Complainant

Respondent

Anonymised Parties

A Teacher

A Montessori School

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014994-001

13/10/2017

In or about September 2006, the Complainant commenced employment as a Montessori teacher with the Respondent (hereinafter referred to as “G”).

In or about April 2015, unhappy differences arose in the workplace, as a result of which the Complainant went on certified, workplace stress-related sick leave on or about 28th April 2015.

The Complainant remained absent from the workplace on stress-related sick leave with little or no communication from her employer until in or about August 2016.

On or about 29th August 2016, the Complainant contacted her manager, who effectively owned and operated ‘G’ seeking details in relation to the commencement of the school year September 2016–June 2017 and enquiring about a Form P60 and certain personal information she had previously requested.

By email dated 29th of August 2016 her manager responded indicating, inter alia, that:

i.              “G” would not be reopening in September;

ii.             A decision had been taken that the school was to enter into a liquidation process;

iii.           That issues of redundancy and any statutory entitlements would be dealt with by an    insolvency practitioner who would be appointed in due course;

iv.           Certain parties, some of whom were formerly connected to “G” had registered a new company with the Companies Registration Office, being “W” on 27th July 2016.

v.            Although this company was a new entity, it was her manager’s understanding that the Complainant’s former position at ‘G’, to include her terms and conditions of employment, would “carry over” in a scenario described as a “transfer of undertakings” under EU Law.

On or about 23rd of April 2017, the Complainant herein submitted a complaint to the Workplace Relations Commission pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 and the Payment of Wages Act, 1991. The Respondents in the said proceedings were ‘G’ and ‘W’.   

At all material times between receipt of her manager’s email dated 29th of August 2016 and the Complainant’s said complaint coming on for hearing before the WRC on 2nd October 2017, the Complainant proceeded in reliance on contents of her managers aforementioned email and, in particular, on the basis that a Transfer of Undertaking within the meaning of the Regulations had occurred as between ‘G’ and ‘W’.

At the WRC hearing on 2nd October 2017, there was no appearance on behalf of ‘G’. Two representatives from the Board of Management of ‘W’ were present.

Over the course of the said hearing, it became apparent that the reality of the situation was that no Transfer of Undertaking as between ‘G’ and ‘W’ occurred over the summer of 2016, as represented to the Complainant by her manager in his email dated 29th of August 2016.

The two board members gave evidence that her manager who effectively owned and operated ‘G’ , ran the company into the ground and the business was wound down in a disorderly way in mid-to-late 2016.

Thereafter, certain parents and grandparents of children who formerly attended ‘G’ approached one of the board members with a view to setting up a new Montessori school in the premises, and a new entity – ‘W’ – was incorporated for that purpose on 27th July 2016.

The two board members were quite adamant that there was absolutely no connection between ‘G’ and ‘W’, and in particular that no transfer of undertaking had ever occurred between those two entities within the meaning of the Regulations. There was no communication between ‘G’ and ‘W; prior to, during, or after the summer of 2016, and far from there being an orderly transfer of the undertaking, it was clear that Weston only came into existence to fill the vacuum left by ‘G’.

It also transpires that, subsequently that the complainant’s former manager set up a new business – ‘C’– which operated a Montessori school close to the former ‘G’ premises from September, 2016.

The board members gave evidence that her former manager stripped the equipment out of the former ‘G’ premises into ‘C’ and used it to set up the ‘C’ business in new premises, and told the parents of children who formerly attended ‘G’ that he would honour deposits they had paid if they enrolled their children in ‘C’.

The Complainant was never issued with a Form P45 or a formal Notice of Termination of her employment with ‘A’, and she therefore remained an employee of the Respondent right up until 2nd October 2017, on which date she considered herself to be dismissed in light of factual matrix which emerged at the aforementioned WRC hearing;

It is respectfully submitted on behalf of the Complainant that, in law, in order for a Notice of Termination of employment to be valid, it must:

i.              be clear and unambiguous as to its meaning and effect; and

ii.             must clearly state the date of termination.

In her manager’s email to the Complainant dated 29th of August 2016 does not specify a termination date and it is anything but clear and unambiguous as to its effect. Moreover, the Complainant was never given a P45, nor did she receive a redundancy payment.

In the foregoing circumstances, it is respectfully submitted that the Complainant remained an employee of the Respondent right up until 2nd October 2017, when the factual matrix which emerged at the aforementioned WRC hearing gave her grounds to consider herself dismissed.

It follows from the foregoing that an extension of time is required to pursue the within complaint, which was submitted well within six months of the date of dismissal, being 2nd October 2017.

The foregoing analysis admits of one further possibility, which is that the Complainant was dismissed on some date after 26th August 2016 by reason of not being permitted to return to employment with ‘G’, but prior to 2nd October 2017, when the actual factual matrix became apparent;

However, it is respectfully submitted that this approach would require the WRC to engage in a bizarre from of post hoc inductive reasoning, without any adequate frame of reference, with a view to ascertaining when the Complainant “ought reasonably” to have considered herself dismissed.

In the present case, that state of affairs did not come about until 2nd October 2017.

No Appearance.

Preliminary Application:

I find that the complainant herein, from an analysis of the unusual facts, was dismissed on some date after 26th August 2016 by reason of not being permitted to return to employment with ‘G’, but prior to 2nd October 2017, being the date that the true factual situation was made known to her. She filed the within claim on the 13th October.2017 which was immediately after the originally hearing in October 2017. That claim, ADJ 9379, filed on 23rd of April 2017 was pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 and the Payment of Wages Act, 1991. The Respondents in the said proceedings were ‘G’ and ‘W’. This claim was heard by me on 2nd October, 2017. A finding was made as follows:

“I am satisfied based on the facts that have been presented to me by both the complainant and the respondent, as is set out above, that no transfer of undertakings took place between ‘G’ and ‘W’. I am satisfied that Mr. X entered ‘G’ into liquidation having run it into the ground and started up again a few miles down the road. I am further satisfied that the incorporation of ‘W’ was done so with no connection whatsoever to ‘G’ and in circumstances where the community needed the entity and one of the children’s grandparents was in a position to fulfil that need”

On that basis, I find that the complaint fails.

It wasn’t until the hearing in October, 2017 that the complainant was made aware of the correct factual situation. Following that hearing and before the decision issue she filed the within claim on the 13th October, 2017. In circumstances where the complainant was never told by her employer that he was terminating her employer and where he led her to believe that her employment was transferring to the new entity and were the factual situation was not apparent until the hearing in October, 2017 the complainant is entitled to deem her date of dismissal the 2nd October, 2017. Therefore, I find that I do have jurisdiction to hear the matter.

I find that the respondent attempted to trick the complainant into thinking that her employment was being transferred to the new entity when he was fully aware that no transfer of undertakings situation existed. I find that he did so in an attempt to avoid his legal obligations under the employment Acts. In all of the circumstances of this case I find that the respondent terminated the complainant’s employment in the most deceitful way and without applying any procedures whatsoever.

I am satisfied that the complainant has made attempts to mitigate her loss and in all of the circumstances, I find in favour of the complainant and award the sum of €15,000.00.