ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033548
Parties:
| Complainant | Respondent |
Parties | Claire Humphreys | Gilford Montessori School Ltd Gilford Montessori & Afterschool |
Representatives | Vivian Cullen SIPTU-Trade Union | Daragh Whelan IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00044367-001 | 27/05/2021 |
Date of Adjudication Hearing: 29/09/2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
This complaint relates to exceptional circumstances that flowed from the Pandemic and the closure of the Montessori school on the 12th March 2020. The complainant worked as an after school manager. She was rated an excellent employee. She initially spent 2 years with the school, left and then subsequently returned and commenced again on the 10th of April 2012. Just before the Pandemic forced the school to close, the complainant goes sick and this fact is crucial in understanding the confusion that unfolds concerning her employment rights. As the complainant was sick, a difference in treatment regarding payment under the Temporary Wage Subsidy scheme arose. Those working at the time of closure were entitled to this payment while those absent on sick leave were not. Anomalies around the scheme were subsequently resolved. The following are facts that the respondent rely upon: 14/04/2020 Ulla McCarthy (UMcC) email to CH stating Revenue rules are clear requiring employees to have been on the payroll, as a paid employee, as at 29/02/2020. CH out since January, see final Payslip (Appendix 3). Business closed so she cannot be re-hired from her period of lay-off as requested by CH, she had not returned to work before the business was closed, appendix 2. 09/05/2020 CH texted – She could not get Covid-19 payment. CH informed GMS that she found work with an essential worker; requested a reference. Changes to CH tax credits made with Revenue by CH, Appendix 2. 11/05/2020 CH phoned EMcC – CH detailed her request for a reference. EMcC stated CH would have to come off our payroll if she took up another employment and CH should reallocate her tax credits to her new employer. This was taken as notice from CH that she had left GMS, Appendix 2. The respondent states that the complainant voluntarily resigned; while the complainant stated she never resigned. The complainant argues that the 11th of May 2020 was not the date of termination as she had every right to work elsewhere as she had no income; no COVID wage subsidy; and was laid off work. The fact that she worked for someone else did not mean that her contract could be terminated. She never resigned. The school was closed and it was uncertain and unclear when it would reopen. She was forced to leave her employment having regard to the stance of her employer first that she couldn’t work for someone else when laid off and the fact that her employer insisted that she resigned. All she did was to look for a reference when by a cruel combination of factors she was laid off and not entitled to the temporary wage subsidy. Only based on this untenable position lasting for close to a year, she was forced to leave her job.
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Preliminary Matter
The respondent employer states that the complainant is out of time and statute barred as the complaint before the Adjudicator was registered with the Workplace Relations Commission on the 27th May 2021. The complainant had previously made a redundancy application and the date of termination on that form was the 14th of April 2020; this claim was withdrawn. However, the respondent contends that the voluntary cessation of the complainant’s employment occurred on the 11th May 2020.
It is well settled law that a complaint must be lodged withing the statutory time period; in this case 6 months and this maybe extended for reasonable cause to 12 months. Even on this basis, allowing for a 12 month period; the claim is statute barred. The respondent employer relies on the leading case in this regard Cementation Skanska v Carroll DWT0338. No cause has been advanced by the respondent. The test is an objective one and the circumstances that are relied upon must both explain why the delay occurred and that a causal link exists between the circumstances cited and the delay. That has not occurred in this case.
Evidence on oath was given by all witnesses. The employer states that their payroll record and Revenue records detail that the termination date was the 12th of May 2020.
The complainant commenced employment on the 10th of April 2012. The employer on oath based on contemporaneous notes and as detailed in their submission state:
11/05/2020 CH phoned EMcC – CH detailed her request for a reference. EMcC
stated CH would have to come off our payroll if she took up another
employment and CH should reallocate her tax credits to her new
employer. This was taken as notice from CH that she had left GMS,
On the balance of probabilities and based on the evidence I heard; the company terminated the employment on the 12th of May 2020, not the employee.
As the employee commenced employment on the 10th of April 2012 as of that date she was entitled to notice based on 8 years’ service as detailed at section 4 of the Minimum Notice and Terms of Employment Act 1973:
- c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,
This means that for the purposes of the Unfair Dismissal Act 1977 as amended; the date of dismissal is:
“ date of dismissal” means—
( a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.
( b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—
(i) the earliest date that would be in compliance with the provisions of the contract of employment,
(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,
Therefore, 4 weeks’ notice means for the purposes of the Unfair Dismissal Act that the contract was terminated on the 8th of June 2020.
The respondent states that in an earlier submission, the complainant stated that her employment ended on the 14th of April 2020 in connection with a claim for redundancy. It should be noted that in County Louth VEC v Equality Tribunal [2009] IEHC 370, McGovern J. stated:
‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’
A complainant is entitled to amend and change their pleadings; in so far as the respondent suffers no prejudice. The respondent has not been taken by surprise regarding the complaint now before me.
The respondent employer has stated that the employee resigned. I have concluded that is not the case, her contract was terminated.
The complainant states that she never resigned and only resigned due to a fundamental contractual breach many months later. Her employer stated that if she took another job, when on lay off without any income, as she was not available to work; although the school was shut; she would be removed from payroll.
In fact this is what happened. However, the contravention occurred on the 8th of June 2020 not the 20th May 2021. The respondent employer is correct to state that this is an error. However, the 11th of May 2020, that the employer states is the termination date is also in error.
The claim is lodged on the 27th May 2021.
The complainant must explain why a delay occurred. Section 8(2) of the Unfair Dismissal’s Act 1977 as amended states:
a ) within the period of 6 months beginning on the date of the relevant dismissal, or
( b ) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,
The complaint is outside of the 6 months period.
The respondent employer relies upon Skanska and the Labour Court’s decision is consistent with Minister for Finance v Civil and Public Service Union [2006] IEHC 145, Laffoy J at paragraph 38 wrote:
In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is "good reason to do so". It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he construed the term "good reasons" as follows:
"The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and that the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181)."
The complainant states that she pursued a claim for redundancy based on the fact that she was let go from her employment as no wrong doing in any way was connected with the termination. She was not eligible for a COVID payment because of the eligibility criteria as already stated by the respondent employer:
14/04/2020 Ulla McCarthy (UMcC) email to CH stating Revenue rules are clear
requiring employees to have been on the payroll, as a paid employee, as
at 29/02/2020. CH out since January, see final Payslip (Appendix 3).
Business closed so she cannot be re-hired from her period of lay-off as
requested by CH, she had not returned to work before the business was
closed, appendix 2.
She was also told that she would be taken off the payroll if she took another job. These circumstances are exceptional. It also is a fact that the right to progress a complaint to the Workplace Relations Commission regarding redundancy was curtailed as an emergency measure during the Pandemic.
In Regan Employment Law (Bloomsbury 2017) at paragraph 28.25:
In Alert One Security Ltd v Khan, 49 the Labour Court extended time … The Court regarded it as ‘well settled’ that a material misrepresentation which caused or contributed to a delay in presenting a complaint could constitute ‘reasonable cause’ which both explained the delay and provided a justifiable excuse for same.
In this case the employer states that:
11/05/2020 CH phoned EMcC – CH detailed her request for a reference. EMcC stated CH would have to come off our payroll if she took up another employment
While the complainant sought a reference and was given one; there is no evidence that she resigned. She was removed from the payroll on the 12th May 2020 when she was no longer available to work for the school; although, the school was closed and the complainant had no income.
The Union argue that she never left the employment and therefore her employment continued until she resigned in May 2021. However, that is not so. Her employment in fact was terminated on the 12th of May 2020. The employer maintained that they had not terminated her employment and that she had resigned. Ms Ulla McCarthy also wrote to the complainant on the 10th July 2020 that it had been explained to her that:
We spoke by phone on the May 11th (2020). You explained that you had applied for a job as a nanny and wanted GMS to provide a reference. We explained that if you were to take up a new position that would mean an end of your employment with GMS
I prefer the evidence given under oath by the complainant that she never resigned; and this is corroborated by the evidence given by Edel McCarthy, that she would have to be removed from payroll if she took a position elsewhere and the evidence of Joe McCarthy; that in fact the complainant was removed from payroll by the school on the 12th of May 2020. The seeking of alternative employment when you are laid off does not amount to a resignation; particularly when you are not in receipt of the temporary wage support scheme.
The Pandemic and the resulting measures put in place that directly impacted on employment rights were exceptional. The employer believed that if the employee took a job with another employer when she was laid off; she would have to be taken off the payroll. That was not correct. The employee had fallen between the cracks because she was sick and not in receipt of payment from her employer on a certain date to be eligible for the COVID payment, as the company does not operate a sick pay scheme she was not in receipt of any payment from them.
Based on the exceptional circumstances that pertained during the Pandemic and based on the unique facts of this case, I determine that the complainant has demonstrated reasonable cause for the delay in bringing an Unfair Dismissal’s case. The circumstances relied upon are objective:
- The Pandemic and the closure of her school.
- Ineligibility for COVID payment.
- Representations and statements made by her employer that if she took another job she would have to be taken off the payroll and had effectively resigned. That statement is incorrect and a misrepresentation.
- The termination of the contract without notice-when she was entitled to 4 weeks’ notice, means that the contractual date of termination was not the 12th of May 2020 as presented by the employer but was the 8th of June 2020. The complaint concerning Unfair Dismissal was registered with the WRC on the 27th May 2021, which means that the complaint based on reasonable cause is not statute barred.
- The difficulty in obtaining clear advice and assistance during the Pandemic
- The urgency to obtain another paid job.
- The consistency of the complainant in making representations to her employer; that what had occurred was unjust and unfair and misrepresentations consistently by her employer that as she had taken another position when laid off without pay ; she had resigned, was incorrect.
- The employer is not unfairly prejudiced or taken by surprise as they were on notice regarding the fact that what they stated was a resignation; was disputed as evidenced in employer correspondence dated the 10th of July 2020 from Ms Ulla McCarthy.
In these circumstances it would be unjust to deny the complainant access to the investigation and adjudication of her complaint under the Unfair Dismissal Act 1977 as amended. The circumstances of this case meet the threshold as required by the statute: in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause. I am satisfied that the complainant was significantly impeded based on the circumstances of this case, at the height of the pandemic from making her application on time and the misrepresentation by her employer that taking up another position when she was laid off, would mean she had resigned. As stated in Skanska that had those circumstances not been present (s)he would have initiated the claim in time. It would be unjust not to have regard to the exceptional circumstances that pertained. It is also the case that the complainant had 8 years’ service when her contract was terminated by her employer; for taking another position, so she could get paid when laid off by her employer without pay. I am satisfied that the complainant has presented a good arguable case that should be heard in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause.
Summary of Complainant’s Case:
In dealing with the preliminary matter the complainant’s position has been summarised. The complainant has stated that she was forced to resign believing because she never tendered her resignation until May 2021 that meant she was still employed. That belief is in error as the evidence is her employment was terminated on the 12th May 2020 without notice. |
Summary of Respondent’s Case:
The respondent employer believes that the complainant resigned; she requested a reference, was given a good reference, was no longer available to work for them, and therefore she had resigned from their employment. |
Findings and Conclusions:
The Unfair Dismissal Act 1977 as amended states: 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal I have determined that the employer terminated the employment contract and the complainant had not in fact resigned. The complainant commenced employment on the 10th of April 2012. The employer on oath based on contemporaneous notes and as detailed in their submission state: 11/05/2020 CH phoned EMcC – CH detailed her request for a reference. EMcC stated CH would have to come off our payroll if she took up another employment and CH should reallocate her tax credits to her new employer. This was taken as notice from CH that she had left GMS, On the balance of probabilities and based on the evidence I heard; the company terminated the employment on the 12th of May 2020 not the employee. As the employee commenced employment on the 10th of April 2012 as of that date she was entitled to notice based on 8 years’ service as detailed at section 4 of the Minimum Notice and Terms of Employment Act 1973: c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, This means that for the purposes of the Unfair Dismissal Act 1977 as amended; the date of dismissal is: “ date of dismissal” means— ( a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires. ( b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates— (i) the earliest date that would be in compliance with the provisions of the contract of employment, (ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973, Therefore 4 weeks’ notice means for the purposes of the Unfair Dismissal Act the contract was terminated on the 8th of June 2020. The respondent states that in an earlier submission the complainant stated that her employment ended on the 14th of April 2020 in connection with a claim for redundancy. It should be noted that in County Louth VEC v Equality Tribunal [2009] IEHC 370, McGovern J. stated: ‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ A complainant is entitled to amend and change their pleadings; in so far as the respondent suffers no prejudice. The respondent has not been taken by surprise regarding the complaint now before me. The respondent employer has stated that the employee resigned. I have concluded that is not the case, her contract was terminated. The complainant states that she never resigned and only resigned in May 2021 due to a fundamental contractual breach. Her employer stated that if she took another job, when on lay off without any income, as she was not available to work; although the school was shut; she would be removed from payroll. In fact this is what happened. However, the contravention occurred on the 8th of June 2020 not the 20th May 2021. The respondent employer is correct to state that the resignation alleged to have occurred in May 2021 is an error as her employment in fact had been terminated on the 12th of May 2020. However, the 11th of May 2020 in the respondent’s submission is also in error as in fact the contractual date of termination was the 8th of June 2021 as she was entitled to 4 weeks’ notice. The respondent employer carries the burden of proof to show that there were substantial grounds justifying the dismissal. An employee in the circumstances of this case is not precluded from taking up a paid position when she was laid off and in receipt of no payment from that employer. At the time she sought a reference; she was not entitled to the temporary wage subsidy scheme as she was sick during a specified qualifying period for that benefit and in receipt of no sick pay benefit from her employer. The eligibility criteria of the temporary wage subsidy scheme required that the employee be in receipt of payment from the employer on a certain date. I have determined that the employee did not resign ; I find the employer has not demonstrated that there were substantial grounds justifying the dismissal. As this is my conclusion that the employer has not provided substantial grounds that justified the dismissal; for the purposes of the Act, the dismissal of the complainant shall be deemed, to be an Unfair Dismissal.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I determine that pursuant to section 8 of the Unfair Dismissals Act 1977 as amended the dismissal is an unfair dismissal. In the circumstances that the complainant is now in full-time employment I determine that compensation is the appropriate award. Charleton J. in JVC Europe Limited v Jerome Panisi detailed how compensation where appropriate should be measures and determined: (3) In this section - 63. "financial loss", in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts to 2007, or in relation to superannuation; "remuneration" includes allowances in the nature of pay and benefits in lieu of or in addition to pay." 64. 27. This section clarifies the consideration that is to be given to compensation for unfair dismissal. Payments under social welfare and income tax legislation are to be disregarded. In assessing compensation, the court should have regard to the implications for dismissal. My task is to assess the financial damage which the dismissal has brought about and then to place the measure of that damage against the maximum amount of compensation that is available. In the event that the compensation that is available, amounting to 104 weeks remuneration, is less than that sum, then that is the measure of damages. Where the quantum of damage is more, then the jurisdiction is limited to that maximum and the amount of damages must thus be reduced to that maximum sum. Where the measure of damages on dismissal is more than the maximum but contributory fault is found in respect of the dismissal against the employee, the reduction is on the totality of those damages, and not on the maximum award. If the result is to reduce compensation within the maximum award, that sum is appropriate. Where the reduction in total damages for contributory fault puts the damages above the maximum award, then the maximum award is the correct measure of compensation for unfair dismissal. 1. Actual Loss The loss of notice amounting to 4 weeks based on 8 years’ service. As the complainant was laid off and the school was closed she would not be entitled to actual loss of earnings until the school reopened or through remote learning if that took place. The Adjudicator wrote to both parties in order to assess the quantum of actual loss. 1. Request Allowing for your right to lay off staff as per the contract clause, could you please detail when employees returned from lay off and for what periods from May 12th 2020 to the end of May 2021. This request is being made without prejudice to the merits or otherwise of the complaint and is solely made to assist the Adjudicator to understand the circumstances of the dispute. 2. Reply 12 Mar 2020 Business closed by Government direction and all staff laid off. 26 Mar 2020 Staff who were eligible for TWSS were rehired and commenced working from home. TWSS was Gilford’s only source of revenue at this time. Claire Humphreys was still on sick leave and also not eligible for TWSS and therefore could not be rehired at this time. 30 Mar 2020 Claire Humphreys informed us she had made an application for a Covid payment herself. The school was not able to add Claire to the TWSS scheme as Revenue rules precluded her from the scheme, as she was not on payroll on 29th February 2020. No fitness to work certificate was supplied as requested by Gilford. 12 May 2020 Gilford notified Revenue of change in status for Claire Humphreys from ‘laid off due to illness’ to ‘ceased’, as she informed Gilford that she was taking up new employment and was considered to have resigned. 8 June 2020 Revenue rectified the TWSS rules of eligibility to include those employed prior to 29th February 2020 in certain circumstances. 20 July 2020 The school physically opened for 4 weeks from 20 July until 14 August for Montessori children only and for 3 hours per day. All staff returned to the school for this period. 14 Aug 2020 The school closed for two weeks holiday. 1 Sept 2020 School reopened from holidays with all staff paid under EWSS from Revenue. 24 Dec 2020 School closed for Christmas holidays and was ordered to remain closed by Government until 8th March, 2021. Staff were working from home with pay funded by EWSS. 8 Mar 2021 School physically reopened. End May 2021 School remained open, with all staff being paid by EWSS. As the contract was terminated on the 12th May 2020; the calculation of actual financial loss is difficult to assess as the employer was availing of the Employer Wage Subsidy Scheme. If the complainant had remained in employment she would have benefited from the Employer Wage Subsidy Scheme. However, this payment is made as wages and is a subsidy to the employer, not the employee. The subsidy is paid directly to the employer. The employee was paid €1022.43 fortnightly or €511.22 weekly prior to lay-off. The subsidy to be provided to the employer was €350 per week based on the complainant’s salary. The employee representative states that the employee’s gross weekly wage was €240 to the end of June 2021 and she then commenced a new position on the 8th of August 2021. Based on new eligibility criteria applying from the 8th of June 2020, the loss incurred, as the employee avails of a subsidy, to directly pay staff is €350-€240=€110 per week and continues until the 8th of August 2021, based on the figures provided to the Adjudicator by the employee representative. I assess the loss to be for a period of 13 months and this equates to 57 weeks x €110=€6250. I assess actual loss to include 4 weeks’ notice=€2044 + actual loss of €6250=€8294. I award the employee €8294 for actual loss. 2. Future Loss The termination has diminished her entitlement to a future redundancy payment and based on 8 years’ service on termination would give rise to a loss of 17 weeks pay up to a maximum of €600 per week. While a redundancy may not occur into the future , there is a value to be placed on this loss where service both determines an amount to be received and also whether an employee is made compulsorily redundant or not. This is a very hard case where an employee fell between the cracks and due to eligibility criteria of the temporary wage scheme was precluded from receiving an income. The employer believed that she resigned when she looked for alternative employment when laid off and in receipt of no payment from her employer. Charleton J in JVC states that prospective loss includes and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts to 2007, or in relation to superannuation; I award €8500 for prospective loss based on a weekly salary of €511 per week. I find that the employee was unfairly dismissed. In total I award the employee compensation of €16,794 and determine that it is a just and equitable award allowing for all the circumstances of the case. |
Dated: 3rd November 2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Employer Wage Subsidy Scheme-Unfair Dismissal-Reasonable Cause & Pandemic-Actual Loss-Future Loss |