ADJ-00030035

Complainant

Respondent

Parties

Ruth  O'Regan

The Phone Doctor Ltd.

Act

Complaint Reference No.

Date of Receipt

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

CA-00040006-001

23/09/2020

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

CA-00040006-002

23/09/2020

The complainant commenced employment with the respondent on 9 January 2017 in the role of sales assistant. She worked Monday – Friday from 9.30 am until 1.30 pm. Her wages were €202 per week. When lockdown happened due to the pandemic, the shop was closed. She states that her last day working at the shop was on 13 March 2020.

The complainant states she got a text message from the Director on 12 May to say the shop was reopening on 18 May and could she start back at work. The complainant states that she telephoned the Director on 12 May and explained that she had no one to mind her children due to the Covid restrictions.

The complainant states that she got a text message from the Director on 15 June which read; “Hi, hope you and your family are well, just confirm that you want to leave the job with phone doctor for personal reasons (looking after your kids) since we reopened on 18 May 2020. I going to send your file to accountant, apply for P45 for you. If yes, reply the message pls.” The complainant states that she replied to this message promptly informing the Director that she did not want to leave her job but due to the covid 19 restrictions, she had no childminding facilities available to her but that when the restrictions were lifted, she would be able to return to work. The complainant stated that as the schools were closed and given the fact her mother was in the vulnerable category, she was unable to return to work as she had no one to mind her children.

The complainant states that she was only made aware of the fact that she had been let go when she contacted the Director to give him a date that she could return to work in late August. The complainant states that the Director informed her that he had sent her P45 to Revenue on 5 July 2020.

The complainant states that the school had confirmed that it would reopen at the end of August and she would therefore be in a position to return to work.  She states that on 25 August, she rang the Director to confirm that she was now in a position to return to work but was informed that there was no position available and that her P45 had already been sent to Revenue in July.  The complainant submits that she is owed Minimum Notice and a Redundancy payment as she had worked for the company for over three years.      

The respondent asserts that the complainant was asked many times to come back to work but that she claimed she had no one to mind her children. The Director stated it was a small business with one full-time employee and one part-time employee and when the shop reopened on 18 May it was very busy and they needed the complainant and advised her of same and the fact that they could not keep her job open. The Director reiterates that the complainant did not give a return date and on that basis on 5 July 2020, her employment ceased and her P45 was lodged with Revenue. The Director stated that there was no redundancy situation as the role was there but that the company had to hire another employee to assist with the work and keep the business afloat. The Director stated that it should be noted that the PUP rate the complainant was on may have been higher than the wages the complainant was getting for the 20 hours work per week and indicated that this may have been the reason she did not return to work despite being requested to do so on numerous occasions. The Director stated that as the complainant was not available for work, there is no basis for her claim under the Redundancy Payments Act and similarly there is no basis for a claim under the Minimum Notice & Terms of Employment Act.  

Section 7 of the Redundancy Payment Act sets out a general right to a redundancy payment as follows.7.—(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, 1952to 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,(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. The respondent submits that no entitlement to redundancy arises in circumstances where the complainant’s conduct in refusing to return to work brought about the termination of her contract. The Director stated that when they reopened on 18 May, the shop was very busy and the complainant was contacted numerous times in respect of a return to work but the complainant did not engage. The Director stated that the complainant was advised that if she did not return to work,  they would have to hire another person to do the work which they ultimately did.

Having heard all the evidence in the within complaint, I find that it is regrettable that the situation arose and I accept the issues raised by the complainant in relation to the child minding difficulties she experienced; however, I am also cognisant of the testimony given by the witness for the respondent and the difficulty they were experiencing when the shop reopened and the need for help in the running of the business. I note that the respondent had to hire another individual so as to keep the business going.  Based on the totality of the evidence, I am satisfied that a redundancy situation did not arise. The role had not become redundant and the respondent had to hire another employee to do the work which had been previously undertaken by the complainant.

I find that the complainant by not returning to the job in effect had the result of terminating the contract.  I am satisfied that the role was not redundant. Consequently, I find that the complaint under the Redundancy Payments Act is not well-founded.

As I am satisfied that the complainant’s employment was terminated as a result of her not returning to the job, I find that the complainant does not have a statutory entitlement to minimum notice under the 1973 Act.

Redundancy Payments Act

I find that there is no breach under the Redundancy Payments Act and accordingly this complaint is not well-founded.

Minimum Notice & Terms of Employment Act, 1973

I find that there is no breach of the Minimum Notice & Terms of Employment Act and accordingly, this complaint is not well-founded.

Redundancy Payments Act, minimum notice