Complainant

Respondent

Parties

Kelly  Ryan

Teresa Tracey and Teresa Shanahan T/A Little Angels Preschool

Representatives

  Self Represented

 Thos. F. Griffin & Co. Solicitors

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-00040317-001

08/10/2020

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

CA-00040317-002

08/10/2020

The Complainant was employed from November 1st 2016 to August 27th 2020 when her employment was terminated. The Complainant alleged she was unfairly dismissed as there was continuing work for her and that she was also not paid any redundancy.

The Complainant commenced employment in November 2016 and in May 2019 was signed off by her Doctor due to pregnancy complications.  In August 2019 she commenced maternity leave. In February 2020 she commenced unpaid maternity leave and was due back to work in June 2020 but the business was closed due to Covid. In August 2020 the Complainant was informed there was no work for her as the business was closed due to Covid and there was less children attending. The Complainant was advised there may be work in a few months and she received a text in September 2020 that her employment was terminated.

The Respondent advised there is a pre-school in the morning and an after school service in the afternoon.  The pre-school was operated by Teresa Tracey and Teresa Shanahan in partnership and the afternoon service was operated by Teresa Tracey solely. There was one other employee that worked in the morning and this employee sometimes worked in the afternoon also. The Complainant worked solely in the afternoon per her request.

The Afterschool service caters for children between the ages of 5 to 12 and it is located within the Ursuline Primary School and the two staff were LM and the Complainant. For the service that the Complainant provided, staff must collect children from the school classroom, serve them food and assist with homework and attend to their care needs and carry out all activities. Cleaning and filling out roll books is a daily task. Staff share this equally. LM was firstly employed and the Complainant was subsequently employed in January 2016 and her role was to share the tasks equally which she carried out competently. Both staff have the same qualifications. The Complainant was doing 20 hours a week for 38 weeks of the year which was the same as the other staff members. There were 23 children registered with the service in 2018 and 28 children in 2019. In this current year there are 10 children. When the Covid lockdown came in March 2020, the facility was closed until September, effectively that is until June as the service would never operate between June until September when the school year starts again.

Ms. Treacy explained to both staff members that the work that had been necessary was no longer available due to the fact of Covid and in the circumstances both members of staff were let go at the same time. However in October of 2020 Ms. Treacy became ill and needed to attend hospital and for those two weeks asked  LM, who is the longest employed, to come back and cover for her but after those two weeks had expired, she did not work.

Ms. Treacy is ready, willing and able to pay the redundancy in accordance with the statutory requirements.

Having regard to the suggestion of unfair dismissal Ms. Treacy refutes same as if it had been possible and the numbers had been the same as the previous year, the Respondent would have willingly employed the Complainant again.

The Complainant was given the option of pursuing either an Unfair Dismissal complaint or a redundancy complaint as they were incompatible complaints.  She elected to proceed with the Unfair Dismissal complaint.

 The Complainant was never in receipt of a contract of employment. At the Hearing the Respondent argued that the Complainants contract ceased every June and recommenced every September. The Complainant disputed this. In the absence of any contractual evidence to the contrary the Complainant is entitled to the benefit of the doubt that she was continually employed from her commencement date to the date of termination and was laid off during the summer months.  The Complainant earned 200 Euros per week.

The original complaint was made against Teresa Treacy and Teresa Shanahan, co owners (to some degree) of the business at the time the Complainant was employed. Ms. Treacy attended the Hearing, assumed responsibility for the complaints and gave evidence as to the events since Covid as it related to the operation of the business. Ms. Treacy advised that she had to close down most operations due to Covid and only a handful of staff worked. She advised that she contacted the Complainant and asked was she available for relief work if available and received no reply. Ms. Treacy advised she opened in September 2020 but the number of pupils had dropped dramatically and she did not need staff. Ms. Treacy advised she stayed open till Christmas but closed the operation in April and has not reopened it since.  Ms. Treacy advised she never had any issue with the Complainants work and would have taken her back after Maternity leave but there was no work available due to the low numbers of children attending. In June 2020 the workplace closed due to Covid and all conversations were via text message. In September the Accountant for Ms. Treacy issued P45s to redundant staff. Under cross examination by the Complainant Ms. Treacy advised that LM still works at the premises but that the operation at that premises in now fully operated by Ms. Shanahan and Ms. Treacy has no role in that business. Ms. Treacy confirmed she still runs a similar business at another location (as she had done for the years the Complainant was employed).

Ms. Treacy in her submission advised she was willing to pay redundancy to the Complainant but denied the Complainant was unfairly dismissed. The question of whether there was a transfer of undertaking, in some shape or form, from Ms. Treacy to Ms. Shanahan was not explored at the Hearing.  However, the possibility, but not probability, of same is an open question given the circumstances of the change in complete ownership of the business at that location to Ms. Shanahan.

I find that the Complainant was continually employed for the duration of her employment and was laid off during the summer months when the Respondent was closed for business. It is not clear how much time the Complainant was actually at work while employed due to illness and Covid etc (leaving aside her maternity leave) but it was a relatively small proportion of her employment.

The Respondents case that she has ceased running the business dure to the lack of pupils and the ownership had transferred to another person was convincing. It was also clear that the operation of the business had transferred to another owner and therefore the Complainant should have been considered for a transfer to the new owner. However, the fundamental issue remained at the time that the business had practically ceased operating due to Covid and there was no role for the Complainant at that the time the employment ceased and the other employee had more service so therefore, in general, would have had first opportunity to stay in employment (all other things being equal).  The Respondent was mistakenly under the impression that the Complainants employment ceased every summer when the pupils were not present. 

I find that the Complainant was unfairly dismissed as she was not considered for transfer to the new ownership but this was primarily due to the operations ceasing being run by the Owner and Covid, however the argument that the Complainants employment ceased due to a redundancy situation also had merit. In calculating compensation for the unfair dismissal, it is appropriate to significantly consider the Complainants redundancy entitlement which is difficult to calculate due to Covid, illness, unpaid maternity leave etc but without these deductions would have amounted to approximately 2066 Euros (based on 4 years and 8 months service. I have estimated the statutory redundancy to be in the region of 1,500 Euros taking account the periods of time which would not be included. I find this amount, as compensation under the Unfair Dismissals Act, should be increased by 100% to reflect the ambiguity regarding the transfer of ownership and the possibility that the Complainant could have returned to that employment.  I award the Complainant 3,000 Euros compensation and it is a matter for both Respondents as to how that cost is shared between them, if at all.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I find the Complainant was unfairly dismissed and award her 3,000 Euros compensation.

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. I disallow the Complainant’s appeal under the Redundancy Payments Acts 1967-2012.

Unfair Dismissal