ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00049950

Parties:

	Complainant	Respondent
Parties	Sinéad Plunkett	Little Bunnies Montessori Ltd

Representatives

Ryan O'Loughlin M D O'Loughlin & Company Solicitors

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-00060839-001	29/12/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00060839-002	29/12/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00060839-003	29/12/2023
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022	CA-00060839-004	29/12/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00060839-005	29/12/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00060839-006	29/12/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 4 of the Protection of Persons Reporting Child Abuse Act, 1998	CA-00060839-008	29/12/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00060839-009	29/12/2023

Date of Adjudication Hearing: 08/10/2024

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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 deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.

The matter was heard by way of a remote hearing held on 8 October 2024, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

At the outset of the hearing the Respondent pointed out that the correct name of the business entity is Little Bunnies Montessori Ltd. The Respondent was happy to have the name of the Respondent corrected.

Background:

At the outset of the hearing the Respondent raised two Preliminary Points.

I decided to investigate the First Preliminary Point and adjourn the hearing to consider the merits of the First Preliminary Point and issue a decision on same.

Summary of Respondent’s Case on the First Preliminary Point:

The Respondent submits that the Complainant is out of time pursuant to the relevant statutory provisions. The Respondent submits that the Complainant resigned from her employment, with the Respondent, orally and in writing, on 13 December 2022. The Respondent points to a resignation letter, signed by the Complainant on 13 December 2022, as unequivocal evidence of the Complainant’s resignation.

The Respondent contends that even if accepting the Complainant’s own assertion that she was dismissed on 10 January 2023 [as per her Complaint Form] the Complainant is still out of time as her complaints were only received by the WRC on 29 December 2023, which is in excess of 6 months after the termination of her employment with the Respondent. The Respondent submits that the Complainant has not advanced any reasonable cause as to why there should be an extension of time granted.

In respect to her pay related complaints, the Respondent submits that the vast majority of these relate to a period between October 2022 and December 2022. As a result, these claims are also out of time pursuant to the relevant statutory provisions, as her application was only lodged on 29 December 2023. Again, the Complainant has not advanced any reasonable cause as to why an extension of time should be granted. Even if an extension of time was granted it would still not bring the complaints within the 12-month window.

Ms Aisling Walsh, the Respondent, gave evidence on Affirmation at the hearing, on the First Preliminary Matter.

Ms Walsh stated that she bought the business from the Complainant in 2022. It was agreed at that time that the Complainant would stay on as a manager, for approximately one year.

On 13 December 2022, the Complainant phoned Ms Walsh and said she wished to leave the business. The Respondent accepted the Complainant’s resignation. She asked the Complainant if she would stay on in a “floating” capacity, however, the Complainant never did any work for the Respondent thereafter. The Respondent stated that Complainant suggested that the Respondent let clients know [of her resignation] by putting up a WhatsApp message, which she did, wishing the Complainant “the best of luck.”

The Respondent stated that she never recalled seeing the Complainant in the school after this time. The Respondent stated that the Complainant had initiated a grievance in 2023, but she, the Complainant, never responded to a message sent to her on the matter by the Respondent.

In relation to the pay related claims, Ms Walsh stated after the Complainant resigned, she contacted her accountant who calculated what was owed to the Complaint in December 2022.

When it was put to her in cross examination, by the Complainant, that the resignation letter [cited by the Respondent] was not genuine, Ms Walsh stated that she has the letter.

Ms Walsh stated that the Complainant’s last pay slip was that of 13 December 2022 and that the company accountant would have taken the Complainant off the payroll. When asked who actually witnessed her resignation, Ms Walsh stated that the actual oral resignation was only between her and the Complainant, but other witnesses could confirm that she had resigned.

Summary of Complainant’s Case on the First Preliminary Point:

The Complainant does not accept that her complaints are out of time. She vehemently denies that she resigned, rather she was on continuous sick leave.

The Complainant stated that the letter supplied by the Respondent purporting to be a resignation letter, dated 13 December 2022, is not genuine; she has already raised this with the WRC and the Gardai.

The Complainant questioned the veracity of a number of the documents presented by the Respondent. She also stated that she is still registered with Revenue as an employee of the Respondent.

In response to questions put to her in cross examination, the Complainant stated that she had a meeting with the Respondent on 13 December 2022, but this was to discuss her grief at the way she was being treated. The Complainant denied that it was not her signature on the resignation letter, and that she had no idea where this letter came from. She did not accept the letter as genuine.

She disagreed that in an announcement on Facebook sent by the Respondent, in or around January 2023, was clear that she, the Complainant, would not be working with the Respondent in the future.

Findings and Conclusions on the First Preliminary Point:

Having considered the evidence adduced at the hearing, I find that the Complainant’s employment with the respondent ended on 13 December 2022. I accept the evidence of Ms Walsh that the Complainant resigned orally on 13 December 2022. The resignation letter dated 13 December 2022, supports her contention. The message on Facebook clearly indicates that the Complainant would no longer be working for the Respondent.

A complaint Form was received by the WRC on 29 December 2023, more than 12 months later.

Even if this date is incorrect Complainant’s own Complaint Form to the WRC, received by the WRC on 29 December 2023, states that the “Date Employment Ended” as 10/01/2023. Therefore, if accepting this at the date her employment ended, the time between the ending of her employment and the submission of a complaint to the WRC more than 11 months.

Regarding CAs 00060839-001, 002, 003, 004, 005, 006, 008, Section 41(6) of the Act states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the Act states

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6)or(7)(but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

No reasonable cause has been put forward by the Complainant to explain the delay in the submission of her complaints to the WRC.

Accordingly, as the complaints, CA-00060839-001,002,003,004,005,006,008, relate to a period of time before six months of the date of submission of the complaints to the WRC I deem the complaints to be out of time and I do not have jurisdiction to hear these complaints.

CA-00060839-009 Complaint under Section 39 of the Redundancy Payments Act, 1967, the Act states:

Time-limit on claims for redundancy payment.

24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General—

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate,

the period of 104 weeks shall commence from such date as the Director Generalat his discretionconsiders reasonable having regard to all the circumstances.

From the evidence adduced I do not find that any reasonable cause has been put forward by the Complainant to explain why her claim in relation to redundancy was entered more than 52 weeks after her employment with the Respondent ended. Therefore, I find this complaint is out of time and I do not have jurisdiction to hear the complaint.

CA-00060839-001- Complaint under the Payment of Wages Act, 1991.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.