Complainant

Respondent

Parties

Dace  Balasova

Team Dc Limited

Representatives

Setanta Landers of Setanta Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00064561-001

04/07/2024

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

CA-00064561-002

04/07/2024

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

CA-00064561-004

04/07/2024

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

CA-00064561-005

04/07/2024

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

CA-00064561-006

04/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00064561-007

04/07/2024

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

CA-00064561-008

04/07/2024

The Complainant joined a company which was then associated with the Respondent’s two Directors in April 2021, Team Logistics, and worked with the Respondent’s Directors in that role.  

 On 11 December 2022 the Complainant took a promotional opportunity to an Administration Manager overseeing UK operations. The Respondent alleges that this was not a transfer to an associated company but cessation of employment and the rehiring by a totally new employer.

The Complainant was dismissed in July 2024 and her letter of dismissal identified the Respondent as her employer. The Complainant has lodged a claims challenging her dismissal, the non-payment of a redundancy payment and the deductions of monies for taxes which the Complainant alleges were not paid to revenue.

The Respondent alleges that a third Company, Team DC UK Limited, was the Complainant’s employer at the time she was dismissed. Both that business and the Respondent suffered greatly due to the actions the other Director, who is referred to as Director A throughout this decision.

The Complainant’s solicitor Mr Landers made oral and written submissions on behalf of the Complainant.

The Complainant gave evidence under affirmation. She was employed by a group company in 2021 and asked to transfer in 2023 by her superiors in that company. They failed to update her contract and later she discovered the deductions from payroll she was making were not given to revenue.  She began raising these issues in later 2023 and particularly in 2024 where she made clear she was considering reporting these issues to the authorities. She was dismissed soon after by Director A who cited financial difficulties.

Mr Alan Roe, a Director of the Respondent made submissions on their behalf and gave evidence under oath.

He was managing director of Team Logistics until June 2024 when he left that business following a dispute with two investors, Director A had also worked in that business. Mr Roe maintained a business relationship with Director A via two separate entities, the Respondent and Team DC UK Limited. The Complainant was only ever employed by the latter which was run by Director A who asked him to come on board when the business ran into difficulties. They later set up the Respondent together.

Mr Roe became aware that the Respondent and Team DC UK Limited had suffered misappropriation of funds but he could not get in control of the businesses’ affairs for a period. Ultimately Team Logistics UK failed and Director A stopped engaging with him with regard to either business.

The Respondent has never really gotten off the ground since and Mr Roe is employed elsewhere though he remains a director and majority shareholder.

Preliminary issue regarding the appropriate Respondent.

The Complainant’s evidence was that she joined Team Logistics in April 2021. She was interviewed by Mr Roe and Director A. Her evidence was that in December 2022 she was asked to transfer to the Respondent and that Director A would be taking a leading role in that operation which Mr Roe was also involved. Mr Roe attended this meeting his evidence was that he attended solely in the capacity as a Director of Team Logistics to make clear that the Complainant’s employment was ceasing if she took the new role. The Complainant disputes this and I prefer her evidence that she was offered a role without much further elaboration and understood Director A and Mr Roe to be continuing to be in charge.  Mr Roe and Director A were involved in all three companies, at that stage Mr Roe was Managing Director of Team Logistics but understood that he might soon be leaving that role. As such I have difficulty accepting that his role in that meeting was limited to the business of Team Logistics particularly as I have no evidence that any written communication followed setting out that the Complainant was resigning, which would normally be how any employer would clarify these issues. The Complainant continued to be paid by Team Logistics for the first month she worked for the new entity and continued to hold on to her Team Logistics laptop and assist with queries from her colleagues in that organisation for a further period. On the evidence available to me she was continuously employed by successive entities.

The Complainant’s evidence was that after January 2023 she worked from Ireland on UK operations. She was told the Respondent was not at that stage established which is correct and it would not be established until the 5th of September 2023. Team Logistics UK Limited was in existence and had been created on the 23rd of November 2021. Mr Roe joined Director A as a director of Team Logistics UK Limited on the 15th of May 2023. Though the Complainant was being paid from Team Logistics UK accounts it does not appear to have registered in Ireland and revenue records indicate that the monies the Complainant was being deducted for tax were not paid to revenue.

Mr Roe’s position is that Team Logistics UK was the Complainant’s employer. That company is now in liquidation. He disputes that the Respondent was ever the Complainant’s employer. His evidence is that he was not involved with the running of Team Logistics UK Limited on a day to day basis until later in 2023 when it ran into difficulty, Director A was running the company and appears to have been mismanaging it badly and a number of debts built up.  Despite Mr Roe’s role in that Company he is unclear why it never regularised its purported employment relationship with the Complainant. Mr Roe’s evidence was that the Respondent was always intended to be the vehicle through which he continued the Irish business he had built up as part of Team Logistics. 

On review of the correspondence and the evidence of the parties, it appears to me that the two entities were being referred to interchangeably. It may be that  the Respondent was intended to be the Irish based entity and that the Complainant’s employment would operate through the Respondent and her tax affairs regularised once it was set up. It is her evidence that that was the case.

In any event, Director A clarified at the time of dismissal, and in writing using the company seal, that the Complainant was employed by the Respondent and was terminated by them. Mr Roe has raised general allegations that Director A might have been acting in bad faith but there is nothing to suggest that he was not a director at that time and that the Respondent was not bound by his actions. In circumstances where the affairs of the Team DC UK entity were so unclear the termination letter from Director A on behalf of the Respondent is explicit it is reasonable to conclude that the Complainant was, at the time of her dismissal, employed by Team DC Limited.

CA-00064561-002 Terms of Employment (Information) Act, 1994

In light of the above findings the Complainant has not received a statement of particulars are required by Section 3 of the act.

Section 7 of the act provides that an Adjudication Officer can 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.

The Complainant earned €600 per week. The ambiguity created by the Respondent in failing to provide her with the basic details of her employment relationship in writing was a source of continuing concern for the Complainant and was something she raised in writing a number of times without redress.

In the circumstances I am of the view that four weeks compensation is justified.

The Complainant’s Dismissal / CA-00064561-001 Unfair Dismissals Act, 1977

The Complainant has raised a number of interrelated complaints regarding her dismissal which occurred on the 19th of April 2024.

The first is that she was, at the time of her dismissal, encompassed by the general protection provided by Section 6(1) of the Unfair Dismissals Act (“the Act”) and that it is for the Respondent to establish that the dismissal was reasonably justified. As I have already found above that the Complainant’s service was continuous since April 2021 I am satisfied that she is not excluded from this protection by virtue of Section 2(1) of the Act.

The Respondent did not provide any direct evidence of the decision to dismiss. The correspondence provided by the Complainant indicated that she was dismissed as a result of a restructuring. The Complainant’s own evidence was that she became aware of financial difficulties as early as June 2023, a year before she was terminated. She accepts that this was a factor in her termination but it wasn’t the only reason. She was raising issues related to the Respondent’s tax affairs and other compliance issues in a series of interactions in late 2023 and early 2024 and she reasonably concludes that her raising these issues contributed to the decision to dismiss her.

Mr Landers for the Complainant also points out that even in circumstances of genuine restructuring, which the Complainant disputes, the Labour Court in Students Union Commercial Services Ltd v Alan Traynor found that a Respondent must be able to demonstrate that they carried out a thorough exercise to avert redundancy. The Complainant’s evidence is that they failed to do so and the Respondent has provided no evidence to the contrary.

In the circumstances I am satisfied that the complaint is well founded and the Complainant was unfairly dismissed.

Redress / CA-00064561-001 Unfair Dismissals Act, 1977

Section 8.1.c of the Act provides that I may either make a decision in relation to the claim consisting of an award of redress in accordance with section 7 or the dismissal of the claim. Section 7 grants me the power to order reinstatement, reengagement or award compensation to employees who have been dismissed in contravention of the act. Section 8.1A of the Act provides that I must provide a statement of reasons for the award of such redress and the reasons in  deciding not to award other redress under that section.

On the basis of the evidence available to me there appears to be no desire from either party for the Complainant to be reinstated or reengaged. As such I will make an award of compensation.

Section 7 of the act is clear on how awards for compensation should be determined and the High Court, per Mr. Justice Charleton in Jvc Europe Ltd v Panisi [2011] IEHC 279, has outlined the process in some detail.

The first step of is to determine financial loss.

The Complainant earned €600 per week and was unemployed for approximately 11 weeks, accruing a financial loss of €6600 from the dismissal. This is the maximum I can award the Complainant under this act.

The act then requires me to consider a series of factors in deciding an actual award that is just and equitable in all the circumstances. These are set out at Section 7(2) and include the following:

(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.

The Complainant obtained work relatively promptly following her dismissal and it is reasonable to conclude she was actively seeking work for the period of unemployment. While the parties have identified business factors which contributed to the dismissal, I do not think it would be just and equitable to reduce such a limited award on the basis of Section 7.2.a, particularly in the absence of more comprehensive evidence on these issues as well as the relatively low level of the award as it stands.

I am of the view that an award of €6600 is just and equitable in all the circumstances.

CA-00064561-008 Section 8 of the Unfair Dismissals Act, 1977

This is an overlapping complaint under the same act as CA-00064561-001 and concerning the same dismissal but in which the Complainant has specifically argued that 6(1)ba of the Act was breached and she was dismissed as a result of having made a protected disclosure.

For completeness I would note that the award in CA-00064561-001 was less than two years total renumeration the distinction between the two claims, if both were successful, would be academic.

As I have already determined that the Respondent has unfairly dismissed the Complainant and awarded redress I dismiss this claim.  

CA-00064561-006 Redundancy Payments Act, 1967

As per CA-00064561-001 the Complainant was unfairly dismissed and was not made redundant as per the Redundancy Payments Act. 

CA-00064561-007 Protected Disclosures Act, 2014

The Court of Appeal has considered the issue of which section a dismissal should be challenged under in Hosford v The Minister for Employment Affairs and Social Protection [2024] IECA 294.

At paragraphs 6 and 7 Justice Hyland concluded that:

Part 3 is headed up “Protections” and s.12 is headed up “Other protection of employees from penalisation for having made protected disclosure”. Its application is clearly limited to employees. Section 12 provides: “(1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure. (2) Subsection (1) does not apply to the dismissal of an employee to whom  section 6 (2)(ba) of the Unfair Dismissals Act 1977 applies. (3) Schedule 2 shall have effect in relation to an alleged contravention of subsection (1)”

Section 6(2)(ba) of the Unfair Dismissals Act 1977 as amended (the “UDA”) provides for the case where an employee alleges dismissal, including constructive dismissal, on the basis of the making of a protected disclosure. In other words, s.12(1) is about penalisation short of dismissal. On the other hand, where an employee complains that they were unfairly dismissed due to a protected disclosure being made (whether an outright dismissal or a constructive dismissal, as Mr. Hosford alleges occurred in this case), an employee should invoke the UDA rather than s.12(1).

As such I have not considered the Complainants dismissal under the 2014 Act. The Complainant’s solicitor submitted that I could differentiate between the decision to dismiss the Complainant and the dismissal of the Complainant and to treat the former as a stand alone act of penalisation. 

I am unsure how to quantify any detriment arising from an abstract decision to dismiss without reference to the actual act of dismissal. More generally I do not think such an approach would be reasonable.

CA-00064561-004 Payment of Wages Act, 1991

The Complainant’s evidence was that she was continuously deducted sums from her salary which were purported to be tax deductions and totalled €5997. However, the Respondent did not pay these sums to revenue. Her evidence was Director A and Mr Roe recognised that this was going to have to be addressed with revenue and that this issue remained live throughout her employment. Mr Roe’s evidence did not dispute this or the Complainant’s evidence that revenue was never paid these sums.

In the circumstances I am of the view that the accrued monies collected by the Complainant’s employer but not ultimately paid to revenue were properly payable to her on termination. 

CA-00064561-005 Payment of Wages Act, 1991

The Complainant submitted a complaint alleging she was not paid notice. However, in the hearing her evidence was that she was offered two weeks working notice. This was the length of time the Minimum Notice and Terms of Employment Acts, 1973-2005, required.  

CA-00064561-001

I find the complaint well founded and direct the Respondent to pay the Complainant €6600.

CA-00064561-002

I find the complaint well founded and direct the Respondent to pay the Complainant €2400.

CA-00064561-004

I find the complaint well founded and direct the Respondent to pay the Complainant €5997.

CA-00064561-005

I find the complaint not well founded.

CA-00064561-006

I find the complaint not well founded.

CA-00064561-007

I find the complaint not well founded.

CA-00064561-008

I dismiss the claim.