Complainant

Respondent

Parties

Joanne  Fleming

Hair And Beauty At Vanity Tuam Limited

Representatives

Domhnall Canney, T.A. O'Donoghue Canney & Co.

Gerry Minogue, Director

Act

Complaint Reference No.

Date of Receipt

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

CA-00069464-001

14/02/2025

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

CA-00069464-002

14/02/2025

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

CA-00069464-003

14/02/2025

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

CA-00069504-001

24/02/2025

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

CA-00069504-002

24/02/2025

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

CA-00069504-003

24/02/2025

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

CA-00069504-004

24/02/2025

The Complainant commenced her employment with Duffmin Limited in December 2014. In May 2023, her employment was transferred by way of a transfer of undertakings to a new employer, Hair and Beauty at Vanity Tuam Limited, the Respondent.

On 14 February and 24 February 2025, the Complainant referred to the Director General of the WRC a number of claims against both entities.

The Complainant alleges that she was constructively dismissed.

The Complainant submits as follows.

The Complainant worked as a hairdresser at Vanity Hair and Beauty, the Respondent. This company is a succeeding company to Duffmin Limited, the company by whom the Complainant was originally employed and the owner of the premises at which the Complainant worked. The Directors of both companies are John Duffy and Gerry Minogue.

The companies carried on business as a hair salon and the transfer of the business from Duffmin Limited to Hair and Beauty at Vanity Tuam Limited was notified to the Complainant on 13 May 2023.

The Complainant had worked for the Respondent for over 8 years. She was employed as a trained hair stylist. Her duties included washing, cutting, colouring and styling hair for clients. She was a permanent full-time employee but laterally worked a 3-day week.

The Complainant never received a contract of employment, a statement of terms of employment, an employee handbook, particulars of grievance or disciplinary procedures, or anti-bullying policies.

The Directors of the Respondent were not directly or actively involved in the running of the business and there was no clear managerial structure within the workplace and as a consequence it was not clear to whom any grievance was to be reported to. There were a number of hairdressers working at the business but no real governance in the workplace.

The Complainant raised a complaint with the Respondent in respect of social exclusion and isolation in the workplace. This complaint was made when the Complainant had commenced maternity leave.

A Director of the Respondent met with the Complainant to discuss her complaint and subsequently engaged an external HR consultant to carry out an investigation. That consultant prepared and issued a report on conclusion of her investigation. That report made recommendations to the Respondent to facilitate the return of the Complainant to work and ensure a safe workplace for her.

The HR report suggested that although there was no intention of bullying on behalf of the Complainant’s colleagues, the nature of the behaviour and actions of the other people could have been perceived as bullying and the HR consultant made recommendations to facilitate the Complainant’s return to work including the introduction of training in effective communication and dignity at work and with access to an Employee Assistance Programme, none of which were subsequently provided.

The Complainants’ maternity leave finished in or about June 2022, but she has been on sick leave since up until the termination of her employment.

The Complainant corresponded with the Director of the Respondent on 31 August 2022 requesting confirmation in writing as to what steps would be taken to implement the recommendations in the report, what procedures were going to be implemented and how they would be implemented in order to facilitate her safe return to work. This was an entirely reasonable request. The Respondent failed to do so.

At one point the Respondent, by letter dated 10 October 2022, indicated that a Dignity at Work Policy would be given to all employees by the end of that week. This was never received by the Complainant and despite writing to the Respondent again on 9 November 2022, correspondence ceased from the Respondent at that stage. The Complainant’s letter of 9 November 2022 was never replied to, and this exacerbated the complaint of social isolation further.

Whilst in the interim continuing to submit sick certificates, over 12 months passed without any contact from the Respondent, apart from a notice regarding the transfer of the business. The Respondent continued to fail to confirm in writing how her return will be facilitated.

As a result of the matters raised in the grievance, the Complainant found it extremely difficult to consider returning to work without knowledge of the protections and supports that would be put in place for her return. The Respondent failed to provide a safe place of work in contravention of the Safety, Health and Welfare at Work Act 2005 both prior to the grievance and subsequent to the outcome of same.

The Complainant felt as though the employer hoped that she would just leave her job and walk away. She avoided going to Tuam and she avoided the town centre for fear of meeting or running into one of her colleagues. The Complainant suffered from anxiety and stress as a result of this matter and attended her doctor as well as support and counselling groups on an ongoing basis. She continued to submit medical certificates each week to the employer up until the termination of her employment. These were never acknowledged by the Respondent.

Due to the Respondent’s failure to advise the Complainant of the measures being taken to ensure the safe return to work and subsequently the lack of communication from the Respondent, the Complainant endured a long period of time with no income.

The Complainant wrote to the Respondent on 5 June 2024 as she had not received any correspondence regarding her grievance in over 18 months. She received a response by way of letter from the Respondent dated 8 June 2024 and was advised that she should contact Ms Rebecca Flesk who would coordinate her return to work. This letter did not advise as to what position Ms Flesk held in the company. It did however refer to Duffmin Limited “trading as” RNB. There is no record of any such business name registered in the Companies Office by the Respondent. Furthermore, Ms Flesk is not a director of either Respondent company.

When this was brought to the attention of Mr Minogue in correspondence from the Complainant’s solicitor, the reference to “trading as RNB” was subsequently removed. The business name RNB was registered by Ms Flesk in 2019. RNB has been trading as an entirely separate hairdressing business in Tuam for a number of years at a separate premises which is owned by her. That business recently moved into the premises, where the Complainant previously worked, and continues to trade as RNB as it had done at its former premises.

For all intents and purposes, the business formerly known as Vanity Hair and Beauty ceased to exist. This development was extremely concerning and upsetting to the Complainant. It appeared that the Complainant would return to work for an entirely separate legal entity and as such the Respondent would transfer its liability as employer to a third party who has nothing to do with the Complainant and had no contract with the Complainant.

As a matter of law Duffmin Limited, and latterly Hair and Beauty at Vanity Tuam Limited, have always been the Complainant’s employer. At this stage it appears the other employees have left the company. The premises has, on the face of it, been leased to this separate entity, RNB. The Complainant was then directed back to Ms Flesk of RNB who was neither her employer nor an employee of the Respondent. It is clear that the Respondent no longer intended to be bound by the terms of employment under which the Complainant was employed and there was a clear failure of duty of care and breach of the terms of her contract as well as a breach of the implied mutual trust and confidence between the employer and employee which is fundamental to the employment relationship. Furthermore, it was clear that there was no longer a workplace for the Complainant to return to in any event.

The Complainant’s grievance related to a complaint of social isolation and the Respondent’s mistreatment of her since carrying out the investigation resulted in a deterioration of this situation. There was a complete dereliction by the Respondent of not only its duty of care to the Complainant but also of its contractual terms of employment with Complainant whereby it could no longer be bound by same.

CONCLUSION AND LEGAL SUBMISSIONS

The Respondent did not have specified procedures in place to deal with discipline and grievance issues in writing and given to the Complainant in contravention of SI 2000/146 and the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), (Declarations) Order 2000.

Constructive Dismissal

The Complainant was employed by the Respondent and its predecessor for over 8 years. She has the necessary 52 weeks of continuity of service required by the Minimum Notice and Terms of Employment Act 1973.

Grievance Procedures

The Complainant properly engaged in the internal grievance procedures of the Respondent but the Respondent failed to both implement the finding of its own investigation and subsequently ceased correspondence with the Complainant entirely. It failed to confirm in writing the measures being implemented to facilitate her return. This exacerbated the original complaint of social isolation.

Given the significant passage of time in the interim, and the subsequent dereliction of the operation of the business the Complainant felt that she had no other means of resolving his situation and was compelled to terminate her contract of employment and seek employment elsewhere. The Complainant lost confidence in the Respondent to address her grievances either properly or effectively. She did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to return to the work environment without a clear path and provisions being put in place to create a safe place of work.

The Complainant relies on the Labour Court determination in Paris Bakery & Pastry Limited-v- Mrzljak, where the Court endorsed the legal test in respect of constructive dismissal asset out by the UK Court of Appeal in Western Excavating (ECC) Ltd-v- Sharp [1978]. This comprised the ‘contract’ and ‘reasonableness’ tests.

Contract Test

The Respondent evidently no longer intended on being bound by the conditions of her employment which in default of a written contract of employment are founded in statute. The Complainant was entitled to terminate her contract as a result of this and of the aforementioned breach.

In BAC Ltd v Austin the British EAT observed that it must ordinarily be an implied term of the contract that employers do not behave in any way which is intolerable or in a way which employees cannot be expected to put up with any longer.

In Berber-v- Dunnes Stores it was held that “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.”

Reasonableness Test

Section 1(b) of the Unfair Dismissals Act 1977 defines dismissal 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, 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 Complainant considers the Respondent’s conduct to be so unreasonable in the circumstances that she could not be expected to remain in continuous limbo without contact or correspondence from the Respondent and its subsequent dereliction of the business which left her with no option but to terminate her employment. She considers that she was justified in doing so given the above circumstances.

The Complainant claims loss of earnings. She earned approximately €124.00 gross per day and worked a 3-day week (€372.00 per week), earning approximately €1,488.00 per month. She has been at a loss in so far as earnings are concerned for a period in excess of 26 months. The Complainant claims compensation in respect of the maximum 104 weeks gross entitlement.

At the hearing, the Complainant’s evidence was that she has not attempted to and has not secured new employment since her resignation. She remains medically unfit and is in receipt of the Illness Benefit from the Department of Social Protection.

The Respondent submits as follows.

The Respondent purchased a building in Tuam around 1999 and renovated the bottom floor to trade as a pharmacy. The second and third floor were outfitted around 2006 with the first floor turned into offices and the third floor into apartments. The Respondent failed to let the offices and later changed their use to beauty/hair salon and successfully let the hair salon part.

The tenant of the salon closed her business, and, at that stage, the Respondent took over the operation of the salon in or around 2011.

The Complainant commenced working for the Respondent on 13 December 2014 along with another stylist. They both had worked with a named a stylist who worked in the Respondent’s salon. These professionals have their own client base which follow them as they change employers and both brought their clients on joining the Respondent. The Complainant is a top stylist with a large client base, and her wages reflected her ability.

The Respondent salon, like many other businesses was forced to close during the two years of Covid-19 pandemic, being 2020 and 2021.

The Complainant went on maternity leave in the following years: November 2018, December 2019 and December 2021.

Unfair dismissal

The first the Respondent knew of any problem that the Complainant had was when Mr Minogue was contacted by the Complainant’s partner, Mr Niland in January 2022 while the Complainant was on maternity leave. Mr Minogue subsequently arranged a meeting with the Complainant, who was accompanied by her partner, to ascertain the issues involved. The assertion was of bullying by the other staff members.

Once the problems were highlighted, Mr Minogue decided to get an independent HR consultant to investigate and report back. The process was completed and findings issued to all. The staff were cleared of the bullying allegation. The finding was that the complaints from the Complainant resulted from interpersonal conflict at work which manifested into a perception of bullying.

At all times the Complainant’s position was available to her. The Respondent was willing to agree to a phased return, if requested by the Complainant.

ln May 2023 the Respondent notified all staff of the transfer of the hair/beauty part of the business to Hair and Beauty at Vanity Tuam Ltd. The Respondent entered into a verbal agreement to sell this business with all employees' rights protected.

Mr Minogue informed all staff of a potential new owner who was willing to discuss any queries on their position and the future development of the business. The potential new owner, Ms Flesk is a hair stylist who owned her own salon which was located approx. 1 minute from the Respondent’s salon. Ms Flesk wrote directly to the Complainant also, but all the Respondent received was a barrage of solicitor's letters.

The Respondent submits that the last communication to the Complainant’s legal representative was with inquiries as to what she required to return to work. At that time all employees who she claimed were bullying her had ceased employment and there would be a manager/owner onsite to deal directly with any issue that should occur. All the Respondent received was notice that the Complainant had moved the issue to the WRC.

At the hearing, Mr Minogue stated that he attempted to meet with the Complainant. However, she declined. The Complainant was never declared fit to return to work. Mr Minogue stated that the medical certs did not specify that her illness was work-related.

The Relevant Law

Constructive dismissal is included in the definition of “dismissal” at section 1(b) of the 1997 Act as follows:

“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,”

There are therefore two situations envisaged in which a resignation may be considered a constructive dismissal; where the employer’s conduct amounts to breach of contract or repudiation of the contract (the “contract test”) or is such in relation to the employee that it was reasonable for the employee to resign (the “reasonableness test”).  

In short, a constructive dismissal case may arise where the employee felt their employer’s conduct was so untenable that they have no option but to resign or, again as a result of employer conduct, the employee has suffered a repudiatory breach of their terms and conditions of employment. As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute and therefore the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating his employment.

In considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the Respondent, or, if there has been no repudiatory breach, whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate his contract. 

The Contract Test

The accepted statement of this test is by Lord Denning MR in Western Excavating v. Sharp [1978] ICR 221 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 discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  … [T]he conduct must … be sufficiently serious to entitle him to leave at once …”

The Reasonableness Test

Constructive dismissal may arise where the employer’s conduct was such that it was reasonable for the employee to terminate his or her employment.  Lord Denning MR addresses this concept in the same case as follows:

“It is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving.”

It is well established in this context that there is a reciprocal duty on an employee to act reasonably in terms of affording an employer the opportunity to address any issues.  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 this regard, the Employment Appeals Tribunal in Conway v. Ulster Bank Ltd. UD474/1981 held that a complainant had not acted reasonably in resigning “without first having substantially utilised the grievance procedure to attempt to remedy her complaints.

The Labour Court in Ranchin v. Allianz Care S.A.UDD 1636 held as follows:

“In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.” 

In Berber v. Dunnes Stores [2009] 20 ELR the Supreme Court held as follows:

“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 Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal has in fact occurred; and the following four principles are noteworthy: 

1.      The test is objective

2.      The test requires that the conduct of both employer and employee be considered

3.      The conduct of the parties as a whole and the accumulative effect must be looked at

4.      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 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. (1997) UKHL 23where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. The Supreme Court stated:

“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.  An objective test means the issues detailed must be viewed not in relation to this particular employee and her personal circumstances; rather did the conduct of the employer objectively judged repudiate the contract. If not a contract breach, was the conduct of the employer so unreasonable to justify leaving?”

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v. Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v Lootah & Others, UD1219/2013).

The Complainant must have acted reasonably in tendering her resignation. Dr D. Ryan argues that “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 in employee’s resignation. Where grievance procedures exist, they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints” (Dr D. Ryan, “Redmond on Dismissal Law”, Bloomsbury Professional, 2017)

In this case, the It was submitted on behalf of the Complainant that the Respondent no longer intended to be bound by the conditions of her employment which in default of a written contract of employment are founded in statute (contract test). It was further submitted that the Complainant considered the Respondent’s conduct to be so unreasonable that she could not be expected to remain in limbo without contact or correspondence from the Respondent and its subsequent dereliction of the business which left her with no option but to terminate her employment (reasonableness test).

The Relevant Facts

There was no dispute that the Complainant resigned her position effective on 20 September 2024. She referred her complaint to the Director General on 24 February 2025 alleging that she was constructively dismissed. The Respondent rejects the claim.

I have reviewed the correspondence between the parties from the time the Complainant’s partner raised her concerns to the time of her resignation. It is necessary to outline briefly the communication that took place.

There was no dispute that the Complainant commenced her maternity leave on 4 December 2021.  On Saturday 29 January 2022, her partner Mr Tony Niland called Mr Minogue, the Director. He indicated to Mr Minogue that there were some differences between the Complainant and other staff members prior to the commencement of the Complainant’s leave and that it was still ongoing.

Mr Minogue clearly treated the matter seriously, as evidenced by his correspondence to the Complainant on 4 February 2022, in which he informed her of the call and conveyed the Respondent’s willingness to meet with her at a time convenient to her, either immediately or closer to her return to work “to discuss the difficulties and work to resolve them in an appropriate manner for everyone concerned.”

In the absence of a reply, on 17 February 2022, Mr Minogue wrote to the Complainant again. He stated that he was unaware of the matter prior to Mr Niland’s call and requested that the Complainant contacts him to acknowledge receipt of his letter, and to let him know if she would like him to inquire into the matter either at the time or on her return from maternity leave.

It appears that Mr Minogue met the Complainant on 1 April 2022 and later wrote to her on 15 April. He asked whether she wanted him to speak to the staff involved, noting that doing so would require disclosing her complaint and allowing them to respond. He also proposed awareness training and updates to the Code of Conduct and Dignity at Work Policy to address workplace behaviour. Alternatively, he suggested not raising the complaint directly with the employees for now and instead reviewing the situation after the training. He asked the Complainant to consider these options and indicate how she wished to proceed.

On 29 April 2022, Mr Minogue wrote to the Complainant informing her that he has appointed a named independent HR consultant to carry out an investigation into her complaint. The complaint related to, amongst others:

·        Coworker blocking the Complainant and her partner from social media networks;

·        Not getting any assistance with her work;

·         Being left alone in the salon dealing with a client while all the others went outside to smoke;

·        Two of the staff having coffee and whispering, when the Complainant was there, making her feel that the conversation was about herself; making her feel very anxious.

·        The other girls spray tanned each other, the Complainant was left out and not asked if she would like a spray tan.

·        One of the staff talking to a client about the reason the Complainant picked the date of her baby's christening which the Complainant felt was not appropriate.

·        No farewell party or acknowledgement, when she went on maternity leave.

The investigation was carried out by the independent HR consultant and a report issued on 31 July 2022. The report concluded as follows.

“This investigation suggests that while there was as no intention of bullying on the part of [four coworkers], the complaints from [the Complainant] resulted from interpersonal conflict at work which manifested into a perception of bullying.

All parties involved in this investigation, the complainant and the four team members, have been affected by the complaints raised. The four team members have acknowledged they expect [the Complainant] to return to work, and whilst things may initially be difficult, they will be professional.

Training in Effective Communication and Dignity at Work would be of benefit for all parties to assist in the transition to working together again, with assess to an Employee Assistance Programme available to all parties should they wish to use the service. Additional support in the form of formal mediation is recommended if relations continued to be strained between all parties.

Right of Appeal

Either party may appeal by writing to management outlining the reasons for their appeal within 5 working days.”

The Anti-bullying Policy was appended to the report.

Mr Minogue wrote to the Complainant on 15 August 2022 stating:

“We would like to move to the next step in the process when you are in a position to return to work, to assist in the transition of working together again. We are available to discuss and help in the above process once you are available to return to work.”

The Complainant reverted on 31 August:

“I received your letter of the 15th August 2022. I also received the report from the HR consultant. You might advise what steps you will be taking arising from the content of the report to facilitate my return. You will be aware that I have been on certified leave on medical advice. Obviously my ability to return to work will depend on what provisions will be made to facilitate the transition and to ensure that this does not happen again.”

Mr Minogue wrote to the Complainant on 2 September 2022:

“I would like to meet with you to talk through the next steps, which will also enable me to answer any queries you may have. Provided you are medically fit to attend a meeting, I would like to meet you on at a date and time suitable next week at the Claregalway Hotel.”

Mr Minogue wrote to the Complainant again on 27 September 2022 thanking her for the medical cert and, again, inviting her to meet, subject to her being medically fit.

The Complainant reverted on 6 October 2022 stating that

“I received your letter dated 27th September 2022. ln my letter dated 31 August 2022 I requested you to set out the steps you will be taking as a result of the report from the HR consultant but this has not been addressed. I require this in writing from you.”

On 10 October 2022, Mr Minogue wrote to the Complainant clarifying that:

“The report found that there was no case of bullying and recommended various steps that may be taken on your return to work to assist all of the employees in this matter.

The steps and procedures adapted can only be implemented on your return to work as all the staff needs to be involved in this process to ensure that any difficulty on working together again can be mitigated.

I will be putting in place a Dignity at Work policy, a copy of which will be issued to all employees by the end of this week.

The next step needs to come from you should you wish to return to work. We will assist all involved in this process and will continue to monitor the working environment.

I would look to you returning to work on a phased basis, e.g. one day a week for 4 weeks and then increase your hours to your normal working hours, should you wish to do so.

I await to hear from you regarding your return to work.”

The Complainant wrote to Mr Minogue on 9 November 2022 stating that she did “not agree with your interpretation of the report. The report indicated that despite there being no intention of bullying, the behaviour manifested into a perception of bullying.

I am concerned about returning to the workplace until I rm aware of the steps and procedures you will be implementing as referred to in your letter so that I know what work environment I will be returning to. There was previously no supervision by you as employer over any of the employees and I will need to know how that will change.”

On 19 May 2023, correspondence regarding the transfer to Hair and Beauty at Vanity Tuam Limited was issued to the Complainant.

There has been no communication from the Complainant until 5 June 2024 when the Complainant wrote:

“As previously advised, I have been ready to return to work however considering the nature of my complaint and the recommendations resulting tom the investigation carried out, I could only consider returning to work once the recommendations have been implemented. I previously requested clarity from you regarding the implementation of those recommendations but this was never addressed. A significant amount of time has since passed without any steps having been taken or any further attempts to contact me regarding my return. This has been very upsetting for me and makes me feel like my complaint of social isolation has been worsened by your behaviour.

The Respondent reverted on 6 June 2024 stating:

“We are ready to discuss your return to work once we receive confirmation from your doctor that you are medically fit to return to work.

We note our comment this is upsetting and confirm that this has also affected the other staff and the business in general.

Rebecca Flesk will be responsible with your return-to-work process and will discuss any issues that you may have at that stage.”

Ms Flesk reached out to the Complainant on 13 August 2024. She stated that she was reaching out as the Complainant’s new employer to see what she could do to help. She suggested a welfare meeting with the Complainant to discuss the future.

Thereafter the Complainant’s solicitor engaged with the Respondent. In brief, on 14 August 2024, the Complainant’s solicitor addressed the Complainant’s request for confirmation as to what procedures would be implemented and how would they be implemented in order to facilitate her return to work. The solicitor further raised the matter of the apparent change of ownership of the business and expressed the Complainant’s concerns regarding Ms Flesk’s involvement. It was put to Mr Minogue that this would suggest that the Respondent no longer intended to be bound by the terms of employment under which the Complainant was employed; it was a breach of her contract, there was a breach of mutual trust and confidence.

Mr Minogue replied to the Complainant’s solicitor on 19 August 2024 stating that:

“The recommendations submitted by the HR consultant required the cooperation of all the employees and the other employees who were cleared of bullying by the report felt that they would accepting that they did something wrong by taking part. They felt that they did nothing wrong and that the report backed up this assertion.

The position is still available to return to work at Hair and Beauty at Vanity Tuam Ltd but it needs input from your client also.

The former employees, whom she felt were bullying her are no longer employed by the company so at this stage, what does she require to return to work.

Rebecca Flesk is proposing to purchase the company and continue the business as a hair salon. She is also aware that your client is an employee of the company and is currently on sick leave.”

On 5 September 2024, the Complainant’s solicitor again replied with a lengthy letter suggesting that the Respondent appeared “to be pawning her off as an employee to an entirely separate entity who is not her employer”.“ It was suggested that the reference to Ms Flesk being the Complainant’s employer was misleading as Ms Flesk has no association with the Respondent company other than as a tenant of the premises. The letter raised the Respondent’s alleged failure to implement the recommendation of the independent report, and alleged failures under Safety, Health and Welfare at Work Act, 2005. The letter went on to raise an alleged underpayment of wages under the Payment of Wages Act referring to annual leave and public holidays in particular, and an alleged failure to provide the Complainant with a contract of employment.

It was stated that the Complainant was left with no option but to resign het position and pursue a claim for compensation for all loss and damage sustained as a result of the Respondent’s failure to deal with her complaints properly and comply with the statutory obligations on the part of the employer. The Complainant’s resignation and a request for a copy of all information the Respondent kept about the Complainant pursuant to the GDPR were appended to the letter.

The Respondent replied on 18 September 2024 inquiring further about the GDPR request and stating that it disputed the claims raised in the letter of 14 September 2024.

The Complainant’s concerns at this juncture, as per her solicitor’s letter of 5 September 2024, could be summarised as follows.

The Respondent allegedly “pawning her off as an employee to an entirely separate entity who is not her employer”. I accept that an email from Ms Flesk of 13 August 2024 stating that she was the Complainant’s new employer could have confused and alarmed the Complainant. However, the Respondent clarified Ms Flesk’s involvement in its subsequent communication to the Complainant’s solicitor dated 19 August 2024, some six days later. The decision to involve Ms Flesk in the process, while premature and not appropriate in the circumstances where she did not take over the business but rather as of 19 August 2024, she was “proposing to purchase the company and continue the business as a hair salon”, did not, in my view, justify the Complainant’s resignation.

Regarding the alleged failure to implement the recommendations of the report into the Complainant’s grievance, I accept that the Complainant instigated a grievance against her coworkers. It is clear that the Respondent took the Complainant’s concerns seriously. It engaged an independent HR consultant to investigate the Complainant’s grievance. The report concluded that there was no intention of bullying, that the complaints resulted from interpersonal conflict at work which manifested into a perception of bullying. The outcome of the investigation was not appealed by any of the parties involved.

The report suggested that training in effective communication and dignity at work “would be of benefit for all parties to assist in the transition to working together again, with access to an Employee Assistance Programme available to all parties should they wish to use the service. Additional support in the form of formal mediation is recommended if relations continued to be strained between all parties” (emphasis added). An anti-bullying policy was issued to all the staff involved.

Contrary to the Complainant’s assertion, the report did not recommend that the Respondent was to “ensure a safe workplace for her”. The report was very clear that any measures suggested would be of benefit to all involved.

The Respondent repeatedly asked the Complainant to engage to assist her return to work e.g. on 15 August 2022, 2 September 2022, 27 September 2022, 10 October 2022.

The Complainant repeatedly refused to engage. She made it clear that she would “only consider returning to work once the recommendations have been implemented”. However, a successful implementation of the recommendations of the report was contingent on the involvement of all staff member, including the Complainant. However, she declined to engage with the Respondent.

In any event, by letter dated 19 August 2024, the Respondent informed the Complainant’s representative that the individuals she had alleged were bullying her were no longer employed by the Respondent. The Respondent also sought clarification as to what measures would enable the Complainant to return to work in those circumstances.

In response, the Complainant’s representative did not clarify what the Respondent could do to facilitate the Complainant’s return to work but instead it communicated the Complainant’s resignation and her intention to “pursue a claim for  compensation for all loss and damage sustained as result of your failure to deal with her complaints properly and comply with the statutory obligations on the part of the employer”.

The Complainant remained on sick leave until the date of her resignation. I note that an assertion was made that the Complainant suffered from anxiety and stress and remained on sick leave as a result of the events at workplace. There was no evidence to support this assertion. There was no dispute that the Complainant’s sick certs stated that she was suffering from “Anxiety disorder”.

The Complainant’s representative put forward copies of two typed up letters. The first purported to be from a Jennifer A. Hamilton M.I.A.C.P. dated 4 July 2022 stating that the Complainant attended a therapy “to work on work-related stress and anxiety”. The second one was dated 18 May 2022 and informed the Complainant that Michelle Loughlin (RPN) will be “holding a group on anxiety management” during which the Complainant would learn about anxiety and would be taught strategies and techniques to manage anxiety better. I informed the parties that the weight that could be attached to these documents was very limited given that neither Ms Hamilton nor Ms Loughlin who allegedly wrote the documents attended the hearing to give evidence. 

In the letter accompanying the Complainant’s resignation, the Complainant’s representative for the first time raised the issue of the alleged failure of the Respondent to issue the Complainant with her terms of employment, an employee handbook and relevant procedures, and the alleged failure to discharge the Respondent’s obligations pursuant to the Payment of Wages Act 1991. These matters were not raised with the Respondent prior to the Complainant’s resignation and appear to have been advanced only after the decision to resign had been made.

Having regard to the circumstances, I find that the Complainant has not pointed to any action on the part of the Respondent that demonstrates that there was a significant breach of her contract or that the Respondent’s conduct was such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of her contract of employment.

I further cannot find the Respondent’s conduct to be so unreasonable to leave the Complainant with no option but to terminate her employment by way of constructive dismissal.

I find that the Respondent made every effort to engage with the Complainant. The Complainant, on the other hand, appeared to be of the view that she was under no obligation to engage and repeatedly declined an invitation to do so.

In the circumstances, I am not persuaded by the Complainant that resignation was her only option. 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 find this complaint to be not well founded.

The Complainant alleges that she did not receive her paid holidays / annual leave entitlements.

The Complainant submits that she went on maternity leave in or about 4 December 2021. She was entitled, under the Payment of Wages Act and Maternity Protection Acts, to the following pay which was not received:

·        Annual leave entitlement whilst on maternity leave.

·        Annual leave for the years 2022, 2023 and 2024 for which sick certificates were submitted up until the termination of her employment.

The Respondent submits as follows.

The Complainant accrued her annual leave while on maternity leave, it was paid to the Complainant on cessation of her employment.

Regarding the annual leave for 2022, 2023 and 2024, the Respondent submits that it falls outside an employee’s right to accrue.

The Respondent presented a copy of payslip dated 19 September 2024 showing a payment of 42.46 hours of holidays to the Complainant (€679.36).

At the hearing, Mr Minogue accepted that the Complainant furnished medical certs for the whole period from June 2022 to the date of her resignation.

The Complainant referred his complaint to the Director General of the Workplace Relations Commission pursuant to the Organisation of Working Time Act 1997 on 14 February 2025.

Cognisable period

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.

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 implications of the above provisions were understood by the parties.  There was no extension sought.

The complaint was referred to the Director General of the WRC on 14 February 2025. Therefore, in line with the time limits outlined above, I can investigate the period from 15 August 2024 to 14 February 2025. The Complainant resigned her employment effective on 20 September 2024.

I note that section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may consider annual leave entitlements for the period from 1 April 2024 to 20 September 2024.

The Organisation of Working Time Act 1997 provides as follows.

19.Entitlement to annual leave

(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:-

20. Times and pay for annual leave.

(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.

(2) The pay in respect of an employee’s annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

An employee who is medically certified as unable to attend work due to illness is entitled to the benefit of the annual leave that accrues during the leave year in which they are absent.  However, an employee, who is unfit for work for several leave years, is not allowed to accumulate, without any limit, all the entitlements to paid annual leave that are acquired during his or her absence from work:  Case C-214/10, KHS AG v Schulte [2011] E.C.R. I-11757. A right to such unlimited accumulation of paid annual leave entitlements would not reflect the “actual purpose” of the right to paid annual leave. The Act provides that an employee must take the holidays within 15 months from the end of the leave year, after which, they are lost.

The next issue for consideration in the legislation is what happens with regard to holidays not taken when an employee who is ill does not return to work. 

23.Compensation on cesser of employment

(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 he 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.

It is apparent from (iii) and (iv) above that the legislation intends that employees are to be compensated differently for annual leave not taken, depending on:

(iii)  whether their employment ends during the first 12 months following the end of the year in which they went absent, in which case they are entitled to compensation for holidays accrued during the leave year in which their employment ends and the preceding leave year.

Alternatively,

(iv)  If their employment ends during the final three months of a period of 15 months after a leave year in which they have been absent, they are entitled to compensation for holidays accrued during the leave year in which their employment ends and the preceding two years.

There was no record of the Complainant’s hours of work furnished by either party. However, there was no dispute that the Complainant’s worked 3 days per week and her “normal weekly rate” was €372 gross (€124 gross x 3). My calculations are, therefore, based on the information that was made available to me.

It was accepted that the Complainant received her annual leave accrued during the period of her maternity leave. This, in any event, has no effect on my findings. The Complainant was absent due to illness from 4 June 2022 until her employment ended on 20 September 2024.

The Complainant’s accrued entitlements were as follows.

I find that this provision in section 23(b)(iii) of the Act is applicable to the circumstances of the instant case.

On this basis, the Complainant is entitled to be paid for her accrued untaken annual leave in annual leave year form 1 April 2024 to 20 September 2024 and from 1 April 2023 to 31 March 2024. This amounts to 17.67 days at the daily rate of €124 gross.

I declare this complaint to be well founded. I order the Respondent to pay the Complainant the sum of €2,191.08 in respect of the accrued annual leave. I further directed Respondent to pay the Complainant €500 for breach of a statutory right, which does not constitute arrears of pay.

The Complainant alleges that she did not receive a statement in writing of her terms of employment.

The Complainant submits that the Respondent failed to provide the Complainant with a contract of employment or a statement of terms of employment in contravention of the provision of the Terms of Employment (Information) Act 1994.

The Complainant made a Data Subject Request on 5 September 2024 and was furnished with a spreadsheet containing a contract of employment. She was never given this previously and never had sight of it before. She has not been furnished with any evidence of any signed contract.

The Respondent furnished a copy of a document entitled Contract of Employment. Mr Minogue submitted that the Complainant received the document at the commencement of her employment.

Section 3 of the Terms of Employment (Information) Act, 1994 as amended (‘the Act’) specifies the particulars of the terms of employment which an employer must give in writing to an employee. The information required by subs. (1A) must be given not later than five days after the commencement of employment. The remaining information must be given not later than one month after the date of commencement of employment. 

Sections 3(1) and 3(1A) of the Terms of Employment (Information) Act 1994 provide:

“Written statement of terms of employment:

3(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say-…

(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 of such agreement or order,…

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

(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,

(n) the training entitlement, if any, provided by the employer,

(o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and

(p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of - (i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours, (ii) the reference hours and days within which the employee may be required to work, and (iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and

(q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer;

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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 2014),

(c) 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,

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000,

(e) the number of hours which the employer reasonably expects the employee to work- (i) per normal working day, and (ii) per normal working week,

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places,

(h) either- (i) the title, grade, nature or category of work for which the employee is employed, or (ii) a brief specification or description of the work,

(i) the date of commencement of the employee’s contract of employment,

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

(k) where a probationary period applies, its duration and conditions.”

Section 3A of the Act provides:

“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 Act provides that an employee may present a complaint to the Director General of the Workplace Relations Commission that their employer has contravened section 3 of the Act before the expiration of the six months period beginning on the date of contravention to which the complaint relates. The issue as to “the date of contravention” arose in An Animal Carer v A Charity ADJ-00009820 and An Employee v A Company ADJ-00012491. It was held that a contravention of section 3 was “a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement”. 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.

The Respondent exhibited a copy of a document entitled Contract of Employment. It was submitted on behalf of the Complainant that she did not receive the document until a copy was provided to her subsequent to her DSAR dated 5 September 2024.

I note that the Respondent provided a copy of the document to the Complainant after 5 September 2024. There was nothing put forward by the Respondent to show that the document was in fact furnished to the Complainant prior to September 2024. Furthermore, the document does not meet the requirement of the Act in that it does not contain all particulars of the terms of the Complainant's employment as required by the Act and it was not signed and/or dated by, or on behalf of, the Respondent.

Section 7 Complaint to adjudication officer under section 41 of Workplace Relations Act 2015 of the Act stipulates in relevant parts:

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G shall do one or more of the following 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.

There is an onus on the Respondent to provide an employee with all details which are fully compliant with the Act and to and to retain such a document for at least a year after the employment ends. I find that there was a contravention of the Act during the relevant period. 

In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am empowered to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.

In Archbold v CMC (Ireland) Ltd TE 05/2003, the Employment Appeals Tribunal held that money payable under the Act did not “equate to loss of remuneration” but was “in the nature of compensation”. Accordingly, the Tribunal was entitled to determine what payment was just and equitable in all the circumstances (not exceeding four weeks remuneration) including whether the claimant was “unduly prejudiced” by the failure of the employer to provide the written statement of terms and conditions of employment.

Having considered the circumstances of this case, I find that the full compensatory limit under section 7(2) should not be applied.  I, therefore, direct that the Respondent pay the Complainant the sum of €744 representing two weeks remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

I declare this complaint to be well founded.  I direct the Respondent pay the Complainant the sum of €744 representing two weeks’ remuneration which I consider to be a just and equitable having regard to all the circumstances of this case.

The Complainant’s representative confirmed that this claim is a duplicate of the Complainant’s claim of unfair dismissal, above. However, the Complainant’s representative was reluctant to withdraw the duplicate claim and expressed his preference for a written decision to be issued.

It was not disputed that this complaint is a duplicate of another complaint pursuant to the Unfair Dismissals Act, which is considered above.

This claim is a duplicate of the complaint CA-00069464-001 and was, therefore, disposed of.

I declare this complaint to be not well founded.

The Complainant’s representative confirmed that this claim is a duplicate of the Complainant’s claim of unfair dismissal, above. However, the Complainant’s representative was reluctant to withdraw the duplicate claim and expressed his preference for a written decision to be issued.

It was not disputed that this complaint is a duplicate of another complaint pursuant to the Unfair Dismissals Act, which is considered above.

This claim is a duplicate of the complaint CA-00069464-001 and was, therefore, disposed of.

I declare this complaint to be not well founded.

The Complainant’s representative confirmed that this claim is a duplicate of the Complainant’s claim bearing the reference number CA-00069464-002, above. However, the Complainant’s representative was reluctant to withdraw the duplicate claim and expressed his preference for a written decision to be issued.

It was not disputed that this complaint is a duplicate of another complaint pursuant to Organisation of Working Time Act, which is considered above.

This claim is a duplicate of the complaint CA-00069464-002 and was, therefore, disposed of.

I declare this complaint to be not well founded.

The Complainant’s representative confirmed that this claim is a duplicate of the Complainant’s claim bearing the reference number CA-00069464-003, above. However, the Complainant’s representative was reluctant to withdraw the duplicate claim and expressed his preference for a written decision to be issued.

It was not disputed that this complaint is a duplicate of another complaint pursuant to Terms of Employment (Information) Act, CA-00069464-003, which is considered above.

This claim is a duplicate of the complaint CA-00069464-003 and was, therefore, disposed of.

I declare this complaint to be not well founded.

Unfair dismissal- terms of employment – annual leave on sick leave-