UD723/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                       CASE NO.

Juanita Cahill            -claimant                                                             UD723/2013      

                                                                                                             RP520/2013                   

against

Focus Suites Ireland Limited (In Liquidation) T/A Focus Suites     -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms V. Gates

Members:     Mr E. Handley

                    Mr J. Flannery

heard this claim at Dublin on 24th April 2014

Representation:

Claimant:        Dillon Eustace, Solicitors, 33 Sir John Rogerson's Quay, Dublin 2

Respondent:    No appearance or representation on behalf of the liquidator

Summary of evidence:

The claimant previously received a redundancy payment from an associated company. Subsequently, the claimant commenced a new period of employment on 2 November 2009 with another associated company registered in Northern Ireland. However, for the duration of her employment the claimant was at all times based in a Dublin office. The claimant brought a claim under the Transfer of Undertakings legislation and the Rights Commissioner deemed that the claimant’s employment had subsequently transferred to the respondent company on 23 November 2012, the date upon which the respondent company was registered in the Republic of Ireland.

The claimant began a period of maternity leave in November 2011. When the claimant indicated her return to work date, AOC, a director of the company replied in writing to the claimant stating that the company was in financial difficulty and offered the claimant an alternative role with a significantly reduced salary. Additional inter-party correspondence was opened to the Tribunal including an email dated 2 November 2012 from AOC stating that due to the financial situation of the company registered in Northern Ireland it would be put into liquidation. The claimant was provided with details of the supposed liquidator of the company. The claimant wrote to this person whom she believed was the liquidator but did not receive a response. She continued to seek clarification as to whether or not the company had entered into liquidation. The claimant sought legal advice in April 2013. A legal representative on her behalf also wrote a letter dated 22 April 2013 to the supposed liquidator. This person responded to the solicitor stating that he had not received instructions to put the company into liquidation. The respondent company did not in fact enter into liquidation until 3 July 2013.

Determination:

In March 1998 the claimant commenced employment in a series of companies operated under the management of AOC. Latterly a company was registered in Northern Ireland on the 18 November 2009 and dissolved on the 12 July 2013 and in the interim period the employer registered a company of the same name (the respondent company) in the Republic of Ireland on the 23 November 2012. At all material times from November 2009 until the date of termination of employment the claimant was employed in the Dublin offices of the respondent company as a Marketing Manager at a salary of approximately €50,000 per annum. The Tribunal concurs with the Recommendation of the Rights Commissioner dated the 17October 2013 that a transfer of undertaking took place on 23 November 2012.

The claimant commenced unpaid maternity leave on the 28 November 2011, being 26 weeks basic maternity leave and 16 weeks additional maternity leave and together with accrued annual leave notified the company that she could return to work on 30 October 2012. However, the claimant was not permitted to return to work in her previous capacity but was offered an inferior position on a substantially reduced salary on the grounds that the company was facing financial difficulties. Thereafter the respondent company failed to engage further with the claimant in relation to the proposed change in the terms and conditions of her employment or to provide her with any reasonable details of the proposed liquidation of the Northern Ireland Company or her entitlement to a redundancy payment or to consider her proposal to work a four day week.

In all the circumstances, the Tribunal is of the view that the claimant was unfairly dismissed as the claimant was not offered suitable alternative employment and the respondent company failed to comply with the provisions of the Maternity Protection Act, 1994, and in particular section 27 thereof. Further, the company did not go into liquidation until 3^rd July 2013 but purported to terminate the claimant’s employment some 9 months earlier in October 2012. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007, succeeds and the claimant is awarded compensation in the sum of €26,992.84 this being the equivalent of €961.53 gross weekly pay by 28 weeks. It should be noted that the Insolvency Fund operates a cap of €600.00 per week. The appeal under the Redundancy Payments Acts, 1967 to 2007, is dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)