FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : MCKECHNIE CLEANING SERVICES LTD (REPRESENTED BY BARRY O' MEARA & SON SOLICITORS) - AND - SHEILA O' BRIEN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. An appeal of Adjudication Officer Decision no: ADJ-00005902.
BACKGROUND:
2. The Worker appealed the decision of the Adjudication Officer to the Labour Court on the 16 June 2017. The Employer appealed the Decision on 19 June 2017. A Labour Court hearing took place on the 18 October 2017. The following is the Court's Determination:-
DETERMINATION:
This is a joint appeal against the Decision of an Adjudication Officer under the Redundancy Payments Acts 1967- 2014 (the Acts). Ms Sheila O'Brien claimed that she was entitled to a redundancy lump sum payment from McKechnie Cleaning Services Limited as it failed to provide her with work. The Adjudication Officer held that a redundancy situation did not arise in the case and accordingly found that the claim was not well-founded. Ms O'Brien appealed that Decision. McKechnie Cleaning Services Limited appealed the Adjudication Officer's finding that there was no dismissal.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Sheila O'Brien will be referred to as "the Complainant" and McKechnie Cleaning Services Limited will be referred to as "the Respondent".
Background
The Respondent is a provider of cleaning services. The Complainant commenced employment in 1987 with Atkinson Cleaning based at Moog Limited and in January 1990 the business was transferred to Noonan Cleaning under S.I. No. 13112003- European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Regulations”). She contended that she had been transferred under the Regulations from Noonan Cleaning to the Respondent on 27th January 2012. At the time of the transfer the Complainant had been on sick leave since October 2011 and this absence ended in September 2012. The Complainant lodged her complaint under the Acts on 21st September 2016.
Summary of the Complainant's Case
Ms Liz Murray, SIPTU, on behalf of the Complainant, submitted that following the transfer the Complainant furnished the Respondent (as well as Noonan Cleaning) with medical certificates until she was certified as fit to resume work in September 2012. Ms Murray said that following protracted efforts by the Complainant's legal advisors and by her Union representative, making enquires of both the Respondent and Noonan Cleaning as to the Complainant's employment status, the Respondent replied to the Union on 4th November 2014 stating that she was not an employee of theirs and had never worked for them.
In response to the issuing of an RP77 Form to the Respondent by the Complainant in July 2016 claiming a statutory redundancy payment due to its failure to provide her with work, the Respondent wrote to her by letter dated 19thAugust 2016. This letter stated that no redundancy had taken place; she was on long term sick leave from Noonan Services; no sick certificates had been furnished to the Respondent; she had not attempted to contact it with regard to a possible return to work; and enquired if she wished to return to work. Finally, the Respondent requested to meet with the Complainant to discuss the matter in further detail.
The Union submitted that the Respondent had failed to accept its responsibilities under the Regulations and consequently it was responsible for her claimed redundancy.
The Union submitted that the claim was in time and, if not, then it was entitled to an extension of time as the Respondent had contributed to the Complainant's ignorance of her employment status by neither giving her notice of dismissal nor a redundancy certificate.
Summary of the Respondent's Position
Ms Emer O'Callaghan, Solicitor, on behalf of the Respondent, made a preliminary application that the claim was out of time and therefore statute-barred.
She submitted that the Respondent had received no medical certificates from the Complainant nor had it received confirmation of her fitness to return to work in September 2012. She submitted that there had been no contact by or on behalf of the Complainant until the letter dated 18th August 2014 from the Union and its follow-on correspondence by email dated 3rd November 2014. The Respondent responded by email dated 4th November 2014 confirming that the Complainant was not an employee of the Respondent and had never worked for it. Ms O'Callaghan accepted that this constituted a dismissal on that date. Therefore, she contended that the Complainant's dismissal took place over eighteen months before the Complainant submitted her claim under the Acts and that therefore the claim was out of time.
Court Findings
Both the Complainant and Ms Natasha Monahan, HR Manager with the Respondent, were under oath.
At the hearing before the Court a number of points were clarified which it would appear had not arisen prior to the hearing. The first of these relates to the alleged date of dismissal as contended for by the Complainant. Ms Murray contended that the Complainant's date of dismissal was 27th July 2016 being the date the Complainant lodged the RP77 Form claiming a statutory redundancy payment from the Respondent. Therefore, she contended that the claim before the Court was related to the Complainant's service from 1987 until 27th July 2016, the last four years of which were non-reckonable.
Secondly, the Complainant told the Court that when she was deemed fit to return to work in September 2012, she took up alternative employment with another employer, working full-time hours on a higher rate of pay. She has remained in that employment since.
Ms Natasha Monahan, HR Manager, denied receiving any medical certificates from the Complainant at any time and had not received a fitness to return to work certificate in September 2012. She said that she was the person to whom such certificates would be directed. She said that the only communication she received on the Complainant's behalf at any time was a copy of the RP77 Form which prompted the Respondent to write the letter dated 19th August 2016 to the Complainant.
Ms O'Callaghan told the Court that prior to the revelation before the Court, she was not aware of the fact that the Complainant had taken up alternative full-time employment in September 2012. Ms O'Callaghan contended that in such circumstances it was clear that the Complainant had not been available to work with the Respondent since her recovery in September 2012 and on that basis she submitted that, without prejudice to its preliminary point, there was no merit in the Complainant's claim.
Having considered the oral and written submissions made and the evidence given, the Court accepts that by operation of the Regulations the Complainant's employment transferred to the Respondent on 27th January 2012. The Court cannot accept the Union's contention that the Complainant's date of dismissal was 27th July 2016. This finding is based on the Court's view that the Complainant constructively resigned her employment in September 2012 when she opted to take up alternative full-time employment with another employer as soon as she was deemed fit to return to work. The Court cannot accept that the Respondent failed to provide work for the Complainant in circumstances where the Complainant was not available to work either due to illness or as she had taken up alternative employment on a full-time basis elsewhere. Therefore, the Court finds that there was no dismissal and accordingly finds that the claim is not well-founded.
In any event and in addition, the claim was lodged under the Acts over four years after the Court finds that the Complainant’s employment terminated by reason of her constructive resignation over four years earlier in September 2012 and is therefore statute-barred.
Determination
The Adjudication Officer's Decision is set aside, the Respondent's appeal is upheld and the Complainant's appeal is dismissed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
1st November, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.