Complainant

Respondent

Parties

Mary  Molloy

Northwest Roscommon Cdp Ltd

Representatives

Peter Glynn SIPTU

Kenneth  McDonnell Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00053055-001

30/09/2022

This matter was heard, by agreement between all the parties, with another ADJ-00043680. Both Complainants attended with the same Representative.

The Respondent was represented and had two witnesses, the Director, and Chair of the Respondent Company.

The Complainant in ADJ-00043680 and the Director both gave evidence on oath in respect of both complaints.

The Complainant commenced employment with the Respondent in the County Roscommon Jobs Club in April 2007 as a Job Club Leader and earned €576.66 gross per week. This service was funded by the Department of Social Protection.

In 2021 this service went up for public tender. The Respondent did not tender for the service. The tender process was drawn out. As it was not completed in May 2022 the Complainant’s contract was extended to the 31st of August 2022.

In June 2022, the Department advised all stakeholders that there would be no redundancies and the existing staff would TUPE into the successful organisation. All parties had hoped and believed this would occur.

On the 22nd of August 2022, the Respondent received an email from the successful organisation that there were now less positions and redundancies would occur.

The Claimants were informed of the position on the 24th of August 2022. The Board was informed they should have given notice of employment termination 8 weeks earlier. The Claimants received their Statutory Redundancy Payment Scheme Forms.

The Claimants sought notice payments from their employer verbally and in email. The Respondent responded on the 28th of September 2022 stating the letter dated the 5th of May 2022 was notice.

At the start of the hearing the Complainant’s representative confirmed she was seeking 7 weeks notice, not 8 as set out in the Submission. The representative went through their submission.

The Complainant in ADJ-00043680, Ms Walsh gave evidence under oath on her own behalf and on behalf of the Complainant in this matter. The Respondent accepted the position was the same for both Complainants.

Ms Walsh stated that their contracts kept getting extended. They had hoped that they would remain in employment with the Respondent or be transferred an alternative body.  Notice that their employment was ending was only given at the board meeting at the end of August.

Under cross examination Ms Walsh accepted that it had been the intention of the Respondent that no jobs would be lost and that the new service provider would take them on under TUPE. The board had their best interests at heart and were trying to make the best of the situation.

Redundancy only arose when it became known they would not be transferring over. This was not known from May to August.

Ms Walsh did advise the board that they should be given their notice but this was never taken up until the end of August. Ms Walsh accepted that the board never excluded them and they were always part of the discussion.

It was put to Ms Walsh that they were given notice on the 5th of May but this was not accepted by Ms Walsh. 

Ms Walsh, in response to questions from me stated it was only in August 2022 that she realised that her job may not continue. Up to that point she had always assumed that they would be transferred under the TUPE arrangement. 

The Respondent’s representative summarised their case at the start of the hearing. They maintained the letter of the 5th of May 2022 was Notice. It stated

“The Board of Northwest Roscommon CDP CLG met on Tuesday 3rd May and following this meeting the board wish to inform you that the (sic) they (the board) have accepted the extension of the County Roscommon Jobs Club contract until August 31st 2022. This means that your employment will continue until 31 August 2022.

The Board are now engaging the services of a solicitor to direct us in the absence of clear direction from the Department of Social Protection. The board have written yet again to the Department seeking their advices and aid with the financial cost and the wind down of the service. We (the board) understand your frustration and want you to know that we will try to support you in any way that we can in the coming months. We appreciate this is not an easy time for you both.

The board will be meeting again on Tuesday 17th and if you have any concerns or issues that you would like discussed at this meeting please let us know.”

The Respondent’s case was that there had been extensions to the notice as they did not want to make the Complainants redundant. They had hoped that the Complainants would be transferred under TUPE.

The Director of the Respondent company gave her evidence under oath.  She referred to the letter of the 5th of May 2022. It was her understanding, and the two Complainants believed, that they would be transferred over under TUPE. This letter extended their employment until the 31st of August when their employment would cease. 

There were discussions after the 5th of May and it was always reinforced to the Complainants that their employment with the company would cease on the 31st of August. She had written to the department to see if further extensions could be granted. Ultimately the Respondent was told in August that the Complainants would be made redundant and not transfer, as had been indicated. At that stage the Complainants were informed. The Complainants always knew that the 31st of August was D-day.

Under cross examination the Director accepted that the department had informed them that there would be no redundancies, rather the staff would be transferred under TUPE. There were discussions to this effect. They did not discuss individual cases with the department but the constant message was that there would be no redundancies, more jobs would be created as a result of the changes.

The company did not tender for this service. The turnover had to be over 3 million and they were too small. They asked the successful candidate whether they could be involved in some regard and wrote to them. However, they never received a response. In July and August 2022 the new company had advertised looking for consultants. This was applicable to the Complaints role and included the County Roscommon area. They never contacted the Respondent. 

The Director accepted, under cross examination that Ms Walsh had asked for an official written notice.

The Director accepted that transfers had been talked about a lot. On the 19th of August she didn’t know whether they were going to be transferred over or not. Up to that point they had been quietly confident that the Complainants would transfer over on the 1st of September. She had believed that they could stay with the Respondent, working for the Respondent until the new company was ready for them. The Director then went on holidays and the board met on the 24th of August. She was not present but at that meeting the Complainants were informed they would not be transferring over. 

I have considered the letter dated the 5th of May 2022 in detail. It does not mention notice or termination of employment or cessation of employment anywhere in it. The evidence on behalf of the Respondent was that up till the 19th of August 2022 it was hoped the Complainants would transfer over. Thus I conclude it only became apparent to the Respondent on the 22nd of August 2022 that the Complainants employment was ending on the 31st of August 2022 when the email about redundancies was received. The Respondent could not believe both that the Complainants would transfer under TUPE and also that their employment would cease on the 31st of August 2022. The evidence of Ms Walsh was compelling that the only notice the Complainants received was on the 24th of August 2022. Thus I find the complaint is well founded.

The evidence on behalf of the Respondent was clear that they had been mislead by the Department as to the long term employment status of the Complainants. I accept the Respondent had acted with the best intentions towards the Complainants. However events were beyond their control.

Section 4 of the Act provides:

“Minimum period of notice.

4.—(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,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.”

As the Complainant was employed for over 15 years with the Respondent she was entitled to 8 weeks notice pursuant to section 4 of the Minimum Notice and Termination of Employment Act 1973-2005. The Complainant only received one weeks notice, from the 24th of August to the 31st of August.

Section 12 of the Minimum Notice & Terms of Employment Act 1973-2005 states that:

“(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.”

Thus on the basis of a weekly gross wage of €576.66, I direct payment of €4,036.62 by the Respondent to the Complainant.

I find this complaint is well founded and direct payment of €4,036.62 minimum notice by the Respondent to the Complainant.

Minimum Notice