Complainant

Respondent

Parties

Mary  McInerney

Isobel O'Dea

Representatives

  Self-Represented.

 Kerin Hickman O'Donnell 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-00049454-001

31/03/2022

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

CA-00049454-002

31/03/2022

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

It was the Complainant’s claim that she was unfairly dismissed and is entitled to a redundancy payment from the Respondent. The Complainant form was received by the Workplace Relations Commission on 31 March 2022.

The Complainant swore an oath.  The Respondent swore an affirmation at the outset of the hearing. Both parties availed of the opportunity to present their evidence in full and cross examine the other side. Submissions and documentary evidence was exchanged and relied upon by the parties.

The Respondent raised a preliminary objection that the Complainant sought her redundancy and therefore, it was not a case of dismissal. It was also noted that redundancy was accepted by the Respondent.

It was the Complainant’s evidence that she worked as a Legal Secretary with the Respondent with a commencement date of 14 October 2008. She confirmed she earned €120 gross for 7 hours per day. The Complainant described having a good working relationship with the Respondent with all her working taking place from the Respondent’s family home.

CA-00049454-001 and CA-00049454-002

It was the Complainant’s evidence she was put on temporary layoff on 25 April 2020 due to Covid19 pandemic. In July 2020 she made contact with the Respondent. From July 2020 to 14 December 2020 there was no communication from the Respondent. In December 2020 the Complainant sent a text and email to the Respondent inquiring when she was going to return to work but there was no response. A follow up text was sent on 2 January and again on 18 January 2021 along with an email.

At this time the Complainant received a query from the Department of Social Welfare regarding her hours which she said was the reason for emailing the Respondent on 18 January 2021. In particular, the Complainant asked: “I appreciate it is difficult to know where we all stand right now- but I suppose I need to know going forward if you want me to return to the office working one day per week or if you wish to make my position redundant. You might let me know one way or the other so that I can also make decisions on how I move forward with my working days.”

In response to this email., the Respondent replied, “I do not envisage a return to work by you in [address] as a possibility now. I note your suggestion re Redundancy, and it would appear to be an option which should be examined and pursued.”

On 20 January 2020, the Complainant sent another email stating; “The only reason I mention redundancy is that there appears not to be a requirement to attend the office since 24th April and would appear there is no further opportunity to return to the office any time soon as I guess you or somebody else is doing the work.

I will accept redundancy at this time.”

There was a series of emails between the parties from 20 January 2020 – 1 February 2020 with the Respondent asking for figures from the Complainant and advising she will speak with her accountant.

It was the Complainant’s evidence there was no further communication until 6 October 2021. She was of the view at this time that she was of the view that she was returning to work as there was no further mention of redundancy. A letter was received dated 11 October 2021 seeking the Complainant’s details to allow for a calculation for the purposes of redundancy. The Complainant responded by letter dated 18 October 2021 with her details and expressing her disappointment that her employment was cease with redundancy. On 28 October 2021, the Respondent replied with her final payslip and the breakdown of the redundancy calculation in the sum of €2,889.60 along with a €400 gift card.

The Complainant made further efforts to meet with the Respondent in November 2021 but to no avail. By registered letter dated 14 December 2021, the Complainant wrote to the Respondent setting out her disappointment with the redundancy situation. It was the Complainant’s evidence that she was aware the work had resumed and the ongoing need for a Coroner’s Secretary. The Complainant also took issue with not receiving her notice period. It was the Complainant’s evidence that this letter was the first indication from the Respondent that it was the Complainant herself who initiated redundancy which she did not. However, at that stage she felt she “had no option but to accept redundancy because she received the payment.”

In response to the Respondent’s preliminary objection, the Complainant states she did not ask for her position to be made redundant. It was her evidence that why would she be asking for redundancy when her previous emails sought a return-to-work date.

As regards her financial loss, the Complainant gave evidence of her efforts to seek alternative employment for the one day she worked with the Respondent. At the date of the hearing, she had undertaken the exam for her PSV licence and intended taking up work as a taxi driver.

The Complainant was cross examined on the first mention of redundancy which it was accepted that it did come from her. Referring to the letter of 18 October 2021 when the Complainant gave her details for calculation of the redundancy payment to the Respondent, it was put to her that her willing response was an indication of her acceptance. It was also put to the Complainant that the emergency legislation in place around redundancies did not lift until September 2021 and it was after this correspondence resumed between the parties in October 2021 around the issue of redundancy. It was the Complainant’s evidence that she posed the question around redundancy but was not asking to be made redundant. When asked about Section 12 A of the Redundancy Payment Acts 1969, the Complainant gave evidence that she was unaware of it nor did her employer explain it. There was no communication as to alternatives such as working remotely or go into the law firm in which the Respondent worked rather than her family home.

It was put to the Complainant that the Gardaí carry out a number of the administration tasks now internally for the Coroner thereby taking away the need for the Coroner herself to carry the same level of administration. It was also put to the Complainant that during the pandemic the Respondent streamlined her system. Furthermore, due to the nature of the work, there was no ability to log in remotely. In response the Complainant stated she was only hearing this for the first time at the hearing. She continued that why, if such new procedures were put in place, was this not explained to her despite asking to meet with the Respondent on numerous occasions.

CA-00049454-001 and CA-00049454-002

The Respondent gave evidence that she has been the Coroner for Co Clare since 1993. She works out of her family home which she shares with her husband and two sons.

The Respondent evidence that the work the Complainant used to carry out has now changed due to the involved of two dedicated civilians working with the Gardaí along with the Sergeant. She now types the records herself and issues the relevant certificates. The work for the most part is carried out via email. The Respondent explained that she worked longer hours now to carry out the tasks and also has the assistance of her son. She continued to explain all the Coroner Files remained in her home office. As regards the legal firm she works with she gave evidence that she has a new Partner who requested that all correspondence relating to her role as County Coroner remain at home nor would it be appropriate to carry the files back and forth to the office.

In response tot eh email of 18 January 2021 from the Complainant, the Respondent was of the view it was a request to be made redundant. She understood that the Complainant wanted to be made redundant.

As regards her comment re the accountant, she explained that she did not deal with payroll as that was with her Accountant to deal with. It was the Respondent’s evidence that the Complainant herself would contact the accountant every year with her hours of work and she “genuinely did not get involved in it.” She explained that she did carry out some research on the position of employees on temporary lay off due to the pandemic. Following the lifting of the temporary suspension of redundancy legislation she contacted the Complainant.

As regards the Complainant’s request to meet with the Respondent, she said she was unsure for what purpose she wanted to meet when it was the Complainant who wanted the redundancy. In hindsight she should have met with her.

It was the Respondent’s understanding that the Complainant was not entitled to notice period as she sought the redundancy.

The Respondent was asked if she intended to make the Complainant’s position redundancy to which she responded, “no she initiated it” and “as far as I was concerned, she requested redundancy and I facilitated it”

Asked if it was an employer led redundancy would the Complainant have been consulted? The Respondent confirmed that she would have, yes.

Under cross examination the Respondent was asked when the Gardaí became more involved in the Coroner’s activities? It was explained that this commenced just before Covid19 pandemic but became more apparent during Covid19. The Respondent was asked when public inquests recommenced to which the Respondent replied she did not have the dates but did hold inquests in June, July, October, and November 2021. She was asked about the free boardroom in her legal office with the Respondent confirming it did exist.

Upon inquiry, the Respondent confirmed her son was paid for his work of 1-2 hours per week. When asked if the Complainant’s role is still available, it was the Respondent’s evidence that she is doing it herself. She stated she did not look at alternative ways of working in relation to remote access.

In summing up it was the Respondent’s position that the Complainant voluntarily left her employment and therefore, Section 13 of the Redundancy Act applies. There was a suspension between of Section 12A of the Redundancy Payment Act 1969 up to 30 September 2021 which prevented the Respondent taking steps.  When Section 12A did recommence, the Respondent was re-invited to take redundancy. It was the Respondent’s case that the claim must fail. As regards the claim under the Unfair Dismissal Acts 1977, Section 6 is relied upon which provides for dismissal as a result of redundancy and the Complainant accepted her redundancy payment, thereby accepting the redundancy.

CA-00049454-001

Section 6 of the Unfair Dismissals Act 1977 states:-

“(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following”

“(c) the redundancy of the employee, and…..”

Section 6 (6) continues

“(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

It is necessary to next look at the reasons for redundancy which is contained the Redundancy Payments Act 1967.

“(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if 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 particularkind, or 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.”

It appears that the Respondent’s case is that this was not an unfair dismissal as the Complainant herself sought redundancy and in the alternative, the work had changed over the pandemic and therefore, there was no role for the Complainant going forward. 

The Complainant denies that she sought redundancy.

Therefore, it is necessary to first consider whether the Complainant did in fact seek redundancy. It is the contention of the Respondent that the email of 18 January 2021 that the Complainant first raised the issue of redundancy. The Complainant’s evidence was she was asking the Respondent about her options in this email but was not seeking redundancy.

Section 12 of the Redundancy Payments Act 1971 provides:-

12.—(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks  of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-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, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer 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, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.”

As discussed in dept at the hearing, Section 29 of Emergency Measures in the Public Interest (Covid-19) Act 2020 temporarily reduced the scope of the operation of the Redundancy Payments Act 1967 (“the Redundancy Payments Act”) by the addition of Section 12A to the Redundancy Payments Act which provided for:-

‘Section 12A. (1) 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.’

This suspension remained in place until 30 September 2021. Consequently, no step in the redundancy process could have taken place before 30 September 2021 by either party which includes the reference to redundancy by the Complainant in her email of 18 January 2021.

The RP9 Form is the official form allowing an employee to given written notice of their intention to seek redundancy after a period of lay off prescribed by Section 12. There was no evidence before me of a RP9 Form being served on the Respondent by the Complainant at any time.

Considering the words contained in the email of 18 January 2021 and whether that could be interpreted as an intention to seek redundancy. I am not satisfied the email amounts to an intention. Instead, I find it to be a mere inquiry by the Complainant as to the status of her job with the Respondent at a time when the Dept of Social Protection were making similarly inquiries of her. This was an entirely reasonable email and in no way could be construed as written notice of her intention to seek redundancy.

Consequently, I find that the Complainant was dismissed by reason of redundancy by the Respondent on 28 October 2021.

On that basis the onus shifts to the Respondent to prove that it was a genuine redundancy which was carried out with regard to fair procedures.

Section 7 (2) of the Redundancy Payments Act 1967 (as amended) sets out a number of situations in which redundancy may arise:-

“(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 decidedthat 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,”

At the hearing, the Respondent put forward the alternative defence that the Complainant’s role changed as a result Covid19 pandemic by the of greater assistance from An Garda Síochana and the addition of an Excel spreadsheet which allowed for easier review of the case files. When asked by the Complainant when An Garda Síochana began to play a more active role in the administration of inquests, she was told by the Respondent that it started prior to the Covid19 pandemic and increased during it. Of note was the Complainant’s reply that this was the first time, at the hearing, she heard of any changes to her work. It is noted that there was no supporting documentary evidence put forward by the Respondent of the changes to the administrative work in her office.

Upon inquiry the Respondent was asked if she made any efforts to allow for this work to be completed remotely to which she replied it was not possible.  This is not accepted where she then explained that the majority of the inquires were dealt with via email together with the fact that she did not make any inquiries into a world of endless possibilities to allow for secure remote working. The alternative option of using the Boardroom in her legal office during the period of the pandemic was not considered by her either as raised in cross examination by the Complainant.

I find that the redundancy was presented as a fait accompli to the Complainant with no prior consultation in the Respondent’s letter of 11 October 2021. The clear reality of this case is the Respondent made no effort whatsoever to consult with the Complainant around her role despite persistent attempts by the Complainant from 14 December 2020 to 6 April 2022 to discuss the matter with her. There was no proper consideration of alternatives, and no alternatives were discussed. The Complainant was not allowed the right of representation and there was no right of appeal. This further leads me to conclude, applying the EAT’s analysis in St Ledger v Frontline Distributors Ltd [1995] E.L.R. 160, I am“satisfied that the nature of the work did not change, nor did the manner in which it was done.” Therefore, there is no redundancy within the meaning of  definition (c) set out in Section 7 (2).

I find the Complainant was unfairly dismissed by the Respondent with the date of dismissal being 28 October 2022.

Financial loss

Section 7 of the Unfair Dismissals Acts 1977 defines ‘financial loss’ as including’ any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.’

The Complainant’s unchallenged evidence of her attempts to seek alternative work are accepted. As she was employed elsewhere, she sought to seek alternative work for the 7 hours she was employed by the Respondent therefore her availability was limited. However, this did not deter the Complainant in pursing another solution by upskilling and obtaining a PSV licence with the intention of continuing to work. As of the date of the hearing the Complainant had not yet taken up alternative employment. Therefore, I find her actual financial loss is €120 per week over a period of 67 weeks amounting to €8,040 as being fair and equitable in the circumstances.

For the avoidance any doubt it is noted a statutory redundancy lump sum was paid to the Complainant however, there is no statutory basis to deduct a lump sum payment made from actual financial loss incurred as a result of the Complainant’s unfair dismissal as discussed in detail in Kieran Murray v Sherry Garden Rooms Limited, ADJ-00028766.

CA-00049454-002

Section 13 of the Redundancy Payments Act 1967 allows for an employer to give counter notice where an employee has served an intention to claim redundancy payment by reason of lay off.

13.—(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) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a 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.

It is understood from the evidence of the parties that statutory redundancy has been paid by the Respondent and the remaining issue relates to the notice period only. There is no evidence before me that the Complainant filed an RP9 Form. There is no evidence before me of the Complainant’s service of an intention to claim redundancy payment by reason of lay off after 30 September 2021 when the emergency period provided for under Section 29 of the Emergency Measures in the Public Interest (Covid -19) Act lifted or even prior to this. Having carefully considered the Respondent’s case it is clear that she has accepted the redundancy as payment was made to Complainant along with her correspondence of 11 October 2021 and 28 October 2021. However, the calculation is incorrect on the end date. The correct termination date of the redundancy on 28 October 2021 as per the Respondent’s own letter of the same date.

At the hearing the Respondent submitted that the notice period of four weeks was paid however, as the Complainant voluntarily resigned from her position as per Section 13 of the Redundancy Payments Act 1967, she was not entitled to a notice period. While I do not accept this submission for the reasons I outlined above, I do accept the Respondent’s reference to Section 3 (1) of the Minimum Notice and Terms of Employment Act 1973 (as amended):-

“This Act shall not apply to—

(a)   employment of an employee who is normally expected to work for the same employer for less than eighteen hours in a week,”

It was uncontested at the Complainant worked 7 hours per week for the Respondent and therefore is not entitled to minimum notice. 

It is unclear whether the Respondent applied on behalf of the Complainant for the COVID-19 Related Lay-Off Payment Scheme.

Again, relying on the recent decision of Kieran Murray v Sherry Garden Rooms Limited, ADJ-00028766 it is important to note that the sum of €2,889.60 was paid by the Respondent as a redundancy lump sum payment. She is, therefore, not entitled to compensation for financial loss attributable to any loss or diminution of any entitlement to the Redundancy Payments Act as she was paid the lump sum.

CA-00049454-001

I find the Complainant was unfairly dismissed and award redress in the sum of €8,040.

CA-00049454-002

I find the Complainant is entitled to the correct redundancy payment pursuant to the Redundancy Payment Acts 1967 – 2012 on the following basis:

Start Date: 14 October 2008

Period of Covid19 related Lay Off: 25 April 2020– 28 October 2021.

Date of Termination: 28 October 2021

Hours Worked Per Week: 7 Hours

Weekly Gross Wage: €120

No Notice Period in accordance with Section 3 (1) of the Minimum Notice and Terms of Employment Act 1973 (as amended).

This payment is subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period. It is also noted that payment of the sum of €2,889.60 has already been made to the Complainant which is to be subtracted from the correct redundancy figure, if higher.

Redundancy – Unfair Dismissal – Minimum Notice