RPD2120

FULL RECOMMENDATION

REDUNDANCY PAYMENTS ACTS, 1967 TO 2014

PARTIES :

MARK DOYLE T/A ACTON'S SOLICITORS

- AND -

MS NAIDA DOZO

DIVISION :

SUBJECT:

1.Appeal of Adjudication Officer Decision No(s). ADJ-00029307 CA-00039328-003.

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 17 August 2021 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place in a virtual setting on 18 November 2021. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Mark Doyle T/A Actons Solicitors (‘the Respondent’) against the decision of an Adjudication Officer ADJ-00029307 dated 19 July 2021 given under the Redundancy Payments Act 1967 (‘the Act’). This claim is linked to claim to MND2111.

The Adjudication Officer held that Ms Naido Dozo’s claim for a redundancy payment was well-founded. The Notice of Appeal was received by the Court on 17 August 2021. A remote hearing of the Labour Court was held on 18 November 2021.

The parties are referred to in this Determination as they were at first instance. Hence, Ms Dozo is referred to as the Complainant and Mark Doyle T/A Actons Solicitors is referred to as the Respondent.

Background

The key facts of the case are not disputed. The Complainant worked in a front of office role in a firm of solicitors. On the 18 March 2020 Mr Mark Doyle and Ms O’Loughlin Doyle approached the Complainant to speak with her about her safety concerns in the workplace given the unfolding Covid-19 pandemic.

At that time, the country was not yet in total lockdown and no government guidance had issued on the use of such safety measures as screens, masks, or social distancing. A number of conversations took place between the Complainant and Mr Mark Doyle and Ms O’Loughlin Doyle during that day. The Complainant ultimately said that she was uncomfortable in the office as she felt unsafe and wanted to leave. The Complainant was advised that she would be paid to the end of the month. The Complainant was asked to carry out a number of tasks before she left. She left the office that afternoon.

On 30 March 2020, the Complainant received a text message from Ms Pamela O’Loughlin Doyle enquiring about her personal email address. That afternoon she received an email from Mr Mark Doyle stating that the office would be closed due to the current circumstances and that the Complainant’s position was now redundant.

The Complainant submits that she is entitled to a redundancy payment in circumstances where her role was made redundant. The Respondent rejects the claim on the basis that the Complainant terminated her own employment prior to the role being made redundant.

Mr Mark Doyle and Ms O’Loughlin Doyle gave evidence on behalf of the Respondent. The Complainant set out her case by submission to the Court and chose not to give direct evidence. At the outset of the hearing the Respondent confirmed to the Court that it was happy to proceed with the hearing that day in circumstances where he had received a copy of the Complainant’s submission a short period before the hearing started.

Summary of Complainant’s Case:

The Complainant submits that on 18 March 2020 her employer Mr Mark Doyle and his wife Ms Pamela O’Loughlin Doyle approached her at her desk to enquire if she wished to stay in the office or go home due to the emerging pandemic.

He advised her that she would be paid until the end of March. Having considered the matter, the Complainant advised Mr Doyle a few hours later that she wished to go home, as she was the first point of contact for people entering the office. He advised her to stay safe and they would keep in touch.

On 30 March 2020, the Complainant received a text message from Ms Pamela O’Loughlin Doyle enquiring about her personal email address. That afternoon she received an email from Mr Doyle stating that the office would be closed due to the current circumstances and that the Complainant’s position was now redundant.

The Complainant sought a redundancy payment as she had completed two-years’ service but heard nothing further. The Complainant submits that she did not terminate her own employment and is entitled to a redundancy payment.

Summary of Respondent’s Case:

The respondent’s position is that the Complainant resigned her position in and around 17 March 2020 as she was concerned for her health given the emerging Covid pandemic and she wished to take care of her elderly parents who are in their mid to late fifties. The respondent acknowledges that the Complainant’s position was subsequently made redundant.

It submits that no entitlement to redundancy arises in circumstances where the Complainant essentially terminated her own employment prior to the role being made redundant.

Evidence of Ms Pamela O’Loughlin Doyle

Ms O’Loughlin Doyle gave evidence that she was a legal executive and a Commissioner of Oaths, in addition to being Mr Mark Doyle’s wife.

On the 18 March 2020 the Complainant told her that she was uncomfortable in the office as she felt unsafe and wanted to leave. The Complainant worked in a shared office space with ‘girls’ from another company. Ms O’Loughlin Doyle said they had tried to protect the Complainant as much as they could. She worked behind a high desk and did not have to take packages or open the door which had a switch.

Ms O’Loughlin Doyle said that the Complainant’s departure from the office was an unusual exit. Conversations had taken place over a number of hours. She was surprised when the Complainant suddenly decided to leave, as she thought that she would stay until the end of that week.

When she enquired into this the Complainant advised her that ‘I don’t feel safe, and my elderly parents are living with me’. The Complainant said that her elderly parents were aged 52 and 53. The Complainant was asked to carry out a number of tasks before she left, including changing a voicemail message, which she did not do. Ms O’Loughlin Doyle said that she told the Complainant to stay safe and keep in touch.

Ms O’Loughlin Doyle confirmed to the Court that she had recruited the Complainant with Mr Doyle and that she had been issued with a contract of employment. She could not recall what provisions were specified in the contract of employment regarding termination of employment and, in the circumstances of the unfolding Covid pandemic, had not checked.

Ms O’Loughlin Doyle said that she assumed that the Complainant was resigning her position. When asked why she had assumed this, Ms O’Loughlin Doyle said that she accepted that the words ‘termination’ or ‘resignation’ were not used at any point during the conversations on the 18 March. Ms O’Loughlin Doyle said that she had not asked the Complainant to collect any personal effects or return any company property to the office.

Ms O’Loughlin Doyle said that she did not discuss the matter of payment with the Complainant but was present when Mr Doyle told the Complainant that he would pay her to the end of the month.

Ms O’Loughlin Doyle said that she texted the Complainant at the end of March as she did not have her personal email address and Mr Mark Doyle wished to send her a communication.

The Complainant did not cross examine Ms O’Loughlin Doyle’s evidence.

Mr Mark Doyle

Mr Mark Doyle gave evidence that he is a partner in the Respondent’s firm. He first became aware of concerns in the workplace about the evolving pandemic through a meeting with the financial controller, Mr Owen Cummins. He and his wife had just returned to the country after being away separately and it came as a shock and surprise to him that anyone should feel unsafe.

He went with his wife to speak with the Complainant about her concerns, as it is his standard practice to have a witness present during such conversations. The Complainant explained her situation.

Mr Doyle discussed her safety concerns with her and explained to her that she was not actually meeting with people. At that point in time there was no government lockdown in place. The Complainant stated that she wished to leave.

Over the next hour Mr Doyle gave the Complainant a list of things to do and anticipated that she would leave at the end of the week, not mid-afternoon. After lunch, the Complainant stated, ‘I want to leave now’.

No notice was given by the Complainant, although it was up to her to give notice as per her contract of employment.

Mr Doyle said that he was not prepared to allow an employee to stay working if she felt unsafe. He did not understand why she left so abruptly.

Mr Doyle stated that the Complainant was employed in a front of house role so there was no question of her working from home. She had a company mobile phone but not a laptop. There were no office keys to be returned as a Digi pad with a code was used instead. Mr Doyle said that he was satisfied that the Complainant had left her employment of own volition, without giving notice.

At the end of March when the country was in lockdown Mr Doyle emailed the Complainant and advised her that her position was redundant. Mr Doyle said that he kept in touch with the Complainant and was happy to give her a reference.

In response to questions from the Court, Mr Doyle said that he had effectively paid an ex-gratia payment to the Complainant which was her notice. Mr Doyle said that from memory the Complainant was obliged to give one-months’ notice of termination of her employment. It was she who had expressed a desire to leave. He was not the type of employer to force someone to stay.

It was easier to pay the Complainant to the end of the month, rather than recalculate her payments up to the 18 March. An ex-gratia payment was made to her as an economic decision. He understood that she had no outstanding entitlements to holiday pay.

Mr Doyle said that he had no conversation with the Complainant about the status of her employment or her employment ending. He understood that she was resigning her position.

Mr Doyle confirmed to the Court that he emailed the Complainant on 30 March 2020 to advise her that her role was redundant, as he had taken the view that lockdown may last a couple of years.

When asked why he wrote to the Complainant if he was of the view that she had already resigned her position, he said that he believed he was obliged to tell her that her position was redundant as there may have been some forms to complete.

He did not know what forms may need to be completed by either him or by the Complainant, but he was aware when he wrote the mail that ‘PUP’ payments had become available. He did not believe that she was an employee at that time.

Mr Doyle said that he did not have the Complainant’s contract of employment or payslips to hand to confirm her start date but believed that she had commenced employment in and around the 20 March 2018. He confirmed that he had not raised any jurisdictional issues about the Complainant’s entitlement to pursue a claim under the Redundancy Payments Acts. Mr Doyle said that he did not arrange to have the Complainant’s work phone and access code for the office to be disconnected for another month or two.

The Complainant did not cross examine Mr Doyle’s evidence.

The Relevant Law

Section 7 of the Redundancy Payment Act sets out a general right to a redundancy payment as follows.

7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) 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 for all benefits under theSocial Welfare Acts, 1952to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be 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 for the purposes of 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 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, 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 henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

(5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

Deliberation

The Respondent submits that no entitlement to redundancy arises in circumstances where the Complainant left the office of her own volition on the 18 March and essentially terminated her own employment without notice on that day.

The Respondent submits that the only evidence before the Court for consideration is that the Complainant left her employment of her own volition on the 18 March 2020.

Both Mr Doyle and Ms O’Loughlin Doyle gave evidence that they both understood that the Complainant resigned her position when she said,‘I want to go…’. Both gave evidence that they were surprised at the Complainant’s decision to leave when she did, as they had expected her to stay until the end of that week.

Both witnesses confirmed that no conversation took place with the Complainant to clarify or confirm that she was resigning her position. The complainant simply left. She was informed that she would paid to the end of the month and that she should ‘stay safe and keep in touch’.

In the Court’s view, the Complainant’s decision to leave the workplace on the 18 March must be viewed against the backdrop of an unfolding global pandemic, where the Respondent had instigated a conversation with the Complainant to understand her concerns about workplace safety and discuss with her measures to address these concerns. Following this conversation, the Complainant said that she still did not feel safe and wished to go.

The Complainant did not expressly state that she was resigning her position. It is her submission that she did not resign her employment. In the Court’s view, the Complainant’s statement that she wished to leave should be interpreted literally, as a statement from an employee expressing concerns about remaining in the workplace during a pandemic.

The Court notes that no objection was raised by the Respondent about the Complainant’s decision to leave the office when she did. In evidence, Mr Doyle said that he would not allow an employee to stay working if she felt unsafe.

It was accepted in evidence that there was no engagement with the Complainant, either before or after she left the office, to clarify the impact that her decision to leave may have on her employment status.

While the Respondent’s evidence was that the Complainant left of her own volition without serving her notice, it was also his evidence there was no discussion with her about her contractual notice requirements. Furthermore, none of the usual conversations that generally arise when an employee leaves an employment regarding the collection of personal belongings or return of office property took place.

The Complainant was paid up until the end of March, and her access code for the office and work phone remained connected for another month or two. In addition, Mr Doyle wrote to the Complainant on the 30 March 2020 informing her that her position had been made redundant as he had taken the view that lockdown may last a couple of years.

This does not suggest that the Complainant’s employment relationship with the Respondent terminated on the 18 March when she decided to leave the office.

On the contrary, it indicates that the Respondent had taken a wait and see approach on the 18 March, when it agreed that the Complainant could go home and that she would be paid up until the end of March, and it was only at that stage that the Respondent made a decision that the office would close on the basis that it was now of the view that lock-down may not be temporary and could extend for a couple of years.

That is the only rationale explanation for the respondent confirming that (1) they would keep in touch with the Complainant; (2) they would continue to pay her until the 30 March and (3) notifying the Complainant on the 30 March that her position was now redundant.

In all the circumstances and having regard to the evidence tendered the Court finds that the Complainant did not resign her employment when she left the office on the 18 March 2020. She was on paid leave until the 30 March when her role was made redundant.

It is not disputed by the Respondent that the Complainant commenced employment in and around 20 March 2018. It is not disputed that the Complainant had the requisite 2 years’ service entitling her to a redundancy payment under the Act, in circumstances where her role was redundant.

The Complainant was notified on 30 March 2020 that her position was redundant. Accordingly, the Court finds that the complainant is entitled to a redundancy payment in line with the Redundancy Payments Acts in respect of her service between 20 March 2018 and 30 March 2020.

It is agreed that the complainant’s rate of pay was €500 per week and that figure should be used when calculating the redundancy amount in accordance with Schedule 3 of the Redundancy Act 1967.

The Court determines that the Complainant’s claim is affirmed. The Adjudicator’s decision in relation toCA-00039329-003isupheld.

The Court so determines.

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.