Complainant

Respondent

Parties

Berta  Viloria De La Torre

Alen Buckley

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

David Pearson J W O'Donovan LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050735-001

20/05/2022

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

CA-00050735-004

20/05/2022

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

CA-00050735-005

20/05/2022

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

CA-00050735-006

20/05/2022

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

CA-00050735-007

20/05/2022

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

CA-00050735-008

20/05/2022

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

CA-00050735-009

20/05/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

Two witnesses for the complainant undertook to give evidence under affirmation, three witnesses for the respondent took an oath regarding the provision of evidence.   Ultimately only one witness for the respondent gave evidence.  The complainant’s spouse attended the hearing initially as a support person for the complainant, but on the second day undertook to give evidence as a witness under affirmation.

The hearing took place with the assistance of an interpreter provided by the WRC.

Initially an observer was permitted to attend the hearing, however allegations of intimidation by an Irish-based element of an international organisation were raised by the respondent as a preliminary matter.  The submissions on the preliminary matter were heard in the absence of the public.

Having heard the submissions of both parties, and viewed video evidence, I am satisfied that there were sufficient reasons to consider some issues had arisen that may amount to intimidation.  I consider that this amounted to exceptional circumstances such as to warrant a departure from the principle of open justice.  In the circumstances, the matter was heard in the absence of members of the public. 

The completion of this decision was delayed due to a family bereavement and the effects of Covid 19.

I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

CA 00050735-001 Constructive Unfair Dismissal

The complainant submitted that she had to leave her job due to the conduct of the employer, who forced her to leave her accommodation, at the same time as dismissing her partner and co-worker.

CA 00050735-004 Payment of Wages - €210 deduction

The complainant submitted that the respondent made an unlawful deduction of €210 from her wages.

CA 00050735-005 Payment of Wages – Salary/Holiday

The complainant submitted that the respondent did not pay her for holiday hours that were due to her.

CA 00050735-006 Payment of Wages Payment in lieu of Termination

The complainant submitted that the respondent did not pay her the required notice payment.

CA 00050735-007 Organisation of Working Time - Maximum Hours

The complainant submitted that the respondent made her work for more than the permitted number of hours.  She submitted documentation in support of this contention.

CA 00050735-008 Organisation of Working Time – Weekly Rest periods

The complainant submitted that the respondent made her work without the appropriate weekly rest periods.  She submitted documentation in support of this contention.

CA 00050735-009 Terms of Employment Information – deliberately misleading

The complainant submitted that her contract of employment was deliberately misleading as it did not reflect the reality of the workload or the working conditions.

Oral Evidence of the complainant:

She stated that there was a verbal and written agreement with her employers to provide accommodation.  She stated that when the employer asked her and her partner to move, they offered to pay a compensatory amount to vacate the cottage but noted that it was not a fair alternative.  The complainant stated that she made a complaint about being overworked and the following week she was dismissed.  She stated that her partner was unfairly dismissed.

The witness submitted that she did not receive the correct pay, holidays or payment for her notice period.  She stated that she did not receive proper overtime or travel expenses.  She wrote four different emails regarding the shortfall.  She stated that the goodwill package was only part paid.

The complainant then outlined her loss of earnings upon her return to Spain.

Under cross examination the witness confirmed that she was promised an allowance to search for other accommodation if she wanted to stay with the employer.  She also confirmed that if she wished to leave her employment she would be offered the same package as her partner.

The second witness was the complainant’s partner and co-worker.  He stated that in the meeting of 7 February 2022 there were not allowed to speak and were given two choices, to leave the cottage with about €8000 and continue in work but look for their own accommodation or to leave with around €5000.  He stated that the employer established the conditions of the goodwill package and that they had no input into this decision.

He stated that there were months where they were working a lot and had no rest.  They started to complain in January/February 2022 but it only led to the offer to leave.  He also noted that he had a sore back and sore wrists and made a complaint to his employer a couple of weeks before their dismissal.  No cross examination was availed of.

CA 00050735-001 Constructive Unfair Dismissal

The respondent submitted that the complainant’s employment terminated by mutual agreement on or about 11 February 2022 after she signed a severance agreement agreed between the parties.

CA 00050735-004 Payment of Wages - €210 deduction

The respondent confirmed that it made a deduction of €210 from the complainants as they failed to leave the accommodation in a clean and tidy state.

CA 00050735-005 Payment of Wages – Salary/Holiday

The respondent submitted that this complaint made no sense in the manner in which it was framed and submitted.

CA 00050735-006 Payment of Wages Payment in lieu of Termination

The respondent submitted that the complainant resigned her employment having taken up the offer of a severance agreement and as such had no entitlement to notice. In any event the complainant was paid in excess of her statutory notice entitlement.

CA 00050735-007 Organisation of Working Time - Maximum Hours

The respondent submitted that the claim made by the complainant is not capable of comprehension. It is confused and nonsensical. The respondent submitted that the complainant was paid all amounts due to her.

CA 00050735-008 Organisation of Working Time – Weekly Rest periods

The respondent submitted that it has provided the complainant with all rest breaks required under the Organisation of Working Time Act 1997 and actively encouraged the use of annual leave and the need to regularly plan holidays.

The respondent denied that the complainant was required to work excessive hours as claimed or at all. The resp0ndent submitted that the complainant appears to have claimed overtime for walking the respondents’ dogs and/or up to 2.5 hours at a time for putting eye drops in one dog. Walking the dogs or tending the dogs was not the complainant’s role. If she chose to walk with her boyfriend while he walked the dogs that was her personal choice on her own time and not the responsibility of the respondents.

CA 00050735-009 Terms of Employment Information – deliberately misleading

The respondent denied that they provided the complainant with a statement of her core terms of employment that “deliberately contains false or misleading information” as alleged by the complainant or at all.

The provision of accommodation was not a contractual term of the complainant’s employment. Accommodation was provided by the respondent on a grace and favour basis at the respondent’s discretion and was provided to the complainant’s boyfriend, the complainant was allowed use it and share it with her boyfriend.

Evidence of the respondent witness:

In the event only one witness gave evidence for the respondent, the Estate Manager.  He stated that there was no provision for the provision of accommodation in the contract of employment for the complainant.  He confirmed that the employment of one of the witnesses to this complaint was terminated. 

He stated that a son of a family member of the owner needed the accommodation and according to the complainant, she and her partner were requested to vacate the accommodation.  They were provided with an offer of approximately €8000 relocation expenses or an option of around €5000 if they were terminating their employment on agreement.  He stated that the complainant did get a chance to contribute to the termination discussions and took the remainder of the day to consider matters.  This happened on 10 February 2022, and they left employment on 11 February without any protest.

Under cross examination, he confirmed that there was no disciplinary action taken against the complainant.  He confirmed that the employer did not make any commitment to the complainant regarding a place to live.  He confirmed that the matter had been dealt with in a meeting four years previously and confirmed that he had no recollection of that meeting.

He was asked if his employer got annoyed when the complainant sought a pay increase, mentioned excessive overtime and referred to an injury but he stated that they did not get annoyed.  He noted that he was asked to review staffing in December 2021, and this was completed on 7 February 2022.

The respondent stated that a goodwill payment was made under a written agreement and noted that the WRC has no jurisdiction in respect of a compromise agreement that was post-dating the end of the employment.  It suggested that the WRC had no authority regarding the implementation of severance packages, in that it was outside its jurisdiction.

CA 00050735-001 Constructive Unfair Dismissal

From the evidence provided by both parties, it appears that the complainant gave up her employment to return to Spain with her partner.  In doing this she availed of a termination package offered by the respondent.  She appears to have made that decision prior to her resignation date as evidenced by the purchase of ferry tickets on 7 February 2022 before concluding the termination agreement. 

There is no evidence in writing to uphold the complainant’s assertion that the accommodation was part of the complainant’s employment package.

Accordingly, I find that the complainant was not dismissed, unfairly or otherwise.

CA 00050735-004 Payment of Wages - €210 deduction

The respondent confirmed that it deducted a payment of €210 from the complainant’s wages in respect of a cleaning fee for the accommodation.  As the respondent confirmed that the accommodation formed no part of her employment contract, this deduction was unlawful.  Furthermore, deductions from wages must be undertaken with the agreement of the employee.  This was not sought in this case.

Having regard to this complaint, I find that complaint is well founded, and I award the complainant the sum of €210 compensation in respect of the contravention

CA 00050735-005 Payment of Wages – Salary/Holiday

The respondent concluded a termination agreement with the complainant which encompassed the salary in respect of outstanding holiday pay.  Accordingly, I find that no contravention has been shown to have taken place.  I find that the complaint is not well founded.

CA 00050735-006 Payment of Wages Payment in lieu of Termination

The respondent concluded a termination agreement with the complainant which encompassed the payment of notice in lieu of termination.  Accordingly, I find that no contravention has been shown to have taken place.  I find that the complaint is not well founded.

CA 00050735-007 Organisation of Working Time - Maximum Hours

The complainant stated that she worked hours in excess of the maximum hours allowable under the legislation.  The respondent challenged the calculation of hours provided by the complainant pointing out that dog-waling was not part of her contract. 

I am satisfied that the explanation regarding care of animals is consistent with the employment contract.  I find that the complainant was undertaking hours of varying lengths per week, however I also find that she has not established as fact that she was employed above the maximum hours permitted in legislation on an ongoing basis. 

Therefore, I find that the complaint is not well founded.

CA 00050735-008 Organisation of Working Time – Weekly Rest periods

The complainant submitted that she was not provided with the appropriate weekly rest periods.  She has included dog care and walking duties when compiling her weekly working hours.  I am satisfied that these were not duties within her employment contract.  Accordingly, I find that she has not established facts to indicate that she did not receive the appropriate weekly rest periods.  I find that the complaint is not well founded.

CA 00050735-009 Terms of Employment Information – deliberately misleading

The complainant submitted that the terms of her contract were deliberately misleading.  She outlined in evidence how her employment varied from the stated employment and while I am satisfied that elements of her employment varied from her contract, no evidence has been presented to substantiate a claim that the terms of employment were deliberately misleading.  Accordingly I find that the complaint is not well founded.

CA 00050735-001 Constructive Unfair Dismissal

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant was not unfairly dismissed.

CA 00050735-004 Payment of Wages - €210 deduction

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the legislation was contravened, and I award the complainant compensation of €210 which is just and equitable in the circumstances.

CA 00050735-005 Payment of Wages – Salary/Holiday

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

CA 00050735-006 Payment of Wages Payment in lieu of Termination

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the was not well founded.

CA 00050735-007 Organisation of Working Time - Maximum Hours

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

CA 00050735-008 Organisation of Working Time – Weekly Rest periods

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

CA 00050735-009 Terms of Employment Information – deliberately misleading

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

Constructive Unfair Dismissal – not established – deductions from pay – accepted – award of compensation - Salary/Holiday - Payment in lieu of Termination - Maximum Hours - Weekly Rest periods - deliberately misleading- not well founded