ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028253
Parties:
| Complainant | Respondent |
Parties | Patrick Casey | Daly Bros. Carrickmacross Limited (in liquidation) |
Representatives | Dorothy Donovan BL instructed by Rory O'Neill Mallon Solicitors | Gareth Evans Liquidator Farrelly Dawe White Ltd |
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-00036267-001 | 20/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00036267-002 | 20/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00036267-003 | 20/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00036267-004 | 20/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00036267-005 | 20/05/2020 |
Date of Adjudication Hearing: 17/11/2021 and 25/02/2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of theRedundancy Payments Acts 1967 - 2014following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
On the first day of the hearing a procedural dispute arose regarding the standing of the liquidator to object to he claims on the basis of issues which he had heard of second hand and had no direct knowledge of. The Complainant Representative was adamant the liquidator could not make out such a case while the liquidator was unsure of his own position other than he was objecting to the claims on the basis of his understanding that the Complainant had ceased to be an employee many years ago by way of an agreement between the parties and that he had witnesses to such an agreement. The existence or otherwise of an employment relationship is central to this case. The hearing was adjourned to allow for consideration of this preliminary issue on the basis that a ruling or a decision on the preliminary matter. Subsequently a ruling was issued on December 6th, 2021 and the hearing was reconvened on the basis that the liquidator had standing to defend against the complaints. The ruling is set out in the findings and conclusions section of this decision. After a delay due to the unavailability of a key witness, the hearing reconvened, at the second attempt. On the basis of submissions provided by the parties prior to the hearing, it was found necessary to point out that this was not a trial of the Complainant in respect of issues which led to his suspension in 2012 and his dealings with An Garda Siochana at that time. A decision is required in relation to two competing claims. The first by the Respondent who objects to the claims on the basis of the contention that the employment relationship ended by mutual agreement in or around September 2012. The Complainant on the other hand contends that he never agreed to leave the employment had never resigned and was not dismissed. The parties were reminded that the purpose of the hearing was to hear the evidence in support of the contrasting positions as put by the representatives.
Background:
The Respondent went into liquidation 11/02/ 2020. The case is concerned with a claim that the Complainant who had not attended work since 2012 was still in the employment of the Respondent at the time of the liquidation, which is denied by the Respondent who say that the employment ended in 2012 by mutual agreement related to events involving the Complainant at that time. A decision regarding the Complainants employment status effectively decides the complaints one way or another as certain statutory entitlements would flow from or be denied, depending on the decision regarding the employment status as of February 2020 when the Respondent went into liquidation. |
Summary of Complainant’s Case:
Complainant Evidence The Complainant gave evidence that he last worked for the Respondent in July 2012. He was absent on sick leave from September 2012. In September 2019 he stopped sending in sick certs as he had agreed with his doctor that it would be good for him to go back to work. He rang TB and expressed a desire to go back to work. TB said he had no work at the time-and told him to ring in a couple of weeks. After that he went into a named hospital for four weeks to get support to help him go back to work. He rang TB again after that-same story-no work- ring in a couple of weeks. After that he asked his father to ring TB as his father knew TB for a long time and because he himself was not getting anywhere with the phone calls. Christmas came and went and then he heard the company was going into liquidation. He was shocked. He went to the creditors meeting in January 2020 with his father. Asked who he spoke to at the meeting, he said he spoke to an individual on the door, who he did not know, and he was told to put his name on the list which he did. It was his understanding that he was still an employee. Aske if he had ever received a letter ending his employment or a P45 he replied no to both. Asked if he had entered into an agreement to end the employment relationship, he replied no, never. He gave evidence that there was an incident at work on 16 July 2012. Later he and his wife went to TBs house to talk about the situation, there was a brief discussion, but nothing came of it, TB just fobbed it off, leave it, leave it. Asked he had discussed the situation with Garda D, he replied only in the station. Apart from that he had attempted to contact the Garda but recalls speaking to him only once on the telephone. The witness said he had asked what was happening with this case, there was a bit of banter. Asked he had reached an agreement that he not remain as an employee, the witness replied absolutely not. Asked if he had seen TB at all in the period between 2012 and 2020, he replied no, not at all. Asked what phone he had used to make the calls-he replied his father’s mobile phone. Asked why he did not submit a final cert in September 2019, he replied that he did not know if he would be accepted. His father had contacted TB in December. |
Summary of Respondent’s Case:
Witness A TB The witness is the former MD of the Respondent. He gave evidence that in July 2012 an incident of theft was reported reported to the Gardai. The Complainant was arrested at work. He agrees that the Complainant and his wife called to his house at the end of July or early August. This was not a prearranged meeting and he agrees with the Respondents account of that meeting. Sometime after that he understood from witness B that an agreement was reached where if criminal charges were not pressed, the Complainant would give up his employment with the Company. When asked he confirmed that there was nothing in writing to confirm such an agreement. He confirmed that from September 2019 onwards they had received medical certs. These were sent to the company solicitor at the time. His recollection is that through the solicitor they sought a meeting to discuss the certs, but this never happened. Asked if he had received telephone calls from the Complainant in 2019 he replied no. Asked if he had received a call from the Complainants father in late 2019-he replied no. He had spoken to the Complainants father at the time of the incidents in 2012 as the father wanted to know what had happened. He was agreeable to sorting something out because he knew the complainant’s father who he had worked with for forty years. The witness agreed that normally a P45 is required to confirm the end of the employment relationship. Asked if he and witness B met with the Complainant at any stage re an agreement, he replied no, any meetings were held separately. Asked if he had seen the Complainants at the creditors meeting in January 2020, he recalled saying hello to the Complainant who replied that he could not speak to him for legal reasons. The Complainant had not approached him about his redundancy pay. Witness B JD The witness is a retired Garda. He gave evidence from notes and his recollection. Official records would be held at the station. On 11 July 2012, TB reported 4 incidents. The witness made inquiries and on 17 July he spoke to the Complainant at his place of work where he was arrested and later at the station. On 20 July he spoke with another employee and then prepared a file for the Superintendent. During the days that followed the Complainant would ring him every day sometimes multiple times. He wanted to know what was happening. He spoke about being suicidal and was very anxious, that he did not want people to know. He came to some agreement that if he left, that the witness would not press the matter further. The witness spoke to the superintendent and explained the Complainants situation and that TB would like if the matter was left sit. The situation was left with the Superintendent and eventually after a number of weeks it was decided not to pursue the matter further. His recall is that the last contact from the Complainant was about three weeks after he had been arrested. He accepted that he had no first-hand knowledge of an agreement between the Complainant and TB however it was his understanding at the time that there was such an agreement which is why he would have spoken to the Superintendent.
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Findings and Conclusions:
The following was issued to the parties as a ruling on the preliminary matter regarding the standing of the liquidator to contest the complaints/claims. “You will recall the hearing of the above matter which was adjourned on 17 November 2021. Having considered the representations made, in particular on behalf of the Complainant, I have decided to reconvene the hearing. The reconvened hearing will hear any evidence from witnesses regarding the status of the employment relationship of the Complainant in the relevant period before and at the time of the liquidation. In arriving at this ruling, I have in effect decided that the Liquidator does have standing to contest any claim, including that of a preferential creditor. While there are differences in the role of a liquidator depending on whether the liquidation is voluntary or as a result of a Court Order, I am satisfied that the liquidator is in effect the Company and has obligations to creditors, debtors, employees and the verification of claims consistent with the discharge of his function as liquidator. Given that the designated body to hear the appeal of the refusal to pay a claim for redundancy is to an Adjudication Officer through the Workplace Relations Commission, and that is the same designated body to decide his complaints under other employment legislation , I have concluded that just as the Complainant is entitled to have his appeal/complaints heard, the appointed liquidator is entitled to contest the appeal/complaints on behalf of the Company and to provide evidence for that purpose. Once I am informed that a claim is contested in circumstances where my decision may result in a payment of monies by the State Insolvency Fund, I believe I have an overriding obligation to hear a case and any evidence which contests that claim/s. There are two parts to the remainder of the hearing process. One is to be clear on the amounts of the claims, based on which dates and legislation. I require a statement of the amount of the claim under each piece of legislation in advance of the reconvened hearing. The liquidator will have the opportunity to contest/agree the quantum of the individual claimed amounts-without prejudice to the argument regarding the employment status of the Complainant at the time of liquidation. The second part-which we will take first at the resumed hearing, is a statement of response from the Respondent which is to be provided in advance of the hearing. Witnesses will then be questioned by their own side and open to cross examination by the other side, together with any questions which I may have for a witness. Any complainant witness evidence will be taken first, followed by the Respondent witnesses. Both parties should ensure that their witness/es are available for the hearing date, so the matter can be completed the next day. The requested submission and statement of the amounts claimed, to be made within fourteen days of this date.” Findings and Conclusions - Substance of the Complaints The key to deciding whether the complaints are well founded lies in deciding if the employment relationship between the Complainant and the Respondent ended at any point prior to January/February 2020. There are essentially three ways in which an employment relationship can end. The first is by way of a dismissal for disciplinary (or redundancy reasons). The second is a resignation and the third is a mutual agreement. In this case the Complainant was not dismissed prior to January 2020. Neither did he resign. And so, the remaining question is whether he ended his employment in or around September 2012 by mutual agreement-which is asserted by the Respondent and denied by the Complainant. In terms of credibility I find entirely with the Respondent witnesses. That is to say, that one witness, the retired Garda effectively brokered an understanding having spoken to both the employer and the employee, that if there were no criminal charges the employee at the time, now the Complainant, would leave the employment and no more would be said about it. And on this basis the then Garda followed through with his superior who made the decision that the possibility of criminal charges would not be pursued. All of the evidence points to the Complainants primary concern at the time was to ensure that there were no charges or issues which could embarrass him including within his own family. In arriving at this conclusion, I am satisfied that the only person who stands to gain from denying the existence of a mutual agreement is the Complainant. Neither of the Respondent witnesses had anything personal to gain from supporting the liquidator in this case. The evidence of the Respondent that he didn’t want to press charges for the sake of the Complainants father who he knew for forty years is compelling in its decency. In terms of deciding which evidence to prefer when the evidence is so contradictory, two elements of the Complainants evidence simply do not make sense. He and the MD agree that after September 2012 they did not see each other at all for over seven years. Only the MD referenced their meeting for the first time in January 2020 at the creditors meeting when he recalls the Complainant referring to being unable to speak to him due to legal advice - itself a strange response when they had not seen each other for seven years and when the MD is said to have raised no question or issue about his returning to work after seven years-the only obstacle being a shortage of work. And the Complainant suggests that there was no surprise, no engagement of any kind on the part of the MD in when he heard from the Complainant in September and November 2019 looking to go back to work-other than to say there was no work available and to contact him again. Such a lack of surprise or engagement of any kind, not one single question or comment is hard to credit. And then when he is asked what phone he used for the calls-he replied his fathers. And the only witness for those alleged contacts where the Complainant says he was looking to go back to work is deceased. Finally, there is the fact that the Complainant was initially suspended which reinforces the Respondent position that something serious had occurred. Moreover, when the Respondent ceased paying the Complainant on suspension there is no recorded objection on behalf of the Complainant as might be expected when no disciplinary process was completed. Instead the Complainant commenced submitting sick certs on 03.10.20-behaviours which are consistent with the Respondent assertion that they considered there was an agreement and acted upon their understanding of that agreement. On the balance of probabilities therefore, the conclusion is that the Complainant did reach a mutual agreement that he would leave the employment if there were no criminal charges. And that the claim that there were repeated contacts by him or on his behalf seeking to return to work in the weeks and months prior to the liquidation deserves the highest possible degree of scepticism. However, the difficulty for the Respondent in the form of the former employer (now the liquidator), is that they made no effort to close out the agreement, or very little. There was no correspondence confirming the agreement. Initially the Complainants was on paid suspension from 04.09.12. He then commenced sending in medical certs which were accepted as the basis of his absence. A meeting to discuss the matters leading to his suspension did not proceed due to the long-term absence. While internally he was removed from the books after a period, this was not confirmed by way of a P45 or other correspondence. A P45 does not indicate how an employment relationship ended but at least it has the advantage of fixing a date for the termination or can do so (or did so when that was the arrangement with Revenue). And as witness A, the former MD, agreed in his evidence, it is normal to issue a P45 when an employment relationship is ended. The Respondent continued to receive and accept sick certs for a period of seven years where the cert went to and from one solicitor to another and then to the Respondent without any evidence of comment or surprise or, most importantly, action by the Respondent to implement the agreement they believed was reached with the Complainant. The Respondent had plenty of time and ample opportunity to clarify their position and close matters, out-but they did not do so. There was a suggestion that the continued submission of medical certs was understood to be related to the Complainants desire not to be embarrassed about the situation in his workplace on the basis of being out sick rather than in trouble. This well-intentioned arrangement, if that is what it was, together with the failure to close out the situation as it was agreed in 2012 has left the Respondent exposed to these claims quite simply because they failed to terminate the employment relationship on the basis agreed and understood by them at the time or any other basis. In all the circumstances there is no option but to conclude that while an arrangement was agreed by the Complainant in relation to his employment and the related charges in 2012, the Respondent failed to act on their understanding of that agreement and as a consequence, the employment relationship remained open and not closed throughout the period 2012 to 2020. There is the matter of the short period where there were no medical certificates and no final certificate or return to work certificate sent to the Respondent solicitor. But as the Respondent raised no issue about the cessation of the medical paperwork it cannot be decided that the Complainant was on sick leave at that point, which is relevant when deciding the complaint under the Minimum Notice and Terms of Employment Act 1973. In short, the complaints submitted by the Complainant fall to be considered as complaints based on his status as an employee in February 2020. Any calculations are based on a gross weekly rate of pay of €446 and a starting date of 26.09.1994 with a finishing date of 12.02.2020-all figures and dates provided by the Complainant and not disputed by way of evidence to the contrary by the Respondent. Redundancy Payments Act This appeal is upheld, and the basis of the calculation is contained in the Decision which reflects the claim by the Complainant as submitted prior to the resumed hearing and from which he excluded the final three years of service due to the long-term sick absence. Minimum Notice and Terms of Employment Act The Complainant was employed from 26.09.1994 until 12.02.2020. He was however out on sick leave from 03.10.2012 until 03.09.2019. Thereafter he stopped providing medical certs and his employment status is almost indeterminate in terms of satisfying any of the usual criteria. Certainly, he was not at work. But neither can he be regarded as on sick leave and therefore unavailable to serve his notice. The period of sick absence of up to twenty-six weeks from 03.10.2020 cannot be included in computable service. On this basis the continuous service for the purposes of the Act is taken as that between 26.09.1994 and 02.04.2013. As the Complainant in excess of fifteen years’ service after 2009-he falls into the highest band of service for the purposes of calculation his entitlement to pay in lieu of notice-15 years or more and eight weeks pay in lieu is due to him. His service for the period September 2019 to February 2020 is not necessary for the purposes of the calculation. The Complaints is entitled to eight weeks pay in lieu of notice €3568 gross Terms of Employment Information Act 1994, as amended. Terms of Employment Act as amended by the Miscellaneous Provisions Act 2018 These two claims are based on the employee’s complaint that he received no full or partial written terms of employment. The facts of the claim are not disputed. The Complainants representative stated that an award can be made only under one part of the legislation. No award will be made in relation to the claim in relation to the short statement-that legislation was introduced in 2018 when the Complainant was already on his sixth year of absence from work. Given the extended absence and that such a statement was not sought at any time prior to the appointment of a liquidator, a nominal amount of €10 is deemed appropriate. This acknowledges the breach of rights but does not seek to overly tax the Respondent Company in liquidation, considered unjustifiable in the circumstances. Organisation of Working Time Act 1997, as amended The value of the claim was put at €2890.80 or 36.5 days at €79.20 nett per day. This figure was broken down into untaken accrued annual leave for the leave year 01.04.2018 to 31.03.2019(20 days) and 16.5 days untaken leave for the period 01.04.2019 to the date of cessation of employment 11.02.2020.
The first part of the complaint related to untaken leave due to a certified sick absence is well founded. This amounts to €1584.00 Regarding the second part, leave for the final year of employment, as the complainant was absent without medical certification from the final date of his last certificate-03.09.19-11.02.20 he is not entitled to accrue annual leave for that period. This leaves a total of six months accrued annual leave for the leave year 2019 -2020 or €79.20 x 10 amounting to €792.00. Total holiday pay due €2376.00 nett
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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.
CA-00036267-001 Redundancy Payments Act The appeal against the refusal to pay redundancy pay is upheld. The Complainants statutory redundancy is to be calculated on the following basis: Total service including breaks in service: 22 years Start date 26.09.1994 End date: 11.02.2020 Break in service 12.02.2017 to 11.02.2020 Gross pay €446 per week The above calculations are based on the Complainant being in insurable employment for the requisite period. CA-00036267-002 Organisation of Working Time Act This complaint is well founded. The Respondent is to pay the Complainant €2376 in compensation in respect of accrued and untaken annual leave. CA-00036267-003 Terms of Employment Information Act 1994 A complaint brought by the Complainant under this legislation is well founded. The Respondent is to pay the Complainant €10 in compensation CA-00036267-004 Terms of Employment 1994 as amended by the Miscellaneous Provisions Act 2018 This complaint is not well founded CA-00036267-005 Minimum Notice and Terms of Employment Act This complaint is well founded. The Respondent is to pay the Complainant €3568 in lieu of notice |
Dated: 24th March 2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Entitlements on redundancy after a lengthy absence. |