ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001087

Complaint for Resolution:

At:       Workplace Relations Commission, Haddington Road, Dublin 4.               

Date of Adjudication Hearing: 06/04/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Act, 1967 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint..

Background.

The Complainant has been employed as a Solicitor with the Respondent from 31^st May 2010 until the Employment terminated on 23^rd September 2015. The Complainant had been paid €76,000 in 2014 but her salary was varied on a monthly basis.

The Complainant referred a complaint to the Workplace Relations Commission on 11^th December 2015 alleging the Respondent had breached the Act in that she had not been paid redundancy on termination of her employment.

Summary of Complainant’s Position.

The Complainant was employed as a Solicitor with the Respondent from May 2010. The Complainant commenced Maternity Leave on 18^th March 2015 and she gave birth to her second child on 23^rd March 2015. She was due to resume work following her Maternity Leave on 18^th September 2015.

She received a phone call from one of the Partners at 19.16 on 7^th September 2015 and was informed that there was a staff meeting being held on 9^th September 2015 in the Gresham Hotel. The Complainant was still on Maternity Leave but was informed it was an urgent meeting so she attended with her baby. At this meeting the Complainant stated she was handed a NERA information leaflet regarding collective redundancies. The staff were told that the firm was being dissolved and that all staff were being made redundant, and that as it was a collective redundancy, legislation necessitated a consultation process. They were informed that the consultation process was to sort out redundancy payments. It was also mentioned that a letter had been issued to the Minister for Enterprise, Trade and Employment that a collective redundancy was taking effect.

The Complainant stated that she was informed by one of the partners, named, that as she was still on Maternity Leave not to return to the office but to seek alternative employment immediately.

The Complainant spoke with the second partner on 15^th September 2015 to inform him that she had succeeded in getting a part-time position with another named firm of Solicitors. A significant number of employees, who were also Solicitors with the Respondent, left the Respondent to set up a new firm. The Complainant informed the Partners that she would be taking up the new offer of employment in a Part-Time Position and was to be paid €27,000 per annum.

The Complainant sent an email to the Partners on 17^th September 2015 recapping the sequence of events from 9^th September 2015 – copy provided. The contents of this email were not disputed by either of the two Partners.

The Complainant commenced employment with a named firm of Solicitors on 25^th September 2015. The Respondent ceased as a Company on 30^th November 2015 and the Complainant was informed by email dated 29^th October 2015 that she would not be receiving her statutory redundancy payment as she had resigned during the consultation process.

The Complainant argued that the Consultation Process was clearly stated as being for the purpose only of determining redundancy payment. The formalities of the consultation period were not adhered to and the process was flawed. The Complainant stated that as she was on Maternity Leave and thus entitled to return to work, the Complainant should not have been informed by the Respondents to seek alternative employment.

Summary of Respondent’s Position.

The Complainant commenced employment around 31^st May 2010 in a position as Solicitor. The Complainant was on Maternity Leave but was reaching the end of that leave when the events that led to the closing of the firm on 30^th November 2015 commenced.

On 9^th September 2015 the Respondent began a statutory consultation process with the employees pursuant to the Protection of Employment Act, 1977. All employees, including the Complainant, attended the meeting at which they were informed that the Firm was going through a statutory consultation period during which they would try to save jobs but that it was likely that the Firm would begin the process of closing on termination of the consultation process. A copy of the NERA leaflet was issued to all employees.

During a conversation with the Complainant by phone on 15^th September 2015 she was requested to return to work early from her Maternity Leave as a number of employees had left the employment and they were short-staffed. The Complainant informed one of the Partners of the Firm that in fact she secured alternative employment. The Complainant and a named Partner spoke again on 16^th September 2015 and she confirmed her resignation from the Respondent.

The Employees were notified on 9^th October 2015 to the effect that redundancy notice would issue after the period of consultation ended on 10^th October 2015.

The Respondent reference a number of Sections of the Redundancy Payments Act, 1967 and the Protection of Employment Act, 1977 to support their argument that a redundancy notice had not been issued and that a consultation process was in place during which the Complainant tendered her resignation.

Findings.

Section 9 of the Protection of Employment Act, 1977 as amended by the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act, 2007 provides as follows: (1) where an employer proposes to create collective redundancies he shall, with a view to reaching an agreement, initiate consultation with employee’s representatives. (2) Consultation under this section shall include the following matters – (a) the possibility of avoiding the proposed redundancies, reducing the number of employees affected by them or mitigating their consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining employees made redundant. (b) the basis on which it will be decided which particular employees will be made redundant. (3) Consultation under this section shall be initiated at the earliest opportunity and in any event at least 30 days before the first notice of dismissal is given.”

Section 10 of the same Act goes on to show that there is an obligation on the Employer to supply certain information to the employee’s representatives as provided under Section 9 quoted above. The information to be supplied to the employees representatives is as follows: (2) (a) the reason for the proposed redundancies (b)the number and description of categories, of employees whom it is proposed to make redundant (c) the number of employees, and description of categories, normally employed (cc) the number, if any, of agency workers………….(d) the period during which it is proposed to effect the proposed redundancies(e) the criteria proposed for the selection of workers to be made redundant and (f) the method of calculating any redundancy payments other than those methods set out in the Redundancy Payments Acts, 1967 to 2014…………”

The evidence from both Parties to this complaint confirms that all the employees, including the Complainant, who was on Maternity Leave, were invited to a meeting on 9^th September 2015 at which they were informed that the Firm was commencing a statutory consultation period with a view, according to the Respondent, most likely to winding down the Firm.

There was no evidence presented to me at the Hearing that the Respondent complied with Section 10 of the Protection of Employment Act, 1977 – 2014 in relation to this consultation as set out at Section 9

The evidence from the Complainant presented at the Hearing was that on 9^th September 2015 when she attended the meeting, despite being on Maternity Leave, that she was informed by one of the two Partners of the Firm that she would not be returning to the Firm after Maternity Leave and that she would be advised to seek alternative employment. This evidence was not disputed by the Respondents at the Hearing.

The Complainant sent a detailed email to the Respondents dated 17^th September 2015 setting out the sequence of events from 7^th September 2015. This was not disputed by any email from the Respondents or by the Respondents at the Hearing.

Both Parties also confirmed at the Hearing that the Complainant was asked to return to work early by the Respondent on 15^th September 2015, from her Maternity Leave as there were a number of employees who had left the employment after the meeting of 9^th September 2015. This is of course not in accordance with the Maternity Protection Act 1994 – 2004 which provides that while a woman is on Maternity Leave this is protected leave as defined in that Act.

I note that there was no communication from the Respondents to the Complainant after the meeting of 9^th September 2015 while the Complainant was still on Maternity Leave.

All the evidence leads me to only one conclusion – the Complainant was present at a meeting on 9^th September 2015 at which she, along with the other employees, were informed that the Firm was commencing a 30 day consultation period with the likely outcome the winding down of the Firm. The evidence, not disputed, was that the Complainant was informed she would not be returning to the employment after her Maternity Leave expired and that she should immediately seek alternative employment.

Decision.

Section 41(4) of the Workplace Relations Act, 2015 requires that I make a decision in relation to the complaint in accordance with the redress provisions under Schedule 6 of that Act and Section 39 of the Redundancy Payments Act, 1967 requires I make a decision in relation to the complaint.

I declare the complaint is well founded. The Complainant is entitled to be paid her statutory redundancy payment in accordance with the Redundancy Payments Act, 1967. This payment to be paid to the Complainant within 42 days of the date of this Decision.

Date:     24^th May 2016