ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023179

Parties:

	Complainant	Respondent
Anonymised Parties	Office Administration	Facility Support Service Providers

Complaint(s):

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-00029394-001	01/07/2019

Date of Adjudication Hearing: 26/09/2019

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

The evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.

Also, an Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).

In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 1st of July 2019) issued within six months of her dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter

Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).

Background:

The Complainant has brought a claim against her former employer concerning the manner of the termination of her employment with the company. The Complaint is outlined in the Workplace Relations Complaint Form which issued on the 1st of July 2019.

Summary of Complainant’s Case:

The Complainant was represented at the hearing and she gave evidence on her own account as well as providing me with a full submission. The Complainant was out on Maternity Leave when she received a P45 from her Employer. There had been no lead up to this event and the Complainant’s subsequent communications with the Respondent were confusing and unhelpful. The Respondent eventually went into Liquidation.

Summary of Respondent’s Case:

The appointed Liquidator initially took the view that the Complainant must have transferred to another company. I accept that he has since resiled from that position. I am assured that the Liquidator will abide by any decision made, recognising the Complainant as an Employee of the now Liquidated Respondent Company.

Findings and Conclusions:

I have carefully considered the history as outlined by the Complainant herein. The Complainant had been working with the Respondent company since early 2017. In November 2018 the complainant went out on her Maternity leave and was not due back in the workplace until May of 2019. Unexpectedly, the Complainant received her P45 on the 1st of January 2019. This came from her Employer and the P45 confirms this. The Complainant was understandably upset at this turn of events and immediately communicated with the HR Manager.

The Complainant understands that some, though not all, of her colleagues were ultimately engaged by another Service Provider who took over the service Contracts heretofore held by the Respondent Company. The Complainant was never included in any TUPE arrangement and has never had any clarity in relation to what was supposed to happen to her and her position. In any event the Complainant takes the view that she was never transferred to another company and it was her Employer who issued her with a P45 in the course of her Maternity leave. I am inclined to agree with the Complainant on the facts presented.

I would say that it is regrettable that the Complainant’s Maternity leave became so difficult and that she was denied the comfort of enjoying her paid and unpaid Maternity Leave in the manner she expected when she embarked on this Leave.

The Respondent company went into Liquidation and the Liquidator was appointed and the Complainant entered into communication with the Liquidator so appointed. The Liquidator was initially reluctant to accept that the Complainant had any rights against the Respondent company (set out in an email sent on the 5th of June 2019).

Happily, the Liquidator has since advised that he will take receipt of any decision reached under this legislation and, if appropriate, will process any award through the Insolvency fund. In making this commitment, I am satisfied that the Liquidator is accepting that the Complainant’s assertion that she is and always has been an employee of the now liquidated Respondent company is valid.

On balance, I am satisfied that the Complainant herein has been unfairly dismissed from her employment when she became an accidental victim of the financial fall-out of the Respondent company having to go into Liquidation. The situation became more complicated by reason of the fact that the Complainant was out on protected Leave and not in a position to vindicate her rights and have her voice heard. In assessing loss I must be mindful of the fact that the workplace has ceased to exist and that the remunerative losses are therefore limited.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

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

CA-00029394-001 I find that the employee has been dismissed and the dismissal is unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. I assess compensation for financial loss in the amount of €5,000.00.

Dated: 31 October 2019

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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