storage.

The Respondent rejects the claim.

The Respondent submits that firstly, the Complainant was not made redundant. Furthermore, the Complainant was notified by email of 9 March 2023 that one of the studios would be closed. In her email, Ms Moran stated:

‘I will be on maternity leave as of 1st April which I want to update you on, so when you're ready to return to work please email here so I can organise a return to work meeting and ensure your needs are met

Please do not post any further correspondence to 148 Maiden Street - if it is necessary please post to:…

Email is preferred purely as it's more efficient. As I previously said if you are having trouble with an email I would suggest to set up a new one and update me here with that.

The studio on Maiden Street is also set to close on 31.03.23 so please do not send anything there. When the meeting takes place for your return to work I will be able to answer any questions you may have. My main priority is to ensure your well-being and be able to accommodate any needs to may have following your extended leave.’

In her direct evidence, Ms Moran said that the Complainant was on a long-term sick leave, another employee had a baby and was out as well. Ms Moran was about to have a baby and commence her maternity leave.  While she decided to close the studio, there was another location available to her, if/when the Complainant decided to return to work. She could not keep the studio while it was empty.

Ms Moran said that she rang the other employee but was nervous about ringing the Complainant as she was on long-term sick leave. Ms Moran said that she emailed the Complainant. She said that she was told by the Complainant not to post correspondence to the home address. The Complainant did not supply her with a new email address.

The Complainant alleges that she was discriminated against by the Respondent in conditions of employment by reason of her civil status. The Respondent rejects the claim.

Discrimination for the purposes of this Act

Section 6(1) of the Employment Equality Acts 1998 (as amended) (“the 1998 Act”) states:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”)

Section 6(2) provides that: as between any two persons, the discriminatory grounds are inter alia:

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

Section 8 of the Act states:

Discrimination by employers etc.

(1) In relation to— (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Burden of Proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The WRC and the Labour Court have held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a presumption of discrimination is established and the burden of proof shifts to the Respondent.

In the case of Melbury Developments and Valpeters EDA 0917 the Labour Court stated as follows:

‘Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.’

The Labour Court in the case of Southern Health Board v Dr Teresa Mitchell DEE 011 considered the extent of the evidential burden which a Complainant must discharge before a presumption of discrimination can be made out. The Labour Court stated that the Complainant must

‘The first requirement of Article 4 of the Directive is that the claimant must "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.’

In Graham Anthony & Co Ltd. v Mary Margetts EDA038, the Labour Court remarked:

‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.’

In deciding on this complaint, therefore, I must first consider whether the presumption of discrimination on the family status ground has been established by the Complainant. It is only where such a presumption has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Comparator

Section 28 of the Acts in relevant parts provides that:

28.The comparators

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

in relation to the civil status ground, C and D have different civil status;

Time limit

Section 77 provides as follows:

(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.

The time limits which govern the referral of complaints under the legislation are provided for in Section 77 of the Acts (as set out above). The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events.

The Complainant referred the within complaint to the Director General of the WRC on 29 October 2023. Therefore, the cognisable period for the purpose of the complaint in accordance with the time limits provided for in Section 77(5) of the Acts is the six-month period prior to the referral of the complaint, namely from 30 April 2023 to 29 October 2023.

The issue for consideration by me is whether or not the Complainant was discriminated against by the Respondent on the grounds of her civil status.

The Complainant alleged that her coworker who was married and pregnant at the time, received a phone call from Ms Moran in March 2023 to inform her of the place of work closing. The Complainant alleged that she did not receive such a call. She further suggested that a coworker was paid her annual leave entitlements whilst out sick, and the Complainant as not.

At the adjudication hearing, the Complainant made it clear that she did not think it was due to her civil status, but she believed that she was treated differently for some unknown reason.

Ms Moran, on the other hand, submitted that she was in email communication with the Complainant who was on a long-term absence. She, therefore, emailed the Complainant on 9 March 2023 clarifying the circumstances. Ms Moran also exhibited an email exchange between the parties where both sought clarification externally and a conclusion was reached that the Respondent was not permitted to pay the Complainant for her annual leave whilst she was on certified sick absence.

To determine whether the Complainant has established a prima facie case a three-tier test is employed: (1) the Complainant must establish that she is covered by the relevant discriminatory ground; (2) she must establish that the specific treatment alleged has actually occurred; and (3) it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

As highlighted in the Valpeters determination: ‘the Complainant must first establish facts from which discrimination may be inferred’ and that such facts must ‘be of sufficient significance to raise a presumption of discrimination.’

Crucially, it also highlights that these ‘must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.’

With regard to the alleged email/phone call matter in March 2023, these events fall outside the cognisable period of 30 April 2023 to 29 October 2023. The allegation that at some unspecified date a work colleague was paid annual leave entitlements while on sick leave is very vague and not supported by any cogent evidence.

The Complainant has not evidenced that– because she was of a different civil status – she was treated adversely compared with the way her colleague was treated.

The Complainant is making general allegations that she was treated less favourably, albeit she herself did not believe that it was because of her civil status.

The obligation rests with the Complainant to provide credible evidence to raise the allegations to meet the standard of ‘established facts’. As set out in Melbury Developments Ltd. v Valpeters cited above ‘mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’. In the instant case, I am not satisfied that I have been presented with evidence from which I could reasonably conclude that the Complainant was discriminated against by the Respondent on the ground of her civil status.

I declare this complaint to be not well founded. The Complainant has failed to establish a prima facie case of discrimination on the grounds of civil status.

The Complainant submits that she did not receive any redundancy payment although the Respondent closed down her place of work and did not inform her that she was being made redundant. To this day the Respondent never had a discussion with the Complainant about this or provided any redundancy pay.

At the adjudication hearing, the Complainant did not dispute that she resigned her employment and that another employee was still working for the Respondent when she handed her notice.

The Respondent rejects the claim.

Ms Moran said that there was no redundancy situation. There was another place of work available to the Complainant if/when she decided to return to work. The Respondent did not cease trading but could not keep an empty studio. She was happy for the Complainant to come back to work and work was available to her.

The right to a redundancy payment is set out in section 7 of the Redundancy Payments Act 1967 (the “Act”), as amended.

7.—

(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

In essence, in order to qualify for a redundancy payment, the following criteria must be met: (a) the employee must be dismissed by her employer and (b) the dismissal must have occurred because of one of the reasons listed above, and no suitable alternative role was available.

There was no dispute that the Complainant resigned her position after an extended period of sick leave.

Based on the totality of the evidence, both oral and written, put before me, I am satisfied that the Complainant was not dismissed by the Respondent and no redundancy could be said to have occurred.

I find that the Complainant is not entitled to a statutory redundancy payment and, therefore, I disallow the Complainant’s appeal.

The Complainant submits that she did not receive all her rights during the period of notice. The Complainant did not provide any specifics as to what these rights would be.

At the adjudication hearing, the Complainant conceded that she resigned her employment at the end of long-term sick absence.

The Respondent rejects the claim.

The Complainant gave evidence that she resigned his position. The High Court has confirmed that an employee who has resigned from their employment in circumstances of a constructive dismissal cannot succeed in a claim for minimum notice and the question of minimum notice could not have arisen (Halal Meat Packers (Ballyhaunis) Ltd v. Employment Appeals Tribunal [1990] E.L.R. 49).

I declare this complaint to be not well founded.

Redundancy- minimum notice- annual leave- sick pay – unfair dismissal-