Complainant

Respondent

Anonymised Parties

Office Manager

Facilities Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00011437-001

19/05/2017

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

CA-00011437-002

19/05/2017

CA-00011437-003

19/05/2017

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

CA-00011437-004

19/05/2017

The respondent is a facilities management organisation, providing cleaning and catering services nationwide. The claimant commenced her employment with the respondent in January 2016 as the office co-ordinator.  The claimant lodged three claims against the respondent wherein she has alleged that she is owed €19,000 in unpaid wages for overtime payments (as of the 28th April 2016) in breach of the Payment of Wages Act; that she was unfairly dismissed from her employment in breach of the Unfair Dismissals Act andthat she was told on the 24th April 2017 that her job was gone and she would finish on the 28th April 2017 in breach of the Minimum Notice Act.The respondent denies the allegations as alleged.

The Complainant was employed as a coordinator/office manager. Her hours of work were between 8:30 a.m. and 5:30 p.m. However, the Complainant was required to carry an ‘out of hours’ phone which she had to bring home in case anybody needed to contact the office outside of normal business hours. The Complainant would constantly receive calls relating to work between the hours of 5:30 and 8 p.m. and on occasion would receive calls as early as 7 a.m. and as late as 11 p.m. The Complainant would also receive calls at the weekend and would often have to go and collect keys to bring to other personnel. The Complainant raised the issue of overtime with the Respondent and complained about the fact that she was taking these calls during ‘after hours’ and working at the weekends and was not being paid for it. The Complainant was assured by the Respondent that although they could not afford to pay her overtime now, by next year she would be on €40,000.00. The Complainant believed that this would be the case and that she would be adequately paid for the work that she had put in. When the Complainant was leaving the company director acknowledged that she was owed money for overtime and asked the complainant to come to him with a figure so that he could try to get her paid something. He then informed her that he had asked the company to pay her an extra week’s wages for the overtime. It is the Complainant’s case that she worked 16.5 hours per week overtime during her employment and was not paid for same and her hourly gross rate is €18.00 per hour.

The respondent denies any allegation that that the claimant is entitled to or due any additional payments or wages following the termination of her employment. The claimant was paid a salary to the sum of €25,000 for 40 hours per week as office co-ordinator to include any overtime as may be required by the business.  The relevant contract of employment states: ‘Your normal hours of work are 40 per week, 8.30 am. to 5.30 pm. Monday to Friday with a 60 minute unpaid break each day.  You may be required to work overtime when authorised and as necessitated by the needs of the business.’ Furthermore, the claimant was not told that she had to take the work mobile phone but rather the parties had a mutually agreed arrangement with regards the work mobile phone whereby the claimant would take the phone overnight to deal with any emergency calls/texts that may be made after hours but also, the claimant could use the phone for her personal use. There was no express or implied agreement that the claimant would receive additional payments to her annual salary for any overtime work.  It is submitted that the claimant did however receive a fuel card where she could fill her car on a weekly basis to the value of €30 and the respondent was also very flexible with regards the claimant’s timekeeping, allowing her personal time to collect her daughter. It is also alleged that there were very few ‘after hours’ calls that would warrant an increase in the claimant’s annual salary, as such calls could be dealt with in a matter of minutes.  Furthermore, the respondent also held a phone to deal with after-hours calls/texts. Accordingly it is contended that the respondent has paid the claimant as per her contract of employment and she is not entitled to any additional payments.

The respondent has paid the claimant as per the provisions in her contract of employment.

The claim is not well founded and fails.

The Complainant commenced employment with the respondent on the 4th of January 2016. She was employed as a coordinator/ receptionist, earning a net weekly amount of €412.44. On the 24th of April 2017 the director informed the Complainant that her job was gone and that she was to finish on Friday the 28th of April. The Complainant was told that they could not afford to pay her anymore and that she was to finish on Friday the 28th of April 2017. The Complainant was asked by the director on the 25th of April to advertise for new cleaners and van drivers and he also indicated that they were going to hire a new sales person to build the business. The Complainant was bemused by this in circumstances where he had told her the day before that the business was not in a position to pay her and keep her on. Since leaving her position the Complainant has become aware that the Respondent hired another person to effectively do the work of the Complainant. The Complainant was shocked at the decision to let her go in circumstances where the Respondent is a big entity and she felt that there were plenty of roles that she could have undertaken in other parts of the business. The Complainant asked for a reason as to why she was being let go and asked was she effectively being “sacked”. At this stage, she was informed by the Respondent that they could not afford to pay her anymore and they had to let her go. It is the Complainant’s case that she has been unfairly dismissed in circumstances where there was no sound reason for her dismissal.

The respondent lost a major contract which caused the respondent to re-structure their business. The respondent spoke with the claimant where she was advised that the Company was in an unfortunate position where the respondent believed the role of co-ordinator to be untenable and so would need to put her on notice.  This meeting took place on the 24th April 2017.  It is also submitted that another member of staff, a Manager was also put on notice for similar reasons. It is submitted that the claimant’s role was to be absorbed by the director for the respondent.  While the respondent had lost a major contract, they did have another contract coming in and needed to hire a new member of staff for sales. The claimant was offered an alternative role in tele-sales as she had previous experience in this field.  The claimant rejected this offer.  It is also submitted that in general conversation the possibility of the claimant going out into the field in a sale roles was considered, but the claimant said she would not be interested in such a role.  The claimant has alleged that she was not offered part-time work.  It is submitted in the first instance the tele-sales role was a full time role and also in general conversation the claimant advised that it would not be financially viable for her to work part-time. The respondent confirms that the claimant did all she could for the business and there were no performance issues but rather, the role of co-ordinator was no longer required for the needs of the business.  The claimant was effectively made redundant but the claimant was only with the company some 15 months and was therefore not entitled to a redundancy payment.

It is also submitted that the claimant was paid an additional week’s wages as a gesture of goodwill in addition to her outstanding annual leave entitlements.

It is also submitted that the claimant was dismissed in accordance with Section 6(4)(c) of the Act. Furthermore, the claimant did not have the requisite service of 104 weeks’ continuous service in order to qualify for a statutory redundancy payment as per Section 7(5) of the Act as amended.

It is respectfully submitted that the claimant was made redundant in accordance with Section 7(2)(c) of the Act as the director absorbed the claimant’s role into his and continues to do that role to date.  The role has not been replaced.  It is also noted that the claimant at the time of lodging her claim papers on the 19th May 2017 had not taken up new employment.  It is submitted that the claimant has an obligation to mitigate her losses as per section 7(2)(c) of the relevant Act.

There is extensive case precedent underlining the importance of fair procedure when selecting staff for redundancy. Case law confirms that in any move to make staff redundant clear communication is crucial. That is, in defending a claim for unfair dismissal in respect of a redundancy situation, an employer should be able to prove that the employee facing redundancy was kept fully appraised of developments. Related thereto, staff should be encouraged to come forward with their own ideas as to how the business can be run more efficiently. For example, (at least) two Employment Appeals Tribunal cases reinforce the relevance of this approach. In the 2008 Park Developments case (UD 950/2008), the Tribunal noted that ‘no consideration was given to temporary layoff or short week options’. At around the same time, the Vintners Federation of Ireland was cautioned by the Tribunal, as it ‘did not give any genuine consideration to the proposals put forward by one of the claimants to reduce costs’(UD 787/2007). Furthermore, employees should be selected for redundancy using objective, fair and reasonable criteria. Section 5 of the Redundancy Payments Act 2003 states that the ‘objective’ nature of redundancy should arise ‘for one or more reasons not related to the employee concerned’ (i.e. the ‘impersonality’ factor). In the absence of such ‘objectivity’, employees may successfully claim that they were ‘singled-out’ when other positions might have been deemed to be equally at risk, or that the criteria applied in the selection process were unfairly biased against them. In such scenarios, the importance of fair procedures and of selecting employees for redundancy based on objective criteria - which should be communicated to the employees concerned – are of importance. Whilst it may be possible to use different criteria for different areas of a business, the onus is on the employer to show that there were objective reasons for doing so. Notably, the respondent was not in a position to produce any supporting evidence in respect of the claim that alternate job offers and\or a consultation process was applied in this case.

At hearing, the claimant presented evidence in support of her assertion that subsequent to her dismissal, in an attempt to mitigate her loss, she attempted to secure alternate employment.

The claim is upheld and is deemed just and equitable having regard to all of the circumstances. The claimant is awarded €15,000 - to be paid within 42 days.

On the 24th of April 2017  the director, informed the Complainant that her job was gone and that she was to finish on Friday the 28th of April. The Complainant was told that they could not afford to pay her anymore and that she was to finish on Friday the 28th of April 2017. It is the Complainant’s case that she did not receive the statutory minimum notice (payment) of one week.

It is submitted that the claimant was given one months’ notice, meaning her last day of employment would be the 19th May 2017.  The director contends that the claimant advised him that she did not believe that she would be able to stay that long and asked how much notice she was entitled to legally.  The Director believed it to be a week as she was paid weekly, to which the claimant replied that she would be happy to finish at the end of the week (i.e. the 28th April 2017). The claimant then finished up as per her request on the 28th April 2017 and was paid accordingly.  It is also submitted that the claimant was paid an additional week’s wages as a gesture of goodwill, in addition to her outstanding annual leave entitlements.

At her request, the claimant finished up on the 28th April 2017 and was paid accordingly.  She was paid an additional week’s wages as a gesture of goodwill in addition to her outstanding annual leave entitlements. However, no reference is made in the relevant documentation to the minimum notice payment.

The claim is upheld and the claimant is awarded €480.77 to be paid within 42 days.