Complainant

Respondent

Parties

Irene  Clancy

Optimum Interiors Ltd.

Representatives

Eamonn O'Hanrahan of E.M. O'Hanrahan Solicitors

Barry O’Mahony B.L. instructed by ARAG Legal Protection Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00046425-001

28/09/2021

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

CA-00046425-002

28/09/2021

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

CA-00046425-003

28/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046425-004

28/09/2021

The complainant alleges she did not receive a written statement of employment particulars, did not get her statutory entitlement to breaks, was unfairly dismissed and/or was made redundant. The respondent says the complainant was laid-off during the Covid-19 pandemic. The complainant worked for the respondent from September 2017 until 18 June 2021 as a bookkeeper

Summary of Respondent’s Case:

The respondent submits that their retail premisses were effectively closed in early December 2020 with the intention of reopening once certain matters had been addressed. The complainant was free to work from home or the shop, as she saw fit. While other staff members were laid off and eligible to claim the PUP payment, the complainant was not eligible for the PUP payment because of her age and was therefore maintained in employment. As the business was for the most part closed the workload of the complainant was vastly reduced. She was paid for 22 hours per week but worked significantly less hours; in the region of 12 hours per week. Her hours were of her own choosing.

Because of the financial position of the company the complainant was laid off on 18 June 2021. It was the intention of the respondent to re-open, at which point the complainant would have been asked to return to work. To date this has not occurred. It is therefore submitted the complainant was not dismissed.

The respondent submits the Unfair Dismissals Act does not apply in this case as the complainant was 70 years of age when she alleges she was unfairly dismissed and section 2 (1) of the Unfair Dismissals Act states: “Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment or who on that date had not attained the age of 16 years.”

The respondent says the normal retirement age within their organisation was 66 years. The company’s expectations was that employees would retire upon reaching the pensionable age.

The respondent further submits that a dismissal did not take place. If the complainant’s employment came to an end it did so through her abandonment of her employment.

Summary of Complainant’s Case: The complainant submits she got a text message from the accountant to meet him the following day. At the meeting on 18 June 2021 the accountant informed the complainant she was being let go, as there was no money to pay her wages. There was some interaction after this but nothing changed in relation to her employment.

If she was laid off, as alleged, by the respondent, then why did she never get a request to return to work.

The complainant submits she was looking for work since June 2021 and on 15 April 2022 started work earning slightly more than she was with the respondent.

Findings and Conclusions: Firstly, I must determine if a dismissal did indeed take place. At the meeting on 18 June 2021 the respondent said the complainant was laid off, because of their financial situation, and would have been asked to return to work when they re-opened. The complainant says she was not laid off but let go, and this amounts to dismissal.

The evidence of the respondent, which was undisputed by the complainant, was that because of their poor financial situation during the Covid-19 pandemic they laid off all their staff apart from the complainant. They say she was not laid off she was not eligible for the PUP payment. Then, when the work dried up they took the decision to lay off the complainant as well. I find this evidence to be convincing and indicate they had the interests of the complainant in their mind. Furthermore, they would have no financial benefit from dismissing the complainant rather than putting her on lay off.

I therefore find that the complainant was not dismissed in accordance with definition given in section 1 of the Unfair Dismissal Act, therefore the dismissal could not have been unfair and the complainant is not well founded.

Summary of Complainant’s Case: The complainant submits she was never issue with a written statement of her terms of employment.

Summary of Respondent’s Case: The respondent acknowledges that a statement of terms of employment was not provided to the complainant. In mitigation the respondent says their accountant raised this issue with complainant who responded by saying she did not need a contract. Furthermore, the complainant was engaged to look after the administration side of the business, including the provision of terms of employment. They submit it would be unjust to make a financial compensation award in favour of the complainant in all the circumstances.

Findings and Conclusions: It is accepted the respondent did not provide the complainant with written terms of employment, as required by the legislation. I do not accept the mitigations submitted by the respondent. I find the complaint is well founded and I award redress of four week’s pay; €1,332.

Summary of Complainant’s Case: The complainant submits that if the dismissal was not unfair then it should be considered that the dismissal amounts to dismissal on the grounds of redundancy, where the employer has contended that there were insufficient funds to pay wages.

Summary of Respondent’s Case: The respondent submits that as the complainant was not dismissed, as alleged, or at all, then no payment can be due to her pursuant to the Redundancy Payments Act or at all.

Findings and Conclusions: In circumstances where I find a dismissal did not take place the complainant has no claim under this legislation.

Summary of Complainant’s Case: The complainant submits there was a failure to provide her with a 15 minute rest break within 4.5 hours of starting a shift, or a 30 minute rest break within 6 hours of starting. Instead, she had a 10 minute lunch break at her desk. There are no terms of employment memorialising the times of rest breaks, no rosters addressing rest breaks and no written policies in relation to rest breaks

Summary of Respondent’s Case: The respondent submits the complainant did indeed get breaks at the necessary intervals. They note the amount of work undertaken during the relevant period was extremely limited. Furter still, the complainant chose her own hours for the relevant period.

Findings and Conclusions: I accept the evidence of the respondent that the complainant was able to choose her hours and therefore was able to take breaks when she chose. I find the complaint is not well founded.

CA-00046425-001: Unfair Dismissals Act: for the reasons given above I find this complaint is not well founded.

CA-00046425-002: Terms of Employment: for the reasons given above I find this complaint is well founded and I award the complainant compensation of €1,332.

CA-00046425-003: Redundancy Payments Act: for the reasons given above I find this complaint is not well founded.

CA-00046425-004: Organisation of Working Time Act: for the reasons given above I find this complaint is not well founded.

Unfair dismissal – not well founded