Complainant

Respondent

Parties

Rosie  Tull

Direct Teacher Recruitments Specialists Limited

Representatives

O Sullivan and Quilter Solrs

A Company Director

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-00052627-001

06/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00052627-002

06/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052627-003

06/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052627-004

06/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00052627-005

06/09/2022

The Complainant was employed as a Recruitment Officer for Teachers. The Complainant submitted a complaint related to the non-payment of redundancy.one complaint related to the non-payment of holiday pay, one related to the non-payment of a weeks notice pay, one for the non-payment of wages due for four weeks and two days and one for the non-payment of public holidays due.

On the 25th February 2019 the Complainant commenced work with the Respondent company in the role of "Talent Acquisition", the role was full time and permanent. The annual remuneration was for €27,000 per annum together with a bonus structure. The annual leave entitlement is 20 days per annum.

In 2021 the Complainant became pregnant and was due to take her maternity leave in August 2021. Prior to the maternity leave commencing the Complainant did not take her annual leave in case she needed it closer to the time her maternity leave was to commence.

The Complainant did indeed take up two weeks annual leave prior to her maternity leave being the weeks 9th August 2021 to 20th August 2021.

On the 23rd August 2021 the Complainant then commenced her maternity leave.

On 19th October 2021 during the Complainants maternity leave she received a text message from her employer asking her to attend her place of work for a team meeting. When the Complainant asked what the purpose of the meeting was, she was advised by Mr Antony Birch, Director of the Respondent company that the purpose of the meeting was to plan for the following years recruitment drive.

The Respondent called the Complainant to a meeting in the workplace on the 5th November 2021 and during this meeting the Respondent advised the Complainant that when she returned to work she would be working remotely and the possibility of a promotion to management. A further meeting was due to be held a number of weeks later.

On the 26th November 2021 the aforementioned general meeting took place in the workplace. The Complainant was advised at this meeting that the Respondent company was closing and that she no longer had a job. The Respondent was extremely upset to receive this news. She was completely taken by surprise of this news especially considering that she was still on her maternity leave and the positive news she had received during the meeting on the 5th November.

Following the meeting on the 26th November 2021 the Complainant wrote to the Respondent seeking clarification of a number of issues regarding her entitlements.

On the 8th December 2021 the Respondent replied to the Complainant by letter and retracted the termination of employment.

On the 7th January the Complainant advised the Respondent that her return to work date would be the 21st February 2022.

On the 11th February 2022 the Respondent emailed the Complainant to advise her that there would be an online meeting on the 21st February to discuss her future employment in the company. During the meeting on the 21st February the Respondent notified the Complainant verbally that her employment would be terminated and she was receiving one week's notice of this termination. On the 8th March 2022 the Complainant received this Notice of Termination in writing.

On the 25th March the Complainant wrote to the Respondent to advise them that the Notice period should be deemed to start when she received the written Notice from her Employer and also to notify them that she was entitled to two week's notice. Furthermore, the Complainant had in fact three years consecutive employment at that point in time and so she was entitled to statutory redundancy. She further asked for her payment for her annual leave, bank holidays and notice period.

The Respondents replied to this correspondence on the 27th April 2022 and denied that they had notified the Complainant of her redundancy during her maternity leave. They confirmed that the correct notice period was indeed two weeks notice. However, they asserted that the Complainants last day of employment was the 7th March, which was the day before the Complainant received the written notice of termination, They provided a calculation of the redundancy that the Complainant was entitled to however they advised that they did not have the money to pay this redundancy and that they would have to apply to the Social Insurance fund for payment. They advised the Complainant that "the process requires us to complete a Form RP50 for you and have this signed by you and the company. This is then submitted to Redundancy and Insolvency Section of the DEASP for processing'. The Respondent then emailed a blank RP50 Form to the Complainant and she was asked to sign the Blank Form. However, the Complainant was concerned that the respondent's calculations of her pay, holiday leave and notice period were incorrect, and she was uncomfortable when asked to sign a blank form.

On the 28th April 2022 the Complainant wrote to the Respondent and advised them inter alia that their calculation of accrued leave was incorrect and the notice period was also incorrect. Also the Complainant did not accept that the meetings held during her maternity leave were at her behest.

On the 3rd May 2022 the Respondent wrote the Complainant with a different calculation of redundancy payment and again the incorrect notice period payment and asked the Complainant to sign a blank RP50 Form.

The Complainant then became concerned that she was not going to receive the correct Notice period payment, annual leave payment or redundancy and so instructed the office of O'Sullivan Quilter and Co to write to the Respondent on her behalf.

The Respondent advised O'Sullivan Quilter & co on the 2nd September that their accountant was on holiday and that the information would be provided. What was provided by the respondent was a copy of the Complainants payslips and list of payments made to the Complainant for the previous year.

Since the Complainant's return to work, following her maternity leave, she received one payment from her employer and this was in the sum of €1,830 nett, €2,160 gross which appears to be in relation to 15.8 days annual leave. The Complainant still has not been paid for her annual leave that she took prior to her maternity leave in August 2021.

The Complainant sought payment of her annual leave that she took for two weeks in August 2021 prior to her maternity leave, which is €1,038.00.

The Complainant sought payment of wages for the week of the 21st February, 28th February, 7th March, 14th March and for the 21st and 22nd March 2022 which total €2,646.90.

The Complainant is entitled to €3,552.00 in respect of redundancy payment and sought payment of same.

The total amount of outstanding pay, annual leave and redundancy is €7236.90.

It was submitted that the Complainant is entitled to compensation, which should reflect the gravity of the infringement of her rights and act as a deterrent to the Respondent in the future.

The Complainant was given notice of redundancy on 21st February 2022. She was paid one week’s notice, as confirmed in her payslip for February 2022, which shows payment up to and including 28th February 2022.

As confirmed to the Complainant, after the fact, her notice period was initially calculated incorrectly. She was entitled to 2 weeks notice in total, with the correct employment termination date as 7th March 2022. Therefore, a payment of one week’s notice remains outstanding.

The Complainant was not an employee of the Respondent after 7th March 2022 and so there is no further entitlement to payment after this date.

Redundancy Payment:

The following is a breakdown of the statutory redundancy payment due to the Complainant, based on the termination date being 7th March 2022.

Notes:

·       The full notice period has been included in calculating the statutory redundancy.

·       The period of lay off from 08/08/20 to 22/03/21 is non reckonable service for the purpose of calculating redundancy and amounts to 32 weeks of non-reckonable service.

·       The period of Maternity Leave from 5 August 2021 to 18th February 2022 to is not counted as a break in service.

Annual Leave:

The Respondent maintained that this claim is not correctly before the WRC. The Complainant’s Representative refers to a claim under the Organisation of Working Time Act. The claim form, which is detailed and was submitted with the benefit of legal advice, does not include any complaint in relation to annual leave.

Notwithstanding this, this complaint relates to a period prior to August 2021. The Complainant returned from Maternity Leave on 18th February 2022. The WRC received the Complaint Form on 6 September 2022 and this claim is therefore outside the 6-month time limited provided for in the Act. The Respondent stated that it is their position that the Adjudicator does not have jurisdiction in respect to this claim.

The Complainant alleged in her claim form that she was not paid redundancy, not given/paid the proper notice, not paid her outstanding leave, not paid her public holiday entitlement and not properly paid what was due to her.

Significant further written submissions post the Hearing were submitted and exchanged between the Parties. The Respondent is currently living abroad and had to seek assistance from his HR supplier to get documentation. Both circumstances resulted in a significant delay to concluding the submissions.

In summary, the further exchange set out on behalf of the Complainant that the money paid in February 2022 was for outstanding holidays in 2021, that the Complainant was still due a further one week notice pay (she was paid one week), that she was due outstanding holiday pay of 1038 Euros from August ,2021 that she was due wages of 2646.90 Euros (including the notice pay) from the 21st of February 2022 to 23rd March 2022 and she was due redundancy of 3552 Euros.

The further submission on behalf of the Respondent denied all complaints except for one weeks wages due and allege that the complaints are fabricated. The Respondent denied that the Complainant had the necessary service due to a break in her contract to qualify for a statutory redundancy payment, that she had been paid for the weeks of February 2022 to 23rd March 2022 and the complaint relating to 2021 holiday pay was out of time. The Respondent stated the firm was in the process of liquidation and had no funds to pay any monies that may be awarded.

Having examined the specifics of each element to the complaints I find as follows;

The Complainant was employed from February 25th 2019 and no evidence of her agreeing to her contract of employment being terminated and restarted was provided (the contrary was the case) and therefore I find her employment commenced on February 25th 2019 and ceased on March 22nd 2022 (see below) with a period of layoff from August 8th 2020 to March 22nd 2021.

I find the Complainants employment ceased on March 22nd 2022. She received formal written notice of the termination of her employment on March 8th 2022 and this takes precedent over the verbal notice given.

The Respondent provides a summary payroll analysis but this did not show any pay to the Complainant in November, December 2021 and none in January 2022. It showed a payment of 2160 Euros in February 2022. While significant historical payroll data was supplied the information regarding the relevant period lacked clarity/certainty that the Complainant was paid for her service from February 21st 2022 to March 23rd 2022.

I have examined the documentation received and find that the most logical conclusion is that the payment of 15.8 days paid to the Complainant in February 2022 related to holidays due for 2021.

Complaint re Redundancy complaint; CA-00052627-001

I find the Complainant’s service was not broken and the documentary evidence supplied support this position showing continuous service from to February 25th 2019 to March 22nd 2022, with a period of layoff with a period of layoff from August 8th 2020 to March 22nd 2021.

I award the Complainant statutory redundancy on the following basis;

Section 4.(1) of the Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.”

Therefore, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, and subject to being confirmed by the appropriate Government Agency, I find that the complaint is well founded and the Complainant is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis;

Date of Commencement; 25/02/2019

Date of Reckonable Service for Redundancy Payment Ceasing on 22/03/2022

Gross Weekly Wage: 519.23 Euros

The Complainants period of “Reckonable Service” is defined by Schedule 3 of the Act and does not include any period of absence from work due to lay off by the employer.The Parties confirmed a lay off period from 08/08/20 to 22/03/21)

Complaint re non-payment of annual leave; CA-0052627-002

I find that the Complainant has been paid her outstanding annual leave and that the complaint related to August 2021 is out of time and the complaint is not well founded.

Complaint re non-payment of proper notice: CA-0052627-003

I find the Complainant is due one weeks pay as she was not paid her entitlement to two weeks notice pay. I award the Complainant 519.23 Euros.

Complaint re not being paid pay properly due: CA-0052627-004

I find that the Complainant was not properly paid for the weeks beginning February 21st 2022 to March 22nd 2022 and award the Complainant 2284.61 Euros.

Complaint re non-payment of public holidays; CA-0052627-005

The Respondent provided data that showed the Complainant being paid her full monthly pay for most months in 2022 and the Complainant Representative acknowledged in her submission that the data supplied was insufficient to make a detailed assessment of what and why the Complainant was paid in 2022. Having assessed the situation, I am going to find in favour of the Respondent on the balance of probabilities. I find the complaint not well founded.

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. I allow the Complainants appeal. (CA-00052627-001).

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.

With regard to the complaints under the Organisation of Working Time Act 1997;

I find that Complaint number CA-00052627-002 is not well founded.

I find that Complaint number CA-00052627-005 is not well founded.

With regard to the complaints under the Payment of Wages Act 1991;

I find the complaint under CA-00052627-003 well founded and award the Complainant wages of 519.23.

I find the complaint under CA-00052627-004 well founded and award the Complainant 2284.61 Euros.

I do not see cause for any further compensation.

Redundancy