ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023631

Parties:

	Complainant	Respondent
Parties	Claire McDermott	Brightstar Academy Childcare Ltd

Representatives

Neil McDermott, Dolores Doherty, Aisling Gavan

Michael O'Sullivan Arra HR , Sylwia Kalamarz,

Complaints:

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-00030411-001	18/08/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice and Term of Employment Act 1973.	CA-00030411-002	18/08/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994	CA-00030411-003	18/08/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997	CA-00030411-004	18/08/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994.	CA-00030411-005	18/08/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994.	CA-00030411-006	18/08/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998	CA-00030411-007	18/08/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003)	CA-00030411-008	18/08/2019

Date of Adjudication Hearing: 19/04/2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 39 of the Redundancy Payments Acts 1967 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

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.

Background:

The Complainant was employed as a Childcare Worker from 25th August 2015 to 24th May 2019. She was paid €340.00 gross per week. She has claimed that her employment did not transfer to the new employer, she did not get a contract of employment from the new employer, she was not notified in writing of changes to her contract of employment, she was not allowed to return to her contracted hours after maternity leave, she was penalised under the Parental Leave Act, she did not receive Public holidays, she did not receive statutory redundancy and she did not receive minimum notice. She has sought compensation.

Preliminary Point Incorrect Legal entity listed for the Respondent.

Respondent’s Position

The Respondent’s Representative stated that the Complainant stated the incorrect legal entity in the claim form. They listed Bright Star Academy. The correct legal entity for this company is Brightstar Academy Childcare Ltd. This name was posted up on the door of the premises. They gave the company registered number to the Complainant. They sought to have this case struck out, to proceed would prejudice the owner of this business.

Complainant’s Position

They stated that this was a technical error. They had not been informed in writing what the correct legal entity was.

Decision on preliminary point

I find that the Respondent posted up the legal name of the company on the premises. However, they did not inform the Complainant in writing.

I find that the Respondent and her representative engaged with the WRC and attended this hearing.

I find that they did not object at the initial stage.

Therefore, I find by doing so they accepted that they were involved.

I found no basis to the allegation of prejudice against the Respondent.

I find that it is in order to amend the proceedings as per Sec 39 (2) of the Organisation of Working Time Act and amend the Respondent name to the correct legal entity.

1)Redundancy Payments Acts CA 30350-001

Summary of Complainant’s Case:

The Complainant stated that this business closed down and she did not receive any redundancy payments. She gave details of her working hours.

Summary of Respondent’s Case:

The Respondent stated that no redundancy payments were made. They were not given details of her employment.

Findings and Conclusions:

I find that the Complainant was an employee of the Respondent’s company.

I find that a genuine redundancy has taken place.

I find that the Complainant did not receive her entitlements to statutory redundancy.

I find that the Complainant is entitled to statutory redundancy as per the terms of the Redundancy Payments Acts.

I confirm that her employment commenced on 25th August 2015, her employment ended on 31st May 2019. Her weekly pay was €340.00.

I find that any award under the Redundancy Payments Act is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts, taking into consideration reckonable and non-reckonable service.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have decided that a genuine redundancy has occurred.

I find that the Complainant is entitled to statutory redundancy as per the terms of the Redundancy Payments Acts.

I have decided that this payment should be made within six weeks of the date below.

2)Minimum Notice & Terms of Employment Act CA 30350-002

Summary of Complainant’s Case:

The Complainant stated that her employment ended on 31st May 2019 and she did not get her entitlement to minimum notice. Other employees in the business got notice payments. She did not attend any meeting in the company. She was not informed of the closure of the business. She has claimed two weeks’ notice.

Summary of Respondent’s Case:

The Respondent stated that the Complainant was on extended leave. She attended a staff meeting in May. She was advised on 10th May that the business was closing, so she received notice. She was on protected leave until June 2019.

Findings and Conclusions:

I find that the business closed on 31st May 2019.

I find that the Complainant did not receive minimum notice as per her entitlements under this Act.

I find that she is entitled to two weeks’ pay amounting to €680.00.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that this complaint is well founded.

I have decided that the Respondent should pay the Complainant minimum notice amounting to two weeks’ notice of €680.00.

I have decided that this is to be paid within six weeks of the date below.

3)Maternity Protection Act CA 30350-003

Summary of Complainant’s Case:

The Complainant stated that under this Act she had the right to return to work. She was informed by the Respondent that upon her return from maternity leave she would be required to work 9.00 to 12.00. She had been working full time. She stated that she took extended maternity leave because she could not be given full time work upon her return from maternity leave.

She has claimed that the Respondent has breached the Act and compensation is sought.

Summary of Respondent’s Case:

The Respondent stated that the Complainant applied for and received extended maternity leave from 19th February to June 2019.The business was closed down by TUSLA on 24th May 2019.

Findings and Conclusions:

I find that the Complainant applied for and was granted extended maternity leave from February to June 2019.

I find that the reason for taking the extended leave is not relevant as she took the leave and was on protected leave till June 20219.

I find that the business was closed by TUSLA on 24th May 2019.

Therefore, there was no business to return to when her extended maternity leave concluded.

I find that this claim is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided for the above stated reasons that this claim is not well founded and so it fails.

4)Organisation of Working Time Act CA 30350-004

Summary of Complainant’s Case:

The Complainant stated that she was on maternity leave from August 2018 to February 2019, this was extended from February 2019 to June 2019. The business closed on 24th May 2019. She has claimed for the Public Holidays that occurred between August 2018 to May 2019.

Summary of Respondent’s Case:

The Respondent stated that the Complainant may only claim for Public Holidays that occurred in the six months that preceded the presentation of the claim to the WRC., which are 17th March, 22nd April and 6th May. They advised that she was not paid for any Public Holidays.

Findings and Conclusions:

I find that the Complainant may only claim for the Public Holidays that occurred in the preceding six months from date of presentation of the claim.

I find that the claim was presented to the Commission on 18th August so the six-month period that may be investigated is 19th February to 18th August, however the business was closed on 24th May.

I find that the Public Holidays that occurred in that period are St Patrick’s Day, Easter Monday and May Monday i.e. 17th March, 22nd April and 6th May 2019.

I find that the Complainant was not paid for these Public holidays.

I find that she is owed €240.00 (340/5=68 X 3 =204).

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that the Respondent has breached Sec 21 of this Act.

I have decided that this claim is well founded.

I have decided that the Respondent should pay the Complainant €204.00 within six weeks of the date below.

5) Terms of Employment (Information) Act CA 30350-005/6

Summary of Complainant’s Case:

CA 30350-005 Sec 3

The Complainant stated that she did not get a written contract of employment when the business transferred. All other staff employed there received a written contract.

CA 30350-006 Sec 5

The Complainant has claimed that she did not receive written notification of the change of ownership.

She has sought compensation.

Summary of Respondent’s Case:

CA 30350-005 Sec 3

The Respondent stated that where a transfer of undertakings takes place there is no requirement to issue a contract of employment as the original contract transfers by right. This claim is rejected.

CA 30350-006 Sec 5

The Respondent stated that the Complainant was not notified in writing of the change.

Findings and Conclusions:

CA 30350-005 Sec 3

I find that where a transfer of undertakings takes place there is not a requirement to issue a contract of employment as the original contract of employment with its terms and conditions transfers by right.

I find that this part of the claim is not well founded and so it fails.

CA 30350-006 Sec 5

I note that the Respondent has accepted that no written notification of the change was issued.

Sec 5 of this Act states “ 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”

I find that Sec 5 requires that written notification of the change must be issued in writing within one month of that change.

I find that this part of the claim is well founded.

I note that Sec 7 (2) (d) of the Act states,” compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached Sec 5 of this Act.

I have decided that the Respondent should pay the Complainant compensation of €500 within six weeks of the date below.

6)Parental Leave Act CA 30350-007

Summary of Complainant’s Case:

The Complainant stated that she was penalised under this Act by not receiving a contract of employment.

Summary of Respondent’s Case:

The Respondent stated that claims for penalisation under this Act can only be done in respect of Parental Leave matters and not the issuing of a contract of employment, such as force majeure etc.

Findings and Conclusions:

I note that the Complainant has claimed that she was penalised under this Act by not receiving a contract of employment.

I find that such an allegation as claiming penalisation for not receiving a contract of employment is not appropriate under this Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Complainant has not established penalisation as appropriate under this Act.

I have decided that this claim is not well founded and so it fails.

7) European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003) CA 30350-008

Preliminary point - claim out of time

Respondent Position

The Respondent stated that the alleged transfer occurred on 1st July 2018. The claim was presented to the Commission on 18th August 2019. The claim is outside the six months allowed to make a claim, in fact even with an extension granted the claim is out of time and the Adjudication Officer has no jurisdiction to hear this claim. The Respondent owner informed the hearing that the transfer took place on 1st August 2019.

Complainant’s Position

The Complainant was unaware of a transfer of undertakings. No written information was provided. She believed that the transfer occurred on 30th July, not 1st July as alleged by the Respondent.

Decision on the preliminary point

I note the conflict of evidence on the transfer of the business.

I find that whether the transfer occurred on 1st or 30th July the claim is outside the time limit allowed to present the claims.

I find that even if a further six months extension was considered the claims would still be outside the 12 months-time limit.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that these claims under these Regulations were presented to the Commission outside the 12-months maximum time limit allowed.

I have decided that these claims are not well founded and so they fail.

Dated: July 9th 2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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