ADJUICATION OFFICER CORRECTION ORDER
This Correction Order is issued pursuant to powers at section 39 of the Organisation of Working Time Act 1997 and should be read in conjunction with Adjudication Officer Decision in the matter dated August 13th 2018. For convenience, the specific corrections of the original decision are set out in the table at the end of this document on page 18 and 19.
Adjudication Reference: ADJ-00012277
Parties:
| Complainant | Respondent |
Anonymised Parties | A receptionist | A medical clinic |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016267-001 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016267-002 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-003 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00016267-004 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016267-005 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016267-006 | 08/12/2017 |
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-00016267-007 | 08/12/2017 |
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-00016267-009 | 08/12/2017 |
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-00016267-011 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-013 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-014 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001 | CA-00016267-015 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-016 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-017 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00016267-018 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00016267-019 | 08/12/2017 |
Date of Adjudication Hearing: 18/06/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015, these complaints were assigned to me by the Director General. I conducted a hearing on June 18th 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaints.
The complainant attended the hearing without representation and was not accompanied. She had the support of a Polish interpreter. The respondent did not attend and did not send a representative.
Background:
The respondent is a subsidiary of a Polish company that operated a medical clinic in Ireland. On September 1st 2015, the complainant started work there as a receptionist. She worked around 20 hours per week and sometimes more, when she was required to provide cover for the other receptionist’s holidays and if the practice opened at weekends. She went on maternity leave on October 1st 2016. On March 2nd 2017, while she was on maternity leave, she was informed that the clinic would cease operations that month, resulting in staff redundancies. In August 2017, she phoned the office where she worked before her maternity leave and discovered that a clinic was operating under a different name in the premises where she worked and that many of the staff of the former clinic were working there. She assumes therefore that the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 apply to her and that she should have been transferred to the new undertaking. However, on October 4th 2017, at the end of her additional maternity leave, she was made redundant, paid a statutory lump sum and issued with a P45. The complainant submitted 16 complaints under various pieces of protective legislation. These complaints, under this ADJ-00012277, are against the transferor. Three separate complaints, have been submitted against the transferee, and these are addressed under ADJ-00014240. The complainant said that she was assisted in the preparation of her complaint form by the Citizens Information Centre, although the person assisting her was unable to attend the hearing at the WRC. Her main complaint is that, at the end of her maternity leave, she was made redundant and she did not transfer to the new business. Before the hearing on June 17th 2018, I checked the status of the company that the complainant worked for until the date of her redundancy. This company is registered with the Companies Registration Office (CRO), it does not appear to be closed down or insolvent and filings are up to date. The company operating under the name of the new clinic is also in operation, having been set up in February 2017. |
Summary of Complainant’s Case:
Chronology of Events A beginning-to-end chronology of the events that led to this complaint may assist understanding. The complainant commenced employment with the respondent on September 1st 2015. At the beginning of July 2016, she went on extended sick leave due to stress and anxiety. She commenced maternity leave on October 1st 2016 and had her baby on October 20th. She was due to return to work on March 31st 2017, but in mid February, she applied for 16 weeks’ additional leave, bringing the end date of her maternity leave to July 23rd 2017. On March 2nd 2017, she received a letter by e mail from her manager letting her know that the clinic “will cease operations in March 2017, which will result in staff redundancies.” On April 11th, her manager wrote again confirming the complainant’s decision to extend her maternity leave. He also stated, “I will meet with you at the conclusion of your maternity leave to discuss the effect of the closure of the clinic on your employment and I look forward to seeing you.” On June 14th, the complainant said that she wrote to her manager to say that she would like to take her full entitlement to parental leave. She said that she didn’t get a reply to this e mail and she wrote to him again on July 20th. That day, her manager replied confirming that the complainant’s additional maternity leave ended on July 23rd 2017. In this mail, he went on to say: “You are also entitled to 8 days off as equivalent of 8 bank holiday Mondays during your maternity leave from 24th of July to 2nd of August inclusively. Additionally, you are entitled to 31 days of holiday leave for a period of your maternity leave – from 3rd of August to 19th of September inclusively.” On August 2nd, the complainant said that she phoned her manager, but got no reply. She sent two e mails on August 4th and got the following response: “Your holiday leave ends on 19th of September and before that day I would like to meet you to discuss the issue of (name of respondent company) closing down. I am not the employee of (name of the respondent company) anymore and my business phone contact has been terminated. If you would like to contact me by phone you can reach me on (number of Polish land line). I will confirm on Monday the day of our meeting, but most probably it would be 10 or 11 of August.” On August 9th, the complainant sent an e mail to her manager requesting permission to take parental leave. She also considered the possibility that her request might not get a positive response: “If, for some reason, I cannot use my parental leave, could you describe the reason and a different possible date? If there is a necessity that I would go back to work – it would be possible to work on weekends? Please let me know who is my current supervisor / boss and with whom I should contact about my case.” The following day, the complainant’s manager said that he could meet her on August 11th at 12.00 midday, or the following Monday, August 14th. He suggested meeting in a café in Dublin city centre. The complainant wrote back to say that it would be more convenient for her to meet in Sandyford, in Dublin south. The complainant said that around 20 minutes before she was due to meet her manager, he phoned her to cancel their appointment. In the call, he informed her that the company had closed down and that she would be “let go.” On her complaint form, the complainant said that when she asked him about the new undertaking, her manager “was at pains to say he was not involved” with the new clinic and he would not give her details of her new employer. He said that he would phone again to explain the process of terminating her employment. On August 21st, the complainant said that her manager phoned her and said that it would be better if she did not take parental leave, as the company could not be closed if she was on leave. The complainant said that she phoned the other receptionists in the clinic around this time and they told her that “everything is still the same, except the new name.” The complainant said that her manager phoned her perhaps twice after August 21st, but she did not answer his calls. On September 3rd, she said that she sent an e mail with the following request: “Could you prepare references for me? Write to me to tell me why I have been let go. When will you send me my holiday pay?” On September 6th, her manager wrote back and attached a payslip for July. He explained that the complainant’s maternity leave ended on July 23rd and that she was on holidays from July 24th until September 18th. He said that she would be paid for the month of August and at the end of September, she would be paid for September. In the mail he said, “after that, we will send you redundancy pay.” He said that he would be in Dublin and that they could meet. On September 12th, the complainant said that she wrote to her manager asking him when he would be back in Dublin. At this stage, she said that she “really wanted to come back to work.” Her manager replied on the same day and said that he would be in Dublin the next day, Wednesday, September 13th. The complainant said that she wrote back to ask if he needed “something from me about my parental leave.” She said that her manager phoned her but again, she didn’t answer his call. She explained that she had been advised to get everything in writing and not to rely on phone conversations. She said that her manger then sent her a mail to say they could meet on Wednesday or Thursday. She said that she replied to this e mail as follows: “Before we meet, I would like to prepare. Do you need paperwork from me about my parental leave? What is my official date to return to work? Please write down why I’m being let go. Send me all the paperwork you have.” She said that in this mail, she also asked for a reference. Having got no answer to the e mail above, she sent another on September 15th, with the same requests that she sent on September 12th. On October 4th, the complainant said that she received a payment of €1,087.80, which is equivalent to five weeks’ pay, the amount that she was entitled to as statutory redundancy. She also received a P45, but no letter setting out the reason for her dismissal. On October 25th, the complainant said that she sent a final e mail to her manager: “Could you please answer my questions stated in e mail from 15/09/2017? You’ve informed me that you’re the person delegated by (name of respondent) to make a final enclosure of the case of the company. You work at the moment in Poland and in Ireland, you’re just to sort out formalities. I understand that I am not your employee any more, however, I would like you to send me relevant papers, so I could be on the social welfare payment after my parental leave will finish. That kind of document is required in social welfare. “End of year is approaching and I would like to sort out all the formalities connected with my job and parental leave. If you’ll leave me without an answer til the end of the month, I wouldn’t have a choice, but direct my questions and look for help at the institution that helps employees with difficulties.” She did not receive a reply to this e mail and on December 8th, she submitted 16 complaints against this respondent, the transferor. Each of these is considered below. As the respondent did not attend the hearing, no evidence was submitted in support of their position with regard to any of the complaints. |
CA-00016267-001
Complaint under section 7 of the Terms of Employment (Information) Act 1994
Summary of Complainant’s Case:
The complainant said that she did not receive a letter confirming the termination of her employment due to redundancy on October 4th 2017. |
Findings and Conclusions:
The Terms of Employment (Information) Act 1994 provides for the issuing of a statement setting out terms and conditions of employment and for the confirmation in writing of any changes to terms and conditions. The fact that the complainant was not issued with a letter at the termination of her employment is not a breach of any provision of this Act. I note that the complainant received a letter from the respondent on March 2nd 2017, in which she was informed by her manager that he would meet her at the end of her maternity leave “to discuss the effect of the closure of the clinic on your employment.” While this is not material to the complaint under the Terms of Employment (Information) Act, it is evidence that the complainant was informed that her employment would terminate due to the closure of the clinic. |
Decision:
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.
I have decided that this complaint is misconceived and for this reason, it is not upheld. |
CA-00016267-002
Complaint under section 8 of the Unfair Dismissals Act 1977
Summary of Complainant’s Case:
The complainant was dismissed due to redundancy on October 4th 2017. She argues that, at the end of her maternity leave and additional maternity leave, and, when she had used up her accrued holidays and public holidays and then her parental leave, she should have transferred to the company which took over the business of the respondent in March 2017. On March 2nd 2017, the complainant received a letter by e mail from her manager: “Dear (name of complainant), “I am sorry to disturb you on your maternity leave, but I wish to keep you informed of some important developments at (name of respondent). “(Name of respondent) has been experiencing a very challenging financial situation in Ireland, and after much consideration of the future of the clinic, our parent company in Poland has taken the difficult decision to close down the Irish company, and cease operations in Ireland. The clinic will cease operations in Ireland in March 2017, which will result in staff redundancies. Staff will be paid all of their statutory and contractual entitlements. “I realise that your maternity leave will be extended and I will meet with you at the conclusion of your maternity leave to discuss the effect of the closure of the clinic on your employment. Should you choose to meet with me at an earlier date I am of course available to do so in order to answer any questions you may have. Please contact me if you wish to discuss the matter over the phone or to arrange a meeting.” Although she was informed that the company was ceasing operations, from her own enquiries, the complainant discovered that another clinic was operating in the same premises, with the same employees, or at least some of the same employees as the clinic she worked in when she went on maternity leave. |
Findings and Conclusions:
From my enquiries on the website of the CRO, it would appear that the company that the complainant worked for when she went on maternity leave is still a registered company and has not closed down. My enquiries also show that the company named by the complainant as the business that took over the first company, was set up in February 2017. Some of the directors in both companies have the same names and, from the information submitted by the complainant, it seems that there is a family connection between the two. As the respondent did not attend the hearing, no evidence was presented to explain why the complainant was informed that the respondent was ceasing operations, why she was made redundant or why she was not transferred with her colleagues to the new company. Having considered the evidence available to me, I find that there is no reasonable explanation to justify the termination of the complainant’s employment due to redundancy at the end of her maternity leave in October 2017. I have reached the conclusion therefore that her dismissal was unfair. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
In accordance with the redress options available to me under section 7 of the Unfair Dismissals Act, I have decided that the complainant is to be reinstated with effect from January 23rd 2018. This is the date on which she would have returned to work, if she had been permitted to take parental leave. I also decide that she is to be paid her normal salary with effect from that date. As I have concluded that her job is not redundant, the redundancy payment of €1,087.80 which she received is to be deducted from the amount due to her in lost wages. |
CA-00016267-003
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
The complainant’s case is that she was penalised for having requested parental leave. She also complained that she did not receive any written explanation about why she was not permitted to take parental leave. In her evidence at the hearing, the complainant said that on August 21st 2017, in a telephone conversation with her manager, he said that it would be better if she did not take parental leave, as the company was closing down, and that if she was on parental leave, the company could not be closed. |
Findings and Conclusions:
Section 6(1) of the Parental Leave Act 1998 provides that: “Subject to this Act, an employee who is a relevant parent in respect of a child shall be entitled to leave from his or her employment, to be known and referred to in this Act as ‘parental leave,’ for a period of 18 working weeks to enable him or her to take care of the child.” While the complainant was dismissed due to what was stated to be redundancy on October 4th 2017, I find that this was not due to her request to take parental leave, and therefore, I find that no penalisation occurred. From the evidence submitted by the complainant, it appears that the management of the respondent company wished to move the employees from that company to another, and that from a date in March 2017, the respondent intended to have no employees. It appears to me that this is the reason that the complainant was not permitted to take parental leave. |
Decision:
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.
I have decided that the complainant was not penalised as a result of her request to take parental leave and I make no award of redress in respect of this complaint. |
CA-00016267-004
Complaint under section 39 of the Redundancy Payments Act 1967
Summary of Complainant’s Case:
On her complaint form. The complainant said that she did not receive the correct redundancy payment. However, at the hearing, she clarified that her case is that when she was made redundant on October 4th 2017, this was not a genuine redundancy, as her employment transferred to a new company, carrying out the same business in the same premises where she was previously employed. |
Findings and Conclusions:
Before her employment was terminated due to redundancy, the complainant never complained about the respondent’s decision in this respect. On September 3rd 2017, she sent an e mail to her manager in which she said, “Could you prepare references for me? Write to me to tell me why I have been let go. When will you send holiday pay?” The complainant received a redundancy payment on October 4th and on October 25th she wrote to her manager saying, “I understand I am not your employee anymore, however, I would like you to send me relevant papers so that I could be on social welfare payment after my parental leave will finish.” At the hearing, I asked the complainant why she did not call to the premises where she worked before she went on maternity leave, to ask about coming back to work. She said she didn’t think about doing this, although she spoke on the phone to the other receptionists and the psychologist and the dentist in the clinic, and they told her that “everything was normal.” Based on the evidence submitted by the complainant, I find that there is no basis to consider that her job was redundant when her employment was terminated due to redundancy on October 4th 2017. |
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.
As I have concluded that the complainant’s job was not redundant, and, as I have made a decision in respect of her complaint under the Unfair Dismissals Act, I make no award of redress under the Redundancy Payments Acts. |
CA-00016267-005
Complaint under section 11 of the Minimum Notice and Terms of Employment Act 1973
Summary of Complainant’s Case:
The complainant’s case is that she did not receive her statutory entitlement to notice. As she had service of just over two years, she was entitled to two weeks’ notice. |
Findings and Conclusions:
On August 4th, 2017, the complainant received an e mail from her manager in which he said; “Your holiday leave ends on 19th of September and before that day I would like to meet you to discuss the issue of (name of respondent company) closing down.” It is my view that, in this e mail, the complainant was informed that she was being made redundant, effectively giving her more than her entitlement to two weeks’ notice. It is acceptable for the period of notice to run concurrently with holidays. |
Decision:
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.
As I have concluded that the complainant received her entitlement to notice, I have decided that this complaint is not upheld. |
CA-00016267-006
Complaint under section 11 of the Minimum Notice and Terms of Employment Act 1973
Summary of Complainant’s Case:
The complainant’s case is that she did not receive all her rights during the period of her notice, although she did not specify which rights were infringed. |
Findings and Conclusions:
In the previous section on complaint CA-00016267-005, I found that the complainant received her entitlement to notice as required by the Minimum Notice and Terms of Employment Act 1973. The complainant was on paid holidays during her notice period and she did not specify what rights were infringed during that time. I therefore conclude that there is no substance to her complaint under this heading. |
Decision:
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.
I have decided that this complaint is not upheld. |
CA-00016267-007, CA-00016267-009 and CA-00016267-011
Complaints under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)
Summary of Complainant’s Case:
For ease of understanding, I will consider the three complaints under the Transfer of Undertakings Regulations together. |
Reference number | Outline of Complaint |
CA-0016267-007 | Under Regulation 4(1) of the Transfer of Undertakings Regulations, “The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.” This complaint is about the fact that the transferor, the respondent in this complaint, did not ensure that the complainant’s terms and conditions transferred to the new company set up in February 2017 which she says, is operating as a medical clinic in the same premises, with many of the same employees as the company that she worked for before she went on maternity leave. |
CA-0016267-009 | Under Regulation 8(4) of the Transfer of Undertakings Regulations, the transferor and the transferee must inform their employees about the date of the transfer, the reason for the transfer and the implications of the transfer for them. This complaint is about the fact that the transferor did not consult with the complainant about the transfer of her employment to the transferee. The complainant said that she had a telephone call with her manager on August 14th 2017 during which he refused to answer any questions about the transfer and would not reply to her request for information about her new employer. |
CA-0016267-011 | Under Regulation 8(5) and (6) of the Transfer of Undertakings Regulations, where there are no employee representatives in an organisation, the transferee and the transferee must write to the employees to advise them of the date of the transfer, the reason for the transfer and the implications of the transfer for them. This complaint is about the fact that the transferor did not advise the complainant about the transfer of her employment to a new undertaking. In fact, the transferor did not provide any information about the transferee and made the complainant redundant on October 4th 2017. |
Findings and Conclusions:
The Legal Framework The relevant law is Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. This transposes the European Directive 2001/23 “on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertakings or businesses or parts of undertakings or businesses.” Article 3(1) of the directive provides that, “The transferor’s rights and obligations arising from a contract of employment or an employment relationship, existing on the date of a transfer, shall, by reason of such transfer, be transferred to the transferee.” The Directive goes on to provide that member states may create a continuing liability on the Transferor, post-transfer; however, this has not been transposed into SI 131/2003. As a result, the basic principle in Article 3 of the Directive that liability passes from the Transferor to the Transferee is the applicable law in Ireland. In the decision of the Court of Justice of the European Union (CJEU) in Berg v Besselsen IRLR 447, the Court referred to the option of member states to enact legislation to include the Transferor in ongoing liabilities under a contract of employment; but, where this has not happened, the Court stated: “It follows that, unless the Member States avail themselves of this possibility, the transferor is released from his obligations as an employer solely by reason of the transfer…” Liability in this Case In the case under consideration and, from the evidence of the complainant, it appears that no consultation took place and the Transferor, the respondent in this case, did not advise her in relation to the transfer of her employment to the new undertaking. It is also evident that she was dismissed and the reason given for her dismissal was redundancy. Having considered the effect of the legislation and the jurisprudence of the CJEU, I find that a complaint against the Transferor may not be pursued under SI 131/2003, as all liabilities under the complainant’s contract of employment passed to the Transferee on the date of the transfer. |
Decision:
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.
I have concluded that I have no jurisdiction to adjudicate upon a complaint against the Transferor in this case, and therefore, complaints CA-0016267-007, CA-0016267-009 and CA-0016267-011 not upheld. |
CA-00016267-013
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
Under this heading, the complainant said that she did not receive her entitlement to parental leave. Under complaint CA-00016267 above, I referred to the fact that in her evidence at the hearing, the complainant said that on August 21st 2017, in a telephone conversation with her manager, he said that it would be better if she did not take parental leave, as the company was closing down, and that if she was on parental leave, the company could not be closed. |
Findings and Conclusions:
From the evidence available to me, which is based solely on information provided by the complainant, it appears that the complainant’s request for parental leave was submitted in the context of her employer’s desire to move all the employees from their company to a new company. Her request was to take parental leave at the end of her maternity leave, giving her a return-to-work date of January 23rd 2018. She got no response to her request, and instead, was made redundant on October 4th 2017. |
Decision:
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.
Under complaint number CA-16267-002 under the Unfair Dismissals Act, I made a decision that the complainant is to be reinstated with effect from what would have been the end of her parental leave. The effect of this is to provide leave equivalent to what she would have benefited from if she had been on 18 weeks’ parental leave from September 19th 2017 until January 22nd 2018. As redress under this specific complaint heading, I also decide that the respondent is to pay the complainant compensation of two weeks’ pay. |
CA-00016267-014
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
This complaint is that the complainant has not been allowed to return to work at the end of parental leave. |
Findings and Conclusions:
As the complainant did not have an opportunity to take parental leave, I find that the complaint that she was not permitted to return to work at the end of that leave is misconceived. |
Decision:
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.
I have decided that this complaint is misconceived and for this reason, it is not upheld. |
CA-00016267-015
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
This complaint is that the complainant was not offered suitable alternative employment on her return to work at the end of parental leave. |
Findings and Conclusions:
As the complainant did not have an opportunity to take parental leave, I find that the complaint that she was not offered suitable alternative employment at the end of that leave is misconceived. |
Decision:
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.
I have decided that this complaint is misconceived and for this reason, it is not upheld. |
CA-00016267-016
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
This complaint is about the fact that the respondent was unwilling to sign a parental leave consent form presented to him by the complainant in August 2017. |
Findings and Conclusions:
Based on the evidence submitted by the complainant, it is apparent that the respondent did not want her to take parental leave and that her manager refused to sign the consent form that she completed to request that leave. |
Decision:
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.
I have decided that this complaint is upheld and the respondent is to pay the complainant compensation of two weeks’ pay. |
CA-00016267-017
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
On her complaint form, the complainant has ticked the box indicating that she was penalised for proposing to exercise her right to take parental leave. |
Findings and Conclusions:
This complaint of penalisation is the same as that submitted under CA-16267-003 above about which I have issued a decision. |
Decision:
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.
As this complaint is a duplication of CA-16267-003, I have decided that it is misconceived and for this reason, it is not upheld. |
CA-00016267-018
Complaint under section 30 and 31 of the Maternity Protection Act 1994
Summary of Complainant’s Case:
The complainant said that she was not allowed to return to work at the end of her maternity leave, and her employment was terminated due to redundancy. |
Findings and Conclusions:
As set out under the section on “Chronology” above, the complainant was due to return to work at the end of her maternity leave on March 31st 2017. She applied to take 16 weeks’ additional leave, bringing her to July 23rd. She then had accrued holidays and public holidays, which gave her a new return-to-work date of September 19th. At that point, wanted to take 18 weeks’ parental leave, but she was made redundant on October 4th 2017. Part V of the Maternity Protection Act 1994 sets out the procedure for the resolution of disputes and the redress available where an adjudicator finds that an employee has not been permitted to avail of her entitlements under the Act. However, section 30 provides that Part V does not does not apply in circumstances where an employee is dismissed. An employee who considers that she has been dismissed for reasons related to pregnancy or maternity leave may make a complaint under the Unfair Dismissals Act. As the complainant in this case has initiated such a complaint (at CA-00016267-002 above) she cannot seek redress under section 30 or 31 of the Maternity Protection Act. |
Decision:
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.
As the complainant was dismissed, she cannot seek redress under section 30 and 31 of the Maternity Protection Act 1994 and I have therefore decided that this complaint is not upheld. |
CA-00016267-019
Complaint under section 30 and 31 of the Maternity Protection Act 1994
Summary of Complainant’s Case:
This complaint is about not being permitted to take additional maternity leave. At the hearing, the complainant said that she did in fact take additional maternity leave and she said that she submitted this complaint because she didn’t want to leave anything out of her complaint form which might result in a finding in her favour. |
Findings and Conclusions:
I have found that the complainant applied for, and was granted additional maternity leave. |
Decision:
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.
I have decided that this complaint is not upheld. |
Dated: 13th August 2018.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Maternity, redundancy, unfair dismissal |
Summary of Decisions under each Complaint Heading:
In my original decision, under CA-00016267-013, and CA-00016267-016, I decided that the complainant was to be paid compensation of two weeks’ pay. The complainant requested that a correction order be issued which specifies the precise amount she is to be awarded.
In her complaint form, the complainant said that she earned €1,092 per month which is equivalent to €252.00 per week. Therefore, under each of the complaint heading, CA-00016267-013, and CA-00016267-016, I have decided that the complainant is to be paid €504.00, resulting in a total award of €1,008.
Act | Complaint/Dispute Reference No. | Decision |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016267-001 | Complaint is not upheld |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016267-002 | The complaint is upheld. The complainant is to be reinstated. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-003 | Complaint is not upheld |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00016267-004 | Complaint is not upheld |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016267-005 | Complaint is not upheld |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016267-006 | Complaint is not upheld |
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-00016267-007 | Complaint is not upheld |
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-00016267-009 | Complaint is not upheld |
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-00016267-011 | Complaint is not upheld |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-013 | The complaint is upheld. The respondent is to pay the complainant two weeks’ pay, equivalent to €435.12. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-014 | Complaint is not upheld |
Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001 | CA-00016267-015 | Complaint is not upheld |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-016 | The complaint is upheld. The respondent is to pay the complainant two weeks’ pay, equivalent to €435.12. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-017 | Complaint is not upheld |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00016267-018 | Complaint is not upheld |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00016267-019 | Complaint is not upheld |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012277
Parties:
| Complainant | Respondent |
Anonymised Parties | A receptionist | A medical clinic |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016267-001 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016267-002 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-003 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00016267-004 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016267-005 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016267-006 | 08/12/2017 |
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-00016267-007 | 08/12/2017 |
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-00016267-009 | 08/12/2017 |
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-00016267-011 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-013 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-014 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001 | CA-00016267-015 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-016 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00016267-017 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00016267-018 | 08/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00016267-019 | 08/12/2017 |
Date of Adjudication Hearing: 18/06/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015, these complaints were assigned to me by the Director General. I conducted a hearing on June 18th 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaints.
The complainant attended the hearing without representation and was not accompanied. She had the support of a Polish interpreter. The respondent did not attend and did not send a representative.
Background:
The respondent is a subsidiary of a Polish company that operated a medical clinic in Ireland. On September 1st 2015, the complainant started work there as a receptionist. She worked around 20 hours per week and sometimes more, when she was required to provide cover for the other receptionist’s holidays and if the practice opened at weekends. She went on maternity leave on October 1st 2016. On March 2nd 2017, while she was on maternity leave, she was informed that the clinic would cease operations that month, resulting in staff redundancies. In August 2017, she phoned the office where she worked before her maternity leave and discovered that a clinic was operating under a different name in the premises where she worked and that many of the staff of the former clinic were working there. She assumes therefore that the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 apply to her and that she should have been transferred to the new undertaking. However, on October 4th 2017, at the end of her additional maternity leave, she was made redundant, paid a statutory lump sum and issued with a P45. The complainant submitted 16 complaints under various pieces of protective legislation. These complaints, under this ADJ-00012277, are against the transferor. Three separate complaints, have been submitted against the transferee, and these are addressed under ADJ-00014240. The complainant said that she was assisted in the preparation of her complaint form by the Citizens Information Centre, although the person assisting her was unable to attend the hearing at the WRC. Her main complaint is that, at the end of her maternity leave, she was made redundant and she did not transfer to the new business. Before the hearing on June 17th 2018, I checked the status of the company that the complainant worked for until the date of her redundancy. This company is registered with the Companies Registration Office (CRO), it does not appear to be closed down or insolvent and filings are up to date. The company operating under the name of the new clinic is also in operation, having been set up in February 2017. |
Summary of Complainant’s Case:
Chronology of Events A beginning-to-end chronology of the events that led to this complaint may assist understanding. The complainant commenced employment with the respondent on September 1st 2015. At the beginning of July 2016, she went on extended sick leave due to stress and anxiety. She commenced maternity leave on October 1st 2016 and had her baby on October 20th. She was due to return to work on March 31st 2017, but in mid February, she applied for 16 weeks’ additional leave, bringing the end date of her maternity leave to July 23rd 2017. On March 2nd 2017, she received a letter by e mail from her manager letting her know that the clinic “will cease operations in March 2017, which will result in staff redundancies.” On April 11th, her manager wrote again confirming the complainant’s decision to extend her maternity leave. He also stated, “I will meet with you at the conclusion of your maternity leave to discuss the effect of the closure of the clinic on your employment and I look forward to seeing you.” On June 14th, the complainant said that she wrote to her manager to say that she would like to take her full entitlement to parental leave. She said that she didn’t get a reply to this e mail and she wrote to him again on July 20th. That day, her manager replied confirming that the complainant’s additional maternity leave ended on July 23rd 2017. In this mail, he went on to say: “You are also entitled to 8 days off as equivalent of 8 bank holiday Mondays during your maternity leave from 24th of July to 2nd of August inclusively. Additionally, you are entitled to 31 days of holiday leave for a period of your maternity leave – from 3rd of August to 19th of September inclusively.” On August 2nd, the complainant said that she phoned her manager, but got no reply. She sent two e mails on August 4th and got the following response: “Your holiday leave ends on 19th of September and before that day I would like to meet you to discuss the issue of (name of respondent company) closing down. I am not the employee of (name of the respondent company) anymore and my business phone contact has been terminated. If you would like to contact me by phone you can reach me on (number of Polish land line). I will confirm on Monday the day of our meeting, but most probably it would be 10 or 11 of August.” On August 9th, the complainant sent an e mail to her manager requesting permission to take parental leave. She also considered the possibility that her request might not get a positive response: “If, for some reason, I cannot use my parental leave, could you describe the reason and a different possible date? If there is a necessity that I would go back to work – it would be possible to work on weekends? Please let me know who is my current supervisor / boss and with whom I should contact about my case.” The following day, the complainant’s manager said that he could meet her on August 11th at 12.00 midday, or the following Monday, August 14th. He suggested meeting in a café in Dublin city centre. The complainant wrote back to say that it would be more convenient for her to meet in Sandyford, in Dublin south. The complainant said that around 20 minutes before she was due to meet her manager, he phoned her to cancel their appointment. In the call, he informed her that the company had closed down and that she would be “let go.” On her complaint form, the complainant said that when she asked him about the new undertaking, her manager “was at pains to say he was not involved” with the new clinic and he would not give her details of her new employer. He said that he would phone again to explain the process of terminating her employment. On August 21st, the complainant said that her manager phoned her and said that it would be better if she did not take parental leave, as the company could not be closed if she was on leave. The complainant said that she phoned the other receptionists in the clinic around this time and they told her that “everything is still the same, except the new name.” The complainant said that her manager phoned her perhaps twice after August 21st, but she did not answer his calls. On September 3rd, she said that she sent an e mail with the following request: “Could you prepare references for me? Write to me to tell me why I have been let go. When will you send me my holiday pay?” On September 6th, her manager wrote back and attached a payslip for July. He explained that the complainant’s maternity leave ended on July 23rd and that she was on holidays from July 24th until September 18th. He said that she would be paid for the month of August and at the end of September, she would be paid for September. In the mail he said, “after that, we will send you redundancy pay.” He said that he would be in Dublin and that they could meet. On September 12th, the complainant said that she wrote to her manager asking him when he would be back in Dublin. At this stage, she said that she “really wanted to come back to work.” Her manager replied on the same day and said that he would be in Dublin the next day, Wednesday, September 13th. The complainant said that she wrote back to ask if he needed “something from me about my parental leave.” She said that her manager phoned her but again, she didn’t answer his call. She explained that she had been advised to get everything in writing and not to rely on phone conversations. She said that her manger then sent her a mail to say they could meet on Wednesday or Thursday. She said that she replied to this e mail as follows: “Before we meet, I would like to prepare. Do you need paperwork from me about my parental leave? What is my official date to return to work? Please write down why I’m being let go. Send me all the paperwork you have.” She said that in this mail, she also asked for a reference. Having got no answer to the e mail above, she sent another on September 15th, with the same requests that she sent on September 12th. On October 4th, the complainant said that she received a payment of €1,087.80, which is equivalent to five weeks’ pay, the amount that she was entitled to as statutory redundancy. She also received a P45, but no letter setting out the reason for her dismissal. On October 25th, the complainant said that she sent a final e mail to her manager: “Could you please answer my questions stated in e mail from 15/09/2017? You’ve informed me that you’re the person delegated by (name of respondent) to make a final enclosure of the case of the company. You work at the moment in Poland and in Ireland, you’re just to sort out formalities. I understand that I am not your employee any more, however, I would like you to send me relevant papers, so I could be on the social welfare payment after my parental leave will finish. That kind of document is required in social welfare. “End of year is approaching and I would like to sort out all the formalities connected with my job and parental leave. If you’ll leave me without an answer til the end of the month, I wouldn’t have a choice, but direct my questions and look for help at the institution that helps employees with difficulties.” She did not receive a reply to this e mail and on December 8th, she submitted 16 complaints against this respondent, the transferor. Each of these is considered below. As the respondent did not attend the hearing, no evidence was submitted in support of their position with regard to any of the complaints. |
CA-00016267-001
Complaint under section 7 of the Terms of Employment (Information) Act 1994
Summary of Complainant’s Case:
The complainant said that she did not receive a letter confirming the termination of her employment due to redundancy on October 4th 2017. |
Findings and Conclusions:
The Terms of Employment (Information) Act 1994 provides for the issuing of a statement setting out terms and conditions of employment and for the confirmation in writing of any changes to terms and conditions. The fact that the complainant was not issued with a letter at the termination of her employment is not a breach of any provision of this Act. I note that the complainant received a letter from the respondent on March 2nd 2017, in which she was informed by her manager that he would meet her at the end of her maternity leave “to discuss the effect of the closure of the clinic on your employment.” While this is not material to the complaint under the Terms of Employment (Information) Act, it is evidence that the complainant was informed that her employment would terminate due to the closure of the clinic. |
Decision:
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.
I have decided that this complaint is misconceived and for this reason, it is not upheld. |
CA-00016267-002
Complaint under section 8 of the Unfair Dismissals Act 1977
Summary of Complainant’s Case:
The complainant was dismissed due to redundancy on October 4th 2017. She argues that, at the end of her maternity leave and additional maternity leave, and, when she had used up her accrued holidays and public holidays and then her parental leave, she should have transferred to the company which took over the business of the respondent in March 2017. On March 2nd 2017, the complainant received a letter by e mail from her manager: “Dear (name of complainant), “I am sorry to disturb you on your maternity leave, but I wish to keep you informed of some important developments at (name of respondent). “(Name of respondent) has been experiencing a very challenging financial situation in Ireland, and after much consideration of the future of the clinic, our parent company in Poland has taken the difficult decision to close down the Irish company, and cease operations in Ireland. The clinic will cease operations in Ireland in March 2017, which will result in staff redundancies. Staff will be paid all of their statutory and contractual entitlements. “I realise that your maternity leave will be extended and I will meet with you at the conclusion of your maternity leave to discuss the effect of the closure of the clinic on your employment. Should you choose to meet with me at an earlier date I am of course available to do so in order to answer any questions you may have. Please contact me if you wish to discuss the matter over the phone or to arrange a meeting.” Although she was informed that the company was ceasing operations, from her own enquiries, the complainant discovered that another clinic was operating in the same premises, with the same employees, or at least some of the same employees as the clinic she worked in when she went on maternity leave. |
Findings and Conclusions:
From my enquiries on the website of the CRO, it would appear that the company that the complainant worked for when she went on maternity leave is still a registered company and has not closed down. My enquiries also show that the company named by the complainant as the business that took over the first company, was set up in February 2017. Some of the directors in both companies have the same names and, from the information submitted by the complainant, it seems that there is a family connection between the two. As the respondent did not attend the hearing, no evidence was presented to explain why the complainant was informed that the respondent was ceasing operations, why she was made redundant or why she was not transferred with her colleagues to the new company. Having considered the evidence available to me, I find that there is no reasonable explanation to justify the termination of the complainant’s employment due to redundancy at the end of her maternity leave in October 2017. I have reached the conclusion therefore that her dismissal was unfair. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
In accordance with the redress options available to me under section 7 of the Unfair Dismissals Act, I have decided that the complainant is to be reinstated with effect from January 23rd 2018. This is the date on which she would have returned to work, if she had been permitted to take parental leave. I also decide that she is to be paid her normal salary with effect from that date. As I have concluded that her job is not redundant, the redundancy payment of €1,087.80 which she received is to be deducted from the amount due to her in lost wages. |
CA-00016267-003
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
The complainant’s case is that she was penalised for having requested parental leave. She also complained that she did not receive any written explanation about why she was not permitted to take parental leave. In her evidence at the hearing, the complainant said that on August 21st 2017, in a telephone conversation with her manager, he said that it would be better if she did not take parental leave, as the company was closing down, and that if she was on parental leave, the company could not be closed. |
Findings and Conclusions:
Section 6(1) of the Parental Leave Act 1998 provides that: “Subject to this Act, an employee who is a relevant parent in respect of a child shall be entitled to leave from his or her employment, to be known and referred to in this Act as ‘parental leave,’ for a period of 18 working weeks to enable him or her to take care of the child.” While the complainant was dismissed due to what was stated to be redundancy on October 4th 2017, I find that this was not due to her request to take parental leave, and therefore, I find that no penalisation occurred. From the evidence submitted by the complainant, it appears that the management of the respondent company wished to move the employees from that company to another, and that from a date in March 2017, the respondent intended to have no employees. It appears to me that this is the reason that the complainant was not permitted to take parental leave. |
Decision:
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.
I have decided that the complainant was not penalised as a result of her request to take parental leave and I make no award of redress in respect of this complaint. |
CA-00016267-004
Complaint under section 39 of the Redundancy Payments Act 1967
Summary of Complainant’s Case:
On her complaint form. The complainant said that she did not receive the correct redundancy payment. However, at the hearing, she clarified that her case is that when she was made redundant on October 4th 2017, this was not a genuine redundancy, as her employment transferred to a new company, carrying out the same business in the same premises where she was previously employed. |
Findings and Conclusions:
Before her employment was terminated due to redundancy, the complainant never complained about the respondent’s decision in this respect. On September 3rd 2017, she sent an e mail to her manager in which she said, “Could you prepare references for me? Write to me to tell me why I have been let go. When will you send holiday pay?” The complainant received a redundancy payment on October 4th and on October 25th she wrote to her manager saying, “I understand I am not your employee anymore, however, I would like you to send me relevant papers so that I could be on social welfare payment after my parental leave will finish.” At the hearing, I asked the complainant why she did not call to the premises where she worked before she went on maternity leave, to ask about coming back to work. She said she didn’t think about doing this, although she spoke on the phone to the other receptionists and the psychologist and the dentist in the clinic, and they told her that “everything was normal.” Based on the evidence submitted by the complainant, I find that there is no basis to consider that her job was redundant when her employment was terminated due to redundancy on October 4th 2017. |
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.
As I have concluded that the complainant’s job was not redundant, and, as I have made a decision in respect of her complaint under the Unfair Dismissals Act, I make no award of redress under the Redundancy Payments Acts. |
CA-00016267-005
Complaint under section 11 of the Minimum Notice and Terms of Employment Act 1973
Summary of Complainant’s Case:
The complainant’s case is that she did not receive her statutory entitlement to notice. As she had service of just over two years, she was entitled to two weeks’ notice. |
Findings and Conclusions:
On August 4th, 2017, the complainant received an e mail from her manager in which he said; “Your holiday leave ends on 19th of September and before that day I would like to meet you to discuss the issue of (name of respondent company) closing down.” It is my view that, in this e mail, the complainant was informed that she was being made redundant, effectively giving her more than her entitlement to two weeks’ notice. It is acceptable for the period of notice to run concurrently with holidays. |
Decision:
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.
As I have concluded that the complainant received her entitlement to notice, I have decided that this complaint is not upheld. |
CA-00016267-006
Complaint under section 11 of the Minimum Notice and Terms of Employment Act 1973
Summary of Complainant’s Case:
The complainant’s case is that she did not receive all her rights during the period of her notice, although she did not specify which rights were infringed. |
Findings and Conclusions:
In the previous section on complaint CA-00016267-005, I found that the complainant received her entitlement to notice as required by the Minimum Notice and Terms of Employment Act 1973. The complainant was on paid holidays during her notice period and she did not specify what rights were infringed during that time. I therefore conclude that there is no substance to her complaint under this heading. |
Decision:
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.
I have decided that this complaint is not upheld. |
CA-00016267-007, CA-00016267-009 and CA-00016267-011
Complaints under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)
Summary of Complainant’s Case:
For ease of understanding, I will consider the three complaints under the Transfer of Undertakings Regulations together. |
Reference number | Outline of Complaint |
CA-0016267-007 | Under Regulation 4(1) of the Transfer of Undertakings Regulations, “The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.” This complaint is about the fact that the transferor, the respondent in this complaint, did not ensure that the complainant’s terms and conditions transferred to the new company set up in February 2017 which she says, is operating as a medical clinic in the same premises, with many of the same employees as the company that she worked for before she went on maternity leave. |
CA-0016267-009 | Under Regulation 8(4) of the Transfer of Undertakings Regulations, the transferor and the transferee must inform their employees about the date of the transfer, the reason for the transfer and the implications of the transfer for them. This complaint is about the fact that the transferor did not consult with the complainant about the transfer of her employment to the transferee. The complainant said that she had a telephone call with her manager on August 14th 2017 during which he refused to answer any questions about the transfer and would not reply to her request for information about her new employer. |
CA-0016267-011 | Under Regulation 8(5) and (6) of the Transfer of Undertakings Regulations, where there are no employee representatives in an organisation, the transferee and the transferee must write to the employees to advise them of the date of the transfer, the reason for the transfer and the implications of the transfer for them. This complaint is about the fact that the transferor did not advise the complainant about the transfer of her employment to a new undertaking. In fact, the transferor did not provide any information about the transferee and made the complainant redundant on October 4th 2017. |
Findings and Conclusions:
The Legal Framework The relevant law is Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. This transposes the European Directive 2001/23 “on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertakings or businesses or parts of undertakings or businesses.” Article 3(1) of the directive provides that, “The transferor’s rights and obligations arising from a contract of employment or an employment relationship, existing on the date of a transfer, shall, by reason of such transfer, be transferred to the transferee.” The Directive goes on to provide that member states may create a continuing liability on the Transferor, post-transfer; however, this has not been transposed into SI 131/2003. As a result, the basic principle in Article 3 of the Directive that liability passes from the Transferor to the Transferee is the applicable law in Ireland. In the decision of the Court of Justice of the European Union (CJEU) in Berg v Besselsen IRLR 447, the Court referred to the option of member states to enact legislation to include the Transferor in ongoing liabilities under a contract of employment; but, where this has not happened, the Court stated: “It follows that, unless the Member States avail themselves of this possibility, the transferor is released from his obligations as an employer solely by reason of the transfer…” Liability in this Case In the case under consideration and, from the evidence of the complainant, it appears that no consultation took place and the Transferor, the respondent in this case, did not advise her in relation to the transfer of her employment to the new undertaking. It is also evident that she was dismissed and the reason given for her dismissal was redundancy. Having considered the effect of the legislation and the jurisprudence of the CJEU, I find that a complaint against the Transferor may not be pursued under SI 131/2003, as all liabilities under the complainant’s contract of employment passed to the Transferee on the date of the transfer. |
Decision:
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.
I have concluded that I have no jurisdiction to adjudicate upon a complaint against the Transferor in this case, and therefore, complaints CA-0016267-007, CA-0016267-009 and CA-0016267-011 not upheld. |
CA-00016267-013
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
Under this heading, the complainant said that she did not receive her entitlement to parental leave. Under complaint CA-00016267 above, I referred to the fact that in her evidence at the hearing, the complainant said that on August 21st 2017, in a telephone conversation with her manager, he said that it would be better if she did not take parental leave, as the company was closing down, and that if she was on parental leave, the company could not be closed. |
Findings and Conclusions:
From the evidence available to me, which is based solely on information provided by the complainant, it appears that the complainant’s request for parental leave was submitted in the context of her employer’s desire to move all the employees from their company to a new company. Her request was to take parental leave at the end of her maternity leave, giving her a return-to-work date of January 23rd 2018. She got no response to her request, and instead, was made redundant on October 4th 2017. |
Decision:
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.
Under complaint number CA-16267-002 under the Unfair Dismissals Act, I made a decision that the complainant is to be reinstated with effect from what would have been the end of her parental leave. The effect of this is to provide leave equivalent to what she would have benefited from if she had been on 18 weeks’ parental leave from September 19th 2017 until January 22nd 2018. As redress under this specific complaint heading, I also decide that the respondent is to pay the complainant compensation of two weeks’ pay. |
CA-00016267-014
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
This complaint is that the complainant has not been allowed to return to work at the end of parental leave. |
Findings and Conclusions:
As the complainant did not have an opportunity to take parental leave, I find that the complaint that she was not permitted to return to work at the end of that leave is misconceived. |
Decision:
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.
I have decided that this complaint is misconceived and for this reason, it is not upheld. |
CA-00016267-015
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
This complaint is that the complainant was not offered suitable alternative employment on her return to work at the end of parental leave. |
Findings and Conclusions:
As the complainant did not have an opportunity to take parental leave, I find that the complaint that she was not offered suitable alternative employment at the end of that leave is misconceived. |
Decision:
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.
I have decided that this complaint is misconceived and for this reason, it is not upheld. |
CA-00016267-016
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
This complaint is about the fact that the respondent was unwilling to sign a parental leave consent form presented to him by the complainant in August 2017. |
Findings and Conclusions:
Based on the evidence submitted by the complainant, it is apparent that the respondent did not want her to take parental leave and that her manager refused to sign the consent form that she completed to request that leave. |
Decision:
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.
I have decided that this complaint is upheld and the respondent is to pay the complainant compensation of two weeks’ pay. |
CA-00016267-017
Complaint under section 18 of the Parental Leave Act 1998
Summary of Complainant’s Case:
On her complaint form, the complainant has ticked the box indicating that she was penalised for proposing to exercise her right to take parental leave. |
Findings and Conclusions:
This complaint of penalisation is the same as that submitted under CA-16267-003 above about which I have issued a decision. |
Decision:
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.
As this complaint is a duplication of CA-16267-003, I have decided that it is misconceived and for this reason, it is not upheld. |
CA-00016267-018
Complaint under section 30 and 31 of the Maternity Protection Act 1994
Summary of Complainant’s Case:
The complainant said that she was not allowed to return to work at the end of her maternity leave, and her employment was terminated due to redundancy. |
Findings and Conclusions:
As set out under the section on “Chronology” above, the complainant was due to return to work at the end of her maternity leave on March 31st 2017. She applied to take 16 weeks’ additional leave, bringing her to July 23rd. She then had accrued holidays and public holidays, which gave her a new return-to-work date of September 19th. At that point, wanted to take 18 weeks’ parental leave, but she was made redundant on October 4th 2017. Part V of the Maternity Protection Act 1994 sets out the procedure for the resolution of disputes and the redress available where an adjudicator finds that an employee has not been permitted to avail of her entitlements under the Act. However, section 30 provides that Part V does not does not apply in circumstances where an employee is dismissed. An employee who considers that she has been dismissed for reasons related to pregnancy or maternity leave may make a complaint under the Unfair Dismissals Act. As the complainant in this case has initiated such a complaint (at CA-00016267-002 above) she cannot seek redress under section 30 or 31 of the Maternity Protection Act. |
Decision:
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.
As the complainant was dismissed, she cannot seek redress under section 30 and 31 of the Maternity Protection Act 1994 and I have therefore decided that this complaint is not upheld. |
CA-00016267-019
Complaint under section 30 and 31 of the Maternity Protection Act 1994
Summary of Complainant’s Case:
This complaint is about not being permitted to take additional maternity leave. At the hearing, the complainant said that she did in fact take additional maternity leave and she said that she submitted this complaint because she didn’t want to leave anything out of her complaint form which might result in a finding in her favour. |
Findings and Conclusions:
I have found that the complainant applied for, and was granted additional maternity leave. |
Decision:
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.
I have decided that this complaint is not upheld. |
Dated: 13th August 2018.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Maternity, redundancy, unfair dismissal |