Complainant

Respondent

Anonymised Parties

A Business Analyst

A Technology Company

Representatives

 Ciaran O' Mahony B.L. instructed by FH O'Reilly & Co., Solicitors

Act

Complaint Reference Nos.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033817-001

15/01/2020

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

CA-00033817-002

15/01/2020

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

CA-00033817-003

15/01/2020

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

CA-00033817-005

15/01/2020

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

CA-00033817-006

15/01/2020

The following is a summary of the Complainant’s case.

The Complainant was a Business Analyst who commenced employment with the Respondent on 24 July 2017. She claims that her employment ended as of 1 August 2019.

CA-00033817-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complainant said that on or about 17 July 2019 she returned to work following a period of maternity leave. She was requested to meet Mr. A, CEO of the Respondent company, at a location outside of the workplace and during which Mr. A informed her that the company was in difficulty and was not in a position to pay the wages of its employees, including the Complainant's wages. She said that she was informed that she was not required to come back to work again. She said that Mr. A stated that all other employees of the company were to be given their notice on 22 July 2019 and that the Complainant would receive her written notice on that date also. However, this did not occur as she was advised. She maintains that she was told that the company's poor financial position was the reason for the termination of her employment contract. However, she said she was told that she was not being made redundant. The Complainant said that she was extremely distressed after this conversation. She had a new baby and had just drawn down a mortgage with her husband. She felt singled out as she had just returned from maternity leave.

She said that she received a telephone call from Mr. A on or about the 23 July 2019, where he was extremely aggressive towards her and left her in a state of distress. She said that she wrote to Mr. A on 29 July 2019 demanding clarification about her situation as she was confused and did not know where she stood as the notice to be given on the 22 July 2019 did not appear to have been given. A response was received from Mr. A by email dated 1 August 2019 stating that the company was in examinership and that he was now in a position to confirm that the Complainant was no longer employed by the Respondent. The Complainant said that fair procedures are entirely lacking in the way that she was treated following her return to work from maternity leave and in the way that she was dismissed after two years of loyal service to the Respondent.

The Complainant said that there were originally 30 staff working for the Respondent at the time she returned to employment after maternity leave and following examinership there were only 10 staff remaining.

CA-00033817-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

The Complainant said, in alternative to the claim for unfair dismissal, she was made redundant and has not received her redundancy payment entitlement.

The Complainant said that the very same set of facts exist for this complaint under Section 39 of the Redundancy Payments Act, 1967 as was outlined in her claim for unfair dismissal above. She said that although a redundancy situation appears to have existed, no fair procedures were adopted in selecting the complainant for redundancy and indeed none of the proper redundancy procedures appear to have been followed.

CA-00033817-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Complainant’s case is that she returned to work on 17 July 2019 following maternity leave. She was requested to attend a meeting with Mr. A who informed her that the Respondent was not in a position to pay her wages. She said that she was informed that she was not required to come to

work again. She claims that she is contractually entitled to four weeks’ notice, and she did not

receive this notice pay nor any pay following her return to work on 17 July 2019. She claims that this amounts to €1,460.

CA-00033817-005 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Public Holidays

The Complainant claims that she is entitled to her public holiday pay while on maternity leave. The Complainant received none of her public holiday entitlements from when she commenced her maternity leave on or about January 2019. She claims that there were 3 public holidays in that period.

CA-00033817-006 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Annual leave accrued

The complainant received none of her annual leave entitlements for 2019. She is contractually entitled to 20 days per annum which began in January and ended in December which amounts to 13.33 pro rata.

The Respondent failed to engage with the WRC and did not attend nor were represented at the hearing.

CA-00033817-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

The Relevant Law

General right to redundancy payment.

Section 7 of the Redundancy Payment Act 1967 states the following,

“(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 the Social Welfare Acts, 1952 to 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,

(2A) For the purposes of subsection (1), an employee who is dismissed shall be taken not to be dismissed by reason of redundancy if —

(a) the dismissal is one of a number of dismissals that, together, constitute collective redundancies as defined in section 6 of the Protection of Employment Act 1977,

(b) the dismissals concerned were effected on a compulsory basis,

(c) the dismissed employees were, or are to be, replaced, at the same location or elsewhere in the State, (except where the employer has an existing operation with established terms and conditions) by —

(i) other persons who are, or are to be, directly employed by the employer, or

(ii) other persons whose services are, or are to be, provided to that employer in pursuance of other arrangements,

(d) those other persons perform, or are to perform, essentially the same functions as the dismissed employees, and

(e) the terms and conditions of employment of those other persons are, or are to be, materially inferior to those of the dismissed employees.

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks.

(4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.

(4A) In ascertaining, for the purposes of subsection (2)(c), whether an employer has decided to carry on a business with fewer or no employees, account shall not be taken of the following members of the employer‘s family —

father, mother, stepfather, stepmother, son, daughter, adopted child, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister.

(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.”

I am satisfied that the Complainant’s employment commenced on 24 July 2017, and she was paid €3,333 gross per month (€759.15 gross per week). She worked as a Business Analyst.

The Complainant was put on notice on 17 July and her employment ended on 1 August 2019.

I find that the complainant’s employment ended by way of redundancy on 1 August 2019.

CA-00033817-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

Having considered all the evidence adduced from the Complainant at the oral hearing, I am satisfied that the Complainant was made redundant along with some 19 others following an examinership of her employer. Accordingly, I find that the complaint for unfair dismissal is not well founded.

CA-00033817-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

Having considered the uncontested evidence adduced from the Complainant at the oral hearing I find that the complaint is well founded. I order the Respondent to pay the Complainant €1,460 in wages not paid to her on the cession of her employment.

CA-00033817-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Organisation of Working Time Act, 1997 outlines an employee’s entitlement in respect of public holidays.

21. (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) An additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

I note the Complainant claims that she is entitled to her public holiday pay while on maternity leave and received none. I note that amounts to 3 public holidays in that period.

As the Respondent was in breach of Section 23 of the Act by not providing outstanding public holiday pay owning to the Complainant at the cesser of employment the complainant is entitled to compensation for that infringement.

I find that the complaint is well founded. I order the Respondent to pay the Complainant compensation of €500 for the contravention of the Act.

CA-00033817-005 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment).

(b)    One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)     8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

This Act (20 (1)) also deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)    The employer taking into account-

(i)                  The need for the employee to reconcile work and any family responsibilities,

(ii)                The opportunities for rest and recreation available to the employee.

(b)    To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than one month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c)     To the leave being granted within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Section 23 of the Act outlines the compensation to be given when an employee ceases to be employed:

23. (1) Where –

a)      an employee ceases to be employed, and

b)      the whole or any portion of the annual lave in respect of the current leave year or, in the case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave or both those years, remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

I note the Complainant claims that she is entitled to her holiday pay while on maternity leave and received none. I note that she stated that this amounts to 13.33 pro rata. However, having considered the time period in question I am satisfied that the correct calculation is 11.6 pro rata.

As the Respondent was in breach of Section 23 of the Act by not providing outstanding holiday pay owning to the Complainant at the cesser of employment the complainant is entitled to compensation for that infringement.

Having regard to all the relevant considerations I find that the complaint is well founded. I order the Respondent to pay the Complainant compensation of €1,800 for the contravention of the Act.

CA-00033817-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

I find that the complaint is not well founded.

CA-00033817-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

I find that the complaint is well founded

I decide that pursuant to the Redundancy Payment Acts 1967 - 2014, the Complainant is entitled to a redundancy lump sum calculated according to the following criteria:

Date of start of employment: 24 July 2017

Date of end of employment: 1 August 2019

Average weekly gross pay: €769.15

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

CA-00033817-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

I find that the complaint is well founded.

I order the Respondent to pay the Complainant compensation amounts to €1,460.

CA-00033817-005 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find that the complaint is well founded.

I order the Respondent to pay the Complainant compensation amounts of €500.

CA-00033817-006 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find that the complaint is well founded.

I order the Respondent to pay the Complainant compensation of €1,800.

Redundancy Payment - Organisation of Working Time act – complaint well founded