ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00027709
Parties:
| Complainant | Respondent |
Anonymised Parties | Care Assistant | Nursing Home |
Representatives | Monika Ateb County Offaly Citizens Information Service | Conor Quinn John J Quinn & Co Solicitors |
Complaint(s):
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-00035373-001 | 23/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00035373-002 | 23/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00035373-003 | 23/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00035373-004 | 23/03/2020 |
Date of Adjudication Hearing: 8/03/2021 and 13/05/2021
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The parties were allowed to cross examine witnesses.
Most of the evidence was in agreement between the parties.
Background:
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.
As the first hearing of this complaint predated the Supreme Court decision in Zalewski v Adjudication Officer and WRC [2021] IESC 24 issued on the 6 April 2021, I have continued to anonymise the parties names.
The Complainant commenced working with the Respondent on 31 October 2005. The Complainant went on sick leave on 26 October 2018. The Respondent nursing home closed on the 29 July 2019. The Complainant submitted that her employment ended on 20 March 2020.
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Summary of Complainant’s Case:
The Complainant's case was that while on sick leave, the Respondent ceased trading. The Respondent never contacted the Complainant during this time and she was not consulted or part of the Redundancy process. The Complainant did not receive her redundancy or public holiday leave when the Respondent ceased trading. She submitted that her employment ended at that time. She lodged an RP 77 form with the Respondent in August 2019. She received no response. She wrote on a number of occasions to the Respondent seeking information. She received assistance from South Leinster Citizens Information Service and the two difficulty in engaging with the Respondent. CA-00035373-001 This complaint is in relation to her failure to receive a redundancy payment on termination of her employment. The Complainant sought redundancy payment of €12,971.20. CA-00035373-002 This complaint is that the Complainant did not receive proof of her employer's inability to pay redundancy (statement of affairs). CA-00035373-003 This complaint is in relation to outstanding annual leave entitlement. She sought annual leave for 2019 and 2020 in accordance with the amendment of section 20 and 23 of the Organisation of Working Time Act by section 86 of the Workplace Relations Act 2015. The Complainant sought four weeks’ pay for 2019 amounting to €1,760. She explained how holiday entitlement was to be calculated on three weeks employment in 2020 amounting €105.60. CA-00035373-004 This complaint was in relation to public holidays. The Complainant submitted she was entitled to public holidays for 26 weeks from the date her illness started. She submitted there were six public holidays within this period and she was entitled to €528 outstanding payment. |
Summary of Respondent’s Case:
CA-00035373-001 + CA-00035373-002 The Respondent's case was that the Complainant went on sick leave in October 2018. She submitted a medical certificate to cover her absence from the 22 October 2018 to 18 November 2018. Soon after she told colleagues that she was leaving the Respondent's employment and moving to County Waterford. She did not submit any further medical certificates and had no further communication with the Respondent. She never requested the Respondent to sign any illness benefit forms nor requested sick pay under the Respondent's Sick Pay Policy. The Respondents considered the Complainant had terminated her employment with them. They were not provided her new address. She was living in different county a considerable distance from the Respondent's place of business. The Respondent submitted that she was not in insurable employment following her last payslip on the 26 October 2018. The Respondent engaged the services of a HR company to manage the termination of the existing employees’ contracts following the closure of the nursing home. 13 eligible employees were made redundant and received their redundancy payments at that time. As the Complainant's employment had terminated on 18 November 2018 she was not entitled to a redundancy payment. CA-00035373-003 + CA-00035373-004 The Respondent submitted that these claims were out of time. The Respondent submitted that the Complainant's employment ended on 18 November 2018. The complaints were not made within the requisite six months’ time limit. |
Findings and Conclusions:
In making my decision I have considered the evidence provided to me both in writing and orally on the two hearing dates. Both parties were represented and detailed submissions were made to me. A-00035373-001 + CA-00035373-002 I accept the evidence of the Complainant that she had a hip replacement and had this medical treatment carried out in Poland, her home country. The evidence presented to me was that the parties had a good working relationship until the Complainant left on sick leave in October 2018. Evidence was presented to me that the Complainant been gone on sick leave before and had returned to the workplace. I accept that the Complainant discussed her absence with the Respondent's manager and that she intended to return to work, once medically fit to do so. The Complainant notified the Respondent that the costs of providing regular sick certificates was prohibitive and could not be afforded by the Complainant. A medical certificate was submitted from the Complainant's private orthopaedic doctor in Dublin outlining that the Complainant was suffering from hip difficulties and would be unable to work from 22 October 2018 to 18 November 2018 inclusive. I was further provided with confirmation from Department of Social Protection that the Complainant was in receipt of illness benefit from that Department between 22 October 2018 and 1 September 2020. I was also provided with a medical certificate from a local GP confirming that the Complainant was out of work for pre-and post-surgery from late October 2018 to the start of August 2020. It is generally accepted that for an employer to act on an employee’s resignation, unequivocal words and actions are required on the employee’s part. There is also a duty on employers to take into account any special circumstances of an employee in considering whether that employee has resigned or not. The evidence from the Respondents witness was that she did not contact the Complainant as regards her unauthorised absence from the workplace or resignation. She was stressed at the time and her mind was on other things. She confirmed that the Complainant’s absence never came into her mind. Having considered all of the evidence in this case, I do not accept that the Complainant resigned from her employment in November 2018. I accept that she was absent from the workplace due to long-term illness and the Respondent was aware of this. This is not an unusual situation. The Redundancy Payments Act specifically provides that interruptions in employment for sickness do not break continuity of service. The Redundancy calculator makes provision for certain absences that occur in the three years before the date of dismissal in the calculation of reckonable service. Absences in excess of 26 weeks caused by illness are not reckonable. Section 7 (2) of the Redundancy Payments Act 1967 creates a statutory presumption of dismissal by reason of redundancy. The Respondent's nursing home ceased carrying on business on the 29 July 2019. In accordance with Bates -v- Model Bakery Limited [1993] 1. IR 359, I consider that the statutory presumption came into play on that date. CA-00035373-003 and CA-00035373-004 These complaints were withdrawn at the hearing 13 May 2021. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
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.
CA-00035373-001 + CA-00035373-002 These complaints under the Redundancy Payment Acts, 1967 – 2012 is well-founded and the Complainant is entitled to a redundancy payment based on the following criteria: Date of Commencement: 21 December 2005 Date of Termination: 29 July 2019 Absence due to Ordinary illness: 22 October 2018 to 29 July 2019 Gross weekly pay: €440.00 This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period. CA-00035373-003 and CA-00035373-004 These complaints were withdrawn at the hearing 13 May 2021 |
Dated: 08/09/2021
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Redundancy entitlement. Resignation. Long term sick leave. |