ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009281
Parties:
| Complainant | Respondent |
Anonymised Parties | An Office Assistant | Printing Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00012210-001 | 30/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 |
CA-00012210-002 | 30/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 |
CA-00012210-003 | 30/06/2017 |
Date of Adjudication Hearing: 21/09/2017
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014 and Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 following the referral of the complaints to me by the Director General of the Workplace Relations Commission (hereinafter ‘WRC’) 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.
Both Parties were represented.All oral evidence, written submissions and supporting documentation presented by both Parties have been taken into consideration in relation to this decision.
Background:
The Complainant was employed as an Office Assistant by the Respondent ABC Ltd. between 03/01/2003 and 31/05/2017. She has been previously employed by a Company X between 01/09/1996 and 03/01/2003. There was some confusion as to whether transfer of undertakings took place after Company X had closed down. However, this is not a subject of this complaint. Moreover, the Respondent in their calculations of service included the period from 01/09/1996 until 31/05/2017. The Complainant was paid €530 gross a week before she was made redundant on 31/05/2017. She was paid her statutory redundancy. The Respondent highlighted at the start of the hearing that the Complainant is recognised as an excellent employee. |
CA-00012210-001 Section 7 of the Terms of Employment (Information) Act, 1994
Summary of Complainant’s Case:
The Complainant submits that she has never received written terms of employment. She requested the statement verbally at the end of March 2017 and by email on 9th May 2017. She claims that to date she has not received it. |
Summary of Respondent’s Case:
The Respondent submits that all employees of ABC Ltd. including the Complainant were furnished with Terms of Employment in 2003. However, the Respondent was not able to present a signed copy. In support the Respondent produced an email dated 13th July 2017 from Mr D, the Director of ABC Ltd. stating that when ABC Ltd. was formed all staff were issued and signed terms of employment. The Respondent produced a template of the statement. |
Findings and Conclusions:
Section 3(1) of the Terms of Employment (Information )Act, 1994 stipulates that “An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment…” Section (4) instructs that “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.” Section (5) further requires that “A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.” I find that the Respondent was not in a position to present a copy of the statement. Therefore, on balance of probabilities I find that the Complainant was not provided with a written statement of Terms and Conditions of Employment as per Section 3 of the Act. |
CA-00012210-002Section 39 of the Redundancy Payments Act, 1967
Summary of Complainant’s Case:
The Complainant asserts that two companies ABC Ltd and AB Ltd were linked and formed a company AB Group Limited. In support, the Complainant’s solicitor presented a document dated in 2009 referring to AB Group Ltd. and listing the Complainant as part of Internal Sales Support Team. She claims that, although she was employed by ABC Ltd. she would have performed work for a named Company, the biggest client of AB Ltd. and would be the primary worker on that contract. She felt that she was part of AB Group Ltd. The Complainant has learned that employees of AB Ltd. were paid enhanced redundancy calculated at 3.5 weeks per year of service. She received her statutory redundancy. She claims that she has been treated unfairly and that the redundancy figures provided to her fall short of her full entitlement. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant received a sum in excess of her statutory entitlement as the Complainants reckonable service was extended to include her employment with Company X and also the Complainant’s redundancy was calculated on the basis of a weekly salary of €600 not €550. In relation to reference to a sub-office the Respondent’s position is that there is no sub-office and therefore the Complainant’s claim that other employees received preferential treatment is inaccurate. The document presented by the Complainant’s solicitor has never been seen by the Respondent and it’s inaccurate. The Respondent believes that it is a marketing tool created by Mr D who, in the document, presented himself as Director of AB Group Ltd. The Respondent clarifies that Companies AB Ltd., ABC Ltd. and AB Group Ltd. are three separate legal entities. The document presented is dated in 2009. However, AB Group Ltd. was incorporated in 2012 and therefore was not in existence at the time when the document was created. Moreover, Mr D was not a Director of AB Group Ltd. He was Director of ABC Ltd., the Respondent and the Complainant’s employer. In relation to work performed by the Complainant in respect of the AB Ltd. biggest contract the Respondent submits that the contract was secured between AB Ltd and a named Company. As AB Ltd. is dealing mainly with manufacturing there was an agreement put in place whereby ABC Ltd. provided services in terms of sales and in return was paid 5% of monthly turnover for these services. |
Findings and Conclusions:
I am satisfied that the Complainant was dismissed by reason of redundancy and she received her statutory entitlements under the Redundancy Payments Act, 1967. |
CA-00012210-003Regulation 6 of the European Communities (Protection of Employment) Regulations 2000
Summary of Complainant’s Case:
The Complainant claims that the Respondent has failed to provide her with a copy of her terms and conditions of employment, which may have referenced to her redundancy entitlements and would clarify the differential treatment between her and her colleagues in a sub-office. Therefore, she claims that the Respondent did not supply her representative with all the relevant information relating to proposed redundancies. |
Summary of Respondent’s Case:
The Respondent’s asserts that this is not a collective redundancy situation. The European Communities (Protection of Employment) Regulations, 2000 apply only to collective redundancies. There were 5 people employed in ABC Ltd. Two were made redundant four years ago, remaining three were made Redundant at the same time as the Complainant. All received statutory redundancy. |
Findings and Conclusions:
(a) at least 5 in an establishment normally employing more than 20 and less than 50 employees, (b) at least 10 in an establishment normally employing at least 50 but less than 100 employees, (c) at least ten per cent of the number of employees in an establishment normally employing at least 100 but less than 300 employees, and (d) at least 30 in an establishment normally employing 300 or more employees”
Both Parties confirmed that there were three employees employed and made redundant by the Respondent. Therefore, the European Communities (Protection of Employment) Regulations, 2000 and the Protection of Employment Act 1977 do not apply in the case before me. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-00012210-001 Section 7 of the Terms of Employment (Information) Act, 1994
For the reasons outlined above I form the view that the Respondent was in breach of Section 3 of the Terms of Employment (Information), Act 1994 and that the Complainant should have been furnished with the written statement of Terms and Conditions of Employment. Therefore, compensation is warranted. Section 7(2)(d) of the Act states that an employer can be ordered “to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration”. In accordance with Section 41 (5) of the Workplace Relations Act 2015 and Section 7 of the 1994 Act I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €2,120 (4 weeks remuneration) within 42 days of the date of this Decision. |
CA-00012210-002Section 39 of the Redundancy Payments Act, 1967
I am satisfied that the Complainant has received her statutory redundancy as required by the Redundancy Payments Act, 1967. Therefore I find that the complaint is not well founded. |
CA-00012210-003Regulation 6 of the European Communities (Protection of Employment) Regulations 2000
I have concluded my investigation of this complaint. Based on all of the foregoing, I am of the opinion that the complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 is misconceived due to the fact that the Complainant’s redundancy does not fit within the definition of ‘collective redundancy. Therefore I have no jurisdiction to investigate the matter further. |
Dated: 20/11/17
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
redundancy, misconceived claim, terms of employment |