Complainant

Respondent

Anonymised Parties

A legal secretary

A legal practice

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030873-005

11/09/2019

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

CA-00030873-006

11/09/2019

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

CA-00030873-007

11/09/2019

The Complainant is a legal secretary and was employed by the Respondent from 4th June 2017 until 1st August 2019.

The Complainant worked 14 hours per week.

This complaint was received by the Workplace Relations Commission on 11th September 2019.

The Complainant was employed by the Respondent Solicitors in June 2014 to work in the office in Dublin 7. She was never given a contract of employment.

In or around December 2017 / January 2019 while she was on maternity leave the Complainant heard from some of the girls in the office that the Respondent company had been given notice to leave the Unit from which they were operating. The girls advised her that there was no rush having to be out and that the manager was talking about all his options, being renting another unit in the same location, renting another office in Dublin or elsewhere or renovating a building owned by him at nearby.

Talk over the next few months was random, nothing was decided. The Complainant asked the manager in June 2019 if he had made a decision on what he might do or when they might move, and he said he hadn’t a clue.

On Friday 20th July 2019 the manager’s daughter (also an employee) approached the Complainant at her desk and told her that they had signed a lease for a premises in Greystones and that they would be moving within the next month or so. The Complainant was told that they would be able to offer her a job in Greystones and that she could work full time or part time or do flexi hours depending on what would work for her. The Complainant replied that she would look at all the alternatives and get back to her.

27th June 2019 –The Complainant sent an email to the manager’s daughter advising that she had done a journey to Greystones in the morning to see what the commute was like. The Complainant advised her that she got the 7.54 train in Balbriggan which allowed her to drop the children to the creche which opens at 7.30am. The train got to Greystones at 10.03 am which would allow her to start work around 10.00 am. The Complainant would be required to work until 6.00pm and there is a train at 6.18 pm which gets to Balbriggan at 8.26pm. I would get home at 8.40pm. I explained to the Respondent that as the creche closes at 6.00pm she would need to find childcare for her two younger children from 6.00pm to collect, feed, bath, homework and put them to bed until she got in. The Complainant then explained that it was not an acceptable alternative for her and she felt that the hours spent commuting were quite a lot as well as the additional cost of childcare.

27th June 2019 – The manager’s daughter replied by Whatsapp to say that she understood that it was probably not going to work for me and she understood.

The Complainant was offered advice by a number of solicitors who had heard about the position.   They advised her that her position should be considered redundant as per Law Society guidelines as follows:

“There are five alternative definitions of redundancy contained in the Redundancy Payments Acts 1967-2007. A dismissal due to redundancy may be justified where the circumstances giving rise to the dismissal fall within one or more of these five definitions which are as follows:

(a)    The fact that the employer has ceased, or intends to cease, to carry on the business for the purposes for which the employee was employed by him, or has ceased or intends to cease to carry on that business in the place where the employee was so employed, or

(b)    The facts 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 henceforward 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 be henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

The Complainant made an appointment with the Citizens Advice Bureau in Balbriggan. They made a call to the WRC and were advised that due to the unreasonable distance she would have to travel she could refuse the offer of employment in Greystones and she should ask for redundancy in writing and confirmation of the finish date of her employment.

8th July 2019 – The Complainant sent an email to the Respondent along those lines.

9th July 2019 – Reply from the Respondent stating that she was not being made redundant and her email of 27th July 2019 was being taken as her resignation and 2nd August was her finish date.

10th July 2019 – The Complainant replied stating that she had not resigned.

10th July 2019 – Email from the Respondent asking was something else going on as things seemed weird in the office.

11th July 2019 I spoke to the Respondent about the fact that she felt we were entitled to be made redundant due to the distance required to travel to Greystones.   She (the manager’s daughter) said it never occurred to her that that would be the case. She said she would look into the situation.

26th July 2019 The Manager went on holidays and said he would not be back before the finish date and wished us luck in our new jobs.

1st August 2019 at 3pm the staff were told not to bother coming in on Friday and they could finish up there and then.

The Respondent did not update the Complainant’s status with Revenue until 25th August 2019 despite a number of emails from her asking them to do so as it was affecting her being paid from other employment.

The Respondent Solicitors always had a business connection in the Wicklow area. For many years they had an office in Bray and for the last 15 years in Greystones. It was always in the Respondent’s plans to relocate the business to the Greystones/Delgany area. This was well known to all of the staff working with the Respondent in Dublin and in particular to the Complainant.

The Complainant was employed by the Respondent since 2014. In 2017 she went on maternity leave and availed of the additional 16 weeks leave, which she was entitled to do so. The Complainant was reluctant to return to work after her leave had ended, however, she was a valuable member of staff and it was discussed with her returning for a period of six months on a part time basis, to help with the work load and give the Respondent time to find a replacement. The Complainant agreed to this offer in the short term and facilitated her with regard to days and hours which she chose to work, as they needed her. She returned to work on 5th July 2018 working two days a week. She continued in her employment with us beyond the six month period in this casual capacity until the end of July 2019.

The Respondents were aware for the last 2 years that the lease on the premises would have to be surrendered. The landlord was most reasonable and allowed as much time as the Respondent wished to find alternative business premises and the preferred option was to move to the Greystones/Delgany area. The Respondent contends that this would have been discussed with the staff on numerous occasions including the Complainant.

The Complainant was always kept informed about the decision to relocate the office to Greystones and it was made clear that her job was still available to her. However, given the casual capacity of her employment, through her choices which did extend beyond the agreed six months period, it was of no great surprise that the Complainant decided not to continue in her employment.

Nevertheless, the Complainant was employed as a part time Legal Secretary for the last five years or so and was a key member of the staff.   Therefore, the Respondent tried their best to accommodate her once more, offering her full time, part time or flexi time in the new office. It was with regret that she advised the Respondent that the she would not be continuing her employment with them, by email on 27th June 2019.

The Respondent does not agree with the Complainant’s calculation of the commute time contained in her email as she was travelling to Dublin City Centre for her place of work anyway. Only the additional travel time from Dublin City to Greystones is of relevance, which we estimate to be approximately 45 minutes and the Respondent would have allowed for this additional commute time with no reduction in salary. Also, the new office is conveniently located 2 minutes’ walk from Greystones train station. In addition, the Complainant expressed concerns with regard to her crèche closing time, in her email to them. Although the Respondent always have empathy with all employees in respect of their personal circumstances, allowing time off for doctor’s appointments without deduction of pay etc they cannot possibly be responsible for such personal arrangements as childcare.

The Complainant’s last day of work was on 1st August 2019, however, the Respondent paid her a full month’s salary for August as a good will gesture and any annual leave which was due to her.

Since opening the office in Greystones on 6th August last the Respondent had to replace the Complainant. In all the circumstances under the Redundancy Payments Act 1967-2014 the Respondent is of the firm opinion that a redundancy situation did not arise in so far as the Complainant’s position with the Respondent was concerned, as her job did not cease to exist.

In relation to the workplace relations complaint form we respond as follows:

CA-00030873-005

The Complainant will collaborate that the nature of the employee/employer relationship was very casual / friendly. The Complainant’s terms of employment were confirmed verbally upon commencement of employment back in 2014. The Respondent now provide all employees with written terms of employment and are compliant under the terms of the Employment (Information) Act 1994.

CA-00030873-006

The Complainant was not dismissed from her employment. She advised us that she could not continue in her employment by email on 27th June 2019 due to her own personal circumstances.   The Complainant’s job was always available to her and it was with regret that she decided not to continue in her position with the Respondent.

CA-00030873-007

The Complainant’s position was not redundant and therefore she was not entitled to a redundancy payment under the Redundancy Payments Act 1967.   Her job did not cease to exist, and she was subsequently replaced. The Complainant was informed by email on 9th July 2019 and in writing on 3rd September 2019 that the Respondent was of the opinion that a redundancy situation did not arise.

In respect of the Complainant’s complaint, the Respondent (in their own words) would reply as follows:

We feel we went above and beyond to accommodate the Complainant and were more than reasonable concerning all matters with regard to relocation. Furthermore, we paid her for the month of August as a goodwill gesture and offered to provide her with a reference if she was seeking alternative employment.

When you have considered the above and spoken with the Complainant, we look forward to hearing from you further.

CA-00030873-005 – complaint referred under the Terms of Employment (Information) Act, 1994.

Section 3 of the above referenced Act reads as follows:

3(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

c)       the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee's contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

fa) a reference to any registered employment agreement or employment regulation            order which applies to the employee and confirmation of where the employee may obtain a copy

g)      the rate or method of calculation of the employee's remuneration,

ga) that the employee may, under section 23 of the National Minimum Wage Act,2000

     requests from the Employer, a written statement of the employee’s average hourly

     rate of pay for any pay reference period, as provided in that section.

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to—

(i)                  incapacity for work due to sickness or injury and paid sick leave, and

(ii)                pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive         (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Section 7(2) of the Act states:

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of contravention of section 3,4, 5 or 6 shall do one or more of the following, namely –

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

CA – 00030873 – 006. Complaint referred under section 8 of the Unfair Dismissals Act, 1977.

The email sent by the Complainant to the Respondent on 27th June 2019 highlights the difficulties she would be facing if she accepted a position in Greystones. Nowhere in this email does the Complainant state that she is resigning. The email is quite emphatic:

“As sad as I am at the whole position I cannot commit to a 5+ hour commute and therefore I can’t accept this alternative position”.

CA – 0030873 – 007. Complaint referred under section 39 of the Redundancy Payments Act, 1967.

The Complainant accepted the position of legal secretary based in central Dublin in June 2017. She was not issued with a statement of particulars of employment (a contract). The position of legal secretary in central Dublin no longer exists. The Complainant has quite correctly pointed out the following:

“There are five alternative definitions of redundancy contained in the Redundancy Payments Acts 1967-2007. A dismissal due to redundancy may be justified where the circumstances giving rise to the dismissal fall within one or more of these five definitions which are as follows:

b)      The facts 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

This is a redundancy situation.

CA-00030873-005 – complaint referred under the Terms of Employment (Information) Act, 1994.

This complaint is well founded, I order the Respondent to pay to the Complainant the sum of €861.43 in compensation. (four weeks pay calculated from figures supplied by Complainant.)

CA – 00030873 – 006. Complaint referred under section 8 of the Unfair Dismissals Act, 1977.

This was not a dismissal. This complaint is not well founded.

CA – 0030873 – 007. Complaint referred under section 39 of the Redundancy Payments Act, 1967.

The complaint is well founded, and the Complainant is entitled to a statutory redundancy payment of approximately €1,145.

The Respondent is now ordered to make a statutory redundancy payment to the Complainant.

Payments should be made to the Complainant within 42 days from the date of this decision.

Unfair Dismissal At; Redundancy Payment Act; Terms of Employment (Information) Act.