ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045404
Parties:
| Complainant | Respondent |
Parties | Hanna Sebastyanczyk | Music & Montessori Academies Ltd |
Representatives | Self | No appearance by or on behalf of the Respondent |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00056170-001 | 19/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00056170-002 | 19/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00056170-003 | 19/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00056170-004 | 19/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00056170-005 | 19/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00056170-006 | 19/04/2023 |
Date of Adjudication Hearing: 18/10/2023
Workplace Relations Commission Adjudication Officer: Marie Flynn
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 complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
In accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.
The hearing started at 11am. The Complainant was present – the Respondent was not. I adjourned the hearing until 11.45am in case the Respondent was delayed. There was no appearance by or on behalf of the Respondent by 11.45am so I resumed the hearing and heard evidence from the Complainant.
Background:
The Complainant’s workplace closed in December 2021. The Complainant has submitted complaints under various statutes in respect of her employment with the Respondent. |
CA-00056170-001 - Redundancy Payments Act, 1967
Summary of Complainant’s Case:
The Complainant submits that the Respondent did not pay statutory redundancy when it closed its Montessori school in which she was employed contrary to the provisions of the Redundancy Payments Act, 1967. The Complainant submits the following summary of her employment with the Respondent: • Start date: 28 August 2019 • Finish date: 6 March 2023 (the end of Parental Leave) • Location: Corpus Chris Parish Hall, Drumcondra, Dublin 9 • Weekly wage: €14.70 per hour x 20 hours per week = €294 gross • Notice given: No
The Complainant submits that her employment as a Montessori teacher in Music & Montessori Academies Ltd., Drumcondra commenced on 28 August 2019. She was paid an hourly rate of €14.00 gross during the first year of employment. Her hourly rate increased to €14.70 gross in 2020. The Complainant worked 20 hours per week – from 9:05am to 1:05pm Monday to Friday. The Complainant submits that on 27 April 2021 she emailed the Respondent to inform it that she was pregnant. The Complainant submits that before the summer holiday break in 2021, the Respondent, in the presence of the Complainant’s work colleague EK, who was also pregnant at that time, offered both of them a job-share position to commence after their maternity leave. Both of them agreed verbally to that offer. The offer of job-sharing was perfect for the Complainant as she would not have to worry about childcare for her new baby as herself and her colleague, EK, agreed to mind each other’s children when they were not working. The Complainant and EK were planning to organise a double buggy for their children. The Complainant purchased a new bigger car so it would fit her two older daughters plus two baby car seats. The Complainant and EK planned exactly how, when and where they were going to collect their babies from each other. The Complainant submits that her maternity leave commenced on 27 September 2021. On 27 November 2021, 12 days before the birth of her child, she received a WhatsApp message from the Respondent informing her that the Montessori school would be closing at Christmas 2021 and that the Respondent would be working on reassigning/relocating staff over the coming month, and it would discuss the situation individually with any staff member who was impacted. The Complainant submits that, despite its undertaking to do so, the Respondent did not contact her in 2021 or in 2022. The Complainant submits that, on 28 February 2022, she messaged the Respondent confirming her extended maternity leave. She did not receive a response from the Respondent. On 5 June 2022, the Complainant sent a message to the Respondent to say that she would be taking parental leave. On 4 February 2023, the Complainant emailed the Respondent confirming that that her parental leave was coming to an end within a month. She asked what her options were as her employment situation had never been clarified for her. The Complainant did not know if the Respondent had opened another school in an alternative location in Dublin or if it had closed any more of its schools. On 7 February 2023, the Respondent replied offering the Complainant a position in the Respondent’s school in Maynooth, Co. Kildare. On 9 February 2023, the Complainant replied to say that she was unable to accept the job offer for the following reasons: unreasonable distance; additional travel time; extra costs – petrol, toll charges and childcare; and no quality time with her family in the mornings as she would have to leave for work very early to avoid heavy traffic. The Complainant applied for statutory redundancy. The Respondent did not respond to the Complainant’s message. On 5 March 2023 the Complainant’s maternity and parental leave ended. On 1 March 2023, 21 March 2023 and 3 April 2023 the Complainant messaged the Respondent requesting a reply or update. She did not receive a response. The Complainant submits that since she applied to the Respondent for statutory redundancy, there has been no contact whatsoever. She has not received any redundancy payment or notice payment or payment for the outstanding annual leave and public holidays which she accrued during her maternity and parental Leave. The Complainant asserts that she is entitled to a redundancy payment under section 7 of the Redundancy Payments Act as her position has ceased to exist and she has over 104 weeks’ continuous service with the Respondent. The Complainant cites the case of L Connaughton & Sons Limited and Yvonne Healy RPD 205 in support of her complainant. The Complainant submits that the employee in the case was employed as Office Administrator in the employer's warehouse at Grand Canal Quay Dublin. She lived in Wicklow and travelled to work by train. The company moved the business to Clonshaugh. The employee could no longer commute to work by train. She requested redundancy and was refused. The employer contended that the new location was within 10 kilometres of the previous location and that the employer was willing to collect the employee at the train station at her usual starting time and would drop her back to the train station at her usual finishing time. In that case, the Labour Court held that, while there was a move within Dublin, there is a difference in terms of location for an employee who commuted by train but then found that her employer was relocating to a place where there were no train links, and which was considerably further from her home. The Court said that considering the commuting difficulties in Dublin, the proposed relocation represented a major change to the terms of the employee’s contract which most rational people would regard as a change of such significance which would affect the employee's ability to continue to work for the employer. The Labour Court affirmed that the employee was entitled to redundancy. The Complainant also cites Johnson v Peabody Trust [1996] IRLR 387; Bass Leisure Ltd v Thomas [1994] IRLR 104; Broderick v Dorothea Fashions Ltd (RP11/1978), where the EAT held that East Arran Street was not the same place as Churchtown; and Earley v Floorstyle Contracts (RP382/2003) where it was held that Skerries was not the same place as Swords. The Complainant further cites Security Guard v Security Company ADJ-000026793. The complainant in that case was a static security guard. He was informed there was no work for him on the site he usually worked at, and the respondent offered him alternative work in Limerick which was well away from his home in Galway. Work was offered in Galway but at 50% of the complainant’s existing hours. The respondent contented that this was reasonable. The Adjudication Officer held that the offer of alternative employment was very different with less favourable conditions and that it was not unreasonable to refuse the offer. In the circumstances redundancy was awarded. The Complainant also relies on An Office Administrator v A Wholesaler ADJ-00026761 where the Adjudication Officer followed the Labour Court in the case of Gareth Browne -v- Isabella Di Simo RPD1014 which applied the English EAT case of Cambridge and District Co-operative Society Limited -v- Ruse 1993 IRLR156, where the Labour Court stated: "The suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view.” In that case the complainant had said that the reason she rejected the offer was because commuting 62 kilometres each way by car on the congested N11 and M50 motorway was a lot more stressful journey and would take a considerably longer time than her existing commute by train which took 45 minutes. In addition, she said she would have to bear to the financial burden of upgrading her car. The Adjudication Officer upheld the complaint and awarded redundancy. |
Summary of Respondent’s Case:
The Respondent did not attend that adjudication hearing. I am satisfied that the Respondent was properly on notice of the date, time and location of the hearing. |
Findings and Conclusions:
I have carefully considered all of the uncontested evidence adduced by the Complainant in relation to this claim. Based on the uncontested evidence of the Complainant, I am satisfied that it was reasonable for the Complainant to turn down the Respondent’s offer of a move from Drumcondra to Maynooth because of the difficulties it would cause for her, most noticeably in relation to her parenting role and also the significant increase in her commute which would arise. Based on the uncontested evidence of the Complainant, I am satisfied that this complaint is well founded. Accordingly, I find that the Complainant is entitled to a statutory redundancy payment under the Redundancy Payments Acts. |
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.
In light of her uncontested evidence, I decide that the Complainant’s complaint is well founded, and that she is entitled to a statutory redundancy payment based on the following: Date of commencement: 28 August 2019 Date of termination: 6 March 2023 Gross weekly pay: €294 This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period. |
Complaints under the Workplace Relations Act 2015
Summary of Complainant’s Case:
The Complainant submits that the events which gave rises to the above complaints are as follows: · 28 August 2019 – the Complainant commenced her employment with the Respondent. · 27 April 2021 – the Complainant notified the Respondent of her pregnancy via email. · 27 September 2021 – the Complainant commenced her maternity leave. · 27 November – the Complainant received a text message from the Respondent about the closure of the Montessori school. · 18 July 2022 – start of parental leave. · 4 February 2023 – the Complainant emailed the Respondent enquiring about her employment situation. · 7 February 2023 – the Respondent offered the Complainant a position in Maynooth, Co. Kildare. · 9 February 2023 – the Complainant replied to the Respondent to say that she could not accept the offer for several reasons. The Complainant requested that the Respondent pay her statutory redundancy. · 5 March 2023 – the Complainant finished her parental leave.
CA-00056170-002 - Complaint under the Minimum Notice & Terms of Employment Act, 1973 The Complainant submits that the Respondent did not provide her with minimum notice of the termination of her contract of employment as required under section 12 of the Minimum Notice & Terms of Employment Act, 1973.
CA-00056170-003 – Complaint under section 27 of the Organisation of Working Time Act, 1997 The Complainant submits that the Respondent did not pay her for the annual leave which she had accrued during her periods of maternity and parental leave from 27 September 2021 to 5 March 2023 as required under sections 20 and 27 of the Organisation of Working Time Act, 1997. The Complainant submits that she took a total of 75 weeks of protective leave – 14 weeks in 2021; 52 weeks in 2022 and 9 weeks in 2023 as follows: · Maternity Leave - 27 September 2021 to 27 March 2022 · Extended Maternity Leave – 28 March 2022 to 17 July 2022 · Parental Leave – 18 July 2022 to 5 March 2023
The Complainant submits that her weekly annual leave entitlement was €23.52 based on the following calculation: €294 gross weekly wage (20 hours x €14.70 per hour) x 8% = €23.52. Accordingly, she submits that she accrued the following annual leave entitlement during her period of protective leave: · 2021 – 14 weeks x €23.52 = €329.28 · 2022 – 52 weeks X €23.52 = €1,223.04 · 2023 – 9 weeks x €23.52 = €211.68 Based on the above calculations, the Complainant submits that she is entitled to payment of €1,764 in respect of her accrued annual leave.
CA-00056170-004 – Complaint under section 27 of the Organisation of Working Time Act, 1997 The Complainant submits that the Respondent did not pay her for the annual leave which she had accrued during her periods of maternity and parental leave from 27 September 2021 to 5 March 2023 as required under sections 20 and 27 of the Organisation of Working Time Act, 1997.
CA-00056170-005 – Complaint under section 27 of the Organisation of Working Time Act, 1997 The Complainant submits that she did not receive any payment for the public holidays which fell during her maternity and parental leave from 27 September 2021 to 5 March 2023 in accordance with sections 21 and 27 of the Organisation of Working Time Act, 1997. The Complainant submits that the following 15 public holidays fell during her period of protective leave. 1. 25 Oct 2021 – October Bank Holiday
7. 18 Apr 2022 – Easter Monday 8. 02 May 2022 – May Day 9. 06 Jun 2022 – June Bank Holiday
Based on the above, the Complainant submits that she is entitled to the following gross payment in respect of her the public holidays which fell during her protected leave: 15 public holidays x €58.80 (daily wage) = €882 gross
CA-00056170-006 – Complaint under section 27 of the Organisation of Working Time Act, 1997 The Complainant submits that she did not receive any payment for the public holidays which fell during her maternity and parental leave from 27 September 2021 to 5 March 2023 in accordance with sections 21 and 27 of the Organisation of Working Time Act, 1997. |
Summary of Respondent’s Case:
The Respondent did not attend that adjudication hearing. I am satisfied that the Respondent was properly on notice of the date, time and location of the hearing. |
Findings and Conclusions:
CA-00056170-002 - Complaint under the Minimum Notice & Terms of Employment Act, 1973 Section 4 of the Minimum Notice & Terms of Employment Act, 1973, as amended, provides as follows: (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, …”
Based on the uncontested evidence of the Complainant, I find that the Complainant has been employed by the Respondent for more than two years but less than five years and is, therefore, entitled to notice payment of two weeks which amounts to €588 gross (€294 gross weekly wage x 2).
CA-00056170-003 – Complaint under section 27 of the Organisation of Working Time Act, 1997 Maternity Leave Subsection 22(1) of the Maternity Protection Act 1994, as amended, provides that while on maternity leave, “the employee shall be deemed to have been in the employment of the employer and, accordingly, while so absent the employee shall, subject to subsection (6) and section 24, be treated as if she [or he] had not been so absent; and such absence shall not affect any right (other than, except in the case of natal care absence, the employee's right to remuneration during such absence), whether conferred by statute, contract or otherwise, and related to the employee's employment”. Subsection 22(2) of the Maternity Protection Act 1994, as amended, provides that while on extended maternity leave, “the employee shall be deemed to have been in the employment of the employer and accordingly, while so absent the employee shall, subject to section 24, be treated as if she or he had not been so absent; and such absence shall not affect any right or obligation (other than the employee's right to remuneration or superannuation benefits or any obligation to pay contributions in or in respect of the employment during such absence), whether conferred or imposed by statute, contract or otherwise, and related to the employee's employment”. Subsection 22(2A)2(4) of the Maternity Protection Act 1994, as amended, provides that “a period of absence from work while on protective leave shall not be treated as part of any other leave (including sick leave or annual leave) to which the employee concerned is entitled”. The provisions of subsection 22(2A)2(4) were considered by Hyland J. in Board of Management of Scoil an Chroí Ró Naofa Íosa v Donnelly [2020] IEHC 550 where it was found at paragraph 34 that: “If an employee is on maternity leave, they cannot be taken to be on any other kind of leave to which they are entitled. So, for example, if a woman is entitled to 20 days annual leave per calendar year and she is out on maternity leave for six months from 1 January to 30 June, she is treated as if she has been in the workplace and thus accumulates her annual leave. When she returns on 1 July she cannot, for example, be deemed to have already taken 10 of her 20 days of annual leave while she was on maternity leave as this would mean that, for those 10 days, her annual leave would overlap with her maternity leave. That would be in breach of s.22(4) as it would mean her maternity leave was being treated as part of her annual leave.”
Parental Leave The situation in relation to the accrual of annual leave while on parental leave is similar to the situation regarding the accrual of annual leave while on maternity leave. Section 14 of the Parental Leave Act 1998, as amended, which concerns the protection of employment rights, provides that: “(1) An employee shall, while on parental leave, be regarded for all purposes relating to his or her employment (other than his or her right to remuneration or superannuation benefits or any obligation to pay contributions in or in respect of the employment) as still working in the employment and none of his or her other rights relating to the employment shall be affected by the leave. (2) Absence from employment while on parental leave shall not be treated as part of any other leave from employment (including sick leave, annual leave, adoptive leave, maternity leave and force majeure leave) to which the employee concerned is entitled.”
In light of the legislative provisions above and the findings in Board of Management of Scoil an Chroí Ró Naofa Íosa v Donnelly, based on the uncontested evidence of the Complainant, I find that the Complainant is entitled to payment for the entirety of the annual leave she accrued during her maternity, extended maternity and parental leave.
CA-00056170-004 – Complaint under section 27 of the Organisation of Working Time Act, 1997 I find that this complaint is a duplication of CA-00056170-003 above and, therefore, has already been disposed of.
CA-00056170-005 – Complaint under section 27 of the Organisation of Working Time Act, 1997 Maternity Leave Subsection 22(1) of the Maternity Protection Act 1994, as amended, provides that while on maternity leave, “the employee shall be deemed to have been in the employment of the employer and, accordingly, while so absent the employee shall, subject to subsection (6) and section 24, be treated as if she [or he] had not been so absent; and such absence shall not affect any right (other than, except in the case of natal care absence, the employee's right to remuneration during such absence), whether conferred by statute, contract or otherwise, and related to the employee's employment”. Subsection 22(2) of the Maternity Protection Act 1994, as amended, provides that while on extended maternity leave, “the employee shall be deemed to have been in the employment of the employer and accordingly, while so absent the employee shall, subject to section 24, be treated as if she or he had not been so absent; and such absence shall not affect any right or obligation (other than the employee's right to remuneration or superannuation benefits or any obligation to pay contributions in or in respect of the employment during such absence), whether conferred or imposed by statute, contract or otherwise, and related to the employee's employment”. Subsection 22(2A)2(4) of the Maternity Protection Act 1994, as amended, provides that “a period of absence from work while on protective leave shall not be treated as part of any other leave (including sick leave or annual leave) to which the employee concerned is entitled”. In Forde v Des Gibney Ltd P 8/1985 the Employment Appeals Tribunal ruled that employees are entitled to be paid for the public holidays which fall during maternity leave.
Parental Leave Section 14 of the Parental Leave Act 1998, as amended, which concerns the protection of employment rights, provides that: “(1) An employee shall, while on parental leave, be regarded for all purposes relating to his or her employment (other than his or her right to remuneration or superannuation benefits or any obligation to pay contributions in or in respect of the employment) as still working in the employment and none of his or her other rights relating to the employment shall be affected by the leave.
In light of the legislative provisions above, based on the uncontested evidence of the Complainant, I find that this complaint is well founded, and that the Complainant is entitled to payment in respect of the 15 public holidays which fell during her maternity, extended maternity and parental leave.
CA-00056170-006 – Complaint under section 27 of the Organisation of Working Time Act, 1997 I find that this complaint is a duplication of CA-00056170-005 above and, therefore, has already been disposed of. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00056170-002 - Complaint under the Minimum Notice & Terms of Employment Act, 1973 Based on the uncontested evidence of the Complainant, I find that this complaint is well founded, and I direct the Respondent to pay the Complainant compensation of €588 gross.
CA-00056170-003 – Complaint under section 27 of the Organisation of Working Time Act, 1997 Based on the uncontested evidence of the Complainant, I declare that this complaint is well founded. I direct the Respondent to pay the Complainant €1,764 gross (75 weeks of protective leave x €23.52 (weekly wage x 8%)) for the economic loss in respect of the annual leave. I also direct the Respondent to pay the Complainant an additional €1,000 in compensation for the breach of the Complainant’s rights under the Act.
CA-00056170-004 – Complaint under section 27 of the Organisation of Working Time Act, 1997 I find that this complaint is not well founded.
CA-00056170-005 – Complaint under section 27 of the Organisation of Working Time Act, 1997 Based on the uncontested evidence of the Complainant, I declare that this complaint is well-founded. I direct the Respondent to pay the Complainant €882 gross (15 public holidays x €58.8 (daily wage)) for the economic loss in respect of the public holidays. I also direct the Respondent to pay the Complainant addition €500 in compensation for the breach of the Complainant’s rights under the Act.
CA-00056170-006 – Complaint under section 27 of the Organisation of Working Time Act, 1997 I find that this complaint is not well founded. |
Dated: 17/11/2023
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Redundancy – unreasonable alternative. Accrual of annual leave and public holidays while on maternity, extended maternity and parental leave. |