Complainant

Respondent

Parties

Barbara  Flynn

Guide Friday (Ireland) Limited Dualway Coaches

Representatives

Patrick J Ryan, Ryan & Ryan Solicitors

 Company Management.

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-00049533-001

06/04/2022

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

CA-00049533-002

06/04/2022

The Complainant was employed by the Respondent in a Sales Administration position. Employment commenced on 3rd May 2001 and ended on 21st January 2022.

This complaint was received by the Workplace Relations Commission on 6th April 2022.

The hearing of the complaint took place on 6th March 2023 in the Workplace Relations Commission, Dublin.

BACKGROUND FACTS

The Complainant commenced working for Dualway Coaches in or about 2001. The Complainant understands that at some point subsequent, Dualway Coaches, or at the least certain functions of it, were taken over by the Respondent. The Complainant was employed as a tour guide at first and two years or so later as a sales advisor based in the Respondent's offices in Suffolk Street and subsequently in O'Connell Street, Dublin 1. She was paid the sum of €1,300 on a fortnightly basis for her role.

The Complainant was laid off due to Covid 19 on or about 13 March 2020. During the period of lay off, the Complainant ceased receiving covid support payments as she turned 65. On or about 23 November 2021, the Complainant served a notice to claim redundancy and did so on Dualway, the entity she thought was her employer. On 9 December 2021, a response was received from Dualway stating that the Complainant was not registered with it as an employee. The letter did not disclose who her employer was.

After learning of the correct identity of her employer, the notice to claim redundancy was then re-served on the Respondent herein on 17 January 2022. That was replied to by way of counter notice dated 24 January 2022. However, the Complainant was not returned to work within four weeks of the notice to claim redundancy.

The Complainant was never furnished with an updated statement to reflect the new terms and conditions of her employment, in particular that the employer changed from Dualway to the Respondent herein.

THE CLAIMS BEFORE THE WRC

There are two claims before the WRC.

The first is a claim under the Terms and Conditions of Employment, Information Act 1994. The Complainant did not receive a contract of employment from the Respondent, and nor was she provided with notification of the change to her employer.

The second claim is one for redundancy.

Section 12 of the Redundancy Payments Act 1967 provides,

(1)Anemployeeshall notbeentitledtoredundancypaymentbyreasonofhavingbeenlaid off or kept on short-time unless -

(a) hehasbeenlaidofforkeptonshort-timeforfourormoreconsecutiveweeksor,withina periodofthirteenweeks,foraseriesofsixormoreweeksofwhichnotmorethanthreewere consecutive, and

(b)aftertheexpiryoftherelevantperiodoflay-offorshort-timementionedinparagraph(a) andnotlaterthanfourweeksafter thecessationofthelay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2)Where,aftertheexpiryoftherelevantperiodoflay-off or short-time mentioned in subsection (1)(a)andnotlaterthanfourweeksafterthecessationofthelay-offorshorttime,anemployee towhomthatsubsectionapplies,inlieuof givingtohisemployer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, bedeemedtobeanoticeofintentiontoclaimgiveninwritingtotheemployerbytheemployee on the date on which the notice is actually given.

Section 12A had the effect of permitting the Minister to suspend section 12 for the duration of the Covid emergency. By way of S.I. No. 284 of 2021, the emergency period provided by the Act was extended to 30 September 2021.

Section 13 provided for the employer to give counternotice to an employee It states,

1.Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

2.Subsection(1)shallnotapplyunless,withinseven days after the service of the notice of

intentiontoclaim,theemployergivestotheemployeenotice(inthis Partreferredtoasa counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

3.Ifinacasewhereanemployeegivesnoticeofintentiontoclaimandtheemployergivesa counter-notice,theemployeecontinuesorhascontinued,duringthenextfourweeksafter thedateofserviceofthenoticeofintentiontoclaim,tobeemployedbythesameemployer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1)wasnot fulfilled.

4.Forthe purposesof section12andforthepurposesofsubsection(3)-

(a)it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consistswhollyof weeks forwhich theemployee islaid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other;

(b)noaccountshallbetakenof anyweekforwhichanemployee islaidofforkeptonshort­ time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock­ out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

It is submitted that whilst the Respondent did provide a counternotice, the Complainant was not returned to work within four weeks of service of the notice to claim redundancy and which notice was dated 17 January 2022 and was served by letter of same date. As is clear, a return date to work of 28 February 2022 was proposed by the employer. This was outside the four-week period and accordingly it is submitted that the Act deems the Complainant "conclusively" dismissed. Notwithstanding the fact of the Complainant's dismissal, no redundancy payment has been made by the Respondent.

The Respondent did not present a submission for the hearing of this complaint.

The Respondent contended that they had replied to the second RP9 form on 24th January 2022 and informed the Complainant that she should return to work on 28th February 2022.

CA – 00049533 – 001.

The Complainant commenced working for Dualway Coaches in or about 2001. The Complainant understands that at some point subsequent, Dualway Coaches, or at the least certain functions of it, were taken over by the Respondent. The Complainant was employed as a tour guide at first and two years or so later as a sales advisor based in the Respondent's offices in Suffolk Street and subsequently in O'Connell Street, Dublin 1.

On checking company records I am satisfied that Guide Friday (Ireland) Limited has one shareholder and that shareholder is Dualway Coaches Limited. In relation to correspondence exchanged between the Complainant’s representative and the employer I note that Ms Patricia McConn’s email signature reads: Patricia Mc Conn, Chief Executive / Dualway Group and her email address is trish@dualway.com.

The Complainant completed part B of Form RP 9 ON THE 22ND November 2021 and sent this to Dualway Coaches / Dualway Group on 22nd November 2021. On 9th December 2021, just over two weeks later the Operations Manager for Dualway Coaches Ltd, Ms Beata Kostkowska wrote as follows:

Further to your letter dated 23rd November 2021, I can confirm that we do not have an employee Barbara Flynn employed with Employer Registration Number 8298932N.

This reply throws up a couple of questions:

1.      Why did Ms Kostkowska wait for over two weeks before replying?

2.      Why did Ms Kostkowska not provide the correct information?

I can only surmise that Ms Kostkowska was attempting to make matters very difficult for the Complainant.

I am satisfied that the Initial RP 9 form was sent to the correct group of companies.

In relation to the second RP9 form this was signed by the Complainant on 17th January 2022, and this was sent by the Complainant’s solicitor with cover letter on 17th January 2022, this letter was sent by Registered Post.

Maeve Regan’s book ‘Employment Law’ (Tottel Publishing) at sections 15.89 and 15.90 reads as follows:

15.89 Where an employee has been laid off or placed on short time for the requisite periods, he or she may give his employer written notice of his intention to claim a redundancy payment on the expiry of that period or in any event not later than four weeks after the cessation of the layoff or short time.  Alternatively an employee may choose to terminate his employment contract by giving the employer the required contractual notice period, or where no such period is specified, at least one week’s written notice of his intention to terminate.  That notice is then deemed to be notice of an intention to claim redundancy payments.

15.90 An employee is not entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date that notice was served, it was reasonably expected that the employee would, not later than four weeks after that date, enter into a period of full employment for not less than thirteen weeks.  For this to apply, the employer must serve a counter-notice, informing the employee that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.  This counter-notice must be served within seven days of the service of the notice of intention to claim.

In the instant complaint the RP9’S were served on 22nd November 2021 and the second RP9 served on 17th January 2022. In these circumstances the Respondent should have served counter notice within 7 days of service of the employee’s notice. This did not happen. There was a counter notice served on the Complainant dated 24th January 2022. Accordingly, the Complainant should have been returned to work within 4 weeks of that date i.e., 21st February 2022, this did not happen.

In relation to the first RP9 the Respondent waited for two weeks plus before replying that they did not have an employee of that name.

I have listened to both the Complainant and Respondent and now decide in favour of the Complainant. The complaint submitted under section 39 of the Redundancy Payments Act 1967 is well founded. I do believe a redundancy situation existed and now order the Respondent to pay the Complainant a statutory redundancy payment based on the following:

Start Date: 3rd May 2001.

End Date: 17th January 2022.

Hours per week: 45

Weekly earnings: Euro 650.00

CA – 00049533 – 002.

A complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant has contended that she was not provided with a contract of employment from the Respondent nor was she provided with notification of the change to her employer.

The Respondent was unable to produce any statement of particulars of employment that had been issued to the Complainant. What was produced was a letter dated 21st December 2016 informing the Complainant that her employment was being transferred to a new employer.

 Section 3 (1) of the above referenced Act reads as follows:

An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the particulars of the terms of the employee’s employment.

Section 7 of the Act states:

7.-(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3, 4, 5 or 6 in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties.

Section 7 (2) of the same Act states:

7(2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

(a)    Declare that the complaint was or, as the case may be, was not well founded,

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977.

As already stated the Respondent failed to produce a copy of the required statement. I find in favour of the Complainant, the complaint is well founded. I now order the Respondent to pay the sum equivalent to four weeks pay as compensation i.e., Euro 2,600.00.

Payment of monies should be made to the Complainant within 42 days of the date of this decision.

As outlined above.

Redundancy Payments Act 1967; Terms of Employment (Information) Act, 1994.