Complainant

Respondent

Parties

Loredana Mihaela  Serbanescu Mituica

Sky Handling Partner Ltd

Representatives

Lisa Conroy Peninsula Group Limited

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-00048894-001

01/03/2022

The Complainant commenced employment with the Respondent on 7 June 2018.  She was paid an hourly rate of €13.00 and worked 20 hours per week. Her employment ended on 3 October 2021. A complaint was received by the WRC on 1 March 2022.

The matter was heard by way of remote hearing on 27 September 2021, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.

The Complainant provided a written submission.

The Complainant submits that she is entitled to a redundancy payment from the Respondent. She submits that after more than one year of lay-off due to the pandemic, she resumed work with the Respondent in April 2021, under a reduced hours arrangement.  Due to the Respondent’s on-going failure to provide her with the minimum hours stated in her contract she informed the Respondent on 3 September 2021 (giving four weeks’ notice), of her intention to claim a redundancy payment. 

On 22 October 2021, the Complainant submits that the Respondent emailed her stating that she had never been put on reduced hours or been laid off at any stage of her employment and that should she fail to return to work, disciplinary action would be taken against her.  The Complainant’s contract seems to have ceased with on 18 February 2022.

The Complainant gave direct evidence under affirmation at the hearing.  She stated that her submission outlined her case.

In cross examination the Complainant accepted that she had resigned in October 2021 and that she had been subsequently asked to reconsider her resignation.  She denied she had been working 20 hours per week in the period after she returned to work in April 2021.

The Complainant submits that her request for a redundancy was initially accepted by the Respondent, however, this was later rescinded. She is seeking redundancy payment.

In closing, the Complainant stated that from her point of view she had done everything she had been asked. She did her best at work and when she looked for help, she disappointed. She stated that she had resigned on 3 October 2021.

The Respondent provided a written submission.

The Respondent submits that the Complainant was employed on a part-time permanent contract on 7 June 2018. She was contracted to work shifts totalling a minimum of 40 hours per fortnight.  Due to the COVID 19 pandemic and the nature of the Respondent’s business, the Complainant was placed on lay-off in March 2020. On 3 April 2021, the Complainant was requested to return to work. On her return to work the Complainant requested that she would only work weekends which would include Saturdays and Sundays and either a Friday or a Monday. The Respondent accepted this and accommodated the Complainant.

The Respondent submits that due to the disruption caused by the pandemic, many staff had large quantities of annual leave carried over from 2020. To manage this the leave accrual issue, the Respondent offered staff to enhance their weekly rate with annual leave hours to make up their basic hours. The Complainant opted out of this proposition and stated that she preferred to be able take annual leave as normal. 

The Respondent submits that an issue arose in June and July 2021, which required a manger to assure the Complainant that she had met her 40 hours per fortnight contractual hours. On 25 June 2021, the Complainant sent a letter to HR seeking to be placed back on lay-off. There was no need for lay-off at the time.

In July 2021, the Complaint queried whether she had received the hours of work she was due under her contract of employment; she was assured she had. On 10 July 2021, the Complainant did not present herself for work. The Complainant was informed she Was now on “Unauthorised Unpaid Absence” from work. On 23 July 2021, the Complainant did not attend for her shift. On 28 July 2021, an absent without authorised leave letter was sent to the Complainant.

The Respondent submits that the Complainant was invited to a meeting to discuss her concerns. That meeting took place on 19 August 2021. The notes of this meeting were copied to the Complainant. On 3 September 2021, the Complainant replied, resigning her position with effect form 3 October 2021. On 9 September 2021, the Respondent wrote to the Complainant asking her to reconsider her resignation.  The Complainant did not do so.

The Respondent attended a WRC hearing on 18 February 2022.  At this hearing the Complainant raised an issue that she was still registered as an employee of the Respondent on her Revenue account. The Respondent asked the Complainant to send her official resignation in writing.  The Respondent removed the Complainant as a registered employee following this hearing.

Ms Lorraine Daly, Group Head of HR gave evidence at the hearing under affirmation.  She stated that the pandemic had had a devastating impact on the airline industry and that staff were laid-off and voluntary redundancies were sought. The company gave staff options on annual leave, but the Complainant did not avail of the option of using accrued leave.

Ms Emma Maguire, HR Business Partner, gave evidence under affirmation at the hearing. She stated that the Complainant was paid her 20 hours per week.  She stated that once the pandemic restrictions had eased in the summer of 2021, there was no longer a need for lay-offs, that there was work for the Complainant. The witness stated that the Complainant had not turned up for work on 10 July 2021, but that she was not suspended.  She stated that the Complainant was written to on 28 July 2021 and was told that she was required to attend work.  The witness stated that the Complainant did not return to work. 

Ms Maguire stated that the Complainant was written to on 10 September 2021, asking that she reconsider her resignation, and informing her that she had arranged a grievance meeting. The response from the Complainant was that her contracted hours requirements had not been met; it was not a formal resignation. Consequently, the company did not have a clear indication of the Complainant’s status. This was clarified at the WRC hearing of 25 February 2021.  The witness confirmed that the job the Complainant had held still exists and the position had been filled.

In closing, the Respondent submits that at no time was the Complainant made redundant, her role is still in existence and has been filled following the Complainant’s resignation. The Respondent submits that the |Complainant was not on short-time or lay-off but had been on unauthorised leave of absence from July 2021.

I have considered this matter carefully.

It should be borne in mind that it is the post and not the person which must be made redundant for the postholder to qualify for statutory redundancy.

It is accepted that the Respondent repeatedly made it clear to the Complainant that her employment was not ended on grounds of redundancy. The assertion of the Respondent that the position held by the Complainant was not made redundant during that period is also accepted. I note the position vacated by the Complainant was replaced by another employee; the Complainant’s position was never actually made redundant.

The Respondent went to some lengths to get the Complainant to re-consider her resignation, but to no avail.

I find the Complainant withdrew her services of her own volition, when her contracted hours were fully available to her.  There is no justification to support a claim for redundancy.

The appeal by the Complainant against the refusal of the Respondent to pay her statutory redundancy in 2021 is not a valid complaint. The appeal is therefore disallowed.

The appeal by the Complainant against the decision of the Respondent not to pay her statutory redundancy is disallowed.                                                                                                                          

Redundancy, lay-off.