ADJ-00010290

Complainant

Respondent

Anonymised Parties

A Former employee

A Loss Management Company

Representatives

In person

Managing Director

Act

Complaint Reference No.

Date of Receipt

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

CA-00013029-006

09/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00020433-002

04/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00020433-003

04/07/2018

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

CA-00013029-001

09/08/2017

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

CA-00013029-002

09/08/2017

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

CA-00013029-003

09/08/2017

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

CA-00013029-004

09/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00013029-005

09/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997

CA-00013029-008

18/06/2018

The complainant was employed by the respondent from September 2010 until August 2017. The respondent business is a Loss Assessment Company. The complainant initially had four roles within the organisation; Company Director, In House Solicitor, Senior Claims Handler and Licensee. The complainant resigned from her role as Company Director in 2012.

The complainant has submitted numerous complaints to the Workplace Relations Commission in relation to her employment. There were also other issues raised at the adjudication hearing and in supplemental submissions that are irrelevant to complaints lodged under Employment Rights legislation. Therefore, only issues relevant to the employment relationship will be considered in formulating the decisions on each complaint.

Given that the complainant occupied four roles while in the employment of the respondent, it is difficult to ascertain her level of pay. For clarity, the complainant’s employment began in 2010 when the business was set up. It was agreed with the respondent that the complainant would be paid €1,933 net per month on the basis of working 20-25 hours per week. The complainant did not receive payment for the first six months of her employment. In 2014 the complainant agreed to a reduced payment of €1,277 net per month for a reduced working week of approximately 12 hours. The complainant subsequently applied for Carers Allowance from the Department of Social Protection in 2015 (as it then was) which was put into payment and the complainant reduced her working week to 6 hours per week.

The complainant returned to work from Carers Leave in February 2017 and expected to be returned to the previously agreed rate of pay of €1,933 for 20-25 hours per week. The complainant stated that she continued to receive €1,277 per month despite the increase in hours worked plus agreed expenses in relation to travel and broadband costs relating to her working from home. The complainant confirmed that €1,400 in total was lodged into her bank account each month following her return from Carers Leave.

The complainant stated that the workload increased dramatically from April 2017 to June 2017 yet there were no additional payments made to her. The complainant also stated that Managing Director of the respondent began processing personal injuries claims for which they were not licenced or insured to do. The complainant, as the Licensee, stated that she was responsible for the Managing Director’s actions in this regard.

The complainant stated that she was ultimately made redundant from her role as Claim Handler by email dated 4th August 2017 and the gross weekly rate of pay used in the redundancy calculation was calculated as €293.08 per week. The complainant stated that she was also employed as an In-House Solicitor and Licensee at the time of her redundancy. The complainant does not accept that it was a valid redundancy situation and is claiming to have been unfairly dismissed from her positions with the respondent.

The complainant also submits that she was promised a 4% shareholding in the Company in lieu of the six months that she worked without getting paid between September 2010 and March 2011. The complainant signed a discharge agreement on 28th July 2017 and accepted €8,000 in lieu of the 4% shareholding.

The complaints that were submitted to the WRC and will be addressed in this decision are as follows:

Payment of Wages Act, 1991 (2 complaints)

Unfair Dismissals Act, 1977

Minimum Notice and Terms of Employment Act, 1973

Redundancy Payments Acts, 1967

Carers Leave Act, 2001

Terms of Employment (Information) Act, 1994 (2 complaints)

Organisation of Working Time Act, 1997 (Annual Leave) This complaint was raised for the first time at the adjudication hearing on 18th June 2018.

Submissions and Additional Information

The parties furnished written submissions at the adjudication hearings on 18th June 2018 and 7th August 2018. Both sides submitted additional documentation after the adjudication hearings had concluded. The most recent date of receipt of additional correspondence was 2nd December 2018.

This complaint relates to the non-payment of 6 months’ salary which the complainant says is owed to her from September 2010- March 2011. The complainant stated that the payment amounted to approximately €4,000 net and should have been paid to her on 28th February 2017 when she was first paid having returned to work.

The complaint also relates to incorrect salary payments made to the complainant on return from Carers Leave in February 2017. The complainant stated that the previously agreed rate of €1,933 net per month was to be reinstated on her return in February 2017.

The respondent is unaware of the specifics of the complaint and the date of 28th February 2017 as the date the payment was due to be paid. The respondent stated that it appears the €4,000 relates to a 4% shareholding of the business which was agreed in lieu of the six months of unpaid work. The respondent stated that the complainant had valued the shareholding at €12,000 but had accepted €8,000 by way of an agreement between the parties which was signed in July 2017. The respondent stated that as an agreement was reached on this issue, the complainant cannot now seek payment of the additional €4,000.

I relation to these complaints, I find as follows:

The complaint relates to six months of unpaid work which the complainant maintains she is owed. The respondent stated that in July 2017, the complainant accepted €8,000 in respect of a 4% shareholding which it claims was offered to the complainant in lieu of the six months of unpaid work.

The complaint also relates to the post carers leave rate of pay and the complainant’s assertion that she should have had her rate of pay increased to the original rate of €1,933 net per month.

Unpaid Work in 2010/2011

The complainant submitted this complaint to the Workplace Relations Commission on 9th August 2017. The complaint relates to the non-payment of wages between September 2010 and March 2011.

Time Limits

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015 provide as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In the instant case, this complaint is outside of the time limits permitted by the Act.

Post Carers Leave Rate of Pay

There was no evidence produced to suggest that it was agreed between the parties that the complainant’s rate of pay was to be increased to the original rate of €1,933 net per month. On that basis, I do not find in favour of the complainant.

Having considered the submissions of both parties to this complaint, I declare that the complaint relating to the period of September 2010 to March 2011 is out of time and is therefore statute barred.

In relation to the complaint relating to the rate of pay that was applied from February 2017 until August 2017, I declare that this complaint is not well founded.

This complaint relates to the non-payment of Statutory Minimum Notice on the termination of the complainant’s employment.

The subject matter of this complaint will be addressed in Complaint Application No: CA000-13029-004 below as referred under the Minimum Notice and Terms of Employment Act, 1973.

As this complaint will be addressed below, I declare that this complaint is not well founded.

The complainant stated that she was unfairly dismissed from the respondent. The complainant stated that she was made redundant from her position as a Claims Handler (CA-00013029-006 refers). Notwithstanding her position that it was not a legitimate redundancy situation in relation to her role as Claims Handler, the complainant stated that she was unfairly dismissed from her other roles within the organisation.

The respondent stated that the complainant was not unfairly dismissed. The respondent contends that it was unable to sustain the cost of the complainant’s employment given the level of claims that were being processed by her. The respondent stated that it had made every attempt to meet with the complainant and discuss alternative roles within the organisation but that its requests for meetings were not accepted. The respondent stated that eventually, given its concerns with the complainant’s level of work and its inability to meet with her and formulate a contract of employment and roles and responsibilities going forward, the respondent decided that it would continue the business without any employees and notified its decision to the complainant that she was being made redundant.

The complainant was on a two year leave of absence from 2015 until 2017 while caring for her mother. On her return in February 2017, the complainant stated that the relationship between her and the respondent had begun to deteriorate and that she was doing excessive work and not being paid at the previously agreed rate of pay. The complainant also confirmed that she had operational and regulatory concerns in relation to the Managing Director of the respondent.

I have reviewed the significant email correspondence between the parties from February 2017 until August 2017 and it is clear that the relationship between the parties had broken down. The respondent then notified the complainant that he was effectively making her redundant and continuing the business without any employees. Complaint application CA-00013029-006 below has found that the complainant’s employment ended by reason of redundancy and I find that in those circumstances the complainant was made redundant from the totality of her employment and was not unfairly dismissed.

Having considered the submissions of both parties, I do not find that the complainant was unfairly dismissed. Accordingly, I declare that the complaint is not well founded.

The complainant stated that she was entitled to four weeks’ notice of the termination of her employment based on the fact that she had been employed by the respondent for almost seven years.

The respondent refutes the complaint stating that the complainant received all her entitlements under the legislation.

In relation to this complaint, I find as follows:

Section 4(1) and 4(2)(c) of the Minimum Notice and Terms of Employment Act, 1973 provides as follows:

4(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

The complainant was employed by the respondent from September 2010 until August 2017. On that basis the complainant was entitled to four weeks’ notice of the termination of her employment. The respondent provided two weeks’ notice to the complainant. She is therefore entitled to a further two weeks’ pay in lieu of her notice entitlements. Based on a net monthly pay of €1,277 the complainant’s net weekly pay at the termination of her employment was €296.98 (based on 52 weeks per year divided by 12 months) She is therefore entitled to €593.96 with respect to notice entitlements.

Having considered the submissions of both parties, I declare that the complaint is well founded. The respondent is directed to pay the complainant €593.96 net in respect of her entitlements under the legislation.

The complainant stated that following her return from a period of Carers Leave in February 2017, she was not offered suitable alternative employment in contravention of Section 15 of the Carers Leave Act, 2001.

The respondent contends that the complainant remained working for the Company in a reduced capacity during her period of Carers Leave and her hours subsequently increased on her return in February 2017. The respondent refutes the complaint on the basis that the complainant continued to carry out the same role and duties on her return to work.

In relation to this complaint I find as follows:

The complainant remained working for the respondent on a reduced basis while on Carers Leave. The complainant stated in her complaint form that she was not offered suitable alternative employment on her return to work in February 2017. At the adjudication hearing, the complainant stated that she was also dissatisfied with the rate of pay that she received after the period of Carers Leave. The complainant stated that she expected her rate of pay to increase to the original rate of €1933 net per month.

The Applicable Law

Section 14 and Section 15 of the Carers Leave Act, 2001 provide as follows:

Section 14: Return to work.

14(1) On the termination of carer’s leave in accordance with this Act, the employee concerned shall be entitled to return to work—

(a) with the employer with whom he or she was working immediately before the start of the period or, where during the employee’s absence from work there was or were a change or changes of ownership of the undertaking in which the employee was employed immediately before the absence, the owner on the expiration of the period (“the successor”),

(b) in the job that the employee held immediately before the commencement of the period, and

(c) under the contract of employment in respect of which the employee was employed immediately before the commencement of the period or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor, that is identical to the contract under which the employee was employed immediately before such commencement, and (in either case) under terms or conditions not less favourable to the employee than those that would have been applicable to him or her if he or she had not been so absent from work.

(2) For the purposes of subsection (1)(b), where the job held by an employee immediately before the commencement of a period of carer’s leave to which he or she is entitled was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in that job or in his or her normal or usual job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or provision made under statute.

(3) Where, because of an interruption or cessation of work at an employee’s place of employment that exists at the time of the expiration of a period of carer’s leave taken by the employee, it is unreasonable to expect the employee to return to work on such expiration, the employee may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as reasonably practicable after such resumption.

Section 15: Right to alternative employment

15(1) Where an employee is entitled to return to work pursuant to section 14but it is not reasonably practicable for the employer to permit the employee to return to work in accordance with that section, the employee shall be entitled to be offered by his or her employer suitable alternative employment under a new contract of employment.

(2) Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if—

(a) it is of a kind that is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances.

(b) the terms or conditions of the contract relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not substantially less favourable to the employee than those of his or her contract of employment immediately before the commencement of the period of absence from work while on carer’s leave, and

(c) the continuity of service is preserved.

In all of the circumstances of this complaint, I do not find that the complainant returned to work in a different role or that she was not offered suitable alternative employment. The issue relating to the rate of pay that applied when the complainant returned to work in February 2017 has been addressed in Complaint Application CA- 00013029-001 above.

Having considered the submissions of both parties, I declare that this complaint is not well founded.

The complainant does not accept that her position in the organisation ended by reason of a legitimate redundancy situation. She also stated that when she returned from carers leave, she was placed on the incorrect rate of pay. The complainant stated that her redundancy calculation which was based on the rate of pay that applied to her position of Claims Handler was recorded as €293.08 per week.

The respondent stated that the complainant received the correct redundancy entitlements. The respondent stated that it maximised the complainant’s redundancy entitlements by including additional earnings such as travel expenses in the redundancy calculations.

In relation to this complaint I find as follows:

The respondent by email dated 4th August 2017 notified the complainant that she was being made redundant as he had decided to carry on the business without any employees.

Section 7(1) and 7 (2)(c) of the Redundancy Payments Act, 1967 provide as follows:

7(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or 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, 1952 to 1966, immediately before the date of the 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—

(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,

The respondent notified the complainant that he had intended to continue in the business without any employees. In doing so, the respondent acted in compliance with the legislation. However, at the time the complainant was made redundant, she was being paid a previously agreed amount of €1277 net per month which equates to €296.98 net per week (on the basis of 52 weeks per year divided by 12 months.) The respondent calculated her gross weekly pay at €293.08 which was paid as a net amount by way of a redundancy payment. The weekly pay calculation shortfall was therefore €3.90. As the complainant had seven years’ service, she was entitled to 2 weeks’ pay per year of service plus one bonus week. On that basis the complainant is entitled to an additional €58.50 in respect of redundancy entitlements.

Having considered the submissions of both parties, I declare that the complaint is well founded. The respondent is directed to pay the complainant €58.50 in respect of her redundancy entitlements.

The complainant stated that she did not receive the correct annual leave entitlements while in the employment of the respondent.

The respondent stated that the complainant received all of her entitlements in compliance with the provisions of the Organisation of Working Time Act, 1997.

The complainant’s original complaint was lodged to the Workplace Relations Commission on 9th August 2017. There were a number of complaints lodged and the issue of Annual Leave entitlements, although not specified within a complaint at the time, was raised by the complainant at both of the adjudication hearings without objection from the respondent. The date that this issue arose was 18th June 2018 at the first adjudication hearing and again at the reconvened hearing on 7th August 2018.

The cognisable period of the complaint is therefore from 18th June 2018 to the 19th January 2018 and encompasses the annual leave year from April 2017 to April 2018. The complainant was made redundant on 9th August 2017.

From 1st April 2017 until 9th August 17, the complainant stated that she did not receive her annual leave entitlements. Within that period, the exact number of hours that the complainant worked is unclear. However, based on the previously established pattern of approximately 25 hours per week, the complainant’s hours of work would have been approximately 425 hours. 8% of the hours worked in that period equates to 34 hours of annual leave.

Conclusion:

Given the different rates of pay and hours of work that have applied throughout the complainant’s employment and the level of disagreement between the parties at the adjudication hearings it is impossible to calculate correctly the value of complainant’s entitlements on this issue. It is clear, however that the complainant did not receive her entitlements in compliance with the legislation.

The complaint is well founded. The respondent is directed to pay the complainant €1,000 to take into account the value of her annual leave entitlements and compensation for the infringements of her rights under the legislation.

This complaint relates to the commencement of the complainant’s employment. The complainant stated that she did not receive a contract of employment in compliance with the legislation.

The respondent refutes the complaint. The respondent stated that this complaint is lodged outside of the six-month time limit provided by the legislation.

The complainant was not provided with a contract of employment in compliance with Section 3 of the Terms of Employment (Information) Act, 1994 when she commenced her employment. Having considered the submissions of both parties, I find that the complaint is within time as the breach continued to occur for as long as the complainant was employed by the respondent and not in receipt of written terms and conditions of employment in compliance with the legislation. Accordingly, I declare that the complaint is well founded.

The respondent is directed to pay the complainant €593.96 (Two weeks net pay) in respect of the breach of the legislation.

This complaint relates to the implementation of changes to the complainant’s terms and conditions of employment. The complainant stated that she was not notified of the changes as they occurred throughout her employment.

The respondent stated that it was in the process of arranging a meeting with the complainant to discuss a contract of employment with her and to agree terms and conditions of employment going forward. The respondent stated that the complainant had not agreed to discuss the proposed changes to her role(s) within the Company by the time the respondent effected the complainant’s redundancy in August 2017.

In relation to this complaint I find as follows:

Section 5 of the Terms of Employment (Information) Act, 1994 provides as follows:

5.(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect,

The respondent was in the process of formulating revised terms and conditions of employment and was seeking a meeting with the complainant on the contract that would be in place going forward. It appears that this meeting never took place as the respondent subsequently decided to make the complainant redundant and continue in business without any employees.

Despite the meeting not taking place, there were many other changes to the complainant’s terms and conditions throughout her employment with the respondent. Such changes included a reduction in earnings and hours of work, change of location of work etc, which she was not notified of in line with the provisions of the legislation. Accordingly, I declare that the complaint is well founded.

The respondent is directed to pay the complainant €593.96 (Two weeks net pay) in respect of the breach of the legislation.

Redundancy, Unfair Dismissal, Minimum Notice Entitlements, Annual Leave entitlements, Pay