Complainant

Respondent

Anonymised Parties

Therapist

Health Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031171-001

27/09/2019

The parties herein first came before me on the 3rd of October 2019. At that time, the Complainant was moving on foot of a claim for Unfair Dismissals (ADJ 21776). The parties herein are the exact same as the parties identified in that Unfair Dismissals claim. On foot of submissions made at that time, it became clear that a preliminary issue as to Employment and/or Contract Status would need to be determined before the Complainant could establish a right to claim under the Unfair Dismissals legislation or, indeed, any other legislation.

The Solicitor acting for and on behalf of the Complainant indicated that his client had also issued a second (later) workplace relations complaint form, in which a claim for Redundancy was being maintained – this is the within complaint. On the 3rd of October last this complaint had not been processed and was not yet pending before the WRC.

It was agreed between the parties, that I would hear the relevant evidence concerning the Complainant’s employment status and once this had been established either way, I would make a decision under the Redundancy Payments ADJ file (this file). The Complainant having expressly indicated a preference to seek Redundancy over an Unfair Dismissals claim. In the circumstances, the Unfair Dismissal claim (together with the ancillary complaints) set out in ADJ 21776 stand withdrawn.

The Complainant was represented and I was provided with a comprehensive submission. I additionally heard directly from the Complainant whose evidence was tested by the Respondent.

The Respondent was represented and I was provided with a comprehensive submission and heard evidence on behalf od the Respondent which was challenged by the Complainant’s representative.

I have carefully considered the evidence adduced in the course of the oral hearing. I am satisfied on the basis of the evidence adduced before me that the Complainant is, was and always has been an Employee of the Respondent herein. I accept that the fact that the Complainant herein was not paid through payroll and was instead paid on an invoice-submitted basis, is an indicator of the self-employed status. However, it is not the only factor I have to consider, and I am satisfied that in all other aspects of her employment the Complainant was providing her services under a contract of Service.

I have reached this conclusion having heard the evidence and cross examination of the Complainant who has clearly been at the beck and call of this one Master since 1996. Both parties agree that the complainant was engaged with a Contract of Employment in 1996. There was certainly a change to her job title and job description in 2000, which arose out of an eagerness (by the then Manager) to engage the complainant who had recently qualified in the area of Drama Therapist which the Respondent (Manager) was excited to explore and utilise in the workplace. I fully accept that there was no break in service and that the Complainant moved seamlessly from the position of carer to therapist within the workplace. I accept that the method of payment did change at that time. The reason for this has not been satisfactorily explained. I accept that the Complainant was not advised that this change in method of payment categorically meant that she was no longer a member of staff and that she was now a free agent to come and go as she liked and with the ability to pursue other Contract work of a similar nature. The Complainant spent the next 19 years under the control and direction of the Respondent and has in fact been an excellent and loyal employee who has gone the distance for both this service provider and those persons so provided.

On the 10th of April 2019 the Complainant’s employment was summarily terminated by the Regional Director. The letter of termination offers no explanation and there was no preamble or discussion prior to the decision being made. No regard has been had for the longevity of service. In this letter and in subsequent correspondence it becomes clear that for the first time in 23 years the Respondent is trying to assert that the Complainant is a self-employed therapist to whom no particular Contractual entitlements apply.

I fundamentally disagree with the Respondent’s assessment of the facts and find that the Complainant was is and always has been an employee of the Respondent company.

Section 7(2) of the Redundancy Payments Act, 1967, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been 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 the business in the place where the employee was so employed, 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…

I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence:

The employment started: January 4th 1996

The employment ended: 1st May 2019

Gross weekly wage : €448.00

The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966.The Complainant withdrew her claim under the Unfair Dismissals legislation.

I am satisfied that the employment extended beyond the 104 weeks required under Statute.

I accept that the Complainant’s job was made redundant and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014.

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

CA-00031171-001

I find therefore that the complaint under the Redundancy Payments Acts, 1967 – 2012 is well-founded and that the complainant is entitled to a redundancy payment based on the following criteria:

The employment started: January 4th 1996

The employment ended: 1st May 2019

Gross weekly wage : €448.00

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.