ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006934

Parties:

Complaint(s):

Date of Adjudication Hearing: 26/06/2017

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 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.

Background:

The Complainant was employed as a Vice Principal and teacher in the Respondent’s Montessori school.

She commenced her employment on 6^th January 2005 and alleged that she was made redundant on 9^th May 2016.

The Complaint related to the alleged non payment of redundancy entitlements, and failure of the Respondent to provide the Complainant with her statutory minimum period of notice.

Summary of Complainant’s Case:

CA-00009374-001: Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967                     

The Complainant maintained that she went on Maternity leave on the 9th May 2016 and received a phone call on 21st July 2016 to say that the school had gone into liquidation and would not be reopening in September 2016. She heard no further information from the Respondent.

On 6^th October 2016, the Complainant advised the Respondent by email that she intended to return from her maternity leave on 19^th November 2016. The Complainant received an email from the Respondent where she was advised that an insolvency practitioner had been assigned and where the Respondent further advised that the insolvency practitioner would be in contact with the Complainant. The Complainant sought information from the Respondent regarding who the liquidator was so she could claim her entitlements. However, the Complainant received no further information or contact.

On 22^nd November 2016, as the Complainant had not heard from the Respondent she sought her P45 and her Redundancy payments from the Respondent. The Respondent advised at that time that the school had been subject to a transfer of undertaking in that it was being operated by a new management and there was no further information or guidance he could provide on the matter.

The Complainant provided email evidence of the above correspondence between herself and the Respondent.

The Complainant maintained that the Respondent was operating another school in different premises.

CA-00009374-002: Complaint seeking adjudication under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant maintained that she was due to return to work on the 19th November 2016 after her maternity leave. On 6^th October 2016, she emailed the Chairman to say she was fit to return to work and he emailed me on the 10th October stating she had no job to return to. The Complainant maintains that she did not receive her statutory minimum notice, or any holiday pay.

CA-00009374-003: Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967                     

This Complaint is referred to in Complaint 001 above.

Summary of Respondent’s Case:

CA-00009374-001/003: Response to Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967The Respondent did not attend the hearing, or make a written response. I am satisfied sufficient notice was provided by the WRC to the Respondent regarding the hearing where correspondence was sent to both the trading address for the school and to the Respondent’s home address.

CA-00009374-002: Response to Complaint seeking adjudication under Section 11 of the Minimum Notice & Terms of Employment Act, 1973The Respondent did not attend the hearing, or make a written response. I am satisfied sufficient notice was provided by the WRC to the Respondent regarding the hearing where correspondence was sent to both the trading address for the school and to the Respondent’s home address.

Findings and Conclusions:

CA-00009374-001: Findings to Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967

The Complaint maintains that she was dismissed by way of redundancy but did not receive any redundancy payments as the Respondent maintained the business had been transferred.

The evidence provided does not support that a transfer of undertaking has taken place, particularly as the Respondent did not adhere to any of his obligations under the TUPE regulations. Based on the telephone call received by the Complainant from the Respondent in July 2016, and further email correspondence between the parties, I am satisfied the Respondent advised the Complainant that the business was going into liquidation, and where this information was provided by email on 6^th October 2016.

In accordance with S7(1) if the Act, 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 was made redundant on 6^th October 2016, and where no transfer of undertakings took place.

CA-00009374-002: Findings to Complaint seeking adjudication under Section 11 of the Minimum Notice & Terms of Employment Act, 1973The Complaint was informed by email on 6^th October 2016 that her contract of employment was being terminated and the company was going into liquidation. She was not provided with any notice period regarding her termination.

Section 4 of the Minimum Notice & Terms of Employment Act, 1973 requires that an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provision set put in S4(2)(d)- if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks.

I therefore find that the Complainant did not receive her statutory notice period and accordingly find that the Respondent is in contravention of Section 4 of the Act.

Although the Complainant did not receive her holiday entitlements she has not made this complaint properly or under the correct legislation.

Decision:

CA-00009374-001/003: Decision to Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967                             

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 on 6^th October 2016.

The Complainant’s start date was on 6^th January 2005. She had 11.76 years’ service at the time of her redundancy, where her gross pay was €26,400 per annum.

As I have found the Complainant was made redundant, and where she has 11.76 years’ service, I hereby decide the Complainant is entitled to 24.52 weeks’ pay.

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.

CA-00009374-002: Decision to Complaint seeking adjudication under Section 11 of the Minimum Notice & Terms of Employment Act, 1973                  

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

Section 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act.

As I have found the Respondent is in Contravention of the Act I direct that the Respondent pay to the employee compensation of six weeks’ pay, which represents her statutory notice.

Dated:   8^th November 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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