Complainant

Respondent

Parties

Mary  Kenneally

Carr Sewing Machines Limited

Representatives

Vincent Toher & Co. Solicitors

Gerard Murphy of  Gerard Murphy & Company Limited (Liquidator)

Act

Complaint Reference No.

Date of Receipt

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

CA-00069046-001

05/12/2024

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

CA-00069046-002

05/12/2024

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

CA-00069046-003

05/12/2024

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

CA-00069046-004

05/12/2024

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

CA-00069046-005

05/12/2024

The Complainant was a long-standing employee of the Respondent company. It is submitted that she was dismissed entirely unfairly, both substantively and procedurally, by her employer, in circumstances where it previously had taken a number of steps to her detriment, ultimately culminating in her dismissal. The Respondent business has since gone into liquidation.

It is submitted that the Complainant is also owed monies under a number of other headings – outstanding pay in respect of lunch breaks which were required to be worked through, but not paid, and monies pertaining a unilateral reduction in her hours/days of work, from four days to three. It was further submitted that there was also a failure to provide any or any accurate contract/terms of employment, which were reflective of the Complainant’s terms of employment, in breach of the applicable statute.

There is open correspondence exhibited, between the Solicitor for the Complainant and a Solicitor then on record for the Respondent, pre-dating the Complainant’s dismissal. For completeness, it is worth setting out that objective justification with respect to a mandatory retirement age, or in relation to a decision to decline an application for a contract extension, has to be considered on a case-by-case basis, having engaged with an individual employee and their situation, and having considered alternatives. The bald statement of same in open correspondence from a Solicitor, after the fact, does not dislodge the employer’s duty to an individual employee, and does not meet the burden set out in legislation, and well-enunciated in case law.

A letter from the other staff members dated 12th November 2024 to the business owner, BC, asking him to reconsider his decision with respect to the Complainant’s ‘forced resignation’, due to take place on 12th December 2024, was also submitted.

Ms. Mary Toher, Solicitor for the Complainant set out, in response to a query from the Adjudication Officer, that the Unfair Dismissals case (CA-00069046-003) would obviously proceed, that the discrimination claim was filed out of caution. The other complaints are particularised, as follows: In relation to CA-00069046-001, there was an identified shortfall of €3,131.76 gross, pertaining to the period 12/8/2024 – 12/12/2024. Additionally, there are monies owed in respect of lunch breaks worked but not paid, under the Organisation of Working Time Act 1997 (CA-00069046-005), calculated on the basis of the national minimum wage. It was further submitted that the Complainant had not received a contract or terms of employment (CA-00069046-002), consistent with her terms of employment, as required under the Terms of Employment (Information) Act 1994; and further that her terms of employment had been altered unilaterally, to her detriment, on more than one occasion by her employer, in breach of her employment law rights

In respect of the Unfair Dismissals complaint, the Complainant worked for the Respondent for seventeen (17) years, having commenced employment there in 2007. The terms and conditions of employment were provided historically with an identified date of 28/08/2007. The Complainant thinks she started earlier than that date.

There was a Solicitor on record, at one point for the Respondent, and there was some correspondence from him, at that point. It was submitted that no documents were given to the Complainant – that has been accepted. In relation to 2018, the Complainant does have a recollection of receiving a document (which lists her start date of employment) and being told it was a ‘standard government document’, asked to sign it, continued there and then.

There were no real issues of any significant nature up until 2024 when things started going wrong, leading to her dismissal.

At that stage, it was suggested that that document contained a retirement age, and her employer told her that she should have known that she was to leave employment on that basis. This is completely disputed and denied by the Complainant.  -

Furthermore, it was communicated to the owner, BC, that the Complainant was offered another job with a different company; and it was not communicated to her, even at that stage that she would have to retire.

It is submitted that what occurred was an orchestrated attempt on the part of the company to wind it down, taking certain actions to the detriment of the Complainant.

At the hearing, Ms. Mary Kenneally, the Complainant, took the oath and gave evidence on her own behalf.The Complainant is a seamstress, and she worked for the Respondent for seventeen (17) years. She outlined that there had been no major problems right up until the end of her employment. No documentation of any nature given to her for the first ten (10) years of employment - no contract, statement of employment or terms of employment.

In 2018, the Complainant was given the document by Ms. Marie McCarthy. She said she had no dealings in relation to it, that she was told it was ‘to tick a box for the government’, ‘a document to sign, to tick a box for the government.’ She was asked whether she got an opportunity to consider it? She said: ‘No, because he [BC] wanted them back.’ She said that she ‘signed it there and then and gave it back to Marie [McCarthy].’ She never gave it any more thought until March 2024.

The Complainant outlined an issue with tax that arose. She said that she was told that her ‘tax would be different’ and at that stage ‘Stephen got involved.’ Stephen Kenneally is the Complainant’s son, who is a chartered accountant and who also gave evidence on her behalf at the hearing. She was told: ‘As of now, you owe 400 euro tax’ – that was at the start of March 2024. She said that BC said to her: ‘you’ll be fine on your 20% until about November’ She described him as being ‘very annoyed.’ She outlined that he requested her son Stephen come up. It was suggested that if the tax bill issue was not sorted out, it could accumulate to the tune of four or five thousand euro by the end of the year. She said that BC said he would ‘sort it out’, that he would stop 20 euros per week initially from her paycheque to do so.

She explained that, in her work, she would never really see BC, that he would come in to see the manager, Ms. Marie McCarthy (who also gave evidence, at hearing).

The Complainant said that at the end of March 2024, BC said there were discrepancies. He said that the money in the till wasn’t adding up - he mentioned this in connection with ‘the second book’. The purpose of the second book was a deferred commission – it pertained to a balancing out of busy and less busy periods of work, with respect to a standardisation of wages. As a matter of course, the Complainant (and other employees) would receive a certain percentage exclusive of VAT on every garment. The Complainant was an employee and in common with all the other employees, and in line with the long-standing practice in the business which pre-dated the Complainant’s employment, she operated a second book – each person had their own book. BC had examined them from time to time. [Adjudication Officer’s Note: For completeness, there is no suggestion of any impropriety of any kind in respect of the Complainant’s operation of ‘the second book’, the same as every other employee within the business.]

In May 2024, the Complainant took two weeks holidays. She received a phone call from her manager, Ms. Marie McCarthy, telling her that he was ‘cutting me down a day.’ She said that it was ‘nothing personal.’ She explained that she used to do three days a week in the Respondent business, and did two days per week elsewhere. She said Ms. Marie McCarthy had asked her if she would do an extra day in the shop. She said: ‘Yes.’ Then, in July 2023, she gave up the other job and did four days a week in ‘Singers.’ She said that it was explained to her that the business was going to bring in somebody else and was giving her notice that it was reducing her days from four days to three days in August 2024.

The Complainant outlined that she used to bring garments home to work on in her own house. She said other staff members did it too. She said that BC knew all about it – ‘he brought them to the car for me - bags and bags of alterations.’ She said that in May/June 2024, she told she was not allowed to do it anymore. She said she ‘could not believe it.’ She said that it meant she was doing less work, that her wages were down. She said: ‘Then I found out that another seamstress was bringing work home.’ She said that she questioned that.

She explained that she was offered a full-time job in another business. She told her manager, who relayed the message to the business owner. BC. The response was: ‘We couldn’t lose Mary.’  There was no indication that the Complainant would be leaving employment later that year.

She outlined that the owner brought in other seamstresses, Ukrainian women. She said that it changed the whole nature of their job/workplace. The first person was in their 50s and had very little English. The owner told them to go on the phone and use google translate to communicate with the new staff members. The Complainant outlined that she found that very difficult, because she could not do it.

In relation to the document from August 2018, the Complainant outlined that it bore no relation to her working hours or terms. She explained that she was not paid for lunch hours, but she did in fact work during lunch hours. She explained that when other people went on their lunch break, the seamstresses had to look after the shop, and could not undertake any sewing during that time because they were so busy.

She further outlined that there was ‘no seamstress in the shop on Wednesday and he [the owner] had taken the day off me.’

She explained that she did not see the owner. She said that she approached her manager, Ms. Marie McCarthy and asked what was going on. Her manager went to the owner and the Complainant heard back from her manager.

She outlined that on 12/12/2024, her employment ceased, that she received ‘no letter, nothing.’

She said the owner said it to her manager, then he said that he was changing his mind. Her manager approached the owner saying ‘we can’t do without Mary.’ He agreed but told her that he had to go by what his Solicitors had told him; and then subsequently said he would go to a Solicitor and get it changed.

The Complainant outlined that she only knew two weeks beforehand that her job was gone. She outlined that she had not been in employment since, that she was 67 years old, that she has a mortgage. She explained that she does not have any health conditions and planned and expected to continue working, and needs to work.

The Complainant explained that she went back to [named business] who had previously offered her a full-time job, but that it was gone – someone else had been hired, in the interim. She said they offered her one (1) day a week, but she explained that was not beneficial because of the cost of the commute and the associated ancillary expenses. In terms of getting work, she explained that she did not think it would be easy, that she had never had a CV, that it had always been word of mouth. She explained that her intention was to work ‘as long as I had my health.’

The figures, and the underpinning calculations, were outlined in respect of her earnings. Payslips were submitted, as well as a summary document of the payslips submitted.

Ms. Marie, McCarthy, second witness for the Complainant

At the hearing, Ms. Marie McCarthy took the oath and gave evidence on behalf of the Complainant.

The witness was the long-standing manager in the Respondent company. She explained that BC came in with the document to her, and said that she had to do it (sign it and give it to the staff), told her that it was ‘only a box ticking exercise.’ She said that he told her it was a government document. She said that she gave the document back to him once signed, and that she did not have a copy herself.

She said that at one point, he informed her that he was reducing the Complainant’s hours from four (4) days back to three (3). Ms. McCarthy said that she objected and told him that he was ‘not going to get anybody else like Mary.’ He insisted that he was ‘going to reduce her back to three (3) days.’

Four (4) months prior to her dismissal, Ms. McCarthy informed BC that the Complainant had been offered a full-time job in [named business] and said to him: ‘We wouldn’t want to lose Mary.’

She went on to outline what an excellent employee the Complainant had been, how diligent and hard-working and reliable. She outlined that the Complainant ‘took an awful lot of stuff home – curtains, bridalwear, anything we couldn’t manage in the shop.’ Ms. McCarthy explained that she ‘was known on Washington Street’ as she was transported garments in trolleys down the street, and ‘[BC] carried the bags.’ She said that even when the Complainant suffered a close family bereavement, she did lots of work for grads/debs, and BC collected the garments [from the Complainant] at the funeral home. At the time, BC commented: ‘There is a lot of grads happy tonight because Mary.’  

Ms. McCarthy outlined that she had worked for the business for 43 years. She said that all the staff had second books. The owner ‘just said it wasn’t balancing up’. That was not particularised in any way. She outlined that occasionally, she would do spot checks and communicated with BC. She explained that if there was a slow week’s work, it guaranteed wages every week. She explained that the business could ebb and flow, that it could be very busy for a week and then may be quiet the following week.

She said the owner ‘didn’t like being told that he was in the wrong.’ She was asked if her work conditions changed. She confirmed that they had. She said there was a sense of ‘something’s not right’, that the owner ‘wasn’t coming in as often.’ She said: ‘we couldn’t understand why he had taken the day off Mary.’ She said: ‘Suddenly, we were refusing work because we couldn’t get it done because Mary wasn’t allowed to take stuff home.’

She was asked about the putative contracts. She said: ‘We were after forgetting that we signed them.’ She said she (and the staff) thought they were doing it for the owner, that they never thought any of that document would be applied to them.

She said in late September 2024, the Ukrainian women were having significant language difficulties, and that was resulting in errors being made. She said the owner told her: ‘Mary is going in December.’ She said that eventually he said to her: ‘I’m not discussing it with you anymore.’ She said everyone was very upset and that prompted the team to write him a letter in respect of the Complainant’s forced resignation. That letter was dated 12th November 2024, and was submitted, at hearing.

I have reproduced the letter here:

‘Date: 12th November 2024

[BC],

We are writing this letter to express our feelings at recent events. As a unified team, we are deeply upset and very unhappy at the forced resignation of our colleague, Mary Murphy.

We would like to draw your attention to our opinion of our time working with Mary. Mary has always been a great colleague and friend to us all and has always gone over and above with her time and effort to help us all.

Never has it been too early or too late to phone her to discuss alterations, to discuss pricing for any item or to ask for her help whether it be to cover someone else or just to get advice on something.

We are very upset with the way this situation has been handled and indeed are all worried about the inevitable change in all our working conditions that this will bring.

We would urge you to reconsider the termination of Mary’s contract in December and allow to continue what has always been a successful team.

Signed:’

The letter was signed by the Complainant’s three colleagues, including her manager Ms. Marie McCarthy and submitted to the business owner BC.

Mr. Stephen Kenneally, third witness on behalf of the Complainant

Mr. Stephen Kenneally, the Complainant’s son who is a chartered accountant gave evidence in relation to the figures; and in relation to his interactions with the business owner on his mother’s behalf, pertaining to the tax issue which came to light. He outlined that it was unclear what the business owner had done in that regard, having had sight of his approach, with respect to his mother’s employment, but that it certainly did not appear to have been done/handled correctly.

It was accepted at hearing that the correct annualised figure, in respect of the Complainant’s salary, based on a four-day week extrapolated out from the 8 months she worked 4 days per week prior to her hours being unilaterally changed by her employer, is €41,409. Additionally, the amount in respect of remuneration in respect of lunches worked but unpaid is (based on a minimum wage hourly calculation), which produces a correct annualised remuneration in the amount of €43,409, in respect of the Complainant’s employment with the Respondent, during the relevant timeframe.

The witness took the Adjudication Officer through his figures, the basis of his calculations and his exhibits.

He outlined the shortfall in pay pertaining to the period 12/8/24 – 12/12/24 as being €3,131.76 gross. This relates to the unilateral reduction in the Complainant’s work from four (4) days to (3)  by her employer calculated on a pro-rata basis, in breach of her employment law rights.

He outlined the non-payment for lunch hours, which were worked, calculated on the basis of what was then the national minimum wage as being €1,016 relating to the period July to December (80 hours x €12.70), which calculates as €3,048, based on an 18 month period, having reference to the applicable leave years.

No appearance was entered by the Respondent.

Mr. Gerard Murphy, Liquidator, appeared ‘in the shoes’ of the Respondent.

Liability is denied.

The facts were not contested.

It was submitted that any award may have to come out of the national insolvency fund.

The Law

Unfair Dismissal

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

Section 6(6) of the Acts provides:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Section 6(1) of the Acts provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(7) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so— (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

Section 7(1)(c) of the Acts sets out that:

(c) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances . . . . ”

Section 7(2) provides:

“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—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(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, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Financial Loss

Under s. 7(3) of the Unfair Dismissals Act:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Act, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

In awarding compensation, I am obliged to award a “just and equitable” amount of compensation, in the full circumstances of the case, having had regard to a number of things including the reasonableness of the behaviour of the employer and any mitigation undertaken by the employee, to take account of any losses up to the date of the filing of the WRC complaint as well as future losses. The maximum jurisdiction under the act is monetary in nature, not temporal.

The burden of proof in unfair dismissals cases rest with the Respondent employer.

In essence, it seems to me, that the owner of the Respondent company essentially tried to ‘wind down’ the Complainant’s employment. I fully accept the evidence given that he singled her out in respect of directing that she not bring garments home to work on, when that had been the standard practice for years of which he was fully aware; and which was continued after that by other seamstresses within the business, until the discrepancy in treatment was pointed out by the Solicitor for the Complainant, at which point it appears that he sought to remedy it retrospectively.

He unilaterally and capriciously changed her working conditions and terms of employment on a number of occasions, including the unilateral reduction of her days from four to three a number of months prior to dismissing her altogether. I find that the failure to inform the Complainant of his looming intent to terminate her employment, putatively on the basis of a mandatory retirement age, when she had approached him and informed him she had been offered a full time position elsewhere (subsequent to the unilateral reduction of her hours by him), is particularly egregious, in the circumstances. It further undermines the credibility of the employer’s approach.

The owner then sought to rely on an alleged mandatory retirement age. I have formed the viewed, having carefully considered the matter, that the contract issued to the Complainant in 2018 is void; and that, in any event, it simply does not capture her working terms or conditions. It is unrelated to reality, and notwithstanding that, it was changed unilaterally by the employer on several occasions. Furthermore, she had no opportunity to consider, and did not have sight of it subsequent to 2018. After the fact, the Solicitor then on record for the Respondent submitted in open correspondence with the Solicitor for the Complainant that there was an objective justification for same. However, that it not how ‘objective justification’ operates, in practice, with respect to retirement age.

The employer seems to have singled out the employee in a number of ways, in particular with respect to the handling of tax matters, and with respect to the entirely unfounded suggestions in relation to the operation of the ‘second book’, which I fully accept was standard practice for each seamstress within the business, and pre-dated the Complainant’s employment, and outlived the Complainant’s employment also. I fully accept that the Complainant was entirely honest in her dealings with her employer and in the evidence she gave, at hearing. That is also fully consistent with the evidence given by the other witness, her former manager, Ms. Marie McCarthy.

I found the Complainant to be a cogent and credible witness. She was honest and forthright in her evidence. I am satisfied that the Complainant was provided with no terms of employment for the first ten (10) or eleven (11) years of her employment; and that the document she was then given to sign, without an opportunity to review or consider it, did not and do not in any way reflect the terms of her employment. I also accept that it was not issued to her – that she was directed to sign a document and hand it back in to her manager. I find, in the circumstances, that document cannot be relied upon to her detriment.

I find that the Complainant, an excellent and long-standing employee, was treated exceptionally shabbily by her employer both in the run-up to her dismissal and in its ultimate occurrence, putatively on the basis of age, which in and of itself would represent a specific contravention of the Unfair Dismissals (Amendment) Act 1993.

I find that her dismissal was unfair, both substantively and procedurally, under the Unfair Dismissal Act 1977. I do not accept that the dismissal was on foot of a term in any lawful contract. I find that no such retirement age applied, either on foot of any lawful contractual term nor as a matter of ‘notorious’ custom and practice within her industry, nor that any ‘normal retiring age for employees of the same employer in similar employment’ applied which would or could bring the Complainant’s claim with the exemptions/exceptions in the Unfair Dismissals Act 1977 (as amended) with respect to locus standi. This case is distinguishable from the Labour Court case of the Institute of Technology V. John Comisky, UDD2140, in that regard. I further note that the broader legislative landscape with respect to mandatory retirement age has undergone further change and continues to evolve since then. The issue of objective justification is moot, in the circumstances, as set out.

Considering the totality of the circumstances in this case, and the evidence of the witnesses at hearing, I accept the submission made on the Complainant’s behalf, by her Solicitor that the Respondent employer took a number of actions to the detriment of the Complainant over a period of time prior to dismissal, and then ultimately dismissed her.

It was accepted at hearing, that the correct figure in relation to pay, when annualised, and calculated on the basis of a four day week, was €41,409 prior to the addition of any adjustment to the figure for unpaid lunch breaks, which were in fact worked, which calculated on the basis of an the minimum wage at the time, would further increase the annual total by an additional €2,032.

In awarding compensation, I am obliged to award a “just and equitable” amount of compensation, in the full circumstances of the case, having had regard to a number of things including the reasonableness of the behaviour of the employer and any mitigation undertaken by the employee, to take account of any losses up to the date of the filing of the WRC complaint as well as future losses. The fact that the Respondent was on notice the Complainant had been offered a full-time job elsewhere, and did not draw to her attention that her employment with it was going to end really undermines its putative approach with respect to age and retirement. It appears that the Respondent simply brought in alternative labour, across time, first reducing the Complainant’s working days unilaterally, then stopping them altogether. I note that the Complainant received nothing in writing at the end of her employment from her employer indicating what the nature of the termination of employment was, which further supports the Complainant’s position. In respect of the duty to mitigate, the fact the Complainant lost out on a full-time job opportunity elsewhere due to the conduct of her employer is particularly egregious, and is in the Complainant’s favour, when assessing the duty to mitigate under the applicable case-law.

I also fully accept the Complainant’s evidence with respect to her intention to continue to work, and her outgoings including mortgage; and her evidence in terms of having lost out on a full-time job elsewhere due to her employer’s conduct, and the difficulties she anticipates in sourcing alternate employment.

CA-00069046-001 – Payment of Wages - I find that this complaint is well founded. I award the Complainant the amount of €3,131.76.

CA-00069046-002 – Terms of Employment - I find that this complaint is well founded. I award the Complainant the amount of €3,340, being the equivalent of four weeks’ pay, for the reasons outlined above.

CA-00069046-003 – Unfair Dismissal - I find that this complaint is well founded. I am required to award compensation which is ‘just and equitable’ in the totality of the circumstances of the case, having taken into account the circumstances of the dismissal, the conduct of the employer, the conduct of the employee, and efforts to mitigate consequent loss. I award the Complainant the amount of €67,000 nett for the reasons outlined above.

CA-00069046-004 – As I have found for the Complainant under CA-00069046-003, I cannot also find for the Complainant under CA-00069046-004, on the basis of the same fact pattern, as it is not possible to recover under both grounds – there has to be an election. I deem this complaint to be withdrawn.  

CA-00069046-005 – Organisation of Working Time Act 1997, which is underpinned by European Directive. I find that this complaint is well founded. I award the Complainant the amount of €3,000 compensation in respect of the breach of her employment rights in this regard,

Unfair Dismissal; Payment of Wages; Organisation of Working Time Act; Terms of Employment (Information) Act