ADJ-00014726

Complainant

Respondent

Anonymised Parties

A hairdresser

A hairdressing saloon

Representatives

Citizens Information.

Owner / Manager.

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-00019224-001

16/05/2018

The Complainant is a qualified hairdresser who commenced employment with the Respondent on 2nd July 2007. The Complainant commenced a period of Maternity Leave on 10th December 2016 and during the period of Maternity Leave the business she was employed in closed.

The Complainant lodged her complaint with the Workplace Relations Commission on 16th May 2018.

BACKGROUND

Due to her limited verbal and written English language skills, the Citizens Information Service assisted the Complainant in relation to applications for social welfare and family entitlements. During the course of this consultation, it came to the attention of the Information Officer that the Complainant may have been made redundant while on maternity leave from employment. The Information Officer subsequently assisted the Complainant in the submission of a complaint to the WRC.

Our client commenced employment as a Hairdresser with the Respondents, trading as XXXX , on 2nd July 2007, as evidenced by her P60 and P45 statements. Our client avows that she had a good working relationship with the Respondents, both during and immediately following her tenure at the Salon.

The Complainant became pregnant in or around March 2016, and was due to give birth in January 2017.   She provided notice of more than four weeks to the Respondents that her period of maternity leave would commence on 10th December 2016, 5 weeks before her expected due date (14th January 2017) as per the provisions of the Maternity Protection Acts.

Prior to commencement of her maternity leave, our client believed that she would not be in a position to return to work following the end of her maternity leave. IN or around early November of 2016, in good faith, she informed the Respondents of this possibility. To the best of her knowledge she believes that she stated to the Respondents that she “would not be coming back to work” while also qualifying that statement by saying ..”but who knows”.

REQUEST TO SIGN WRITTEN DECLARATION OF TERMINATION OF EMPLOYMENT

On foot of this statement, the Complainant avows that the Respondents requested that she sign a written declaration confirming that she would not be returning to work after her maternity leave. As per the submitted complaint form in respect of this matter, the Complainant did not fully understand the necessity of the statement at that time, and felt somewhat coerced when signing the document. Nonetheless, given the length of her tenure at the Salon and good working relationship with the Respondents she believed that they were acting in good faith.

Following the commencement of her maternity leave on 10th December 2016, our client gave birth to her daughter on 24thDecember 2016. Several weeks later, while out walking, she noticed that the shop front of the salon was closed during normal working hours.

Several weeks later, the Respondents visited our client in her home. They advised that they had decided to close the Salon, and that she should contact them when her maternity leave ended in order to obtain her P45. In the intervening period, our client met socially with the Respondents on further occasions. Our client avows that she was not informed by the Respondents of her redundancy entitlement during this time, or of any prospective transfer of the business to a new legal entity.

In June 2017, as per the instruction of the Respondents, our client contacted them to advise that her period of maternity leave had ended, and that she wished to request her P45.

ALLEGED TRANSFER OF UNDERTAKINGS

IN the Respondent’s letter dated 25th June 2018 they have asserted that the closure of their business occurred as part of a Transfer of Undertaking and that our client’s employment would have been ensured had she not previously advised that she did not intend to return to work following the end of her maternity leave.

Article 8 of S.I. No. 131/2003 – European Communities (Protection of employees on Transfer of Undertakings) Regulations 2003, requires, inter alia, that:

1.       The transferor and transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of:

a)       The date or proposed date of the transfer.

b)      The reasons for the transfer.

c)       The legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

And

d)      Any measures envisaged in relation to the employees.

We submit on behalf of our client that she was an employee of the Respondents during the relevant period, and that she received no information in relation to a prospective transfer of undertaking, as set out in the relevant regulations above. We further note that the Respondent has to date provided no further evidence to support the assertion that a transfer of undertaking occurred during the relevant period.

REDUNDANCY ENTITLEMENT

Section 7 (2) (a) of the Redundancy Payments Act 1967 defines redundancy as occurring when:

·         For the purposes of subsection (1) an employee who is dismissed shall be takin to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

a)       The fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed.

Section 23 (a) of the Maternity Protection Acts 1994 & 2004 provide for the voidance of:

·         “any purported termination of an employee’s employment while the employee is absent from work on protective leave”.

Notwithstanding the difference in opinion that may exist between our client and the Respondents as to the precise nature of how and why she was requested to sign the specified declaration in December 2016 we submit that no inference can be made from that document to indicate that her employment with the Respondent had terminated prior to the date upon which the Respondents ceased trading, that date being 31st December 2016.

CONCLUSION

On behalf of our client, we submit the following:

Our client’s employment with the Respondent commenced in July 2007.

Our client’s maternity leave commenced on 10th December 2016.

The Respondents ceased trading on 31st December 2016.

Our client has more than 1004 weeks continuous and uninterrupted employment, in accordance with Section 4(1) of the Redundancy Payments Acts.

Our client’s service with the Respondents was continuous during the relevant period, as defined within the First Schedule of the Minimum Notice and Terms of Employment Act 1973.

Section 22 of the Maternity Protection Act 1994 as amended provides that:

·         When an employee is absent from work while on maternity leave or health and safety leave the employee shall be deemed to have been in employment and such absence shall not affect her rights save for her rights to remuneration.

Section 17 (1) of the Redundancy Payments Acts requires that:

·         An employer who proposes to dismiss by reason of redundancy an employee who has not less than four years’ service with that employer shall, not later than two weeks before the date of dismissal, give to the employee notice in writing of the proposed dismissal and send to the Minister a copy of that notice.

As outlined above, we submit that on the date of cessation of the Respondent’s business, that date being 31st December 2016, our client was an employee of the Respondents and became entitled to notification of the termination of her employment, and right to claim redundancy in respect of her length of service with the Respondent.

We submit that the Respondents failed to provide the requisite notice to our client prior to the cessation of trading, and further continued to fail to advise our client of her entitlement to redundancy after they had ceased trading.

We submit that our client did not become the subject of a transfer of undertaking during the relevant period.

We further submit that the Respondents failed to issue the requisite notice to our client of four weeks, as provided under the Minimum Notice and Terms of Employment Acts 1973-2005.

The Respondents failed to discharge their duty as the employer as our client in notifying our client of the above.

Redundancy Entitlement – we submit that our client was an employee of the Respondents for a period of nine years and six months. A calculation of the redundancy is enclosed. 

The Complainant was very clear to us in December 2016 when she informed us of her decision not to return to employment after her baby was born i.e. she was leaving our employment.  

We genuinely understood that she was leaving our employment. For the sake of our books and records we asked her to provide this statement to us in writing. The Complainant stated that if we typed the letter, she would sign it, which she did.   She was under no duress to sign this letter.

The Complainant’s date of leaving her employment was 10th December 2016.

We note that the Complainant’s statement as to what happened in November / December 2016 has somewhat changed. In her complaint Form of 16th May 2018 she states that she said, “I may or may not be back to work”. However, in the Citizen Information letter of 18th July 2018 it states that the Complainant now claims that she did say “she would not be coming back to work” but made an after comment of “but who knows”. We would deny that this after comment was ever made.

The P45 was, in error, dated 31st December 2016 by our bookkeeper and accountant. This was a genuine error. She did not see the letter signed by the Complainant.   As the business was closed she was concerned with the de-registering of the business for VAT and PAYE.

We are honest, hardworking individuals who ran our business in a simple, straightforward manner.   We understand the basics of employment law but we are by no means technical experts.

The closure of our business was never going to be a redundancy situation. Another business took over the lease on the premises.   This new business owner enquired about our employees and the transfer of undertakings. As the Complainant had ceased employment with us, no requirements under the transfer of undertaking applied to her. Our only other employee did not wish to take up a position with the new owner.

We understand that under the Redundancy Acts an employee has a six month time period to make a complaint. If the Complainant had an issue with regard to her employment she should have made this complaint when she realised the business was closed i.e. January 2017.   Six months would bring her to June 2017. A further six months can be allowed where there is reasonable cause. This would further allow the Complainant until December 2017 to lodge a complaint. This complaint was only lodged in June 2018.

The Citizens Information letter of 18th July 2018 indicates that the Complainant attended the centre in March 2018 with regard to her social welfare and family entitlements. Why did the Complainant only go to the Citizens Information in March 2018?   Why did she not go in June 2017?

Did the Complainant return to a full-time position in June 2017? We are aware that good qualified hair stylists are in high demand in Dublin City and have been since 2016. If the Complainant did not return to full time employment then it further confirms her indication in the letter that she had no intention of returning to work.

If the Complainant still believed she was employed by us, why did she never make any contact with us to indicate this fact? We had a friendly, easy going relationship with her. She could have expressed her concerns to us when we visited her after the birth of her baby.

Citizens Information indicate in their letter of 18th July 2018 that we visited the Complainant in her home in early 2017. This is correct. However, the letter further states that we advised her to contact us after her maternity leave regarding her P45. We deny this statement, we had no discussion with her regarding a P45.   We never instructed her as to when she could obtain her P45.

The Complainant contacted us in June 2017, on her own initiative, to ask for her P45. We presumed as she had indicated that she was not returning to the workforce she required her P45f for social welfare reasons.

We append our final accounts for the 8 months ended 31st December 2016 together with our bank statements for the final four months trading. The accounts and bank statements show the business had no profit other than the partners modest weekly drawings.

We received no payment from the new business owner. We entered discussions regarding the sale of our goodwill but the new owner was not prepared to make any payment to us. We closed the business bank account in early 2017, with a balance of € 200.00. We walked away from the business with nothing.

In summary, we have no doubt in our minds that the Complainant terminated her employment with us on 10th December 2016. She as a good hair stylist, a nice person and a hard-working employee.   We believe Citizens Information have acted in good faith taking on this case. There are many situations in business where employees are taken advantage of by unscrupulous employers. However, we believe that the Complainant has not presented the facts correctly to Citizen Information. We believe, the Complainant, once advised that she may have a claim, has taken this action as she has exhausted her social welfare entitlements.

We bear no animosity towards the Complainant. We would however respectfully appeal to the adjudicator to dismiss this claim

The Complainant commenced her Maternity Leave on 10th December 2016. Under current legislation she could avail of 42 weeks of Maternity Leave i.e. statutory maternity leave / benefit for 26 weeks and additional unpaid maternity leave of 16 weeks.

During any period of Maternity Leave the employment is protected and the employment status may not be changed or amended.

Prior to commencing her period of Maternity Leave the Complainant believed that she would not be in a position to return to work following the end of her maternity leave. In or around early November 2016, in good faith, the Complainant informed the Respondent of this possibility. At the hearing of the Complaint it is claimed by the Complainant’s representative that to the best of her knowledge, she believes that she stated to the Respondent that she “would not be coming back to work” while also qualifying that statement by saying ……..” but who knows”

On foot of this statement the Complainant avows that the Respondent requested her to sign a written declaration confirming that she would not be returning to work after her maternity leave. As per the written complaint form in respect of this matter the Complainant did not fully understand the necessity of this statement at that time, and felt somewhat coerced when signing the document. In relation to this statement I believe it is noteworthy that it is dated “December 2016” – no date, just a month. Was this statement signed before or after the 10th of December 2016? This is the date the Complainant commenced her Maternity Leave.

In June 2017, as per the instruction of the Respondent the Complainant contacted the Respondent to advise that her maternity leave had ended and that she wished to request her P45, she being aware that the business had closed.

In relation to the possibility of a Transfer of Undertaking the Complainant’s representative makes the following points:

“In the Respondent’s letter dated 25th June 2018 they have asserted that the closure of their business occurred as part of a Transfer of Undertaking and that our client’s employment would have been ensured had she not previously advised that she did not intend to return to work following the end of her maternity leave.

Article 8 of S.I. No. 131/2003 – European Communities (Protection of employees on Transfer of Undertakings) Regulations 2003, requires, inter alia, that:

2.       The transferor and transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of:

e)       The date or proposed date of the transfer.

f)        The reasons for the transfer.

g)      The legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them

And

h)      Any measures envisaged in relation to the employees.

We submit on behalf of our client that she was an employee of the Respondents during the relevant period, and that she received no information in relation to a prospective transfer of undertaking, as set out in the relevant regulations above. We further note that the Respondent has to date provided no further evidence to support the assertion that a transfer of undertaking occurred during the relevant period”.

I cannot disagree with any of the above, there was no question of a transfer under these regulations. The Complainant received no information in relation to any possibility of a transfer of undertaking.

In his conclusions the representative for the Complainant makes the following points:

·         On behalf of our client, we submit the following:

·         Our client’s employment with the Respondent commenced in July 2007.

·         Our client’s maternity leave commenced on 10th December 2016.

The Respondents ceased trading on 31st December 2016.

·         Our client has more than 104 weeks continuous and uninterrupted employment, in accordance with Section 4(1) of the Redundancy Payments Acts.

·         Our client’s service with the Respondents was continuous during the relevant period, as defined within the First Schedule of the Minimum Notice and Terms of Employment Act 1973.

Section 22 of the Maternity Protection Act 1994 as amended provides that:

·         When an employee is absent from work while on maternity leave or health and safety leave the employee shall be deemed to have been in employment and such absence shall not affect her rights save for her rights to remuneration.

Section 17 (1) of the Redundancy Payments Acts requires that:

·         An employer who proposes to dismiss by reason of redundancy an employee who has not less than four years’ service with that employer shall, not later than two weeks before the date of dismissal, give to the employee notice in writing of the proposed dismissal and send to the Minister a copy of that notice.

As outlined above, we submit that on the date of cessation of the Respondent’s business, that date being 31st December 2016, our client was an employee of the Respondents and became entitled to notification of the termination of her employment, and right to claim redundancy in respect of her length of service with the Respondent.

·         We submit that the Respondents failed to provide the requisite notice to our client prior to the cessation of trading, and further continued to fail to advise our client of her entitlement to redundancy after they had ceased trading.

·         We submit that our client did not become the subject of a transfer of undertaking during the relevant period.

·         We further submit that the Respondents failed to issue the requisite notice to our client of four weeks, as provided under the Minimum Notice and Terms of Employment Acts 1973-2005.

·         The Respondents failed to discharge their duty as the employer of our client in notifying our client of the above.

·         Redundancy Entitlement – we submit that our client was an employee of the Respondents for a period of nine years and six months. A calculation of the redundancy is enclosed.

In relation to the points raised by the Respondent regarding the timing of the complaint being made to the Workplace Relations Commission, the time allowed under the Redundancy legislation is 52 weeks. This period would only commence at the end of the maternity leave. The Complainant lodged her complaint with the Workplace Relations Commission on 16th May 2018, this is within the 52-week period.

I must agree with the arguments presented by the Complainant’s representative and have decided that the complaint as presented is well found and order the Respondents to make a statutory redundancy payment of €8261.45 to the Complainant.

Such payment should be made within 42 days of the date of this notice.

As outlined above.

Redundancy; Maternity Leave.