Complainant

Respondent

Parties

Collette  Daly

Bs Auto Recyclers Limited

Representatives

 Michael Doyle

 Company Directors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00051200-001

16/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00051200-002

16/06/2022

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

CA-00051200-004

16/06/2022

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

CA-00051200-006

16/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00051200-007

16/06/2022

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

CA-00051200-008

16/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00051200-009

16/06/2022

The complainant was employed by the respondent from 19th May 2002 until 18th June 2021. The employment was initially with another respondent until a transfer of undertakings within the meaning of the European Communities (Protection of Employees on Transfer of Undertakings Regulations) 2003, the “TUPE” regulations is alleged to have taken place on 6th December 2010. On that date the complainant’s employment transferred to the respondent.

The complaints were submitted to the Workplace Relations Commission (WRC) on 16th June 2022 which was just one day short of one year after the complainant’s employment ended. With the exception of the complaint relating to the complainant’s redundancy entitlements, the complainant was subject to a statutory six-month time limit for the referral of her complaints to the WRC. As the complaints were submitted outside of that period, the complainant sought an extension of time so that all her complaints could be considered.

Timing of the complaints:

The complainant stated that the covid pandemic was the main reason for the delay in referring her complaints following her dismissal by the respondent. The complainant stated that the respondent has failed to address the issues that she raised and is not in possession of the documents it is required to retain in relation to her employment. The complainant also stated that she has suffered ongoing losses following her dismissal and has been unable to secure alternative employment which has had a detrimental effect on her health.

CA-00051200-001 – Unfair Dismissals Act, 1977

The complainant stated that she does not accept that a legitimate redundancy situation existed and that she was unfairly dismissed by the respondent on 18th June 2021.

CA-00051200-004 – Organisation of Working Time Act, 1997 – Annual Leave

The complainant stated that there were outstanding annual leave entitlements due to her from 2020 and 2021 when her employment ended.

CA-00051200-006 – Payment of Wages Act, 1991

The complainant stated that she was not paid her outstanding salary payments, annual leave and notice entitlements when her employment ended.

CA-00051200-007 – Transfer of Undertakings (TUPE) Complaint

The complainant stated that her new employer (transferee) did not ensure that her terms and conditions of employment transferred when she became an employee of the respondent on 6th December 2010.

Timing of the complaints:

The respondent stated that the complainant should not be given an extension of time in relation to her complaints. The respondent’s position was that it had made every effort to address the issues raised by the complainant throughout her employment and had tried on numerous occasions to discharge the complainant’s entitlements to her. As the complaints were lodged outside of the statutory time limit for the referral of complaints to the WRC, the respondent contends that no extension of time should be given, and the complaints should be dismissed.

CA-00051200-001 – Unfair Dismissals Act, 1977

The respondent contends that the complaint is out of time.

CA-00051200-004 – Organisation of Working Time Act, 1997 – Annual Leave

The respondent accepts that there is approximately 4 days of annual leave entitlements due to the complainant.

CA-00051200-006 – Payment of Wages Act, 1991

The respondent contends that the complaint is out of time.

CA-00051200-007 – Transfer of Undertakings (TUPE) Complaint

The respondent contends that in 2010 a previous entity that employed the respondent was liquidated and the complainant was made redundant at the time. The respondent did not know why the complainant did not claim her redundancy entitlements at that time.

Timing of the complaints:

The Applicable Law

Section 8(2)(a) of the Unfair Dismissal Act, 1977 states as follows:

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

Section 41(6) of the Workplace Relations Act, 2015 states as follows:

(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.

Extension of Time Application

The complainant sought an extension of time in relation to her complaints so that the period 17/06/21 – 16/06/22 could be considered. The reasons put forward for the delay in submitting the complaints related to the covid 19 pandemic and the respondent’s failure to address the issues the complainant had raised. For an extension of time to be granted, the complainant must cite reasons that explain the delay and offer an excuse for the delay in submitting the complaint.

Reasonable cause

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska V Carroll which states as follows: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

In the present complaint, the complainant has cited the covid pandemic as a reason for the delay in submitting her complaints. In my view, the covid pandemic did not prevent the complainant from submitting her complaints as the complaint was submitted using the WRC’s online complaint form which could have been done anytime following the complainant’s dismissal. In addition, the complainant stated the respondent did not address the issues that she raised prior to her employment ending. At that time and in the months that followed the termination of the complainant’s employment, the respondent may have failed to address the complainant’s issues, but the complainant was still required to adhere to the statutory time limit for referring her complaints to the WRC which she did not do. I find that the reasons put forward in seeking an extension of time do not satisfy the requirements of the “reasonable cause” test as set out in Cementation Skanska V Carroll. Accordingly, I do not grant the extension of time and find that complaints CA-00051200-001, CA-00051200-006, CA-00051200-007 and CA-00051200-008 are out of time.

CA-00051200-004 – Organisation of Working Time Act, 1997 – Annual Leave entitlements.

This complaint relates to outstanding annual leave entitlements in respect of 2020 and 2021. The cognisable period of the complaint is the six-month period immediately prior to the referral of the complaint. (17/12/21-16/6/22). That cognisable period allows the leave year 1/4/21 – 18/6/21 to be considered.  In that timeframe the complainant would have accrued 1.66 days per calendar month totalling five days of annual leave that were due to the complainant at the time her employment ended. The outstanding annual leave in respect of 2020 is outside the cognisable period of the complaint.

Having considered the matter I find that the complainant had an outstanding annual leave entitlement of five days due to her when her employment ended.

CA-00051200-001 – Unfair Dismissals Act, 1977

This complaint is out of time and is therefore statute barred.

CA-00051200-004 – Organisation of Working Time Act, 1997 – Annual Leave

This complaint is well founded. The respondent is directed to pay the complainant 5 days of annual leave which was the outstanding entitlement due to the complainant when her employment with the respondent ended.

CA-00051200-006 – Payment of Wages Act, 1991

This complaint is out of time and is therefore statute barred.

CA-00051200-007 – Transfer of Undertakings (TUPE) Complaint

The complaint relating to the transfer of undertakings on 6th December 2010 is out of time and is therefore statute barred.

CA-00051200-008 – Minimum Notice and Terms of Employment Act, 1973.

This complaint is out of time and is therefore statute barred.

The complainant stated that she has not received a redundancy lump sum payment in relation to the termination of her employment. The complainant stated that the respondent’s calculations are incorrect as she commenced employment on 19th May 2002 and was paid €590 gross per week.

The respondent stated that the complainant has not accepted her redundancy entitlements despite numerous efforts on the respondent’s part to discharge payment to her. The respondent stated that it has calculated the notice entitlements and the complainant’s redundancy lump sum payment based on her commencement date of 6th December 2010 and a termination date of 18th June 2021. The payment was based on a gross weekly rate of pay of €252.50 which is disputed by the complainant. The respondent contends that its calculations are correct and remains committed to discharging payment to the complainant.

CA-00051200-002 – Redundancy complaint

The complainant did not accept that a valid redundancy situation existed in the employment and that she was unfairly dismissed. The respondent outlined that from on or about 13th March 2020 until June 2021 the complainant was not at work and was in receipt of the Pandemic Unemployment Payment (PUP). It was also stated that the area of the business the complainant worked in did not reopen after the covid 19 pandemic. The respondent stated that the remaining element of its business no longer required a receptionist and that all staff who were employed in the parts side of the business were no longer employed. On that basis the complainant was made redundant when her role in the organisation no longer existed.

Disputed rate of pay

The complainant’s rate of pay is in dispute. In her WRC complaint, the complainant quoted a gross rate of pay of €590.00 per week. Payslips were requested from January 2020 to March 2020 and when submitted listed a gross weekly rate of pay of approximately €252.50. I also note that the payslips do not include any deductions in respect of PAYE and PRSI.

On receipt of the payslips from the respondent, clarification was sought from the complainant’s representative on 7th December 2023 in relation to the appropriate weekly rate of pay and a reminder issued on 20th December 2023 seeking the information. A response was received on 4th January 2024 in which the complainant reiterates her position that she was paid a gross rate of pay of €590.00 per week, which was a net payment of €500.00 and was paid to her in cash. The complainant stated that no payslips were provided to her, and that she worked 36 hours per week. The complainant pointed out that there were no other records in relation to her working hours or amounts paid to her and that working 36 hours per week and being paid only €252.50 would have resulted in a breach of the minimum wage legislation.

On this point, I note the opposing positions of the parties in relation to the applcable rate of pay. Having considered this matter, I note that the only available documentation relating to a weekly rate of pay are the payslips submitted post hearing which indicate a gross weekly rate of pay of €252.50. Accordingly, I accept that amount to be the applicable rate of pay for the purpose of the redundancy calculations.

Redundancy - The Applicable Law

Section 7(1) and 7(2) of the Redundancy Payments Act, 1967 at relevant part state 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 four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned 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…..

Service with the employer

I note the position of both parties in relation to the complainant’s service. The complainant’s position is that her employment transferred to the respondent in 2010 when a transfer of undertakings took place. The respondent’s position is that the complainant was made redundant from the previous employer on 6th December 2010 and only commenced in its employment on that date. The complainant stated that there was no break in service and that she continued to do the same job in the same please from 2010 onwards having commenced in 2002. The respondent also outlined in correspondence in 2022 that the complainant did not claim her redundancy at the time but was unsure why that was the case.

On this point, I note that there was no dispute that the complainant remained in the employment doing the same role that she had done since 2002 and had not left the employment or claimed a redundancy payment in December 2010. On that basis I am satisfied that the complainant had continuous service with the respondent between 2002 and 2021.

Covid related lay off.

The complainant was on covid related lay off from March 2020 until her redundancy in June 2021. The Redundancy Payments (Amendment) Act 2022 addresses the issue of covid related lay off, providing for a special payment to cover the loss to a redundancy lump sum because of such a period of lay-off. A decision regarding the complainant’s entitlement to the special payment is outside the scope of this adjudication and one to be addressed via the means prescribed by the Redundancy Payments (Amendment) Act, 2022.

Conclusions

From the written and verbal submissions of the parties, I find that the complainant’s role in the respondent organisation became redundant in June 2021 following the closure of the part of the business where the complainant worked and in circumstances where the role of receptionist no longer existed. On that basis I find that the complainant is entitled to a redundancy lump sum payment based on her service with the employer from May 2002 until June 2021.

CA-00051200-009 – Duplicate redundancy complaint

This complaint is identical to complaint application CA-00051200-002 and is dismissed as it is a duplicate complaint.

CA-00051200-002

The complaint is well founded. The complainant is entitled to a redundancy payment as follows:

Date of commencement: 19/05/2002

Period of covid related lay-off: 13/03/20 – 18/06/21.

Date of Termination: 18/06/2021

Gross weekly rate of pay:  €252.50

The entitlement to a redundancy payment is based on the complainant having been in insurable employment within the meaning of the social welfare acts for the period in question.

CA-00051200-009 – Duplicate redundancy complaint

This complaint is a duplicate and is not well founded.

Redundancy, Unfair Dismissal, annual leave, notice entitlements