ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036962
Parties:
| Complainant | Respondent |
Parties | Aileen Moloney | Estate Of Catherine Gallagher t/a Elmgrove Nursing Home |
Representatives | Citizens Information Centre | Fiona Gallagher Executrix |
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-00048143-001 | 13/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00048143-002 | 13/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00048143-003 | 13/01/2022 |
Date of Adjudication Hearing: 30/05/2023
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
Evidence was given on oath/affirmation and I allowed the right to test the oral evidence presented by cross examination.
Much of this evidence was in conflict between the parties. I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings.
The Parties were made aware that the Parties’ names would be published within the decision in accordance with Section 39(17B) of the Redundancy Payments Act 1967. All the evidence and documentation submitted by both Parties has been considered herein
Background:
The Complainant commenced employment with the Respondent in March 2007 as a healthcare assistant. She went on sick leave on the 20 May 2020. In October 2020 the Respondent passed away. On the 6 January 2021 the nursing home closed permanently. |
Summary of Complainant’s Case:
The Complainant's case is that she was unable to work due to a back injury from May 2020. She submitted regular sick certificates to the Respondent from 20 May 2022 January 2021. In August 2020 she was feeling a better and rang the Deceased Respondent’s daughter enquiring about returning to her role in the nursing home. At the time she was told she was not needed. The Complainant considered applying for carers leave as she was caring for her parents at the time. She did not proceed with this as her back injury prevented this. She continued to submit sick certificates from her GP. She was in receipt of Illness Benefit. I was provided with copies of the medical certificates which issued from her GP. I was provided with 9 medical certificates in total. In December 2020, the Complainant heard the nursing home is closing. She did not receive any communication in this regard from the Respondent. In January 2021 she contacted one of the executors of the Estate. She was informed that she was not entitled to a redundancy payment due to her failure to submit sick certificates in a timely manner. |
Summary of Respondent’s Case:
FG the daughter of the deceased Respondent disputed that she spoke with the Complainant in August 2020 and told her that they did not need her to work at that time. The deceased Respondent passed away on the 29 October 2020. FG received a text from the Complainant on the 17 December 2020 "I wonder if it is possible now to sign my carer's benefit form as you are my last employer. I can't go back to work anywhere until they are vaccinated and I can work 18 hours a week on benefit". The decision to close the Nursing home was communicated to all staff on the 18 December 2020. The Respondent received four medical sick certificates in the post on the 22 December 2020 dating from 7 October 2020 to 27 January 2021. On 6 January 2021 the nursing home closed. On 15 January 2021 all staff were pay their redundancy entitlements. The Respondent’s case was that the Complainant refused to return to work and did not have any communication with nursing home since October 2020. At that stage she was removed from the payroll system. No sick Certs were submitted until the 22 December 2020 after the announcement of the closing of the nursing home. It was submitted that the Complainant was in breach of the Employment Handbook which required her to contact the Respondent on a weekly basis if she was not in a position to work. The witness agreed that the Complainant did submit regular sick certificates until September 2020. It was also agreed that the Respondent did not receive a letter of resignation or some other confirmation of the ending of the employment relationship by the Complainant. |
Findings and Conclusions:
CA-00048143-001 I have considered the evidence presented to me. The very fact that the Complainant discussed with the Respondent her intention to take carers leave is indicative of the fact that she considered herself in employment with the Respondent albeit on sick leave. I am satisfied that the Complainant was in employment with the Respondent on the date the nursing home closed. No evidence was given to me that the Complainant had resigned or abandoned her position and the Respondent had taken no action to discipline or terminate the Complainant's employment if she was in breach of its sick leave terms. CA-00048143-002 Employees while on sick leave are entitled to the same treatment as employees in the workplace. I am satisfied that the Complainant was an employment on the day the nursing home closed. CA-00048143-003 Section 19(1) (A) of the Organisation of Working Time Act sets out “for the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was— (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying on or performing the activities or duties of his or her work. This amendment to the Organisation of Working Time Act was introduced by Workplace Relations Act 2015 and provides that an employee who has been unable to utilise all or any part of their annual leave entitlements during a leave year, due to medically certified illness, is entitled to carry their statutory annual leave forward, up to a maximum carry over period of 15 months from the end of the relevant leave year. I am satisfied that the Complainant was absent from work due to illness and had provided a certificate from her GP in this regard. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) 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-00048143-001 This complaint is well founded. The Complainant is entitled to a statutory redundancy payment on the following basis: Start date: 5 March 2007 End date: 6 January 2021 Sick leave: 20 May 2020 to 6 January 2021 (ordinary illness) Gross salary: €344.52 per week This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts for the relevant period, being a matter for the Department of Social Protection. CA-00048143-002 This complaint is not well founded. The Complainant is entitled to statutory notice of the termination of her employment/redundancy. However, the nursing home closed on 6 January 2021 and the Complainant lodged her complaint with the Workplace Relations Commission on the 13 January 2022 outside the statutory time limit. The delay in filing the complaint was not explained. CA-00048143-003 This complaint is not well founded. While the Complainant is entitled to holiday pay, her complaint was not made in time and is statute barred. The nursing home closed on 6 January 2021. The Complainant lodged her complaint with the Workplace Relations Commission on the 13 January 2022. The delay in filing the complaint was not explained. |
Dated: 22nd August, 2023
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Redundancy. Sick leave entitlement. |