ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00040771

Parties:

	Complainant	Respondent
Parties	Ewelina Milewicz	PCE Coaches Ltd

Representatives

Self-Represented

BHK Solicitors

Complaint(s):

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-00051877-001	26/07/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00051877-002	26/07/2022

Date of Adjudication Hearing: 20/02/2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing took place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.

Background:

The Complainant alleged she was either unfairly dismissed or entitled to redundancy.

Summary of Complainant’s Case:

The Complainant commenced employment as Office Manager in February 2011 and earned approximately 560 Euros per week.

The Complainant advised she notified her employer in April 2019 that she wanted to go back to Poland with her family to live.

She advised she was offered remote working from Poland from July 2019 with the requirement to come to the office in Ireland for a day or so every four weeks.

In March 2020 the Respondent advised the Complainant that due to Covid they had no work for her as they were not operating and asked that she send back her laptop which she did. She advised she was paid all holidays due and she understood other people were working remotely. The Complainant advised there was no contact from the Respondent between March and August.

In August 2020 the Complainant advised she was offered employment on three days a week and that she could avail of the Government Covid scheme. The Complainant advised she refused this offer of employment as she had children going to school in Poland and her husband was working in Poland.

The Complainants solicitor wrote to the Respondent on October 8th 2020 stating “ your company has terminated our clients employment”.

In April 2021 the Complainant submitted a RP77 form claiming she was redundant.

The Complainant confirmed to the Hearing she received no letter of termination or no new contract amending her contract to remote working from Poland.

The Complainant sought either redundancy or unfair dismissal.

Summary of Respondent’s Case:

The Respondent denied it had any case to answer as the complaints were both statute barred as the Complainant was not resident in Ireland and were time barred. The Respondent advised the Complainant was an excellent employee and valued member of staff.

The Respondent advised that as the Complainant was resident in Poland since 2019 she is not entitled to pursue a complaint for unfair dismissal under section 25 of the Unfair Dismissals Act 1977 as she is not resident in the state.

The Respondent stated that the complaints were received by the WRC on July 26th 2022 and were therefore statue barred as they were not submitted within six months of the employment ceasing.

The Respondent advised the Complainant submitted her notice to resign verbally in April 2019 as she was returning home to Poland.

They advised that due to illness issues they were aware of with the Complainant they sought to find a solution were she could continue to work remotely from Poland while undergoing medical treatment there.

They advised this arrangement commenced but as issues surfaced with employing someone outside the state they could not justify setting up a company in Poland for the sole purpose of retaining the service of the Complainant and the Complainant was not willing to set up a company there to invoice the Respondent for her services.

The Respondent advised that the Complainant instructed her solicitor to notify the Respondent her employment had ceased on October 8th 2020.

Findings and Conclusions:

In examination of the evidence and submissions presented at the Hearing the following information emerged;

1. The Respondent claimed the Complainant resigned verbally in April 2019 but this was contested by the Complainant.

2. The Complainant returned to Poland in or around July 2019.

3. The last date the Complainant received payment from the Respondent was March 2020

4. The Complainant took up other employment in Poland in October 2020.

5. The Complainants solicitor advised in October 2020 that the was seeking redundancy as her employment had terminated.

6. The Complainant advised that on the Revenue system her employment termination date was September 30th 2021.

7. The complaints were submitted to the WRC on July 26th 2022.

8. The Complainant advised she did not submit the RP77 form as she felt she could not due to government legislation allowing for employees to be laid off with no right to redundancy due to covid. The Complainant advised she understood she could not make a complaint to the WRC during this time.

9. The Complainant was offered her job in Kerry again but declined the offer.

10. No letter of termination was issued by the Respondent and at the Hearing they maintained her position remains open.

Based on the above the Complainant was aware her employment had ceased in either April or October 2020 or at the latest September 30th 2021. It is important in the context of the complaints to be adjudicated upon and the Respondents case that the complaints are statute barred from both a time limit and out of state restriction to determine what is the most reasonable date of termination of the employment. There are a number of options open to the Adjudicator to consider as the date of termination. Firstly, April 2019 when the Complainant ceased working in Ireland, July 2019 when the Complainant returned to Poland, March 2020 when payment ceased, October 2020 when the Complainant took up alternative employment in Poland and her solicitor sought her redundancy due to termination of the employment or finally the Revenue recorded date of September 2021 as the termination date. The Respondent advised the hearing that they had not terminated the employment and it was still open to the Complainant. I have read the correspondence between the parties regarding the employment situation and determine that the Complainants email of September 7th 2020 to the Respondent when the Complainant had returned to live in Poland and refused the offer of working from Poland and commuting to Ireland once every four weeks, was not acceptable to her as the most reasonable date of termination of employment. This is further supported by the Complainant confirming she took up alternative employment in Poland In October 2020. There does not appear to be any logic to using the date of September 30th 2021 as the termination date and this appears to be a date selected by Revenue following lengthy correspondence with the Complainant to get her Revenue status on file recorded as her employment having terminated.

The Unfair Dismissal Complaint.

The Law

Section 41(6) and (8) of the Workplace Relations Act 2015 (‘the 2015 Act’) provides as follows:-

“41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

41(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The unfair dismissal complaint was presented to the Workplace Relations Commission on July 26th 2022. As I have determined the Complainant’s employment terminated on September 7th 2020, the unfair dismissal claim was presented out of time and is consequently statue barred as it was submitted outside the time limits allowed above per section 41 of the Workplace Relations Act 2015.

The Redundancy complaint

Section 24 of the Redundancy Payments Act, 1967 states as follows:

“24.Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.”

The complaint relating to redundancy entitlements has a 12-month time limit which can be extended to 24 months if reasonable cause can be shown in relation to the late referral. The complaint was submitted on July 7th 2022 and taking the termination date as September 7th 2020 is outside the 12-month time limit but within the 24 month time frame allowed for reasonable cause under Section 24 (2)A. Therefore, I have to consider if there was reasonable cause for the delay. The Complainant argued at the hearing that she understood that she could not make a claim for redundancy due to the Covid pandemic. The second issue for consideration is Section 12 of the Redundancy Payments Act provides that an employee on lay-off or on short-time hours, for 4 weeks or more, or 6 weeks in the previous 13 weeks, can claim redundancy from their employer. The Emergency Measures in the Public Interest (COVID-19) Act introduced by the Dail in March 2020 suspended that right during the emergency period “Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.” The Complainant was laid off between March and August in 2020 and therefore the effect of this change in legislation has to be considered when considering time limits for making a claim.

The Irish Government, on 24 November 2020, announced another extension of certain provisions which preclude an employee from claiming redundancy from their employer, if they have been temporarily laid off, or placed on short-time work, for an extended period. It was expected that the suspension of these rights would expire on 30 November 2020. However, the Government announced an additional extension of the relevant provisions, until 31 March 2021. Therefore, the Complainant was free to submit her complaint after March 31st 2021. The Complainant did not submit the complaint until July 2022. It would be entirely logical to commence the time limit provision from March 31st 2021 to submit a redundancy complaint. The Complainant knew her employment had at least terminated in October 2020 as she instructed her Solicitor at the time to write to the Respondent to that effect. So the second 24 month period for submitting a claim with reasonable cause for the delay commenced on March 31st 2022 and the claim was submitted during this period of 12 months, July 26th 2022. The reasonable ground put forward by the Complainant was that she understood she could not submit a claim up to the time she submitted a claim in July 2022. The Complainant had engaged a Solicitor to seek redundancy in October 2020 and therefore, presumably, had the benefit of legal advice although I note the Complainant represented herself at the Hearing. It is for the Complainant to establish that there is reasonable cause for the delay. The Complainant submitted that the reasons for the delay were due to her lack of knowledge of the law.

The Complainant cannot rely on ignorance of the law in seeking to extend the time limit. In general, ignorance of one’s legal entitlements, as opposed to ignorance of the facts giving rise to those rights, does not excuse a failure to present a claim in time. This was firmly established by the High Court in Minister for Finance v Civil and Public Services Union & Ors[2007] 18 E.L.R. 36. This Adjudicator is bound by this Decisions. Based on the information submitted before the Adjudicator, the Adjudicator is not satisfied that the Complainant has shown reasonable cause in accordance with Section 24(2A) of the Acts for allowing an extension of time up to 104 weeks. Accordingly, the Adjudicator rejects the application made under Section 24(2A) of the Acts and finds that the complaint made was out of time. Even if reasonable grounds did exist the Respondents arguments that the redundancy complaints are statute barred based on the geographical clauses contained in both the 1967 Act and the amendment in 2003 (an assessment of which is included below) would make the redundancy complaint statute barred. In these circumstances it is unnecessary for the Adjudicator to deal with the substantive claim under the Acts.

Section 25 of the Redundancy Payments Act 1967 states the following;

“25.—(1) An employee shall not be entitled to redundancy payment if on the date f dismissal he is outside the State, unless under his contract of employment he ordinarily worked in the State.

(2) An employee who under his contract of employment ordinarily works outside the State shall not be entitled to redundancy payment unless, immediately before he commenced to work outside the State, he was domiciled in the State and was in the employment of the employer concerned and unless—

(a) he was in the State in accordance with the instructions of his employer on the date of dismissal, or

(b) he had not been afforded a reasonable opportunity by his employer of being in the State on that date.

(3) In computing, for the purposes of this Act, for what period of service a person was in continuous employment, any period of service in the employment of the employer concerned while the employee was outside the State shall be deemed to have been service in the employment of that employer within the State.

(4) Where an employee who has worked for his employer outside the State becomes entitled to redundancy payment under this Act, the employer in making any lump sum payment due to the employee under section 19 shall be entitled to deduct from that payment any redundancy payment to which that employee may have been entitled under a statutory scheme relating to redundancy in the State in which he was working.”

The 2003 redundancy Act amended Section 25 of the 1967 Act as follows:

—
		“(a) in subsection (2), by substituting “the Eployee was insurable for all benefits under the Social Welfare (Consolidation) Act 1993 or would have been insurable for all such benefits but for the fact that the employment concerned was an excepted employment by virtue of paragraph 2, 4 or 5 of Part II of the First Schedule to that Act and the employee” for “he was domiciled in the State and”, and
		(b) by inserting the following after subsection (2):
		“(2A) An employee who under a contract of employment has worked outside the State and was working in the State for at least two years immediately prior to the date of termination of the employment concerned shall be entitled to redundancy payment in respect of all his employment with the employer concerned.”. The Complainant returned to Poland for her own personal reasons in July 2019.and worked primarily from Poland for the Respondent until she was laid off in or around March 2020. The Complainant occasionally returned to Ireland for a day every four weeks up to December 2019. She did not paid by the Respondent from March 2020. The Complainants employment status during the period from July 2019 to March 2020 was not clear however there was no written contract change even if the operation of the contract changed. I have already determined that the reasonable termination date was September 7th 2020 and as the Complainant was not “working in the State for at least two years immediately prior to the date of termination of the employment concerned” as she worked from July 2019 to the date of the termination of her employment (September 7th 2020) outside the state so the employment situation does not comply with Section 2 A of the 2003 Redundancy Amendment Act. Also of importance is the Respondent maintained that at all times the Complainants employment remained open at all times and was open to her to return as of the date of the Hearing. Their argument was the employment could not be conducted from Poland on a continuous basis.

In summary the Complainant terminated her own employment, her claim was outside the statutory 12 months time limit for making a claim and her ground for reasonable cause for extending that time to 24 months is not accepted and her appeal fails. The operation of her employment contract does not satisfy the amendment 2.a of the 2003 Redundancy Act but this is a secondary issue as the appeal fails on the above stated grounds.

Decision:

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. The appeal fails as it is statue barred.

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 complaint is statue barred.

Dated: 21-03-2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Redundancy