Complainant

Respondent

Parties

Irina  Zolnerovica

Emerald Facility Services

Representatives

Vadim Karpenko First National Consulting and Legal Service

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-00035654-001

10/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035654-002

10/04/2020

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

CA-00035654-003

10/04/2020

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

CA-00035654-004

10/04/2020

The Complainant was employed as a Cleaner by a contract cleaning company from 12th October until the contract transferred to the Respondent on 17th February 2020. The Complainant submitted the following complaints:

·        Redundancy Payments Acts, 1967 claiming that she was made redundant and did not receive her statutory entitlement,

·        Minimum Notice & Terms of Employment Act, 1973 alleging that she did not receive appropriate notice of the termination of her employment,

·        Payment of Wages Act, 1991 for wages outstanding at the time of the termination of employment

·        Organisation of Working Time Act, 1997 for holiday pay due at the time of termination of employment

The Respondent was a contract cleaning company. The Respondent denied the allegations in relation to redundancy, claiming that the Complainant had resigned her employment and so did not have an entitlement to redundancy payment nor to pay in lieu of notice.  The Respondent accepted that there were wages and holiday pay outstanding at the time of the termination of the employment relationship but contended that it had not been possible to contact the Complainant to make arrangements for those payments to be made.

CA- 00035654- 001         Redundancy Payments Act, 1967

The Complainant submitted that she was employed by a contract cleaning company for a period of approximately 3.5 years as a cleaner based at a leisure facility on the northside of Dublin.  She submitted that during that period there were never any complaints about her work and that throughout that time her terms and conditions of employment remained the same.  The Complainant submitted that the cleaning contract for the leisure centre was taken over by the Respondent and that the Respondent advised her that they did not have any work for her under the same terms and conditions as heretofore.  She further submitted that she made a number of attempts to contact the Respondent to clarify her options but that she received no response. She submitted that, as a consequence she emailed the Respondent seeking clarification in relation to her employment status on 26th February 2020 but that she did not receive the clarification required. In her complaint form she noted the date of the ending of her employment as 14th February 2020.

CA-00035654- 002          Minimum Notice & Terms of Employment Act, 1973

The Complainant submitted that she had an entitlement to receive 2 weeks’ pay in lieu of notice at the time of the termination of her employment and that this amount was not paid to her.

CA-00035654-003            Payment of Wages Act, 1991

The Complainant submitted that wages were outstanding to her from 14th February 2020 to 6th March 2020 and that she had still not received payment of those wages as at the date of the hearing.

CA-00035654-004           Organisation of Working Time Act, 1997

The Complainant submitted that she had not been paid her holiday entitlement for the year 2020 and confirmed that this amounted to 8% of 6weeks’ pay. 

CA- 00035654- 001         Redundancy Payments Act, 1967

The Respondent submitted that they were awarded the cleaning contract for the leisure centre in North Dublin with a start date of 17th February 2020 and that based on that contract the client wanted only one operative working on the site for 6 hours per day.  The Respondent submitted that in order to address this changed requirement they were willing to offer alternative work to the operatives impacted by the change.  The Respondent pointed out that they had done this on many previous occasions.

The Respondent also submitted that when they received the TUPE information from the previous contract holder it did not contain a contact phone number for the Complainant and contained an incorrect number for the other operative involved.  The Respondent submission contained copies of emails between them and the previous contract holder in relation to this omission.

The Respondent confirmed that eventually the Contract Manager did obtain a contact number for the Complainant and made arrangements to meet her.  The Respondent submitted that the Complainant confirmed that she was living in Dun Laoghaire and not in Ballymun which was the address supplied for the Complainant under TUPE by the previous contract holder.  In their submission the Respondent drew attention to an address in Blackrock which the Complainant had submitted as part of her complaint to the Workplace Relations Commission.

The Respondent submitted that the Contract Manager offered the Complainant alternative employment within the Dun Laoghaire/Blackrock area and emailed the letter of offer to the Complainant as the Complainant had still not provided a full postal address.  The Respondent submitted that the email was sent on 21st February 2020.   The Respondent further submitted that another member of the administration team followed up with a second email on 26th February 2020, again attaching the letter offering alternative employment.  The Respondent submitted that no response was ever received to those emails and that no further contact was received from the Complainant. Copies of relevant email correspondence and letter of offer were appended to the submission.

In their submission the Respondent confirmed that they had received an email of 26th February from the Complainant making enquiries about her position.  The Respondent submitted that a response was sent on the same day, outlining contact details for the Contracts Manager and the member of the administration team and asking the Complainant to make contact.  The Respondent submitted that no response was ever received to that email and no follow up call was ever made to either the Contract Manager of the member of the administration team.  Copies of relevant emails were appended to the submission.

The Respondent submitted that they had no difficulty in providing the Complainant with suitable alternative employment/hours but that as the Complainant did not respond to “numerous attempts” to contact her there was nothing further they could do.  The Respondent outlined that the site closed in March 2020 due to Covid 19 and at the date of hearing the site had never opened back up. 

Witness 1

An administrative staff member working with the Respondent confirmed that she had made efforts to obtain contact details for the Complainant and that when she did, she arranged a meeting with the Complainant to discuss the revised client requirements.  She confirmed that the Complainant was advised that the Respondent would offer her suitable alternative work and that the Complainant had advised her that she was now living in Dunlaoghaire a number of days per week and that she would send the Respondent her address so that the Respondent could seek alternative work in a location within easy reach of home.  The witness confirmed that the Complainant never sent on that information. 

The witness confirmed that, in the context of the verbal information given in relation to the Complainant’s living arrangements, she emailed a letter to her on 21st February 2020, offering her alternative work in Blackrock.  The witness advised that she never received a response to that email and so she sent a reminder email, with the same letter attached to the Complainant on 26th February 2020.  In that email the witness also sought details of a contact phone number.

The witness confirmed that on the same day the Complainant sent an email to the Respondent asking about her position which was responded to by another staff member, who again asked for a correct home address and phone number.  In that email the staff member included her own landline and mobile phone numbers, but no response was ever received.  The Respondent submitted that the Complainant ultimately resigned her position on 9th March on the basis that she had found alternative employment.

CA-00035654- 002          Minimum Notice & Terms of Employment Act, 1973

The Respondent submitted that the Complainant had been offered alternative employment, that a follow up email was sent confirming that offer when no response was received.  The Respondent submitted that the Complainant did not respond to either of the emails.  The Respondent submitted that the Complainant had resigned her position and, in those circumstances, no payment in lieu of notice was applicable.

CA-00035654-003            Payment of Wages Act, 1991

The Respondent accepted that the payments referred to by the Complainant were indeed outstanding.  The Respondent further submitted that they had no difficulty arranging for those payments to be made and clarified that the reason for the non-payment was that they were awaiting bank account details and pps number from the Complainant in order to process the payment.

CA-00035654-004           Organisation of Working Time Act, 1997

The Respondent accepted that the holiday pay referred to by the Complainant was outstanding, that they had no difficulty arranging for those payments to be made and clarified that the reason for the non-payment was that they were awaiting bank account details and pps number from the Complainant in order to process the payment.

CA- 00035654- 001         Redundancy Payments Act, 1967

I considered carefully the oral and written submissions from both parties and all supporting documentation provided by the parties. 

I noted that

·        The Respondent did not receive adequate information at the time of transfer from the Transferor but that they made significant efforts obtain the required information 

·        The Respondent met with the Complainant, advised her that the Client requirements had changed and that therefore only one Cleaner was required on the client site

·        The Respondent agreed to offer the Complainant alternative work “within easy reach of home” but despite agreeing to do so, the Complainant did not forward relevant contact details to the Respondent - this was not in dispute at the hearing

·        The Respondent did issue a letter on 21st February 2020, offering alternative work on the understanding that the Complainant was now living in that general area

·        The Complainant did not respond to that offer

·        The Respondent re-issued the letter of offer to the Complainant on 26th February 2020 and stated in their submission that no replies were received.

·        This letter was delivered to both the Ballymun and Dunlaoghaire addresses available to the Respondent.

In addition, I noted the copies of text messages provided by the Complainant and her position that she had responded to the offer.  I noted text messages prior to 2nd March from the Complainant to the Respondent which clearly indicate that she rejected the offer of the alternative employment in Dublaoghaire and the response from the Respondent which confirmed that her original post was no longer available.  I noted text messages from the Complainant of 2nd March seeking an update regarding her return to work at her pre-transfer location and a response to indicate that that work was no longer available.  The text also referred to the fact that the Respondent had made an alternative offer but that the Complainant had declined that offer.

I was struck by the response from the Complainant where she then texted to say that the alternative proposition was not suitable because of the distance involved and the response from the Respondent which indicated that her terms and conditions had not changed, merely the location.  I noted further text messages on 3rd March where the Complainant advised the Respondent that she was living in Ballymun and that her documents on file would reflect that fact.  In that text message she also advised that she had a small baby and that her minder lived in the local area and that it would therefore, be impossible to spend 1.5 hours each way travelling to and from the proposed new work location. I noted the Respondents text response where she confirmed that the offer of work in Dunlaoghaire was based on the Complainant having advised that she was residing there, that there was no work in Ballymun but that she might be able to find alternative work in the city centre. 

I noted the text from the Complainant to the Respondent on 9th March which stated, “I found another job which I am starting today”.  Later that day the Complainant sent a further text to the Respondent asking, “if you do not have a suitable position and you do not want my service would you consider redundancy?” I noted that the manager involved in the exchange of text messages replied that she would need to check the matter out with someone more senior.

I noted that, at the hearing the Complainant disputed that she had advised that she was living in Dunlaoghaire and that the Respondent had drawn attention to the address provided on the Complainants’ claim form to the Workplace Relations Commission.  The Respondent also posed the question, “where else would we have gotten that location from?”  In response to questions from the Adjudicator the Complainant responded that she spent some time each week in Dunlaoghaire but that she wasn’t living there.  I noted the Complainant position that the alternative work offered to her was in an unreasonable location and made it impossible for her to take up the offer of alternative employment.

It is clear to me that, following the transfer, there was no longer work for the Complainant at her original work location. It is also clear to me that the Respondent was given to understand that the Complainant was residing in the Blackrock/Dunlaoghaire area and, in that context offered her alternative work in that area and went to some considerable lengths to ensure that the Complainant received the information.  I am also clear that the Complainant did respond to that offer (by text) and did convey specific concerns regarding the proposed alternative work and, in my view, she raised reasonable objections.  However, I am also clear that on 9th March, before the Respondent had a reasonable opportunity to respond with a revised alternative work proposal the Complainant sent a text message resigning her position

Having regard to the foregoing I find that the Complainant resigned her position with the Respondent and, therefore was not made redundant by the Respondent.  In that context I find that the Complainant was not entitled to receive redundancy payment under the Act.

CA-00035654- 002          Minimum Notice & Terms of Employment Act, 1973

I have found under CA-00035654-001 that the Complainant’s employment was not terminated by the Respondent but rather that she resigned her position.  In that context I find that she is not entitled to receive pay in lieu of notice.

CA-00035654-003            Payment of Wages Act, 1991

This matter was discussed at hearing and I noted the Respondent position that it was accepted that the monies outlined by the Complainant were due to her and their position that they would make the payment as soon as they received the required information to process that payment.  The Complainant accepted that she had not provided the information to the Respondent but agreed to send the information to the Workplace Relations Commission and agreed that the WRC could, in turn, send that information to the Respondent.

Post hearing the Complainant sent those details to the WRC on 5th May 2020, these were then forwarded to the Respondent who responded on the 10th May with proof of payment.  In that context I find that the Respondent has now discharged their liability under the Act and the matter is now moot.

CA-00035654-004           Organisation of Working Time Act, 1997

This matter was discussed at hearing and I noted the Respondent position that it was accepted that the monies outlined by the Complainant were due to her and their position that they would make the payment as soon as they received the required information to process that payment.  The Complainant accepted that she had not provided the information to the Respondent but agreed to send the information to the Workplace Relations Commission and agreed that the WRC could, in turn, send that information to the Respondent.

Post hearing the Complainant sent those details to the WRC on 5th May 2020, these were then forwarded to the Respondent who responded on the 10th May with proof of payment.  In that context I find that the Respondent has now discharged their liability under the Act and the matter is now moot.

CA- 00035654- 001         Redundancy Payments Act, 1967

I have found that the Complainant resigned her position with the Respondent, was not made redundant by the Respondent and was not entitled to receive redundancy payment under the Act. In that context it is my decision that this complaint is not well founded.

CA-00035654- 002          Minimum Notice & Terms of Employment Act, 1973

I have found that the Complainant’s employment was not terminated, that she resigned her position and that she is, therefore, not entitled to receive pay in lieu of notice.  In that context, it is my decision that this complaint is not well founded.

CA-00035654-003            Payment of Wages Act, 1991

I have found that the Respondent has discharged their liability under the Act and the matter is now moot. It is therefore, my decision that the Respondent has no further liability in relation to this matter.

CA-00035654-004           Organisation of Working Time Act, 1997

I have found that the Respondent has discharged their liability under the Act and the matter is now moot. It is therefore, my decision that the Respondent has no further liability in relation to this matter.

Redundancy payment, minimum notice, payment of wages, organisation of working time