ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043940
Parties:
| Complainant | Respondent |
Parties | Anna Cullen | Little Ducklings |
Representatives |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00054369-001 | 05/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00054369-002 | 05/01/2023 |
Date of Adjudication Hearing: 09/08/2023
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014following 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.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings. The complainant and one witness for the respondent gave their testimony under affirmation. The complainant worked 16 hours per week for the respondent at a rate of €13 per hour. |
Summary of Complainant’s Case:
The complainant submitted that she was working for the respondent from September 2010 until 11 November 2022. She submitted that she worked on a full-time basis from 2016. She submitted that the was not given any notice nor any redundancy package. The complainant disputed that she only worked for the company for two years and noted that the business was not a whole new business but continued to provide the same services as the older entity had been providing previously the service. She stated that she was employed with the respondent since September 2010. The complainant stated that she did not receive a redundancy payment when her employment terminated. The complainant stated that she was entitled to payment of four weeks’ notice as per her contract of employment. |
Summary of Respondent’s Case:
The respondent submitted that the business was bought over in 2020. It was noted that the complainant assisted with AIM qualified children who were catered for by the respondent. She was asked to stay on. The respondent submitted that in September 2022, the respondent only had one AIM qualified child left and accordingly no longer needed the services of the complainant. She was offered one day per week and relief work but chose not to accept the position. The respondent noted that it offered the complainant a redundancy package covering two years of employment. |
Findings and Conclusions:
CA-00054369-001 Payment of Wages The complainant stated that she was entitled to payment of wages in lieu of four weeks’ notice. The respondent witness outlined how she started the business in 2020 and a copy of the signed contract of employment was submitted in advance of the hearing. The complainant stated that the respondent was the same company providing services since September 2020. A letter provided by the accountant seems to indicate that there was some continuity in respect of the provision of services, but a series of P45’s for the years prior to 2020 indicate that the complainant was employed on a series of fixed term contracts. This situation appears to have changed in 2020 when the complainant signed a full-time contract with the respondent. Although it appears to be a full-time contract, it provides for a period of layoff during the summer (non-academic) period. Arising from the foregoing, I find that the complainant was employed under a full-time contract with the respondent between September 2020 and November 2022. As the contract is silent on a notice period provided by the respondent, the appropriate notice period is two weeks in accordance with the Minimum Notice and Terms of Employment Act, 1973 – for an employee has been employed for between 2 and 5 years. Testimony was given by the respondent indicating that the complainant was given, and worked, one weeks’ notice. This was not challenged by the complainant. Accordingly, I find that the complainant was left short one week’s wages, and the complainant is entitled to an additional weeks’ notice. It was noted in oral evidence that the complainant worked 16 hours per week at a rate of €13 per hour amounting to €208 per week. CA-00054369-002 Redundancy Payment Section 7(1)(a) of the Redundancy Payments Act, 1967 states that 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 Section 7(5) of the Act defines the requisite period in the following terms: (5) In this section requisite period means a period of 104 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. Although the complainant described her employment as being fulltime from 2016, the respondent submitted that the complainant was employed on a series of fixed term contracts. However, the documentary evidence submitted by the complainant included her contract of employment which indicates that she was employed on a full time basis with a period of lay-off during the summer months. The respondent indicated that it offered the complainant a redundancy payment related to her period of service from September 2020 until November 2022. The complainant appealed that decision stating that she was entitled to a redundancy payment concerning her employment from September 2010. From the paperwork submitted, it appears that she was in insurable employment for the period from September 2020 until November 2022. As there was no Transfer of Undertakings established in the respondent taking over the operation of the preschool operations and that it appears that the complainant was employed on a different basis from September 2020 onwards, compared with her employment with her previous employer, I find that she has not established a basis to claim a redundancy payment for any period beyond her employment with the respondent from September 2020 to November 2022. On the basis of the foregoing, I disallow the complainant’s appeal against the decision of the respondent. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00054369-002 Payment of Wages Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that the complainant was left short one week’s wages, and I award the complainant €208 in unpaid wages. CA-00054369-002 Redundancy Payment Having regard to the written and oral evidence presented in relation to this complaint, my decision is to disallow the complainants appeal against the decision of the respondent. |
Dated: 05th April 2024
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Payment of Wages – payment of minimum notice – full entitlement not paid – Redundancy – entitlement to more than respondent offer not established – disallow appeal |