Complainant

Respondent

Anonymised Parties

A Resource Manager

A Recruitment Company

Representatives

none 

none 

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-00032852-001

10/12/2019

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

CA-00032852-003

10/12/2019

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

CA-00032852-004

10/12/2019

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

CA-00032852-005

10/12/2019

The complainant commenced employment with the respondent on 23rd of July 2014 and her employment was terminated on 21st of October 2019.

The complainant is seeking redundancy payment pursuant to the Redundancy Payments Act, 1967. The complainant has also submitted claims under section 27 of the Organisation of Working Time Act, 1997, section 7 of the Terms of Employment (Information) Act, 1994 and section 6 of the Payment of Wages Act, 1991.

The complaints were received by the WRC on the 10th of December 2019. The cognisable six-month period for the purpose of these complaints dates from 11th of June 2019 to 10th of December 2019.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

In this regard, the WRC had corresponded with the parties and had notified them of the date and time of the adjudication hearing which was held remotely on 3rd of December 2020.

A phone call was also made by the WRC to the respondent’s phone number on 19th of November 2020, the message on the answering service confirmed the phone number to be that of the respondent, a voicemail was left reminding the respondent of the details of the remote hearing.

The respondent did not login and after waiting approximately fifteen minutes I proceeded with the remote hearing. I am satisfied that the respondent was informed of the date and time of the hearing.

The Complainant who was unrepresented gave evidence at the hearing.

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

CA-00032852-001

10/12/2019

The complainant submits that the respondent advised her in October 2019 that she was intending to liquidate her Irish company and that she could no longer afford to pay the complainant in accordance with her full-time contract and offered her reduced hours contract with her UK company.

The complainant refused this offer following which she was locked out of her work email and all future correspondence from her was ignored by the respondent.

The complainant has submitted an RP50 notification of redundancy stating that the 21st of October 2019 was the date of termination of her employment.   

There was no appearance by or on behalf of the respondent nor was any written submission provided.

Sections 7(1) and (2) of the Redundancy Payments Act, 1967 state:

“(1) An employee, if he is dismissed by his employer by reason of redundancy……shall, subject to this Act, be entitled to the payment of moneys which shall be known….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……

(2) 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…..”

Section 15. Disentitlement to redundancy payment for refusal to accept alternative employment

“(1) An employee shall not be entitled to a redundancy payment if

(a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract.

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.”

The complainant advised the hearing that that her employer informed her via a phone call on October 2019 that she was intending to liquidate her Irish company and that she was not in a position to financially continue the complainants existing contract.

The complainant stated that the respondent then offered her reduced hours contract (half hours) with her UK company. The complainant stated that this was a verbal offer made over the phone.  The complainant advised the hearing that she had refused this offer in writing by email dated 16th of October 2019 stating that she was not willing to accept a reduced hours contract with the UK based company (copy submitted). The complainant then asked the respondent if following such refusal, she could retain her existing contract or whether her position was being made redundant. The respondent did not reply but instead locked the complainant out of her work emails and did not engage any further. The complainant also submitted evidence of the locked email account and her attempts to access it. The complainant advised the hearing that she did not receive any further payment after 14th of October 2019.

The complainant submits that she replied to the respondent to this effect by email dated 16th of October 2019 while on annual leave. The complainant advised the hearing that her employer subsequently locked her out of her work emails and that the respondent then proceeded to ignore all future correspondence from her. The complainant stated that the respondent herself had been based in England but that the complainant had worked in the Irish office and so did not have face to face contact with the respondent owner and all communications were via phone and email. The complainant submitted an RP50 notification of redundancy stating that the 21st of October 2019 was the date of termination of her employment.   

Based on the uncontested evidence of the complainant, I find there was a genuine redundancy as a result of the closure of the respondent’s Irish business. I am also satisfied that the complainant’s refusal of the respondent’s verbal offer of a half hours contract with the UK based company does not meet the requirements which would disentitle the complainant to the redundancy sum under section 15(2). In arriving at this conclusion, I am mindful of the respondent’s complete disengagement after this point and the complainant’s submission that she was locked out of her work emails. Consequently, I find that the complainant’s employment was terminated on the 21st of October 2019 by reason of redundancy and that she is entitled to a redundancy payment.

I find that the complaint under the Redundancy Payments Act, 1967 is well founded and that the respondent should pay the complainant her statutory redundancy entitlements based on the following criteria:

·       Date of Commencement:    23rd of July, 2014

·       Date of Termination:            21st of October, 2019

·       Gross Weekly Pay:                € 921.98

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

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

CA-00032852-003

10/12/2019

The complainant submits that she took two weeks annual leave in October 2019 with the respondent’s consent.   

The complainant states that she was only paid for the first week and that the respondent did not pay her for her second week of annual leave taken in October 2019.

There was no appearance by or on behalf of the respondent nor was any written submission provided.

The complainant advised the hearing that she had taken two weeks annual leave in October 2019 with the respondent’s consent.  She advised the hearing that she was paid for the first week but that she was not paid for the second week.  

The complainant advised the hearing that she had emailed the respondent on 16th of October 2019 asking for her outstanding annual leave payment and that the respondent had replied on 17th of October 2019 stating that she had been paid for one week’s annual leave up to 14th of October and instructing her to check this with her bank. The complainant advised the hearing that following this communication the payment for her first week of annual leave had been received. The complainant advised the hearing that she acknowledged this payment via replying email to the respondent on the 17th of October (emails submitted in evidence). The complainant advised the hearing that she had in her email dated 16th of October advised the respondent that she was not willing to accept a proposed reduced hours contract (half hours) with the respondents UK based company. The complainant stated that following this the respondent had refused to pay her for her second week of annual leave unless she agreed to sign the new reduced hours contract. The complainant advised the hearing that following her return from annual leave on 21st of October 2019 she discovered that she was locked out of her work emails and the respondent failed and refused to reply to any further correspondence from her. Separate claims have been lodged in respect of redundancy and payment in lieu of notice.   The complainant submitted payslips and bank records as evidence of payment and non-payment.

Having considered the evidence adduced I have found the evidence of the complainant to be credible on the issue of the outstanding annual leave payment, this was also supported by documentary evidence. I conclude that the complainant was not paid for her second week of annual leave taken in October 2019. 

I therefore find that the complaint is well founded, and I order the respondent to pay the Complainant the sum of €921.98 the equivalent of 1 weeks’ pay.

I therefore find that the complaint is well founded, and I order the Respondent to pay the Complainant the sum of €921.98 equivalent to one week’s pay.

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

CA-00032852-004

10/12/2019

The complainant submits that she did not receive any notice in writing in respect of a  change in her terms of employment in October 2019.

There was no appearance by or on behalf of the respondent nor was any written submission provided.

Section 5 of the Terms of Employment (Information) Act 1994 relates to changes to the terms of employment and states :

 “(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, 4 or 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, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.”

The complainant submits that she was not notified in writing of a change in her terms of employment. The complainant told the hearing that her employer was intending to liquidate her Irish company but did not notify the complainant either verbally or in writing of her intent to change  the complainants contract in Ireland nor of her intent to close the Irish company.

The complainant advised the hearing that she had in October 2019 been offered a new reduced hours contract with the respondents UK based company. The complainant stated that she refused to accept the new contract following which she was completely cut off by her employer and locked out of her work emails. 

The complainant has taken separate claims in respect of a redundancy payment and in respect of a failure to provide her with notice or payment in lieu of notice. These are dealt with in decisions on CA-00032852-001 and CA-00032852-005 and awards have been made in this regard.

I am satisfied from the evidence adduced that the complainant was offered a new contract with reduced hours but refused to accept the new contract therefore the notification of changes section does not apply. I am also satisfied that awards have been made in respect of redundancy and payment in lieu of notice in respect of the complainant’s termination of employment.   Accordingly, I find that this complaint is not well founded.

I find that this complaint is not well founded.

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

CA-00032852-005

10/12/2019

The complainant submits that she did not receive any payment in lieu of notice and that she was due 4 weeks’ notice having been employed by the respondent for over five years.

There was no appearance by or on behalf of the respondent nor was any written submission provided.

The Payment of Wages Act, 1991 at Section 1 defines wages as:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice

The complainant advised the hearing that she was due 5 weeks’ notice of termination of employment which she did not receive. 

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

“(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—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

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

(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 advised the hearing that she was employed by the respondent from 23rd of July 2014 to 21st of October 2019. I am satisfied that the complainant in this case is entitled to 4 weeks’ notice or payment in lieu of notice thereof.

I am also satisfied from the evidence adduced that the complainant did not receive her entitlement of 4 weeks’ notice or payment in lieu of notice which was properly payable to her. I thus find that the respondent made an unlawful deduction from the complainant’s wages and accordingly I declare this claim to be well founded.

I declare this claim to be well founded and I direct the respondent to pay the Complainant the sum of €3,687.92 in lieu of notice, representing 4 weeks’ wages.

Redundancy- annual leave- payment in lieu of notice- terms of employment