Complainant

Respondent

Anonymised Parties

A childcare worker

A childcare provider

Representatives

  The Complainant

Nicola Dowling Williams Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038673-001

12/07/2020

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

CA-00038673-002

12/07/2020

The complainant gave 5 weeks’ notice to the respondent of her intention to leave and respondent waived the right to notice and terminated her employment on the same day.  Due to her alleged lack of productivity in the preceding weeks the respondent alleges the complainant agreed to forego her holiday entitlement.

The complainant gave the respondent 5 weeks notice on the 10th June 2020 of her intention to resign. After two meetings with management on the 10th June, a decision, made by management, was that that the complainant’s contract ended on that day "effective immediately" and with "8 days pay only". She was asked to leave the premises at the end of the meeting. Throughout the meetings on the 10th June, the complainant said she would work her notice period.

No holidays were discussed at the meeting on 10th June. On the 11th of June, an email was sent by management to the complainant outlining what was discussed at the meeting on the 10th June. No clarification of holidays was given. The complainant sought clarification on what her holiday entitlements were.

The Respondent Employer operates two childcare facilities. The Complainant was engaged as a Childcare Practitioner. With the advent of the Covid 19 crisis the Respondent applied for government support under the Temporary Wage Subsidy Scheme initially and latterly availed of the Temporary Wage Subsidy Childcare Scheme whereby DCYA provided a top-up to childcare providers. It was an express term of the Department of Children and Youth Affairs (DCYA) scheme that the services engage in Continuous Professional Development with employees working remotely from home when availing of the scheme.  Accordingly, it was necessary for both the Respondent  and the Complainant to undertake work activities and / or CPD training during the normal working hours when the service was closed. The purpose of this condition was to ensure that childcare services and their employees add to their knowledge and skills within childcare while not working directly with children. The Managing Director also felt by contributing to social media, kept vital contact with clients and their children during the COVID-19 pandemic. 

Childcare Practitioners with the Respondent were requested to provide content and activities for the Facebook page during the period of government shutdown. The Respondent maintained consistent contact with the employees by means of a WhatsApp group.  

The Complainant was a member of the WhatsApp group at this time and received three group messages on the 25th March, 2nd April and 5th May 2020 wherein the Managing Director set out the working from home arrangements and later holiday entitlements.  It was made clear to employees that the holiday arrangements were to be discussed at the upcoming team meetings with the first commencing on the 20th May 2020. The Complainant engaged with work productivity until in or around the first week of May 2020 and thereafter her work product greatly reduced. As the Complainant was not laid off, she was required to make herself available for work 40 hours per week and to participate in work productivity for the Facebook page as agreed and approved by Management.  The Assistant Manager raised the issue of productivity and work performance with the Complaint during texts and phone calls and latterly raised the issue with the Managing Director. The Complainant acknowledge the lack of productivity during a telephone conversation with the Assistant Manager citing that she had been feeling unwell and felt a bit stressed with a mindfulness course she had undertaken in or around the 21st May. By WhatsApp message on the 21st May, the Managing Director after a discussion with the Assistant Manager via phone, sent a message to all staff clarifying the conditions of sick leave and CPD Training arising from this conversation with the Complainant and further stated that the position in relation to holiday pay would be clarified at the staff meeting.

On the 2nd June 2020, the Complainant was present at a team meeting with a co-worker and the Assistant Manager. The team meetings were broken down into smaller groups to facilitate social distancing. The information imparted was the same across all groups. The Respondent discussed the return to work protocol and holiday entitlements with all groups. The Respondent determined that ten days annual leave would have to be used up by all employees if the service was to reopen on the 29th June in order to maintain consistent staffing levels and manage staff.

The Respondent did raise the issue of the lack of work product and general work performance with the Complainant at this meeting. The Respondent had a frank and in-depth discussion with the Complainant and another colleague about the lack of work, the conditions of the TWSCS and working from home. It was reiterated by the Respondent prior to concluding that a minimum of 10 days holidays would have to be used up by all employees prior to the service re-opening. The Respondent, decided to defer re-opening the service until the 13th July 2020 and notified employees that they would be required to take 15 days holidays before the service re-opened on that date by text message on the 25th June 2020.

The Respondent had no further communication from the Complainant between the 3rd and 9th June 2020. On the 10th June 2020, the Complainant submitted her resignation giving the 17th of July 2020 as the proposed leaving date. The Complainant voluntarily resigned her position with the Respondent giving the company five weeks’ notice

The directors of the Respondent met with the Complainant and discussed the days which the Complainant failed to submit any work and possibility of a clawback of payments which were made to her when she was not working (approx. 10-15 days) and agreed with the Complainant that those days would set-off against any accrued holiday payments which were due to the Complainant on cessation of her employment.

It is common case between the parties that the Complainant resigned her employment on the 10th June 2020 giving one months’ notice to the Respondent. It is also common case the Respondent waived their entitlement to notice which the employer was entitled to under the Terms and Conditions of Employment signed by the Complainant and s. 6 of the Minimum Notice and Terms of Employment Act.  The Respondent was entitled to waive the notice which the Employee was required to give. Section 7 (1) of the Minimum Notice and Terms of Employment Act, 1973 states;

7.—(1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.

The Second Schedule of the Minimum Notice and Terms of Employment Act, 1973 does not apply in circumstances where the termination has been triggered by the employee in the first instance and the employer has waived their right to such notice. The Complainant has no statutory or contractual entitlement to pay in lieu of notice where the employee’s requirement to give notice has been waived by that employer.  

The Complainant was not at her place of work or at her employer’s disposal between the 12th March 2020 and 10th June 2020 save for the meeting with the Respondent Employer on the 2nd June 2020 and the minimal contribution which she made towards submitting content for social media or CPD exercises during that period. The Respondent calls on the Complainant to establish a prima facie entitlement to the annual leave accrued based on the definition of working time in Section 2 of the Organisation of Working Time Act. 

The Complainant seeks payment for an annual leave entitlement which accrued to her prior to her resignation on the 10th June 2020. In accordance with Section 20 of the Organisation of Working Time Act 1997, the Respondent determined a period of time within which the employees of the two services had to use up 10 days holidays (to include Good Friday) prior to their return to work. The Respondent consulted with the affected employees as is required under the Act in a series of meetings and specifically discussed holidays with the Complainant on the 2nd June 2020. Furthermore, the Respondent was entitled by virtue of Clause 7 of the Complainant’s Terms and Conditions of Employment to direct periods of time within which the annual leave must be taken. The Complainant did not raise any issue with this at the time the holidays were being allocated.  The submitting of content for social media or CPD exercises which the employees were required to submit were not time consuming and did not prevent the employees concerned from utilising their annual leave during the period of the government shutdown. The Complainant was ordinarily contracted to work 40 hours per week during lockdown and the work submitted on average took 2-3 hours per week. The employees were not otherwise at the Respondent’s disposal during this time. The Respondent Employer did not specify the dates and times during which the annual leave was to be taken but rather confirmed to all employees that 10 days annual leave at a minimum must be taken before the service re-opened on the 29th June 2020. Whilst the employer was unaware that the Complainant was due to hand in her notice, the Complainant was fully aware that she was going to hand in her notice and furthermore aware of the obligation to utilise her annual leave accrued to the end of June. Equally, the Complainant was aware of the need to participate in the submitting of content for social media or CPD exercises to ensure continued funding for the service when it was closed. 

In circumstances where the Respondent was entitled by virtue of Clause 6 of the Terms and Conditions of Employment to claw back any overpayments to the Complainant on cessation of her employment, it was expressly agreed with the Complainant at a meeting with the directors on the 10th June 2020 that rather than clawback payments due to the Respondent that the Respondent would offset any payment due in respect of annual leave accrued prior to the cessation of her employment.  The Respondent did not see fit to mention the matter of annual leave in her email to the Complainant on the 11th June 2020 as this was unambiguously agreed with her the previous day.  In circumstances where a premium is placed on references for any childcare practitioner, the Respondent did not want to go down the route of conducting an investigation and ultimately disciplining the Complainant for the failure to undertake the work required of her during the period of shutdown.

There are two issues for decision; the right of the complainant to be paid during her period of notice and; payment for untaken holidays. 

CA-00038673-001 – Minimum Notice

The respondent has argued that where the employee has given the notice it is open to the employer to waive the notice and to end the contract immediately and that Schedule 2 of the Minimum Notice & Terms of Employment Act, 1973 does not apply. Section 5 of the Act states;

5.—(1) The provisions of the Second Schedule to this Act shall have effect in relation to the liability of an employer during the period of notice required by this Act to be given—  

(a) by an employer to terminate the contract of employment of an employee who has been in his continuous service for thirteen weeks or more, and  

(b) by an employee who has been in such continuous service to terminate his contract of employment with that employer.

Schedule 2 of the Act states;

1. Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.

The complainant’s contract specified;

In the event of termination of employment by you, you must give at least one month’s notice to the management…..Management reserve the right to pay in lieu of notice.

It was clearly envisaged under this contract that Management had the right to pay in lieu of notice.  The complainant gave 5 weeks’ notice which was in compliance with the contract.

The respondent has sought to rely on Section 7 of the Act which states;

7.—(1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice

The respondent has the view that this clause enabled him to cease paying the complainant from the date notice was given.  This would be an absurd interpretation of an Act designed to protect the rights of an employee during a period of notice.  The Act has therefore been contravened and the complainant is entitled to be paid for the 5 weeks’ period of her notice which is in accordance with her contract of employment which provides for ‘at least one month’s notice’.

CA-00038673-002 The Organisation of Working Time Act, 1997

There is contradictory evidence in relation to whether or not the respondent required staff, at a meeting on 2nd June, to take leave.  I note the direct evidence of a witness at the hearing who stated that no such instruction was given on that date. The notification regarding holidays was actually by text message on 25th June which was after the complainant had left the organisation. If a clear instruction had been given on 2nd June it is difficult to see why a further alternative instruction was required on 25th June.  I therefore conclude that, whether or not the respondent intended to communicate an instruction in relation to the taking of annual leave, at best this was unclear to the staff involved.

There is an underlying issue in the respondent’s position that the complainant was in some way neglectful of her duties during the lockdown period and that they could have initiated a disciplinary process relating to this. The respondent says that when this was put to the complainant at the meeting on 10th June she acknowledged this and agreed to forego her holiday entitlement.  This is denied by the complainant.

From the evidence given it is clear that productivity during the period in question was far from normal for all staff.  It was also clear that the respondent was not fully aware of the work being carried out by the complainant during this period.

 The respondent did not in fact initiate a disciplinary process and therefore could not legitimately impose any sanction on the complainant. The complaint is therefore well founded.

The Minimum Notice & Terms of Employment Act, 1973 has been contravened and I order the respondent to pay the complainant 5 weeks’ pay.

The complaint under the Organisation of Working Time Act, 1997 is well founded and I order the respondent to pay the complainant 9 day’s pay.

Minimum Notice. Entitlement to be paid.  Withholding holiday pay