Complainant

Respondent

Parties

Gemma Butler

Kells Resource Centre Ltd

Representatives

Self-Represented

Karl Johnston instructed by David M. Dunne & Co Solicitors

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-00046801-001

21/10/2021

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

CA-00046801-002

21/10/2021

The issues in contention concern a Redundancy and Minimum Notice claim by a former Child Care worker in a Leinster Creche. The employment began on the 16 February 2009 and ended, it was alleged, on the 4th April 2020.

The rate of pay was stated to be € 386 for a 34-hour week.

CA: 00046801-001 Redundancy & CA-00046801-002 Minimum notice

The Complainant represented herself and gave a detailed oral Testimony.

She was on Maternity Leave at the commencement of the first Covid 19 lock down in March 2020. She was due back to work on the 4th of April 2020. The Employment did not re commence as the employer informer her that, due to a quirk in the DSP rules regarding Maternity Leave, she was not eligible for the Wage Subsidy Scheme. She had no choice but to accept a form of Lay Off and go on to the €350 Covid Support Payment. She was never formally offered her job back.

When the restrictions on claiming Redundancy were lifted in October 2021 she applied for Redundancy from her employer. This was refused on the completely false basis that the Complainant had resigned from her position in April 2020. She never submitted a formal resignation letter.

The employer has advertised for other Childcare workers but never contacted the Complainant to offer her job back.

As regards the alleged ending of employment in April 2020, the Complainant was never paid any statutory Minimum Notice entitlement.

In summary she maintained that she had never resigned and is due both Redundancy and Minimum Notice.

CA: 00046801-001 Redundancy & CA-00046801-002 Minimum notice

The Respondent was represented by Mr. Karl Johnston, Solicitor, supported by witnesses Ms A McC and Ms MF, who both gave Oral Testimony.

2:1       Time Limits:

In opening Mr Johnston queried whether the Complaints were within the proper time limits. The Redundancy complaint was lodged on the 21st October 2021 – approximately 18 months post the ending of employment. The Minimum Notice complaint was equally delayed.

As regards Minimum Notice Section 41 (6) and (8) of the Workplace Relations Act, 2015 give a maximum permitted time limit of 12 months for the lodging of a claim. The employment ended in April 2020 - a period well in excess of the 12-month time limit.

However, Section 24 of the Redundancy Payments Act,1967 allows, on Adjudication Officer discretion and having considered “reasonable cause” an extension of the claim period from 52 to 104 weeks. In this case the Complainant has shown no reasonable cause for an extension beyond the initial 52 weeks.

On both Time Grounds Mr Johnston maintained that the Adjudication Officer has to dismiss the Complaints.

2:2         Substantive Case

Detailed Oral testimony was given by Ms F, Administrator and Ms AMcC, Manager.

The Complainant was due back from maternity leave on the 4th April 2020. Post the March Government /HSE lock down the Respondent had successfully applied for the TWSS Government Support Scheme. Regrettably due to a quirk in the Revenue rules employees on Maternity leave could not qualify. This was queried extensively but to no avail, by the Employer. Accordingly the Complainant went of Lay Off or what was called by the Witness, Ms F, a period of  “Furlough” beginning on the 4th April 2020.

However on the 11th April 2020 the Complainant posted a series of Whats Ap message to colleagues informing them that she was “not coming back to work when all this is over”. Message presented in supporting evidence. There was extensive traffic with colleagues wishing her well etc. The message was beyond any doubt.

 Ms F from the Respondent sent a follow up Text Message to the Complainant asking her if she was sure she was resigning and if so, would she, for the formal record, send in a written note of resignation.

The Creche re opened on the 29th June 2020. The Complainant would have been well ware of the reopening as she was still on the WhatsApp Group. A general message to the Group was sent by the Management on the 15th June 2020 outlining plans for a reopening. The Complainant did not appear for work and the Respondent took this as a de facto confirmation ( in the absence of a formal note of resignation)  that she was no longer interested in employment at the Creche.

In August 2020 outstanding Holiday pay was put through for the Complainant.

A redundancy claim as received by the Respondent on the 11th October 2021.

In oral Testimony the Respondent Managers, Ms F and Ms McC stated that they were very happy with the Complainant while she was at work in the Creche. They had absolutely no desire to end her employment and would re-offer her employment immediately. Her job or position had not been done away with.  Mr Johnston pointed out the Redundancy Act technical rules on this point.

She had voluntarily resigned in April which was effectively reconfirmed when she did not resume work on the re-opening of the Creche in July 2020.

There was absolutely no case for a redundancy payment

Minimum Notice did not apply to a voluntary resignation.

CA: 00046801-001 Redundancy & CA-00046801-002 Minimum notice

3:1        The Applicable Law – Redundancy Payments Act 1967 and Minimum notice Act ,1973  

Section 7 (2) of the Redundancy payments Act applies.

General right to redundancy payment.

7.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned 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 of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

However, all cases rest on their own facts and evidence and these will be considered below.

3:2:         Consideration of Evidence.    

Clearly from all the evidence both Oral Testimony and Written materials none of the redundancy criteria set out in Section 7(2) of the 1967 Act above applied.

The Oral Testimony, under sworn Oath from Ms F and Ms AMcC, was that the Complainant had decided not to come back to work following her Maternity Leave. The copy Whats Ap messages of the 11th April 2020 could not be read any differently by any objective observer. The failure to come back to work when the Creche reopened in July 2020 was further proof of the Complainant ending of employment.

The Complainant in her Oral Testimony basically agreed with this description although she maintained that she had been confused at the time with a very sick partner and a teething baby. She had not understood that sending the Whats Ap messages was effectively a resignation despite the issue have been queried by Creche Management.

The Complainant’s job was there for her in July 2020 and the Managers stated in Oral Testimony they could re employ her almost immediately. She had always been an excellent worker and they would be glad to have her back.

3:3:       Adjudication Summary

Accordingly, having reviewed all the evidence both Oral Testimony and Written materials presented,  the Adjudication decision has to be that no case for Redundancy has been made out.

In regard to Minimum Notice the Respondent is technically correct in that the Complaint is Out of Time. However it is a moot point as there was no proper basis for a Minimum Notice complaint following a Voluntary resignation.

Redundancy, Minimum Notice.