ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006791

Parties:

Complaint(s):

Date of Adjudication Hearing: 22/06/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 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.

The Respondent did not make a submission to the Complaint, nor did the Respondent attend the hearing. I am satisfied that sufficient written notification was provided to the Respondent regarding the complaint and the date of the hearing.

Background:

The Complaint was employed as an Assistant Principal at a private Montessori primary school that was employed from 1^st September 2004 to 8^th November 2016.

The Complainant rate of pay was €30,000 gross per annum.

The Complainant refers to a failure of the respondent to pay redundancy payments.

Summary of Complainant’s Case:

The Complainant was employed as a teacher and Assistant Principal with the Respondent from September 2004.

In May 2016 she took maternity leave, and on 8^th November 2016 she notified the Respondent with a month’s notice of her intention to return to work on.

The Complainant submitted that on 26^th November 2016 the Respondent advised her by email that the school had closed at the end of the academic year in June 2016 and it did not reopen in September 2016. In this correspondence the Respondent maintained that the school had been subject to a TUPE and that the Complainant should take her own legal advice.

The Complainant also advised that a colleague who had worked with the Respondent had been advised by the Respondent that liquidators had been appointed, however when the Complainant sought the contact details of the liquidators from the Respondent he did not provide this information.

The Complainant in her evidence advised that the Respondent had in fact left the premises as he had been locked out due to bad debts; that he had set up another school in a different premises with students from a list that she had been preparing before her maternity leave; and that the school which was now running in the original premises had been formed by some of the former teachers who had received their P45’s from the Respondent earlier that year. The Complainant therefore maintained there had not in fact been a TUPE.

She again wrote to the Respondent seeking her P45 which she received on 5^th December 2016, and where the Respondent again advised the Complainant that the business had been subject to a TUPE and the Complainant should pursue issuance she had with the new school. To date the Complainant has received no redundancy payment.

Summary of Respondent’s Case:

The Respondent did not attend the hearing, nor did the Respondent make any submission to the hearing.

Findings and Conclusions:

Based on the written submission and the evidence provided at the hearing I am satisfied that during the course of the Complaint’s maternity leave the Respondent closed the school he operated in one premises, and reopened another school in a different premises. The school that now operates in the original premises appears to be an entirely different entity, and as no consultations took place with the Complaint as is required under the TUPE regulations, it is clear the school was not subject to a TUPE as contended by the Respondent in its correspondence to the Complaint. In addition, as the P45 was issued on 5^th December by the Respondent it is clear that no transfer had taken place prior to that date.

In accordance with S7(1) if the Redundancy Payments Act 1967, an employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment.

S7(2)(a) of the Act states an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concernedthe dismissal is attributable wholly or mainly to— the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed.

I therefore find that the Complainant’s job was in fact made redundant, and based on the date of the notification she received from the Respondent that the effective date of her redundancy was 26^th November 2016.

I further find that the Respondent did not provide notice to the Complainant of the Redundancy and as she had been employed by the Respondent from September 2004 to December 2016, she was entitled to a minimum of six weeks notice.

Decision:

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.

I have found the Complainant was made redundant.

The complainants start date was 1^st September 2004 and she was made redundant on 26^th November 2016, this being the date of the termination of her employment. She has 12.25 years’ service with the Respondent.

The Complainant rate of pay was €30,000 gross per annum.

I hereby decide the Respondent is obliged to pay the Complainant entitlement of 25.5 weeks’ pay, plus payment in lieu of her notice of six week pay at the rate of €1,229.95 gross per week.

Any award under the Redundancy Payments Act is subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts."

This decision is based on uncontested evidence as the Respondent did not attend the hearing or make a submission to the Adjudication.

Dated:   8^th November 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: