Complainant

Respondent

Parties

Patricia De Oliveira  Moura

Colm De Ris Irish Pottery Limited Colm De Ris Irish Pottery Limited

Representatives

Employment Advocacy Service North Dublin Citizens Information Service CLG

Gavin Cumiskey Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00038818-001

20/07/2020

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

CA-00038818-002

20/07/2020

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

CA-00038818-003

20/07/2020

The Complaint was employed by the Respondent as a General Operative from 1st July 2016 until her employment terminated in July 2019. She submitted three complaints to the WRC as follows:

·       Terms of Employment (Information) Act – alleging that she did not receive a statement in writing of her terms of employment

·       Minimum Notice and Terms of Employment Act – alleging that she did not receive his statutory minimum period of notice on the termination of her employment or payment in lieu thereof

·       Redundancy Payments Act- alleging that she did not receive any redundancy payments

The Respondent is a retail pottery business who contended that the details of the Complainant’s claim form are, in some respects inaccurate, that the claims are statute barred and that the Complainant was not disadvantaged by any errors or omissions on the part of the Respondent.

Preliminary Issues

General

The Respondent submitted that the Complainant’s end date of employment was 16th July 2019 and not 31st July 2019 as stated in the complaint form and that, in any event the Complainant had given notice of her resignation in May 2019. The Respondent further submitted that the Complainant had been given flexibility in relation to her end date/notice period, resulting in her last date of employment being 16th July 2019. 

The Complainant submitted that the business had temporarily closed in July 2019 due to the illness of the Respondent and that she received formal notification of that lay off by letter of 5th August 2019. (a copy of the letter was appended to the submission).  The Complainant further submitted that when she was not contacted further regarding her employment status, she sought advice from CIS who entered discussions with the Respondent in relation to the matters that were the subject of this complaint. As part of those discussions a draft agreement had been drawn up by her representatives that confirmed her end date of employment as 31st July 2019, and this draft agreement was reviewed and amended by the Respondent without changing that end date.  The Complainant also provided a copy of a Revenue document showing that her end date was 27th July 2019, together with a copy of a bank statement showing a final payment by bank transfer made by the Respondent on 23rd September 2019.  She submitted that a final payment in cash was made to her for balance of wages owed on 7th October 2019. 

The Complainant submitted that based on the Respondent’s letter of 5th August she understood that she was laid off.  Taking all the above into account the Complainant contended that while there was some ambiguity in relation to her end date it could not be taken to be before the end date confirmed by the Respondent to Revenue i.e., 27th July 2019.

The Complainant further contended that she did not resign her position.

CA-00038818-001       Terms of Employment (Information) Act, 1994

The Respondent, relying upon section 41(6) of the workplace relations Act submitted that the alleged contravention date for this particular complaint was 16th July 2019and submitted that, as such, the complaint is outside of the 6-month period.  The Respondent submitted that in fact the complaint was brought more than 12 months from the last day of work, which the Respondent proposed was 16th July 2019.

The Complainant submitted that based on her understanding of her last day of work she believed that she still had cover of the act.  Her representative drew attention to the fact that discussions were on-going with the Respondent and that it only became clear in July 2020 that the Respondent was not prepared to sign off on the agreements previously reached between the parties.  The complaint was submitted on 20th July 2020, as soon as reasonably could have been done in the circumstances.

CA-00038818-002       Minimum Notice & Terms of Employment Act,1973

The Respondent submitted that the Complainant is not entitled to minimum notice under the Act, as she did not bring her claim within six months of the conclusion of her employment i.e.; on the 16th July 2020.  In these circumstances the Respondent contended that the WRC did not have jurisdiction to hear the case.  The Respondent relied upon Section 41(6) of the Workplace Relations Act in this regard.

The Complainant submitted that the business had temporarily closed in July 2019 due to the illness of the Respondent and that she received formal notification of that lay off by letter of 5th August 2019. (a copy of the letter was appended to the submission).  The Complainant further submitted that as part of discussion with the Respondent a draft agreement had been drawn up by her representatives that confirmed her end date of employment as 31st July 2019, that this draft agreement was amended by the Respondent without changing that end date.  The Complainant also provided a copy of a Revenue document showing that her end date was 27th July 2019, together with a copy of a bank statement showing a final payment by bank transfer made by the Respondent on 23rd September 2019.  She submitted that a final payment in cash was made to her for balance of wages owed on 7th October 2019.

The Complainant submitted that based on the Respondent’s letter of 5th August she understood that she was laid off and when she sought advice from CIS in relation to her employment status, she commenced discussion and negotiation with the Respondent in that regard.  She submitted a detailed account of those discussions and negotiations which took place between 23rd January 2020 and 15th July 2020, together with copies of all supporting documentation. Taking all the above into account the Complainant contended that while there was some ambiguity in relation to her end date it could not be taken to be before the end date confirmed by the Respondent to Revenue i.e. 27th July 2019.

The Complainant further submitted that based on her understanding of her last day of work she believed that she still had cover of the act.  Her representative drew attention to the fact that discussions were on-going with the Respondent and that it only became clear in July 2020 that the Respondent was not prepared to sign off on the agreements previously reached between the parties.  The complaint was submitted on 20th July 2020, as soon as reasonably could have been done in the circumstances.

CA-00038818-003       Redundancy Payments Act, 1967

The Respondent submitted that the Complainant’s employment ended on 16th July 2019 and that therefore her case should have been brought within 12 months of that date i.e., on or before 16th July 2020.  The Respondent acknowledged that the 12-month period could be extended to 24 months due to reasonable cause.  The Respondent further submitted that the Complainant had not put forward any reasonable cause, and, as such, the reference period should be restricted to the 12 months prior to the complaint being lodged with the WRC. In circumstances where the claim was brought more than 12 months following on from the last date of work (i.e. 16th July 2020), the Respondent submitted that the WRC did not have jurisdiction to hear the case.

The Complainant submitted that the business had temporarily closed in July 2019 due to the illness of the Respondent and that she received formal notification of that lay off by letter of 5th August 2019. (a copy of the letter was appended to the submission).  The Complainant further submitted that as part of discussion with the Respondent a draft agreement had been drawn up by her representatives that confirmed her end date of employment as 31st July 2019, that this draft agreement was amended by the Respondent without changing that end date.  The Complainant also provided a copy of a Revenue document showing that her end date was 27th July 2019, together with a copy of a bank statement showing a final payment by bank transfer made by the Respondent on 23rd September 2019.  She submitted that a final payment in cash was made to her for balance of wages owed on 7th October 2019.

The Complainant submitted that based on the Respondent’s letter of 5th August she understood that she was laid off and when she sought advice from CIS in relation to her employment status, she commenced discussion and negotiation with the Respondent in that regard.  She submitted a detailed account of those discussions and negotiations which took place between 23rd January 2020 and 15th July 2020, together with copies of all supporting documentation. Taking all the above into account the Complainant contended that while there was some ambiguity in relation to her end date it could not be taken to be before the end date confirmed by the Respondent to Revenue i.e. 27th July 2019.

The Complainant further submitted that based on her understanding of her last day of work she believed that she still had cover of the act.  Her representative drew attention to the fact that discussions were on-going with the Respondent and that it only became clear in July 2020 that the Respondent was not prepared to sign off on the agreements previously reached between the parties.  The complaint was submitted on 20th July 2020, as soon as reasonably could have been done in the circumstances.

CA-00038818-001       Terms of Employment (Information) Act, 1994

The Complainant submitted that she never received a contract of employment from the Respondent although she was in his employ from 1st July 2016 until her employment ended in July 2019.  She submitted that when this matter was formally raised with the Respondent at a meeting with her representatives the Respondent stated that he “does not supply contracts of employment to his staff”.  She further submitted that in or around June 2019 she had a discussion with the Respondent regarding her wages always being delayed and indicated that if the matter continued, she would have no option but to resign.  She submitted that when she met with the Respondent and his accountant in August 2019 it was found that the Respondent owed her over €6000 in wages, dating back to January 2019 and that the parties agreed to fractionated payments every week until the matter was resolved.

The Complainant submitted that the business had temporarily closed in July 2019 due to the illness of the Respondent and that she received formal notification of that lay off by letter of 5th August 2019. (a copy of the letter was appended to the submission).  The Complainant further submitted that as part of discussion with the Respondent a draft agreement had been drawn up by her representatives that confirmed her end date of employment as 31st July 2019, that this draft agreement was amended by the Respondent without changing that end date.  The Complainant also provided a copy of a Revenue document showing that her end date was 27th July 2019, together with a copy of a bank statement showing a final payment by bank transfer made by the Respondent on 23rd September 2019.  She submitted that a final payment in cash was made to her for balance of wages owed on 7th October 2019.

CA-00038818-002       Minimum Notice & Terms of Employment Act,1973

The Complainant submitted that in early July 2019 the Respondent was absent from work due to personal issues but that she continued to work up to the beginning of August, when she ran out of materials.  She submitted that she met with the Respondent’s son to address matters in relation to wages and in relation to the possible availability of other materials.  She submitted that, further to that meeting she was furnished with a letter from the Respondent confirming that the company had closed temporarily from July 2019, due to the illness of the Respondent but that she had continued to work up to and on 1st August 2019. 

The Complainant also submitted that she had heard nothing further from the Respondent and that she had contacted CIS for advice in January 2020.  It was at this point, she submitted, that she issued Form RP9 to her employer seeking her redundancy entitlement under Section 39 of the Redundancy Payments Act 1967.  She submitted that at no time was her employment status clarified nor was she given notice of termination of employment by the Respondent.

CA-00038818-003       Redundancy Payments Act, 1967

The Complainant submitted that she had worked for the Respondent since July 2016 and that she had raised issues of concern with the Respondent in June 2019 in relation to on-going delays relating to payment of her wages.  She submitted that she had advised the Respondent that she might have no choice but to resign. 

She submitted that in early July 2019 the Respondent was absent from work due to personal issues and that the following chronology of events occurred:

·       That she continued working up to 1st August until materials ran out

·       That she contacted the Respondent’s son regarding her wages and to clarify if he would be bringing in any additional materials so that she might continue working

·       That the Respondent’s son could not provide answers to those questions

·       That she met with the Respondent on 2nd August in the company of his accountant and that it was found that she was owed €6000 in wages dating back to January 2019.

·       That she was furnished with a letter of temporary layoff by the Respondent so that she could claim social protection

·       That she continued to work up to 1st August 2019.

·       That when she had no further communication from the Respondent in relation to her employment status, she contacted CIS for advice and subsequently submitted her Form RP9 and a letter requesting her redundancy entitlement to the Respondent

·       That CIS wrote on her behalf to the Respondent on 23rd January 2020, stating that after 4 weeks of layoff she was entitled to claim redundancy.  The letter also offered the option to meet to discuss matters

·       That Respondent replied to CIS stating that the Complainant had given notice of her intention to leave employment in May 2019 but that she had confirmed that she remained in employment up to August 2019

·       That a meeting took place on 12th March 2020 where the Respondent insisted that the Complainant had resigned in May 2019 but despite requests no evidence of that resignation was produced. 

·       That all the issues giving rise to the within complaints were raised and discussed at that meeting, that the Complainant’s entitlements were outlined and that the Respondent was advised that if matters were not addressed the complaints would be submitted to the WRC.

·       That the Respondent did discuss the uncertainty of the business in the light of pending closures due to the pandemic, that CIS suggested a possible payment plan for the redundancy entitlement and that the Respondent indicated that he would need time to consider the matter and would revert

·       That on 16th March the Respondent emailed CIS and confirmed his agreement to pay the redundancy entitlement but that he also confirmed that his accountant was isolating due to a medical condition and would therefore, not be available to deal with the matter at that time.  He indicated that he would be in contact as soon as possible to conclude matters.

·       That there was no communication from the Respondent over the next few months and so CIS emailed him in May 2020 seeking an update.  The Respondent replied stating that he was obliged to comply with government-imposed restrictions and GIS responded confirming their understanding of the situation

·       That CIS made phone contact with the Respondent in June 2020 to discuss the settlement proposals further and that the Respondent confirmed that he would agree to the arrangement providing that the complaint was not submitted to the WRC, this was discussed and agreed.

·       That CIS drafted up a settlement agreement and sent it to the Respondent and the Complainant for consideration

·       That the Respondent sought changes to that document regarding the dates in the payment plan, these were agreed, and the Respondent sent back a revised settlement agreement which was agreed and signed by the Complainant.

·       That the signed document was then sent back to the Respondent for his signature and for confirmation of the start date of the payment plan

·       That the Respondent confirmed by email that he would sign and return the document by 13th July 2020

·       That after that the Respondent ceased all contact with CIS and sought instead to deal directly with the Complainant

·       That in those circumstances the Complainant was left with no option but to submit her complaints to the WRC

As part of her submission the Complainant provided copies of all correspondence between the parties referred to above.

 The Complainant submitted that she was due a redundancy payment in the amount of €2,864.00 and asked that the Adjudication Officer find in her favour and award her that amount.

CA-00038818-001       Terms of Employment (Information) Act, 1994

In his submission the Respondent accepted that the Complainant was not given Terms and Conditions of Employment.  The Respondent considered that this complaint was statute barred as outlined under preliminary issues above.

In the alternative the Respondent submitted that, should the above position not be accepted then he would point out that the Complainant had failed to show what detriment she suffered from not having a contract of employment.  He submitted that the Complainant had worked from 1st July 2016 until 16th July 2019 and that she was not prejudiced as a result of not receiving her written terms and conditions.  In this regard the Respondent opened the case of Sergejus Udalous v South- Eastern Vegetable Producers LTD. (TE 224/2012 where the Tribunal, citing with approval the case of Archbold v CMC (Ireland) Ltd (TE 05/2003) held that awards under this Act are not equal to “loss of remuneration” but are “in the nature of compensation”.  The Respondent submitted that accordingly, the Tribunal was entitled to “determine what payment was just and equitable in the circumstances including whether a claimant was “unduly prejudiced” in respect of an alleged breach.”

Based on the foregoing, the Respondent asked that no compensation be awarded to the Complainant for any alleged breach of the 1994 Act where she continued to work for the Respondent and enjoy the terms and conditions as agreed between her and the Respondent since 2016.

The Respondent also opened the case of Hall v Irish Water [2016] ELR 61 where the Labour Court determined that there was a breach of the Act, but no award of compensation was awarded.  The Respondent submitted that in reaching their decision the Labour Court had stated that “in this case the only redress sought by the Complainant is an award of compensation.  Such an award can only arise where the complaints made are well founded.  Moreover, it should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances.  On any reasonable view, even if the complaints are well founded in the technical sense, the dictates of fairness or equity, could not justify an award of compensation in the circumstances of this case.”

CA-00038818-002       Minimum Notice & Terms of Employment Act,1973

The Respondent considered that this complaint was statute barred as outlined under preliminary issues above.

CA-00038818-003       Redundancy Payments Act, 1967

The Respondent considered that this complaint was statute barred as outlined under preliminary issues above.

The Respondent submitted further that should it be held that the Complainant was unfairly dismissed pursuant to the Unfair Dismissals Act 1977 (as amended), which it was denied she was, the Respondent noted that the Complainant had failed to state whether she had gained new employment or was actively seeking employment up to the time of the hearing.  The Respondent contended that the Complainant had an obligation to mitigate her losses and relied upon Section 7(2) of the Unfair Dismissals Act in this regard.  The Respondent also opened the case Coad v Eurobase (UDI 138/2013) at the hearing by way of precedent, to support this position.

In conducting my investigation, I have considered all relevant submissions and supporting documentation presented to me by the parties, as well as evidence given under affirmation at hearing.  The parties were given an opportunity to cross examine each other and any additional information provided through that process has also been given consideration.

Preliminary Issue - General

The 2 matters relevant to the preliminary issue in this case are (1) the Complainant’s last day of work and (2) whether the Complainant resigned her position in May 2019.

Much debate took place at the hearing in relation to the Complainant’s last day of work.  At hearing the Complainant gave evidence that her last day of work was 30th July 2019 while the Respondent’s son contended that her last day at work was 16th July.  To support this contention the Respondent stated that 16th July 2019 was the last day when clocking in records were available for the Complainant.  The Respondent had submitted a copy of the last pay slip for week 29 (dated 20th July 2019) which noted in a foot note: “Termination: as per verbal resignation received on 29th May 2019. Last day worked 16th July 2019.”  The Respondent’s son gave evidence that this covered up to 21st July 2019 (Sunday) but that the last day when the Complainant attended work was 16th July 2019 as per her clocking records.  The Respondent had submitted copies of time sheets to support this position for Weeks 1 – 11; Weeks 19-27; and Week 29.  The Respondent did not provide electronic clocking records.

The Complainant stated that she worked up to the 1st August 2019 when she ran out of materials.  She pointed out that she met the Respondent on 2nd of August in relation to concerns regarding her wages and her current employment status and that she was furnished with a letter by the Respondent confirming that she had been placed on layoff in July due to the temporary closure of the business.  She also pointed to the document in her submission where Revenue had recorded her last day of work as 27th July 2019.  During cross examination the Respondent’s son was asked by the Complainant’s representative if he accepted that the letter confirming the temporary closure of the business in July 2019 was the Respondent’s letter, on their headed paper and signed by the Respondent.  The Respondent’s son declined to confirm that it was on their business paper and confirmed that it was not his own signature on the letter.  When asked if the signature was that of his father, he again repeated that it was not his signature and despite being pressed on the matter he gave no additional response.

In summary the Complainant contended that she had attended work up until she ran out of materials on 1st August, that she could not recall whether or not she had clocked in for all of that time, that the Respondent had confirmed to her retrospectively on 5th August that she was laid off in July and had confirmed her last day of work to Revenue as 27th July 2019.  She also pointed to the draft settlement agreement and drew attention to the fact that the Respondent had not amended the last date of employment contained in that draft.  The date referred to was 30th July 2019.

At hearing the Respondent’s son confirmed the position outlined in the Respondent’s submission that the Complainant had resigned her position in May 2019 and that the Respondent had agreed to be flexible about the notice period, thus resulting in her last day of work being 16th July 2019.  He stated that she had gotten another job.

At hearing the Complainant advised that she had told the Respondent she would have to resign if the issues relating to non-payment of her wages were not resolved but that matters had been agreed at the meeting that took place on 2nd August 2019.  She confirmed that she understood from that meeting and from the correspondence that subsequently issued to her that she was laid off by the Respondent.  The Complainant advised that she had not gotten another job during that time but that she was involved in a project relating to her college course.

Having reviewed and considered carefully all the evidence on these issues I noted inconsistencies in both parties’ evidence in relation to the Complainant’s last day of work.

I noted that the Complainant submitted her last day of work as 31st July 2019 on her original complaint form but indicated that her last day of work was 27th July in her submission.  At hearing she was somewhat vague in relation to her last day of work but did clearly state that she had attended for work on 27th July but could not access the premises.  She submitted bank documentation to show that the Respondent paid her in September and she pointed to the draft agreement which stated that the last day of work was 30th July 2019.  She also submitted a copy of the Revenue document showing that the Respondent had returned her last day of work as 27th July 2019 and she drew attention to the fact that in August 2019 she was confirmed by the Respondent as on layoff.

On the other hand, the Respondent’s son stated that her last day of work was 16th July and he submitted a payslip with a footnote indicating that following her resignation she had terminated her employment on 16th July.  While the Respondent indicated that this was borne out in her clocking records, he did not provide any electronic clocking records to support this position nor any written notice of intention to resign.  The time sheets provided were manual and were not a complete set of records and in any event once the business temporarily closed the Complainant would no longer have completed time sheets.  The Respondent’s son indicated that the Revenue document showing the last day of work as 27th July was merely down to how and when this was processed, though he could not be specific as to how that might have resulted in a different termination of employment date.

I found the Respondent to be vague and evasive at the hearing and on balance I am persuaded that the Respondent did not consider the Complainant to have terminated her own employment on 16th July.  The Respondent had provided her with a letter in August 2019 confirming that the business was temporarily closed from July 2019 and in early 2020 he had extensive engagement with her and her representative in relation to a possible redundancy settlement.  It is clear from the documentation provided that the Respondent did reach agreement on the terms of that settlement but ultimately failed to sign and implement the agreement.  It seems to me that in the circumstances of the lay off the Complainant was unclear about her end date and used the 30th July in her claim form as it was the date the parties had settled on as part of the draft agreement.  Of all the information provided I placed greatest emphasis on the Revenue document, this being the only formal statement by the employer as to the end date of employment and so I find that the last day of employment of the Complainant was 27th July 2019.

On the basis that the Respondent had placed the Complainant on lay off in August 2019, albeit retrospectively to July 2019, I find that she did not resign her employment on 16th July 2019 and remained an employee of the Respondent who was placed on lay-off.

Preliminary Issue - CA-00038818-001           Terms of Employment (Information) Act, 1994

I noted the Respondent position that the case was statute barred.

I have already found under General above that the Complainant’s end date was 27th July 2019 and I note that her complaint form was submitted to the WRC on 20th July 2020. 

Section 41(6) states that “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”  However, Section 41(8) states that “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the director general after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if her or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

I must, therefore, consider if there was reasonable cause for the Complainant submitting her complaint to the Director General after 6 months beyond her last date of employment.  In this regard I note that the Complainant’s last date of employment was 27th July 2019 and I note the Complainant’s evidence that she understood that she was laid-off by the Respondent.  This position is supported by the correspondence from the Respondent in August 2019 confirming the temporary closure of the business.   I note further that the Complainant submitted her RP9 form to the Respondent on 23rd January 2020 and that this matter was also brought to attention on the same date.  I note that the Complainant’s representative entered into discussions and negotiations with the Respondent and that the Respondent very clearly conveyed his agreement to terms arising from those discussions in writing.  I note that as soon as the Complainant’s representative became aware that the Respondent was not prepared to sign and implement the agreement the Complainant submitted her complaint to the Director General.

In circumstances where the Complainant had a reasonable and justifiable expectation that this matter would be resolved between the parties, I find that she had reasonable cause for the delay and so I find that this complaint is within time based on Section 41(8) of the Act.

Preliminary Issue - CA-00038818-002                       Minimum Notice & Terms of Employment Act,1973

I noted the Respondent position that the Complainant was not entitled to minimum notice as she did not bring her complaint within 6 months of the conclusion of her employment on 16th July.

I noted the Complainant’s position that her last day of employment was not 16th July as she was laid off by the Respondent in August.

I have already found under General above that the Complainant’s end date was 27th July 2019 and I note that her complaint form was submitted to the WRC on 20th July 2020. 

Section 41(6) states that “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”  However, Section 41(8) states that “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the director general after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if her or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

I must, therefore, consider if there was reasonable cause for the Complainant submitting her complaint to the Director General after 6 months beyond her last date of employment.  In this regard I note that the Complainant’s last date of employment was 27th July 2019 and I note the Complainant’s evidence that she understood that she was laid-off by the Respondent.  This position is supported by the correspondence from the Respondent in August 2019 confirming lay-off.   I note further that the Complainant submitted her RP9 form to the Respondent on 23rd January 2020 and that this matter was also brought to attention on the same date.  I note that the Complainant’s representative entered into discussions and negotiations with the Respondent and that the Respondent conveyed his agreement to terms arising from those discussions.  I note that as soon as the Complainant’s representative became aware that the Respondent was not prepared to sign and implement the agreement the Complainant submitted her complaint to the Director General.

In circumstances where the Complainant had a reasonable and justifiable expectation that this matter would be resolved between the parties, I find that she had reasonable cause for the delay and so I find that this complaint is within time based on Section 41(8) of the Act.

Preliminary Issue - CA-00038818-003                       Redundancy Payments Act, 1967

I note the Respondent position that the Complainant’s employment ended on 16th July and that she should have brought her claim within 12 months of that date. i.e., on or before 16th July 2020 and I note that the date of submission of claim was 20th July 2020.  I note further that the Respondent put forward the view that the Complainant had not provided any reasonable cause for an extension to that time limit.

I have already found above that the Complainant’s end date of employment was 27th July 2019, and in that context, I find that this complaint is within time.

CA-00038818-001       Terms of Employment (Information) Act, 1994

I note that there was no dispute between the parties in relation to the failure of the Respondent to provide written terms and conditions to the Complainant upon commencement of employment or at any time thereafter.

The Respondent proposed that if the Complainant was considered to be within time then consideration should be given to not making an award of compensation and in this regard cited a number of cases:

·       In relation to Hall v Irish Water [2016] ELR 61 the Labour Court determined that there was a breach of the 1994 Act, but no award of compensation was made

·       In relation to Sergejus Udalous v South-eastern Vegetable Producers Ltd TE224/2012 the Tribunal found that it was entitled to “determine what payment was just and equitable in the circumstances including whether a claimant was “unduly prejudiced” in respect of an alleged breach.” 

I note that the circumstances in the former case are quite different from the instant case.  This was a case where the Complainant brought her case based on minor omissions from the written terms of employment and where the Court referred to the De Minimis rule – Maxim de minimis non curat lex (the law does not concern itself with trifles).  The instant case refers to a complaint where the Complainant stated that she never received her written terms and conditions and where the Respondent acknowledged that position as being correct.  I consider this disregard of the provisions of the legislation to be more than mere trifles.

In the latter case I note the view of the Tribunal and concur that an adjudication officer is entitled to “determine what payment was just and equitable in the circumstances” and to take into account whether or not the Complainant was “unduly prejudiced” by the alleged breach.

In the instant case I note that the Complainant did work for some 3 years with the Respondent and while the Respondent contended that she suffered no detriment for not having a contract of employment it is a fact that the Complainant was underpaid consistently throughout her employment.  In circumstances where it was established in August 2019 that the Complainant was owed wages in the amount of €6000 which was then paid back in instalments it cannot be said that she did not suffer a detriment. 

I have already found under Preliminary Issues above that this case is within time and on the basis that there was no dispute between the parties in relation to the fact that no terms and conditions were provided to the Complainant by the Respondent I find that this complaint is well founded.  I also find that the Complainant did suffer a detriment as a consequence of this breach of the legislation, in that she was significantly underpaid over a long period of her employment.  However, I note that ultimately the Respondent addressed all underpayments with her by September/October 2019.

 CA-00038818-002                  Minimum Notice & Terms of Employment Act,1973

I note the Respondent position that the Complainant was not entitled to minimum notice under the act, as she did not bring her claim within 6 months of the conclusion of her employment.  I note that the Complainant sought 2 weeks minimum notice entitlement.

I have already found under Preliminary Issues above that this claim was within time and so I must consider whether the Complainant had an entitlement to notice under the act.

I note that Section 4(1) of the act states that “An employer shall, in order to terminate the contract of employment of an employee, who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section”.  I note further that the Complainant had just over 3 years’ service at the last day of employmentand that Section 4(2) provides that for periods of service of between 2 and 5 years the minimum notice to apply is 2 weeks. 

Based on the foregoing I find that this complaint is well founded and that the Complainant is entitled to 2 weeks’ notice under the Act.

CA-00038818-003                   Redundancy Payments Act, 1967

I note the Respondent position that the case was statute barred and that in any event should it be held that the Complainant was unfairly dismissed pursuant to the Unfair Dismissals Act 1977 (as amended), that the Complainant had failed to state whether she had gained new employment or was actively seeking employment up to the time of the hearing.  I note the Respondent submission that the Complainant had an obligation to mitigate her losses and relied upon Section 7(2) of the Unfair Dismissals Act in this regard.  I reviewed, in some detail, the precedent opened by the Respondent at hearing (Coad v Eurobase (UDI 138/2013) and I note that this case was a case of unfair selection for redundancy under the Unfair Dismissals Act.  The instant case is not a case of unfair selection for redundancy, rather the Complainant had sought to be paid redundancy entitlements based on Section 12 of the Act.  There was no claim submitted nor no suggestion at hearing that this was a matter of an unfair dismissal.

I note that the Complainant was laid off by the Respondent from July 2019 and that Section 7(1) of the Redundancy Payments Act states that “An employee, if he is dismissed by his employer by reason of redundancy, is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to payment of moneys which shall be known …as redundancy payment.”

Section (2) of the Redundancy Payments Act states that “for the purpose of subsection (1), an employee who has been dismissed shall be taken to have been dismissed by reason of redundancy if 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 for which the employee was employed by him…”

In the instant case I note that the Respondent’s son confirmed that the business was locked up in July 2019 and that the Respondent confirmed in writing to the Complainant that the business had been temporarily closed in July 2019 due to his ill health.  I note further that at the time the Complainant’s representative contacted the Respondent in early 2020, the Complainant had not received any further communication in relation to her employment status. 

Section 7(3) states that “For the purpose 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

Based on the foregoing I find that the Complainant was laid off for a period of more than 6 months and that in accordance with Section 7(2) of the Act was dismissed by reason of redundancy.  In these circumstances I find that this complaint is well founded.

CA-00038818-001       Terms of Employment (Information) Act, 1994

I have found that this complaint was within time and was well founded.  I also found that the Complainant did suffer detriment as a consequence, in that she was significantly underpaid over a long period of her employment, though this was ultimately resolved by September/October 2019.  As the detriment suffered was minimal based on the ultimate resolution of matters it is my decision that the complaint is well founded and that the Complainant should be paid 1 weeks’ pay (i.e., €400) by way of compensation.

CA-00038818-002       Minimum Notice & Terms of Employment Act,1973

I have found that this complaint was within time, was well founded and that the Complainant is entitled to 2 weeks’ notice under the Act.  Therefore, it is my decision that the complaint is well founded and that the Complainant should be paid her statutory entitlement to minimum notice of 2 weeks’ pay (i.e., €800)

CA-00038818-003       Redundancy Payments Act, 1967

I have found that this complaint was within time, that the Complainant was laid off for a period of more than 6 months and that in accordance with Section 7(2) of the Redundancy Payments Act was dismissed by reason of redundancy.  In these circumstances it is my decision that this complaint is well founded and that the Complainant should be paid her entitlement to statutory redundancy in the amount of €2684.00.

Terms of employment; minimum notice; redundancy payment