ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000105

Complaint for Resolution:

Date of Adjudication Hearing: 27/01/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The respondent took over the complainant’s then employer in or around 15th April 2014. The applicant had worked for that former company since 2000. There had been redundancy situations in the intervening period and she submitted that it was the custom and practice to pay enhanced redundancy payments.

The respondent did not pay her an enhanced redundancy and has since argued that this only happens in voluntary redundancy situations. She submits that this was not the case and believed that the custom and practice ordinarily formed a contractual term that would have transferred under the Transfer Regulations.

She submitted that the failure to issue a Certificate of Redundancy meant that the employers obligations under the Redundancy Payments Act had not been met and that the payment made to her could only be regarded as an ex gratia payment with her entitlement to the statutory payment remaining unmet

Between 30th April 2014 and July 2015, there was intended to be training on a new system operated by the Respondent. She says she was denied access to training giving rise to a case under the Employment Equality Act by reference to a comparable younger male colleague who was. The case under the civil status and family grounds was withdrawn at the hearing.

Regarding the case under the Industrial Relations Act she submitted that these related to bullying and harassment which had never been properly investigated by the respondent.

Respondent’s Submission and Presentation:

The company provides outsourced software services and on acquiring the complainant’s former company moved to rationalise and centralise some administrative services, including some payroll activity carried out by her.

This took place over a period but when fully effected meant that her position became redundant, although the company says it retained the complainant in employment even after this happened.

The respondent says that the claim under the Equality Act is not within the prescribed time limits. While the complainant states that the last date of discrimination was July 2015 no details of an act of discrimination occurring on that date have been provided. It also says that the only possible act of discrimination (which it denies) took place on November 12^th 2014 and as the complaint was submitted only on October 7^th 2015 it falls outside the time limits.

Findings and Conclusion:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have considered all the relevant oral and written evidence that was laid before me prior to and n the course of the hearing.

Turning to the complaint under the Employment Equality Act first, the complainant has failed to establish a prima facie case of less favourable treatment and the comparator against whom unfavourable treatment is alleged is not an appropriate comparator. Her complaint was that she received inadequate training but the role of the comparator she chose is in fact to deliver training.

It would have been necessary to identify a person in similar circumstances to the complainant who was more favourably treated on one of the discriminatory grounds and she failed to do so.

The training may, in her view have been inadequate but this is a separate matter and does not, of itself, give rise to a claim under the Employment Equality Act

In any event I find that the last identifiable incident to which the claim relates falls outside the time limits and accordingly I find there is no case to answer under the Employment Equality Act.

Regarding the issues arising under the Industrial Relations Act some confusion surrounded these. It appeared initially that the claim here was for an enhanced redundancy payment, but this changed in the course of the hearing.

The respondent says that no formal grievance was raised by the complainant and therefore it could not trigger the necessary response. It is easy to see from the evidence that the situation following the takeover was stressful and uncertain for the complainant, and there may well have been room for improvement in the communications within the company.

However there was no evidence laid before me, nor any basis to make a finding in relation to this complaint under the Industrial Relations Act.

Regarding the claim made under the Redundancy Payments Act, the complainant submitted, as noted above, that failure to provide a redundancy certificate effectively voided such payment as the respondent believed it was making under the act and turned it into an ex gratia payment, leaving compliance with the Act outstanding.

The parties were invited to make written submissions on this point after the hearing and did so.

The complainant repeated the view that there was a strict obligation on the employer. It relied o the the decision of the High Court in the case of Minister for Labour v O'Connor, High Court, March 6, 1973 (reported at (1985) 4 J.I.S.L.L. 72) and citing the fact that it was approved in the subsequent case of Talbot Ireland Limited v the Minister for Labour and others).

The respondent replied to this as follows;

In [Minister of Labour] the employee was dismissed by reason of redundancy and his statutory entitlement was £132. The employee was paid £500 by way of compensation and a dispute arose as to whether this included his statutory lump sum. The employee had not been given the prescribed certificate.

In relation to this case, it is respectfully submitted that the Claimant is in fact misinterpreting the decision as the argument posed in the O’Connor case is entirely different to what she is now maintaining. In the O’Connor case, Kenny J stated:

“The question referred by the Minister to this Court is whether under s18 of the Act of 1967 when an employer has failed to issue a redundancy certificate when dismissing an employee by reason of redundancy (but subsequently issues a such a certificate) compensation paid to an employee on dismissal for redundancy can be regarded by the employer as including the statutory payment.”

It is therefore incorrect to state that this case supports the position that a failure to issue an

employee with a Certificate of Redundancy renders the amount paid an ex gratia payment. The question posed in O’Connor was whether or not his statutory redundancy was included in this payment; not whether the payment should be rendered as an ex gratia payment in its entirety in the absence of the Certificate.

At the very last paragraph of his judgment, Kenny J answers this question by stating:

“A redundancy certificate was never issued to the employee. When an employer has failed to

issue a redundancy certificate to an employee when dismissing him by reason of redundancy,

compensation paid to the employee on dismissal for redundancy can be treated as payment by the employer of the statutory lump sum only where the employer proves to the satisfaction of the Tribunal (i) that the employee at the time of payment know the amount of the statutory lump sum to which he was entitled at the date of the dismissal, and (ii) that the employee agreed to accept the sum paid in discharge of his claim for the statutory sum”.

It is respectfully submitted that (i) the Claimant knew, at the time of payment, the amount of the

statutory lump sum to which she was entitled, and (ii) she agreed to accept the sum paid in

discharge of her claim for the statutory sum as evidence by the correspondence exchanged

between the parties.

I also note that the maximum fine under section 18(4) of the Redundancy Payments Act for non- compliance with the obligation ot supply an RP50 is a fine not exceeding €5,000. The respondent submitted that it could find no case of a conviction under this section.

It seemed clear from her own evidence that the complainant herself did not view the payment as an ex gratia instalment, as it were, on the way to a fuller payment following which would represent the statutory payment.

The respondent also exhibited correspondence dated 10 August 2015 from the Respondent to the Complainant confirming (in response to an inquiry form the complainant) that the approximate amount of her statutory redundancy would be €19,068 and would be subject to final calculation by Payroll. (Emphasis added).

On 7 September 2015, the Respondent again informed the Claimant that “You will be entitled to receive a statutory redundancy payment of 19,068.00 euro based on your age and length of service, and this will be paid to you in your final salary payment. This sum is not subject to normal payroll deductions”.

Also on that same date (7 September 2015) the Respondent offered the Claimant the sum of €30,000 in return for signing a settlement agreement. This letter states that “The payment includes statutory redundancy….”

In her response to this letter, the Complainant responds to the Respondent e-mail on 8 September 2015 stating “Thank you for your email letter of the 7th of September outlining my statutory redundancy and leave payments. I will be accepting same”. [emphasis again added]

I find that the complainant fully understood that the sum of €19,068 was in full and final settlement of her redundancy and that the failure to provide an RP50 does not render it on the basis of the authority quoted or equity a discretionary payment.

Decision:

Accordingly I dismiss all three claims under the Industrial Relations Act, the Redundancy Payments Act and the Employment Equality Act

Dated:   25^th October 2016