ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00005584

Parties:

 Anonymised PartiesSolicitorLaw Firm   Representatives  Solicitors

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00007784-001 24/10/2016 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00007784-002 24/10/2016 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00007784-003 24/10/2016   Date of Adjudication Hearing: 05/09/2017 Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 39 of the Redundancy Payments Acts 1967 - 2014] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Case:

The claimant was employed as a solicitor by the respondent from the 4th.July 2006 and submitted that she was made redundant along with all members working in the immigration section with effect from the 14th.October 2016.It was asserted that the claimant did not receive formal notice of redundancy or termination of her employment – the claimant is seeking her statutory redundancy entitlement , notice pay and payment for her statutory annual leave . It was submitted that the claimant became aware of cash flow difficulties in July and August 2016 and a series of emails between the claimant and the respondent in which she was expressing concern about this matter and was uncomfortable continuing to instruct barristers were submitted into evidence.By way of response on the 30th.August 2016, the respondent stated “:I’ll tell you what I could do .I could decide not to pay you maternity leave and give the money I am saving to Counsel.Or I could let people go”.On the 13th.Sept. 2016, the respondent stated in a letter hand delilvered to the claimant that he had taken the decision that the respondent company will no longer work in the area of immigration and “ this means I will be making most staff , if not everybody redundant”. The claimant met with the respondent on the 19th.Sept. 2016 and asserted that the respondent confirmed he would pay the claimant her statutory redundancy , sought clarification on whether the claimant wished to take the immigration files under the aegis of her own firm and stated that the respondent’s premises would close on the 14th.Oct. 2016.In an email sent to the claimant on the 20th.Sept., the respondent enquired if the claimant intended to open a new firm and if she wished to continue with the immigration files already in place.” The legal position in relation to your position in the company “ is that if you do not set up your own practise then I would propose making you redundant when your maternity leave comes to an end”.At a further meeting on the 23rd.Sept. , the respondent indicated that he would not consider the redundancy figures until the value of the immigration files was ascertained. On the 26th.Sept. the claimant asked the respondent to serve notice of redundancy on her immediately and sought payment for annual leave and notice – she also sought confirmation that she would receive full pay until the 14th.Oct. 2016 and half pay for the duration of her maternity leave as had been agreed.In his reply the respondent denied committing to pay redundancy .The claimant was not paid her wages on the 7th.Oct . 2016 and on the 14th.October   the claimant sought payment of redundancy , notice and annual leave an RP 50, a P45 and outstanding pay slips.The claimant commenced maternity leave on the 17th.Oct. 2017. It was submitted that the claimant was entitled to redundancy in circumstances where the respondent intended to carry on the business without the immigration dept. without as much staff and at a different location.It was submitted that the non payment of redundancy was a breach of the Redundancy Payments Act 1967-2012.It was submitted that the non payment of notice constituted a breach the Payment of Wages Act 1991 - it was further submitted that the non payment of outstanding annual leave constituted a breach of the Organisation of Working Time Act 1977. Submissions were presented on the matter of the date of dismissal and it was advanced that there was no “ clear date of dismissal in the within proceedings” and that there were a range of dates that could be considered as the date of dismissal.The chronology of exchanges and emails between the parties were set out .It was submitted “ that the fact of whether or not a dismissal has occurred must be determined by the Adjudicator.    

Summary of Respondent’s Case:

The respondent did not attend and was not represented at the hearing.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. 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.   I have reviewed the evidence presented at the hearing and noted the chronology of correspondence between the claimant and the respondent in the weeks preceeding the closure of the premises.On the basis of the uncontested evidence of the claimant I am satisfied that the claimant’s employment was terminated by reason of redundancy on the date the premises closed on the 14th.October 2016.

CA-00007784-001 Redundancy Payments Act, 1967 On the basis of the claimant’s uncontested evidence I am satisfied that the respondent was in breach of the Act and I require the respondent to pay the claimant her statutory redundancy within 42 days of the date of this decision.

CA-00007784-002 Organisation of Working Time Act 1997 On the basis of the uncontested evidence of the claimant , I am satisfied that respondent was in breach of the Act for failing to pay the claimant her outstanding leave on termination of her employment and I require the respondent to pay the claimant €2,250 for monetary loss and €500 compensation for this breach of the Act. Payment to be made within 42 days of the date of this decision.  

CA-00007784-003 Payment of Wages Act 1991 On the basis of the uncontested evidence of the claimant , I find the respondent was in breach of the Act owing to the non payment of notice.I require the respondent to pay the claimant €6250 compensation within 42days of the date of this decision.   Dated:   11.01.2018 Workplace Relations Commission Adjudication Officer: Emer O'Shea