Complainant

Respondent

Anonymised Parties

A Childcare Worker

A Development Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00008600-001

29/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008600-002

29/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00008600-003

29/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00008600-004

29/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008600-005

29/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008600-006

29/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008600-007

29/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00008600-008

29/11/2016

The complainant was employed by the respondent as a childcare worker (playschool assistant) from 26th of May 2014 until the 27th of June 2016. She was paid €9.15 per hour and worked 20 hours per week. The parties made written and oral submission to the hearing.

By way of background the complainant submits that she experienced no difficulty at work from the commencement of her employment on the 2nd of June 2014 until October 2015 at which point a small group of parents began making unfounded allegations against the Playschool Manager. This resulted in her long-term absence on ill health grounds. She was then asked to assume that role while the manager was out sick. The position of Acting Manager was formally offered on the basis that an additional 10 hours per week would be allocated to the complainant to cover the admin and clerical tasks associated with the role. The abuse the manager was receiving was then directed towards her. The internecine conflict took its toll on the Management Committee and it handed over control to the respondent herein on the 8th of January 2016. The complainant and her colleague were requested to continue as normal and informed that the new owners would speak to the staff in due course. The new chairman approached her on the day and asked if she would apply for the position of acting playschool manager. She explained that she was acting in that role and he said that she should no longer act in that position but that she could apply for it. She continued to suffer abuse at the hands of some parents and complained regularly to the Director. These self-same individuals were now members of the new parent committee. Formal complaint was lodged in March 2016 and the complainant’s colleague was installed as acting playschool manager. The complainant was not notified that her application was unsuccessful and the bullying continued thereafter. On the 4th of May she received a letter informing her that a new temporary manager had been employed. On the 10th of June she was informed by the director that she would not be allowed return to work in August following her 4-week summer holiday, which would not be paid that year. Furthermore, she would be employed on a temporary contract from September to cover her colleague’s maternity leave and would be out of a job if her colleague was to return to work thereafter. The director suggested that she could sign on the dole for the weeks she would not be paid or working. On the 27th of June two representatives of the respondent took her into the back kitchen and informed her that they were paying her holidays from the time they took over the operation (January 2016). They handed her an envelope containing the cheque and a pro forma P45. They said that she was welcome to apply for the maternity leave temporary contract but would have to do so by the 6th of July. They said that it was their intention to reply to the solicitor’s letter she had sent on the 21st of June.

CA-00008600-001: The complainant withdraws her complaint under this heading as she does not believe a genuine redundancy existed.

CA-00008600-002: The complainant submits that she was dismissed summarily on the 27th of June 2016 without notice, justification or procedural fairness. The respondent failed to support and protect her in respect of her complaint of bullying.

CA-00008600-003: The complainant submits that the respondent unilaterally changed her terms and conditions of employment pursuant to a TUPE as follows: - failure to honour contractual arrangement in respect of holiday entitlement and return to work in August (recognise her permanent/part-time contract), removal of her acting role and refusal to comply with lieu time agreement.

CA-00008600-004: The complainant submits that the respondent has “failed, refused or neglected to comply with the terms” of the contract of employment. It has also failed to notify her of changes to her terms and conditions. She was demoted from her acting position and the unilateral proposal to change the holiday and return to work in advance of the school year opening together with the proposed change to her employment status prior to the dismissal amounted to fundamental change of terms and conditions.

CA-00008600-005: The complainant submits that the respondent failed to keep record of her holidays and public holidays in accordance with the provision set out in the Act. The complainant asserts that she was paid for her statutory entitlement to annual leave in 2014 and 2015 – “in the years 2014 and 2015 she was paid for the month of July and worked in August as per the copy payslips furnished. 4 weeks of July would be annual leave and accrued “in lieu” time” covered additional leave during the year.

CA-00008600-006: The complainant submits that the TOIL hours which she worked should be included in the calculation of her statutory annual leave entitlement.

CA-00008600-007: The complainant submits that her contract provides for payment of overtime at double time. The payment applied on completion of the weekly 20-hour contractual provision. She worked 16.5 hours overtime at double time in the period January to June 2016 for which she was not paid. Furthermore, she asserts that she was not paid for her back week nor was she paid in respect of accrued TOIL on cessation. The outstanding hours are 100 for acting as playschool manager for a 10-week period and 260 hours 5 hours per week for 52 weeks confirmed in writing from June 9th of 2015 totalling 260 hours. She took 72 hours of leave in the period from October 2015 until January 2016 from this amount leaving a balance of 288 hours the gross value of which is €2635.20.

CA-00008600-008: The complainant did not receive her entitlement to statutory notice on termination in the amount of 2 weeks of pay nor did she receive her contractual notice in the amount of 4 week of pay.

By way of background the respondent is a voluntary non-profit community organisation with limited funding and resources. The former employer left the business in a poor financial state following a period of internecine conflict between the former management committee and parents. “The service was about to close and was heavily in debt, owing rent, PRSI etc.” The respondent was requested by all interested parties to take over the business and it did so with effect from 24th of January 2016. An inspection carried out in December 2015 found that the complainant was employed without the necessary security clearance. Her appointment to the role of Leader/Manager “was untenable”. Her colleague was appointed to the role in a temporary capacity until a permanent appointment (an outside party) was made. Enrolment figures didn’t justify three staff and therefore the respondent was obliged to let the complainant go (she was the last member of staff to be employed). An offer of a fixed term contract to cover her colleague’s maternity leave was made but declined. It is not credible that staff worked during the summer holidays preparing for the return of pre-schoolers in late August. The parish hall which accommodates the play school (9am to 1pm) is not available outside normal national school times and is not suitably insured. It is usual practice for play school staff to cease employment at the end of June. The complainant’s assertion that she is owed hours in relation to the Church Gate Collection in 2015 is spurious insofar as she was both a staff member and parent. She never made a claim for payment nor was the respondent made aware of any such claim in respect of these and other hours until it received the notice of complaint from the WRC.

CA-00008600-001: The respondent submits that despite the withdrawal of this complaint the complainant’s position was made redundant arising from insufficient numbers of children registered. She was offered an opportunity to cover for maternity leave which she refused.

CA-00008600-002: The respondent submits that no unfair dismissal arose as the position was made redundant due to insufficient numbers enrolling. An offer of suitable alternative employment (a fixed term contract) to cover a maternity leave was declined.

CA-00008600-003: The respondent submits that it undertook the engagements of the former employer at January 24th of 2016 and honoured all terms and conditions of employment at that time. The herein complaint has arisen outside of the time limits prescribed.

CA-00008600-004: The terms and conditions of the complainant’s employment were not changed when the respondent took over the engagements of the former employer.

CA-00008600-005: The respondent submits that the complainant was paid for outstanding annual leave in June 2016. Staff was laid off at the end of the school year in June.

CA-00008600-006: The respondent submits that it was not aware of the alleged arrangements the complainant had with the former employer and no records or documentation were made available.

CA-00008600-007: The respondent submits that the complaint is out of time and refers to the WRC letter (3rd of March 2017) to justify its position.

CA-00008600-008: The respondent submits that the complaint is out of time and refers to the WRC letter (3rd of March 2017) to justify its position.

In general terms I accept that the complainant has worked the “In Lieu” hours as articulated in her complaint. Hers was a permanent contract for part-time work paid on a weekly basis. No Exceptions are made in the contract. I accept that she was paid a week in arrears. The holiday year is stated to be from September to August although this is at variance with the legal requirement set out in the Organisation of Working Time Act, 1997 which prescribes that statutory leave accrues in the period from April to March in any year. The cognisable period of complaint in this case is from the 30th of May 2016 until the 29th of November 2016.

CA-00008600-001: The complaint has been withdrawn.

CA-00008600-002: The respondent justifies the herein dismissal on grounds of redundancy which is a legitimate justification under the Act. Any such justification however must be both substantively sound and procedurally fair. No redundancy pay was made in the actual case. The respondent unilaterally repudiated the terms of the contract. I find that the herein dismissal falls well short of the standard required on both substantive and procedural grounds.

CA-00008600-003: The failure of the respondent to recognise the nature and extent of the complainant’s permanent part-time contract of 52 weeks per annum including breaks and the fact that it unilaterally and without due process declared itself unwilling by its actions to be bound by this fundamental term amounts to a breach of Regulation4 (1).

CA-00008600-004: The change in the complainant’s acting position arising as it did in January 2016 should have been notified to her in writing within one month however the complaint should have been made within 6 months of the failure to do so. The change as it relates to the July/August period was notified on the 10th of June 2016 and the employment was terminated a little over two weeks later. Therefore, the legal notification obligation became moot. The employee status argument is similarly irrelevant.

CA-00008600-005: The holiday year is calculated from April to March in any year in accordance with the provisions of the Act. In this case the complainant was paid her statutory entitlement for the years 2014 and 2015. Her accrued entitlement for the period from April to the 27th of June was 8% of 12 weeks x 20 hours + 2 days x 4 hours + 7.5 (overtime in the cognisable period) which equals an entitlement to 20.44 hours or €187 gross. The complainant’s full entitlement was not paid. She stated in her complaint form that she received a cheque for €168.73 on termination of the employment. The payment falls short of the actual amount due under s. 23 of the Act. And I find accordingly.

CA-00008600-006: The complaint is a duplication and therefore misconceived. The statutory holiday entitlement under this enactment is fixed at its maximum.

CA-00008600-007: I note that the contract provides for payment in lieu of notice, accrued holidays and TOIL. The contract provides for additional hours greater than 20 per week to be paid at double time and I note that there were 6 hours of overtime worked in the cognisable period. This amounts to 12 hours of pay in the amount of €109.80 gross. I also note that the respondent provided no details in respect of the final payments made to the complainant. She however did provide a copy of her last payslip for two weeks of pay and acknowledged receipt of an additional cheque in the amount of €168.73 for holidays outstanding from January 2016. The latter has been dealt with earlier. I will take it in the absence of explanation (per wage advice slip) from the respondent that the two weeks paid in the last payslip amounted to payment for that week and payment of her back week. TOIL is of course accrued paid leave as it relates to the termination of a contract and therefore insofar as it has not been paid it is due and owing. The net amount of TOIL claimed is 288 hours which amounts to €2,371.70 gross. The award in this case has been adjusted (- 10%) for tax purposes although the complainant may apply to the revenue commissioners for rebate if appropriate.

CA-00008600-008: The complainant is entitled to two weeks of statutory notice under the Act. Contractual notice is not covered by the Act.       

CA-00008600-001: The complaint has been withdrawn. I find that the complaint is not well founded.

CA-00008600-002: The complaint is well founded. The appropriate redress in the circumstances described having regard to the fact that the complainant has been able to ameliorate her loss is compensation in the amount of €1,464 (say one thousand eight hundred and sixty-four euro).

CA-00008600-003: The complaint is well founded and I hereby require that the respondent pay the complainant €1,500 (say one thousand five hundred euro) for breach of the Regulation 4 (1).

CA-00008600-004: The complaint is not well founded.

CA-00008600-005: The complaint is well founded and I hereby require that the respondent pay the complainant €250(say two hundred and fifty euro net inclusive of the gross shortfall in actual entitlement) for breach of s. 23 of the Act.

CA-00008600-006: The complaint is not well founded.

CA-00008600-007: The complaint is well founded and I hereby require that the respondent pay the complainant €2,233.35 (say two thousand three hundred and thirty-three euro and 35 cent) net in compensation for breach of the Act.

CA-00008600-008: The complaint is well founded and I hereby require that the respondent pay the complainant her entitlement to statutory minimum notice in the amount of €366 (say three hundred and sixty, six euro).