Complainant

Respondent

Anonymised Parties

{A Cleaner}

{A Contract Cleaning Company}

Representatives

Lauren Tennyson BL

Toner Solicitors

John Barry Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00012933-001

03/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00012933-002

03/08/2017

The Complainant was employed as a as a Site Supervisor since 28 January 2008 for 15 hours per week at 14.00 euro per hour. She also worked for the Respondent for 20 hours a week as a Cleaner on a basic rate of 9.75 euro per hour at another location. She was informed of the transfer of her role as Supervisor to a new company due to loss of the contract on 22 August 2016.

The Complainant brought a claim under the Transfer of Undertakings Regulations 2003 to the WRC on 31 August 2016 when it became clear that her role as Supervisor had not transferred to the new Company. She had been informed by letter from the Respondent that her employment transferred to the new contractor. She was not legally represented. The Adjudication Officer determination ADJ-00005095 dated 21 July 2017 found there was no transfer of undertaking. The Complainant seeks to pursue an unfair dismissal claim in relation to her role as Supervisor and seeks an extension of time due to reasonable cause as her failure to present the claim in time was due to her knowledge and the outcome of her first complaint was pending. The second complaint was lodged with the WRC on 3 August 2017 following receipt of legal advice.

The Complainant says that she was unfairly selected for redundancy in her role as Supervisor. The Respondent says there was no dismissal as the Complainant continued to work with the company at another location as cleaner on the other contract until March 2017 when that contract was lost.

The Respondent made a preliminary application under the Unfair Dismissal Acts 1977-2015 that there was no dismissal in 2016 as the Complainant remained in employment until March 2017 and no claim for unfair dismissal could be made under the Acts.

In 2016 the Respondent retendered for a contract for cleaning services under which the Complainant was retained as Supervisor. This was unsuccessful. Another Company were successful in the tender. The Respondent wrote to all staff notifying them of the unsuccessful tender and that they would transfer to the successful Company on 22 August 2016. The new Company said they were not accepting the transfer as there were substantially reduced hours. The Respondent employed the Complainant on another site as cleaner where she continued to work until 28 February 2017 when that contract was lost.

The Complainant was never dismissed by the Respondent and was transferred to her new employer. The Complainant’s employment was not terminated prior to February 2017 and there is no dismissal. The Complainant should have made a complaint of unfair dismissal at the same time as her first complaint in relation to the transfer of undertakings and there are no reasonable grounds for delay. There was no selection process for the dismissal as the contract was lost. The Respondent continued to allocate more hours to the Complainant.

The Complainant has made an application to extend time to proceed with her complaint of unfair dismissal. The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

The Complainant is a non-national and is not familiar with the legal processes in Ireland. She was not legally represented at the time.

Normally, ignorance of the person’s legal rights, as opposed to the facts giving rise to the complaint cannot provide a justifiable excuse for the failure to bring the complaint within time. But there are special circumstances in this case, the Complainant made her first complaint to the WRC within 6 months of her dismissal. She was not legally represented. She had been informed by the Respondent that her employment was transferring to the new employer. She only became aware that the Transfer of Undertakings Regulations 2003 did not apply following the decision of the Adjudication Officer in ADJ00005095 on 21 July 2017. She lodged this complaint immediately afterwards on 3rd August 2017.

The Respondent contends that there are no reasonable grounds for delay given that the Complainant could have made all complaints of unfair dismissal and redundancy to the WRC at the time of her first complaint.

The Complainant is a non-national. She could not reasonably be expected to understand the nature or detail of her statutory entitlements or the process of vindication of these. The decisive criterion is reasonableness as set out in Rezmerita Limited v Wioletta Morkis Labour Court (DWT1017). In the circumstances, I find there is reasonable cause to extend time in the case.

The Complainant was employed as a Supervisor for 15 hours per week on one site. She also carried out cleaning duties on another site for 20 hours per week. The contract in relation to the work as Supervisor was lost by the Respondent and the Complainant did not transfer to the new Company who took over the contract. This was a significant loss of income for the Complainant and it resulted in a reduction in her weekly normal remuneration of more than half. However, no notice of short-time was served by the Respondent in compliance with S12 of the Redundancy Payments Acts 1967 as they were of the view that the Complainant’s employment transferred to the new company.

The Respondent made a preliminary application at the hearing under the Unfair Dismissal Acts 1977-2015 that no dismissal took place on 19th August 2016 as the Complainant continued to be employed by the Respondent until March 2017.

“Dismissal” is defined in S1 of the Unfair Dismissals Acts 1977-2015 in relation to an employee means

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed-term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

The Complainant’s representatives say that she was employed on 2 separate contracts of employment for the different sites. Her history was that her contractual hours varied between 8-40 hours per week. No contractual documents were produced by the Complainant to evidence the contention that the Complainant was employed on 2 separate contracts of employment. The payslip of the Complainant sets out the weekly hours worked by the Complainant in relation to her 2 sites for the same Respondent company at the different rates of pay.

The Respondent says that the Complainant was employed on 1 contract of employment and was assigned to a number of different contracts and sites. If a contract is lost by the business a Cleaner is reassigned to other work if work is available or if not there is a reduction in the Cleaner’s work hours. In practice Cleaners will seek work elsewhere if this happens. This is the nature of the industry which is specific to contract cleaning.

The Complainant has given evidence that her 15 hours per week work as Supervisor ceased on 22 August 2016 but she continued to be employed by the Respondent as a Cleaner on another site until March 2017. There was a significant reduction in the hours of the Complainant and her pay was reduced by more than half from 19 August 2016 onwards. She gave evidence that her hours were not increased after her loss of the contract and continued at the same level. The Complainant’s employment continued with the Respondent at another location albeit on reduced hours, after August 2016. I find from the evidence that the Complainant was employed on 1 contract of employment. There was no termination of her contract of employment in August 2016 and accordingly, no dismissal within the meaning of this Act on 19 August 2016.

I find there was no dismissal of the Complainant on 19 August 2016 and the complaint fails.

Contract of employment, dismissal within Unfair Dismissals Acts, application to extend time, non-national, transfer of undertakings, contract cleaner

The Complainant was employed as a as a Site Supervisor since 28 January 2008 for 15 hours per week at 14.00 euro per hour. She also worked for the Respondent for 20 hours a week as a Cleaner on a basic rate of 9.75 euro per hour at another location. She was informed of the transfer of her employment as Supervisor to a new Company due to loss of the contract on 22 August 2016.

The Complainant seeks a redundancy payment in relation to the cessation of the contract for 15 hours work as Supervisor on 19 August 2016. The Complainant brought a claim under the Transfer of Undertakings Regulations 2003 to the WRC on 31 August 2016 when it became clear that the requirement to provide 15 hours as Supervisor had not transferred to the new Company. She continued working for the Respondent on the other site until March 2017 while her complaint was pending. She had been informed by letter from the Respondent that her employment transferred to the new Company. She was not legally represented. The Adjudication Officer determination ADJ-00005095 dated 21 July 2017 held no transfer of undertaking took place.

The Complainant was not paid statutory redundancy when her employment was terminated by the Respondent in relation to the loss of the role as Supervisor which is now due. She says she was employed on 2 different contracts of employment for the different sites and continued working on the other site as Cleaner until March 2017 when that contract was lost.

In 2016 the Respondent provided a contract for cleaning services which was retendered. Another Company were successful in the tender. The Respondent wrote to all staff notifying them of the unsuccessful tender and that they would transfer to the successful Company on 22 August 2016. The Complainant worked as Supervisor for 15 hours a week for the contract which was lost. The Respondent employed the Complainant on another site as Cleaner where she continued to work until 28 February 2017 when that contract was lost.

The Respondent says there was no dismissal as the Complainant continued to work with the company at another location on the other contract until February 2017 when that contract was lost. The Complainant was not made redundant by the Respondent prior to February 2017 and is not entitled to make any claim for a redundancy payment. She was employed on one contract of employment for 2 different sites.

The entitlement to redundancy payment arises in Section 7 (1) of the Redundancy Payments Act 1967 An employee, if he is dismissed by his employer by reason of redundancy or is laid off kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided-

(a)    he has been employed for the requisite period, and

(b)    he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts immediately before the date of termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken 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 that business in the place where the employee was so employer, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c ) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

(2A) For the purposes of subsection (1) an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if-

(a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in Section 6 of the Protection of Employment Act 1977,

(b) the dismissals concerned were effected on a compulsory basis,

(c ) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by-

(i)                  other persons who are, or are to be, directly employed by the employer, or

(ii)                other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements,

(d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and

(e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees.

(3) For the purposes of subsection (1) an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks…

The reduction in hours of the Complainant by the Respondent following the loss of the contract in August 2016 amounted to a reduction in remuneration to less than one half of her normal weekly remuneration under Section 11 2(a) of the Act which is short-time under the Act. The Complainant’s evidence is that her reduced hours remained the same following the loss of the role and were never increased. At this time the Complainant was informed that her role transferred to the new company and when this did not occur she lodged a complaint to the WRC under the transfer of undertakings regulations. The Complainant remained on short-time until end of February 2017 with the Respondent. She received a decision in relation

Under S12 of the Act after 4 or more consecutive weeks of short-time and not later than four weeks after the cessation of the short-time, she was entitled to give notice to her employer notice of intention to claim redundancy payment or to terminates her contract by giving the notice required, the notice given is notice of intention to claim redundancy.

The time period in which notice of intention to claim redundancy on the part of the Complainant has long expired. The Complainant had lodged a complaint to the Workplace Relations Commission seeking to clarify if she was transferred to the new Company which was decision issued in July 2017.

There was no redundancy on 19 August 2016 and the complaint fails.