Complainant

Respondent

Parties

Loreta  Zigmantiene

Comet Care Ltd. t/a MCMA

Complainant

Respondent

Anonymised Parties

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Representatives

Sweeney McGann Solicitors

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-00054664-001

24/01/2023

The complainant also lodged a complaint ADJ – 00044268 under the Redundancy Payments Act which is a duplicate claim of the within matter.

The complainant states that she has been working for the respondent since 12 April 2017 in the area of social care. The complainant states that in December 2022, she received a call from her manager saying that she is fired from shifts which she was working on for the last few years. The complainant states that her manager informed her that she will continue working for other registered units of social care. However, the complainant states that she has not been offered any shifts. The complainant states that she is entitled to be paid redundancy.

The complainant states that whilst the respondent states that it sends out the available shifts to all staff including the complainant, most of those shifts are not available for her due to (i) her qualification (ii) time availability and (iii) shifts have been taken already by other staff members. The complainant states that she spends many hours going through the lists but still gets no booking. The complainant states that the respondent’s booking system does not work.

In conclusion, the complainant states that she had to fight hard to be given any shifts. She states that the respondent does not want her to work at the respondent company but is refusing to terminate her employment and pay her redundancy entitlements.

The respondent states that it is a staffing agency providing temporary agency staffing, supports and arrangements to providers/clients, including Tusla, the HSE, voluntary and non-statutory services. The respondent states that it does not directly provide any residential care services. It states that staff working through the agency do so in accordance with the client subject to their supervision, direction and management, policies and procedures in the first instance. The respondent states that it provides ad hoc staffing solutions to clients nationally in varying locations. Shift durations, start and finish times and hours required vary as per client request.  The respondent states that it took over the business from Children’s Community Centres t/a MCMA Healthcare on 1 September 2021. It states that the complainant was an employee at the time and her employment transferred as part of the takeover of such business pursuant to the Transfer of Undertakings legislation. The respondent states that the complainant is a level 5 Healthcare Assistant. The respondent understands that the complainant commenced employment originally with her previous employer on 23 April 2017. In the following years, there were a number of breaks in employment where the complainant left and took up roles with other employers, as evidenced by references and statements of employment to new employers, new references and Garda vetting on her personnel file. The respondent states that from December 2022 to date, the complainant has not taken up any shifts offered.

The respondent states that based on a review of the complainant’s working records from 2021 to 2022, the complainant did not work an average of 40 hours a week. The respondent states that it is entirely at the discretion of the complainant when she made herself available for work. During her periods of employment, the complainant has worked all available shift types including day shifts, waking nights and sleepovers within a range of service types and providers including disability residential services and private mainstream residential services.  The respondent states that on 19 December 2022, a young person in the care of Tusla in a temporary Special Emergency Arrangement being staffed by the respondent, made a complaint to their Tusla Social Worker, other staff and family regarding the complainant. This complaint was brought to the respondent’s attention by the relevant Tusla Co-ordinator and the concerns raised were echoed by a colleague of the complainant with regard to her behaviour when at work, causing issues within the staff team when trying to manage young persons’ behaviour. The respondent states that Tusla, the client, directed that the complainant was not to be rostered within Tusla Special Emergency Arrangements and that they would carry out an initial pre-screening of the grievance raised. Tusla subsequently reverted to advise their assessment was that the grievance did not constitute a child protection concern or meet the required threshold, rather it raised practice considerations and, as such, the respondent was requested to carry out an internal review into the concerns raised. The respondent states that this internal review was carried out and from December 2022 the complainant has been offered all available shifts other than in Special Emergency Arrangements. The respondent states that the complainant is unhappy with this and appears to be of the view that her role no longer exists if she is not offered these shifts.

The respondent states that the complainant has no entitlement to seek specific shifts to include special arrangements. What the complainant is entitled to is to be offered hours generally and she can choose then which shifts she wishes to avail of, as she has in the past. The respondent states that the complainant is not being deprived of work. The respondent states that it continued to offer the complainant shifts in registered services and centres, which was subject to client confirmation that they had reviewed the complainant’s compliance pack and were happy to have her rostered, in addition to the complainant’s willingness to take up such shifts and this was with due consideration to previous requests she had submitted not to be rostered with certain providers. The respondent states that historically, the complainant worked in various settings and locations for a variety of clients such as disability residential/day services, mainstream residential services and Tusla Special Emergency Arrangements with varying shifts patterns (day shifts, waking nights and sleepovers, weekend work, mid-week work). This work took place in a number of counties throughout the country.

The respondent states that whilst the complainant commenced employment in 2017, her service was broken on a number of occasions and she has only been re-employed since December 2020 and worked continuously from January 2021 to December 2022 so had less than 2 years’ service at the time these issues arose.  The respondent states that this is not a redundancy situation, work remains available to the complainant, There is no entitlement to special arrangement type work, as stated no employee has any such entitlement. The issues that the complainant complains of are more appropriate for a grievance. The respondent states that the complainant has been offered the opportunity to lodge a grievance, but she has chosen not to do so. She has decided to leave of her own volition without engaging in any internal processes.

The respondent reiterates that messages were sent out via WhatsApp to all staff including the complainant notifying them of the shifts that were available to take up. In this regard, the respondent provided a copy of the WhatsApp messages to the WRC.  The respondent states that this is the normal method of communication of available shifts to staff and which the complainant is very familiar with and utilised. In terms of the samples of shifts specifically offered at the time the respondent states that it was carrying out an internal review to ensure the complainant had visibility on specific shifts available to her.  The respondent states that all shifts continued to be offered to all applicable staff as per standard practise via group WhatsApp setting out available shifts and requesting staff make direct contact to sign up for same.  The respondent submits that the complainant appears to be seeking preferential treatment and a change in work practices.

The respondent maintains that with regard to the offer of specific shifts, this was done at the time that Tusla had sought for the complainant to be removed from Special Arrangement shifts pending review but this is not the normal course or method of communicating available shifts and was only done on an interim basis.

The respondent contends that it is clear from correspondence with the complainant through December, January, February and March that the complainant had taken a position that she did not want to take up regular shifts and wanted to insist that the respondent come to her with specific shifts which, as set out, is not the manner in which the respondent operates its business.

The respondent states that the complainant is employed as an agency worker on a part-time basis by way of a contract with no minimum guaranteed hours where she is entitled to advise when she wants to work.  It states that the complainant is not obliged to be available for a certain number of hours a week or when required or both. The respondent states that by the complainant not being available for work from time to time does not in any way impact upon her rights.  The respondent maintains that the complainant has left the respondent for periods of time to work for other agencies/employers.  It states that the complainant has returned to work with the respondent on a number of occasions over the last number of years and taken up the same role again on the same terms and conditions with no issue.

In conclusion, the respondent submits that the complainant’s employment was not terminated by reason of redundancy or otherwise.  It states that the complainant has continued to be offered hours. The respondent at this point, however, does consider that the complainant has abandoned her role where she has not taken up any hours in upwards of 5 months.

Under the Redundancy Payments Act, Section 7 states as follows; 7.—(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided— (a) he has been employed for the requisite period, and (b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

-8- (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 particular kind, 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. (3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks. (4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment. (5) In this section “requisite period” means a period of 208 weeks' continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

Having carefully examined the within complaint, based on the evidence heard, I am satisfied that a redundancy situation does not exist in circumstances where work remains available to the complainant. Whilst the complainant was seeking the specific shifts that include special arrangements, I note the evidence of the respondent that the complainant has no entitlement to same but is entitled to be offered hours generally and the complainant then can choose which shifts she wishes to avail of. I note from the correspondence submitted that the respondent had continued to offer the complainant hours pursuant to her contract of employment but the complainant did not take up those hours.  Based on the totality of the evidence, I find that a redundancy situation does not arise in the within matter. In all of the circumstances, I find that the within claim under the Redundancy Payments Act is not well-founded.  

I find that the within claim under the Redundancy Payments Act is not well-founded.  

Redundancy Payments Acts