Complainant

Respondent

Parties

Sonya  Martin

Astronomy Ireland, Mr David Moore; Ms T; Mr Willie McDonagh, Mr Seamus Bonner

Representatives

Daniel O Connell

Keans Solicitors

Eugene Smartt

Eugene Smartt Solicitors

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-00060609-001

19/12/2023

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

CA-00060609-003

19/12/2023

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

CA-00060609-004

19/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00060609-005

19/12/2023

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

CA-00060609-007

19/12/2023

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

CA-00060609-008

19/12/2023

The complainant commenced employment with the respondent on 23rd August 2021 and resigned from that employment on 3rd July 2023. Initially the complainant was employed as an administrator, after approximately one year in the position she was promoted to the position of General Manager.

This complaint was received by the Workplace Relations Commission on 19th December 2023.

The hearing of this complaint was scheduled for 28th June 2024 in Lansdowne House, Dublin. Present at this hearing on behalf of the Respondent were Ms. T and Mr. David Moore, both had signed the attendance sheet as ‘Volunteers’.

It was during this hearing that Mr. Moore quite clearly described the legal status of Astronomy Ireland as ‘complicated’ and “iffy in law”. The hearing was adjourned at this point to allow time for the correct legal identity of Astronomy Ireland to be established.

In or around March 2023 the Law Reform Commission issued a consultation paper entitled ‘Liability of Clubs, Societies and other Unincorporated Associations’. Page 17 of 44 of this consultation paper read as follows:

“How does employment law apply to unincorporated associations?

Often some unincorporated associations (like clubs and sports organisations) have paid employees. An unincorporated association cannot be an employer because it is not a legal entity separate from its members. It can be difficult to know who the employer is.  Employers must follow employment law in terms of areas like:

·       Unfair dismissal law

·       Holidays

·       Minimum notice

·       Rates of pay

·       Employment equality

·       Employment of children

·       Maternity Leave

It is important for an employee to know who their employer is. To take a case against an employer an individual needs to know the inner workings or organisational structure of an unincorporated association. This information can be difficult to find.

Can unincorporated associations sue or be sued?

No. Unincorporated associations cannot sue or be sued in their own name. A case taken against an unincorporated association must be taken against some or all of the members of that unincorporated association.

It can be difficult to do this in practice. Unincorporated associations might not have an office or building so there is no address to send enforcement notices or legal documents. Another issue is that it is not always clear who controls the unincorporated association or who is a member”.

On 23rd October 2024 both the complainant and respondent were notified that a Case Management meeting would be held on 6th November 2024. These notifications were contained in letters and posted to the respondent and emailed to the complainant rep. The rep for the complainant attended this meeting, no one attended for the respondent.

At a hearing on 29th January 2025 Mr Moore was informed that he and three other members of the management committee had now been joined as respondents in the claim for constructive dismissal and further alleged breaches of employment rights. Mr Moore was informed that his name had to be joined as a respondent because of the unincorporated status. Mr Moore informed the Adjudication Officer that the management committee was himself and the treasurer and two others.

At the final hearing on 2nd May 2025 the respondent representatives with their legal representative on hearing that the hearing would proceed against Astronomy Ireland and four named individuals objected to this and left the hearing.

The complaint was heard in their absence.

The respondent referred to as Ms T requested anonymity and no party objected to this. Anonymity was granted.

Introduction:

·       The complainant submits these submissions as part of her claim that she was constructively dismissed, as provided under Section 1(b) of the Unfair Dismissal Acts 1977 to 2017 (hereinafter referred to as "the UD Acts") and her further complaints under the Organisation of Working Time Act 1997 (hereinafter referred to as "the 1997 Act"), the Sick Leave Act (hereinafter referred to as "the 2022 Act") and the Terms and Conditions of Employment (Information) Act 1994 (hereinafter referred to as "the 1994 Act").

·       The complainant commenced work with the Respondent on 23rd August 2021 as an administrator based at the Respondent's office Unit 81, Centrepoint, Rosemount Business Park, Ballycoolin, Dublin 11.

·       The Respondent is a not-for-profit organisation that promotes astronomy, space interest and education on relevant matters. The Respondent is staffed by a small number of professional staff together with volunteers.

·       At the time of the complainant’s dismissal, her salary was €40,000 per annum being paid a gross weekly wage of €769.23 and a nett weekly wage of €629.61. The complainant did not receive a contract of employment from the Respondent nor any other written statement of the terms of her employment.

·       In the addition to statutory breaches of employment legislation as further detailed below, the complainant was subjected to undermining, degrading, hostile and such toxic treatment by the Respondent, itsservants or agents that she was left with no alternative but to resign her position of employment on 3rd July 2023.

·       The Complainant seeks redress from the Workplace Relations Commission in the form of compensation in respect of each of her sixcomplaints.

Background:

·       The complainant commenced her employment with the Respondent on 23rd August 2021 initially as an administrator before being promoted to manager in March 2022. The respondent had no issues with her work performance.

·       The complainant had two superior managers, Mr. David Moore, the founder of the respondent, its chairman, chief executive officer and editor of its membership magazine and Ms. T, a volunteer and board member.

·       In conjunction with the complainant’s promotion in March 2022, the respondent hired an administrator, G. G's direct line reporting was to the Complainant. The Complainant noted early on in G's employment that he was performing poorly, and his work was not of a sufficient standard for the purposes of the organisation.

·       The complainant advised Mr. Moore and Ms. T of G's poor performance and further advised that he should be dismissed on the basis that he did not have the capacity to perform the role assigned to him. This was dismissed by Mr. Moore and Ms.T who advised that G should be given a chance".

·       In addition to G's poor performance, G demonstrated extremely poor personal hygiene to the extent that same became a health, safety and welfare at work issue for the complainant and other staff and volunteers of the respondent. This included continually spending time in the toilet facility and continually failing to wash his hands on return from the toilet. The Complainant also understands G stole money from her desk.

·       Ultimately, the landlord of the Respondent's premises approached the Complainant and informed her that not only did he have to continually clean faecal matter from the toilet after G used same but more recently, he had to clean ejaculate off the men's bathroom wall. The landlord of the Respondent asked that G be discreetly spoken to about these issues.

·       Despite advising Mr. Moore and Ms. T of these issues, the dismissal of G

was still not sanctioned by them and she remained working in close proximity to him. However, Mr. Moore and Ms. T then subjected G, in the view of the complainant, to a campaign of bullying before ultimately dismissing him themselves within a number of weeks..

·       The incidents with G's employment had a detrimental impact on the Complainant's working conditions and her physical and mental health. The complainant was required to take both sick leave and annual leave to cover absences. At the same time, due to the dismissal of G her workload increased, and the respondent's business suffered financially as a result of his employment.

·       Following the dismissal of G in or around July 2022, the complainant was forced to work two roles, that of administrator and manager withboth involving an element of fundraising for the organisation. The complainant worked late every day and from home some evenings and on weekends also. However, the Complainant received no overtime pay nor was offered time in lieu for these extra periods.

·       In or around June 2023 the Complainant sought a meeting with Mr. Moore and Ms. T where she could explain her employment issues and to discusspossible solutions or alternatives. This meeting took place on or about June 2023 and Ms. T suggested that there was a possibility that the Complainant's health issues were related to menopause, long covid or post-traumatic stress disorder arising from her interactions with G. It was agreed that the Complainant would see her doctor and take some time to herself by working a reduced week of three days per week for a period. At this stage, a new hire, N, had commenced and Mr. Moore suggested that the Complainant could use N as her "personal assistant" even though N had not been hired for that purpose.

·       N was a neighbour of the Complainant who she knew well, and she settled into her role as administrator very well. However, the Complainant felt bad that she was now working a shorter week and could not bring N up to speed as quickly as she would like and was leaving her in the office with an intern and work- experience students as support.

·       The complainant kept Ms. T up to date on her health issues and no issue was taken. At about this time, Ms. T began micromanaging the complainant with behavioural therapy techniques that Ms. T appeared to have picked up from her employment outside Astronomy Ireland. These included giving the complainant daily tasks like making lists of everything that she had done that day. While the complainant complied initially, the daily scrutiny and supervision became humiliating. The complainant ultimately told Ms. T that she felt uncomfortable with the list making and how it made her feel and Ms. T apologised and told her that she did not need to do that anymore.

·       After the aforesaid meeting in June 2023, there was an increase in Mr. Moore and Ms. T micromanaging the Complainant. The Complainant was prevented from making work-related decisions with all matters being run by Mr. Moore and Ms. T and any decisions the Complainant did make were also questioned. This micromanagement further included:

Ø  Scanning every email drafted by the complainant.

Ø  Critiquing any email drafted by the Complainant over minor matters such as wording.

Ø  Mr. Moore frequently calling and lecturing the Complainant over minor matters with Mr. Moore insisting that such calls be put on speaker phone.

Ø  Being prevented from calling Gardaí when the Respondent's website was hacked.

·       The hacking of the Respondent's website put their members private details, including names and bank account details, at risk. As the website could not be used, ticket sales for the Respondent's events were impacted and membership renewals had to be pursued through cold calling rather than automatic, online notification. The decision of Mr. Moore not to repair the website and the hastily arranged direct marketing of renewals impacted caused a considerable frustration for the Complainant in the performance of her duties.

·       As a result of reducing to a three-day week, the Complainant sought to shore up the shortfall in her wages by claiming overtime pay for the extra periods of time worked when she was employed on a five-day week. When seeking to do so Ms. T reprimanded the Complainant in front of work experience students, interns and staff and told her to run such matters by board members. The Complainant had discussed matters with the Treasurer of the Respondent, and the Complainant believes that Ms. T really meant that such matters should be run by her. The reprimanding of the Complainant in such a public matter was degrading to the Complainant and Ms. T apologised privately for the conduct the following week.

·       In or around late August 2022, the Respondent ran its largest fundraiser the 'Star B Q' Astronomy Festival. While the event was successful, Mr. Moore and Ms. T were annoyed that staff had replaced some scheduled events despite the replacement events being very successful and generated more revenue for the Respondent.

·       At this time, N as administrator noted serious financial irregularities in the Respondent's business. N had a background working in the charities sector and was aware of financial reporting and other obligations on not-for-profit organisations. The working environment became very disruptive and tense with the Complainant frequently receiving conflicting instructions from her superiors with the result that targets were not being met. A meeting was held where the Complainant and N explained to Mr. Moore and Ms. T that this confusion was unproductive for the business of the Respondent. While the Complainant and N received an apology and were told it would not happen again, the work environment remained tense and the conflicting instructions resumed within a number of weeks. This caused significant upset to N, and the Complainant would have to ask Mr. Moore and Ms. T to desist as N's request went unanswered.

·       The Complainant's yearly review was scheduled for 15th September 2022 and same was arranged for a local hotel as the Respondent's offices were insufficient for a private meeting. The first question she was asked was whether the Complainant felt she could dismiss someone. The Complainant answered yes' and that she had wanted to dismiss G at an early stage of his employment.

·       Mr. Moore then said that he had a grievance against N after she had sent him a critical email about how the Respondent was run and that had purportedly made him want to resign. He stated that he had volunteered his time with the Respondent for 30 years and donated more than €1 million to the organisation. Mr. Moore at this stage was quite agitated and was raising his voice. The Complainant said that she agreed with N's observations and said that Mr. Moore should have engaged with the issues rather than ignore them. He discussed this with Ms. T and they both appeared to accept that the issues raised by N could have been dealt with better.

·       The Complainant then raised the issue of claiming her overtime pay or time in lieu. Mr. Moore claimed that Ms. T was now "HR manager" and all matters to do with pay were to go through her. The Complainant queried this and was told by Mr. Moore that the change arose due to the Complainant raising the overtime issues with the Treasurer, who was not a board member. The Complainant was further told by Mr. Moore that "there is no board, there is David Moore and his advisors".

·       The Complainant was taken aback by this revelation as she had always understood (and had made applications to Government agencies for funding) based on the assumption that the Respondent has a fully functioning board that was in compliance with normal standards of corporate governance.

·       The Complainant raised these concerns immediately with Mr. Moore and expressly set out a concern that she may be party to a fraud on the basis that qualifying conditions for many government grant schemes required a condition that the applicant had a functioning governing board in place. Mr. Moore reacted angrily to this and threatened to sue the Complainant for defamation. This caused the Complainant much distress and upset causing her to leave the meeting and return to the office.

·       Ms. T later called the Complainant at the office to see if she would return to the meeting. The Complainant told Ms. T that she had felt both her and Mr. Moore had been "nit-picking" the Complainant for months, how the Complainant's concerns had been brushed aside, how they had bullied and belittled the Complainant and that their behaviour had made the Complainant physically and mentally ill. Ms. T agreed that her and Mr. Moore's conduct to the Complainant was wrong, and that Mr. Moore had plans to make the Complainant Chief Executive Officer on a salary of €100,000. The Complainant calmed after this conversation but nevertheless attended her doctor who certified the Complainant as unfit to work from 15th September.  

·        In the days following the meeting the Treasurer of the Respondent rang the Complainant and informed her that he had been instructed by Ms. T not to pay the Complainant anything she was owed.

·       A week after the Complainant's meeting Ms. T emailed the Complainant asking her if she had made a decision about her employment. The Complainant respondent by saying that she loved her job and was not leaving, but she was currently unfit for work.

·       The Complainant had no income for this period of sick leave and did not receive any benefit from the Department of Social Protection as they had no record of her employment through PRSI returns as none had been provided by the Respondent to the Department. It took the Complainant 9 months to rectify the situation by proving her employment with the Respondent through a series of regular payments through her bank account. The Complainant also had to correspond with the Revenue Commissioners to rectify matters which has still not been finalised.

·       On 3rd July 2023, the Complainant emailed Mr. Moore and Ms. T informing them that she was resigning with immediate effect, setting out the reasons forher resignation and the Respondent’s abject failure to engage, deal with or resolve the difficulties in her employment. The Complainant also emailed purported board members to see if they could resolve the issues in her employment however all but one failed to reply, with the board member who did reply stating that he had not been a board member for some time.

Basis for the Claim.

·       The Complainant submits that the conduct engaged in by Mr. Moore and Ms. T amounted to conduct that was so unreasonable that the Complainant had no option but to terminate her employment.

·       In terms of exhausting all avenues of grievance before resigning, the Complainant submits that in the absence of any formal grievance procedure, she raised her issues with the appropriate persons, namely Mr. Moore as Chief Executive Officer and Ms. T as HR Manager.

·       In addition to the conduct of her employer, the Complainant also suffered breaches in regard to her statutory employment rights in receiving no written statement on the terms of her employment, no payslips, incorrect returns to Revenue despite relevant deductions from pay, holiday pay withheld, no pay for public holidays accrued during sick leave period and no sick pay for 2023.

Legal Submission:

Constructive Dismissal

·       Section 1(b) of the Unfair Dismissals Acts 1977 to 2007 provides that 'constructive dismissal' is defined as:

"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 to terminate the contract of employment without giving prior notice of the termination to the employer."

·       The essence of constructive dismissal is therefore that the employee is forced to leave his/her employment because of the unreasonable behaviour or conduct of the employer or that the employer has breached and/or repudiated the contract of employment. It is respectfully submitted that the disregard shown by the Respondent for the issues raised by the Complainant as well as the lack of engagement with those issues was both unreasonable and a breach of contract by the Respondent, its servants or agents.

·       In O'Gorman v Glen Tyre Company Limited'(UD2314/2010)the Employment Appeals Tribunal set out the test for considering whether an employee's resignation was voluntary or not:

“Firstly, the Tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract. If the Tribunal is not satisfied that there has been a significant breach of the contract it can examine the conduct of both the employee and employer together with all the circumstances surrounding the termination to establish whether or not the decision of the employee to termination the contract was a reasonable one".

·       It is respectfully submitted that the failure of the Respondent to engage with the Complainant's pay concerns and the unjustified micromanaging of the Complainant by the Respondent was if not an express breach of contract, so unreasonable as to justify the Employee in terminating her employment.

·       In Lewis vs. Motor World Garages Limitedthe United Kingdom Court of Appeal held that:

"The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a  breach of the implied term?... This is the "last straw" situation."

·       It is respectfully submitted that the series of incidents caused by the Employer including but not limited to a failure to provide payslips, a failure to engage with her overtime/time in lieu concerns, the financial irregularity issues raised by N and the unjustified micromanaging of the Complainant demonstrated the intention of the Respondent not to be bound by the contract of employment and thus entitle the Complainant to terminate same..

Organisation of Working Time Act 1997 and Sick Leave Act 2022

·       Under Section 19(1) of the Organisation of Working Time Act 1997 an employee is entitled to paid 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).

·       The Complainant has not been paid her annual leave for the period of her employment from 15th September 2022 to 3rd July 2023 and same amounts to € €3696.46.

·       Pursuant to Section 21(1)(d) of the 1997 Act an employee is entitled to a paid day for a public holiday. The Complainant has not been paid her public holiday entitlement for the period 15th September 2022 to 3rd July 2023 and same amounts to €1384.61.

·       Section 5(1) of the Sick Leave Act 2022 provides that an employee "shall, in respect of a day on which he or she would ordinarily work but is incapable of doing so due to illness or injury (in this Act referred to as a "statutory sick leave day"), be entitled to statutory sick leave" of five days per calendar year. The Complainant accordingly has accrued 10 days of sick leave for the years 2022 and 2023 and same amounts to €323.00.

Terms of Employment (Information) Act 1994

·       Section 3(1) of the Terms of Employment (Information) Act 1994 provides that an employer shall give to an employee no later than 2 months after the commencement of an employee's employment with the employer......a statement in writing of the employee's terms of employment.

·       The Complainant never a received such a written statement and accordingly seeks compensation in this regard.

·       The Complainant submits that the Respondent never drafted such a written statement and accordingly seeks compensation in this regard also.

Loss & Compensation:

·       The Complainant terminated her employment on 3rd July 2023 with immediate effect and remains off work. Her total loss to date is a gross loss of €38,461.50 (being 50 weeks x €769.23). The Complainant seeks compensation in this regard.

·       The Complainant also seeks monies due arising from annual leave, public holidays and sick leave amounting to €5404.07.

·       The Complainant further seeks compensation in regard the failure of the Respondent to provide and to compile a written statement of the terms of her employment.

Conclusion:

·       It is submitted that the Complainant suffered acts of such unreasonable conduct by the Respondent that she was justified in terminating her employment, having invoked the informal grievance procedure in the Respondent.

·       The Complainant suffered breaches of her statutory employment rights both in terms of her pay and her written terms of employment.

·       The Complainant is entitled to compensation for her dismissal, the lack of a written statement of her employment and the annual leave, public holiday and sick leave pay due.

Introduction.

Astronomy Ireland is a non-profit organisation, established in 1990.

Astronomy Ireland has been operating since 1990 , we have interviewed thousands of candidates for hundreds of full and part-time posts over our 34 year history, with no complaints in all those decades in the WRC because we treat staff with great respect and go above and beyond legislation requirements to ensure a positive working environment and because staff are a valuable part of our organisation. If any issues arise, they can be sorted with a simple chat, we are happy to discuss in a positive light. All staff are explained conflict resolution during their induction explaining if they have a problem to talk to us about any issues. We believe our standards should be held up in public as a way to treat employees.

Astronomy Ireland now operates on a shoestring budget continuously fundraising to try and stay financially viable and is entirely run by volunteers.

Today we are before the WRC following a complaint from Ms Sonya Martin. Adjudication File Reference ADJ – 00049437 which refers to a number of complaints. Each of these complaints will be broken down below.

CA – 00060609 – 001 – Unfair Dismissal.

Ms Sonya Martin /Farrell was employed originally as an administrator with Astronomy Ireland, following a positive experience Sonya was then promoted to General Manager. Astronomy Ireland strongly deny that any bullying/ harassment took place while Sonya worked for the company. While working as General Manager Sonya resigned her employment with Astronomy Ireland 0n 05.08.2022 when Sonya was asked to engage in a back to work review following a period of being off sick. Sonya responded to this back to work request by resigning her employment on 05.08.2022.

Sonya received her salary weekly paid on a Thursday, originally it was to be paid on a Friday, this was causing a problem as Sonya was An Post bank and it was taking a few days to clear in her bank, therefore we changed her payment day to Thursday to allow this to clear on time for Sonya. Payments can be seen where all bank statements have been provided to show weekly payment to Sonya.

Sonya received her last payslip and payment, and we never heard from Sonya again until we received this complaint.

Sonya resigned from her employment twice, given we knew that Sonya enjoyed her role within Astronomy Ireland we facilitated shorter working hours to help Sonya following her first resignation. Sonya was off sick and continued to send sick notes. On 24th September 2022, one week after Sonya walked out of her review meeting Sonya emailed (appendix d) stating:

“I am happy to discuss the matter at the earliest possible opportunity. I am however sick at the moment and have been since our meeting. I will see my doctor again on Monday coming. So, I cannot determine just yet when I will be well enough to attend a meeting or return to work”.

Sonya continued to send in sick certificates, on 19th October 2022 we wrote to Sonya stating, “under current legislation we are unable to contact you in relation to work while you are on off sick, only to acknowledge these certificates, and this is why we have not been in contact”.

It is the opinion and understanding of Astronomy Ireland that Sonya has not been unfairly dismissed, every opportunity was afforded to Sonya to help deal with the stresses she had identified through general conversations with members of the voluntary board, this included a reduction in her hours which was led by Sonya  - she choose if she wanted days off or shorter working days and we supported her. Sonya needed an extra support to help with specific areas of the job, and an administrator was employed to help her with aspects of the role she found challenging, one of which was renewals of the club. At that time Sonya was extremely grateful and cried. Sonya stated during that meeting that “she felt like a fraud, because she was being paid for work that she felt she was not doing”. Astronomy Ireland were willing to engage with Sonya as outlined in our emails to her until she resigned.

CA – 00060609 -003 – Pay

Sonya received her final payslip, and she has not got back in touch with us to state that this is not correct. We would have been happy to rectify any outstanding balances owed to Sonya, if any mistake was made which we believe is unlikely, as we take such closing payments very seriously.

CA – 00060609 -004 – Pay

No requests have been received referencing bank holiday pay.

CA – 00060609 -005 – Pay

Sonya has been off sick from work since 2022. The Sick Leave Act 20222 was implemented on 1st January 2023, as Sonya was already off sick when this legislation came into effect and per advisement from WRC staff, Sonya was not entitled to these days to be paid.

CA – 00060609 -007 – Terms and Conditions of Employment.

We were not aware at the time that a ‘statement of terms’ had to be issued to employees in writing. Research on the WRC website refers to those who held a contract before 16th December 2022 stating that a statement is issued on request to employees who held a contract before 16th December 2022. (Terms of Employment – Workplace Relations Commission) Sonya never requested this from us at any time.

CA – 00060609 -008 – Terms and Conditions of Employment.

Sonya declined to sign a contract with Astronomy Ireland stating that ‘I have worked for Astronomy Ireland before, and I know my obligations and I don’t need a contract’. Soya also advised on the same day that she didn’t want enrolled in a pension plan and she didn’t see the point when she needed to benefit from the money now. Contract offered to Sonya was placed in her personnel file and could have been accessed at any time.

Conclusion.

Astronomy Ireland strongly refutes the claim of bullying and harassment, we were an exemplary employer, making amendments to facilitate a positive working environment with Sonya. We are shocked and saddened that it has come to this as we always had positive working relationships with Sonya and believed that she would prosper within the organisation. Unfortunately, this was not the case and mental health concerns and family concerns impacted on Sonya’s ability to carry out her role. We were unable to finish her review which she walked out of and never returned to work.

CA – 00060609 – 001 - A complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

The representative for the complainant has correctly outlined the definition of Constructive Dismissal:

Section 1(b) of the Unfair Dismissals Acts 1977 to 2007 provides that 'constructive dismissal' is defined as:

"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 to terminate the contract of employment without giving prior notice of the termination to the employer."

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues entitlement to terminate the contract. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

To better understand the complaint we need to look at the letter of resignation submitted by the complainant on 3rd July 2023 (as follows):

David / L

As you both know I have been out sick from work since September 15TH 2022 due to work related stress.

It is with deep regret and despair at this point that I am resigning from my position as manager with Astronomy Ireland, effective immediately.

There are a multitude of reasons for this decision which has been exceptionally difficult for me to make, the most serious of which I have outlined below.

Not once since I became ill have you contacted me to enquire about my well-being, let me know that the issues that caused me distress were being addressed or that the legal activity going on has ceased and a solution worked on.

Despite almost constant requests to sort my tax affairs , which were first brought to your attention in January of 2022, the situation has become worse and despite my paying thousands of euro more than I should have in taxes in 2021 and 2022, I am now a tax defaulter and accordingly my tax credits have been reduced for the next four years as a result. This is entirely due to Astronomy Ireland not paying my deductions to revenue and failure to make returns. My money has been stolen. Revenue never received it.

A request for money I am owed that was sent on 9th March has been ignored by you. While you may legally withhold some of the holidays (while I am still employed) you may not withhold any other monies due to me, yet you have, without explanation for almost four months now.

I am once again requesting all monies owed to me to be paid without delay and a detailed summary for same supplied.

You have no intention of repairing our work relationship or righting any wrongs, you have deliberately ignored me in the hope that I will resign and just disappear without any hassle as I did in 2020 when you employed me then messed about with the wages which led to my resignation within weeks of being employed.

As stated above, there are many other reasons, all of which have brought me to this decision today. I will never be well in such a toxic work environment. Astronomy Ireland operates on its own rule system with no regard for the law or the rights or wellbeing of its employees.

For the record. I love my job. The whole situation has broken my heart and left me with the realisation that I can never return without further sacrificing my health and moral integrity. I have lost almost a year of my life enduring this stress while hoping a solution will present itself. For my health and well-being and on the advice of my doctor this decision has been made.

Please acknowledge receipt of this email.

Sincerely.

On 11th July 2023 the complainant sent another email to the respondent, this email contains the following:

“Be advised, if I do not receive confirmation of cessation of my employment and the pay that I am owed by 6.00pm on Wednesday July 12th I will take it that you are actively and wilfully ignoring me, and I will have no choice but to take the matter further”.

What is not made clear from this letter of resignation is the question of the complainants ongoing health. Was she or was she not fit for work. There is nothing in the letter of resignation that would suggest she was fit for work.

The complainant received a response on 12th July, her resignation was accepted, and should there be any monies owed to the complainant it will be paid in due course.

The representative for the complainant has stated that the complainant has exhausted the internal procedures.

In considering the question of constructive dismissal I conclude that the complainant was constructively dismissed on 3rd July 2023. This complaint is well founded.

Section 7 (2) of the Act looks at the duty to mitigate.

7 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to –

(c ) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and……

There was absolutely no mention of any steps to mitigate loss in the instant case.

I now order the respondent to pay compensation to the complainant of €3,076.92 (four weeks wages). Such sum should be paid within 42 days from the date of this decision.

CA – 00060609 -003 – Pay

The complainant contends that she has not   been paid her annual leave for the period of her employment from 15th September 2022 to 3rd July 2023 and same amounts to € €3696.46.

Section 41(6) of the Workplace Relations Act, 2015 reads as follows:

41 (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.

This complaint was received by the Workplace Relations Commission on 19th December 2023, this makes the cognizable period for the complaint 20th June 2023 to 19th December 2023. I will include the holiday year of April 2023 to March 2024 in the calculation of holiday entitlement accrued during the period of illness.

This complaint is well founded and I now order the respondent to pay the complainant the sum of €3,076.92 as payment for four working weeks holiday entitlement.

CA – 00060609 -004 – Pay for Public Holidays.

All employees are entitled to payment for Public Holidays during periods of absence due to illness. I now order the respondent to pay the complainant the sum of €1,230.77 as payment for the following 8 public holidays:

·       October Public Holiday 2022 – 31st October 2022

·       Christmas Day 2022 – 25th December 2022

·       St Stephens Dat 2022 – 26th December 2022

·       New Years Day 2023 – 1st January 2023

·       St Patrick’s Day – 17th March 2023.

·       Easter Monday 2023 – 10th April 2023.

·       May Public Holiday - 1st May 2023

·       June Public Holiday 2023 – 5th June 2023.

I note the complainant’s rep has claimed for nine public holidays. The February Public Holiday (St Brigid’s Day) did not become a public holiday until 2024.

CA – 00060609 – 005 – A complaint submitted under the Sick Leave Act 2022.

The Sick Leave Act 2022 is an Irish law that established a statutory sick pay scheme for employees, which began on 1st January 2023. The number of paid days increased from 3 in 2023 to 5 in 2024. In the instant case there is no entitlement for 2022 and 3 days entitlement for 2023. Sick pay is paid at 70% of usual daily earnings up to a maximum of €110 per day.

In the instant case the complainant is entitled to a payment of €107.69 per day which amounts to €323.07 for three days. I now order the respondent to make a payment of €323.07 to the complainant within 42 days from the date of this decision.

CA – 00060609 – 007. - Terms of Employment (Information) Act 1994

·       Section 3(1) of the Terms of Employment (Information) Act 1994 provides that an employer shall give to an employee no later than 2 months after the commencement of an employee's employment with the employer......a statement in writing of the employee's terms of employment.

·       The Complainant never a received such a written statement and accordingly seeks compensation in this regard.

·       The Complainant submits that the Respondent never drafted such a written statement and accordingly seeks compensation in this regard also.

Section 3 of the Act reads as follows:

3.(1) 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, that is to say -…….

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

c)       the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee's contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

fa) a reference to any registered employment agreement or employment regulation            order which applies to the employee and confirmation of where the employee may obtain a copy

g)      the rate or method of calculation of the employee's remuneration,

ga) that the employee may, under section 23 of the National Minimum Wage Act,2000

      requests from the Employer, a written statement of the employee’s average hourly

     rate of pay for any pay reference period, as provided in that section. 

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to—

(i)                  incapacity for work due to sickness or injury and paid sick leave, and

(ii)                pensions and pension schemes,

l)        the period of notice which the employee is required to give and entitled to receive

(whether by or under statute or under the terms of the employee’s contract of employment ) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

m)    a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.      

Section 7(2) of the Act reads as follows:

(2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

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

b.       (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section3,4,5 or 6, or

(ii)alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and 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 commissioner,

d.       Order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all 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.

I now order the respondent to pay compensation to the complainant in the amount of four weeks wages i.e. €3,076.92. This payment should be made within 42 days from the date of this decision.

CA – 00060609 – 008. - Terms of Employment (Information) Act 1994.

The Employment (Miscellaneous Provisions) Act 2018 signed on 25th December 2018 is ‘An Act to provide for a requirement that employers provide employees with certain terms of employment within a certain period after commencing employment; to impose sanctions for certain offences; to further provide for a minimum payment due to employees in certain circumstances; to prohibit contracts specifying zero as the hours in certain circumstances and to provide for the introduction of banded contract hours; to further provide for prohibition of penalisation and for those purposes to amend the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997; to amend the Unfair Dismissals Act 1977; to amend the National Minimum Wage Act 2000; to amend the Workplace Relations Act 2015; and to provide for related matters.

In relation to the instant case, we should consider the Terms of Employment (Information) Act, 1994 (as amended). This amended Act provides, among other matters for the issue to employees of certain statements of terms of employment. These statements are as follows:

·       Day 5 statement

·       Written statement of terms of employment

·       Statement to employees required to work outside the State

·       Statement issued on request to employees who held a contract before 16th December 2022.

·       Statement issued on request to employees who held a contract before commencement of the 1994 Act (16th May 1994).

In relation to employees already employed on 16th December 2022 the issue of a ‘5 day statement’ will only take place upon request by the employee. In the instant case I do not believe the employee made any request.

I find that this complaint is not well founded.

Please see above.