ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043770
Parties:
| Complainant | Respondent |
Parties | Mary Ward | The Board of Management of St. Colmcille’s Community School |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | David Kearney, HR Brief Limited | Lorcan Maule, Mason Hayes and Curran |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
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-00050986-006 | 03/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00054756-001 | 03/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00054756-002 | 03/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00054756-003 | 03/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00054756-004 | 03/06/2022 |
Date of Adjudication Hearing: 04/05/2023
Workplace Relations Commission Adjudication Officer: Maria Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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.
On consent I amended the name of respondent from St. Colmcille’s Community School Adult Education to The Board of Management of St. Colmcille’s Community School.
The complaints contained in ADJ-00043770 and ADJ-00043771 are interlinked and arise for the same circumstances. The two files were listed for hearing together.
The original complaint form included complaints submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003). The respondent in its written submission stated that there was and is only one employer, that is the Board of Management of St. Colmcille’s Community School. The complainant accepted that in those circumstances no issue arose in connection with a transfer of an undertaking. Consequently, the complainant withdrew complaints CA-00050986-006 in ADJ-00043770 and CA-00050986-003, CA-00050986-004, CA00050986-005 in ADJ-00043771.
The complaints submitted under the Protection of Employees (Fixed-Term Work) Act, 2003 were also withdrawn as the respondent acknowledged in its written submission that the complainant had been in employment for sixteen years and there was no fixed-term contract in being since 2011. These are complaints CA-00054756-002 (duplicate with CA-00050986-002 in ADJ-00043771) and CA-00054756-004 (duplicate with CA-00050986-008 in ADJ-00043771).
The only complaints to be adjudicated on are CA-00054756-001 (duplicate with CA-00050986-001 in ADJ-00043771) submitted under the Redundancy Payments Act, 1967 and CA-00054756-003 (duplicate with CA-00050986-007 in ADJ-00043771) submitted under the Terms of Employment (Information) Act, 1994.
The complainant and the Principal of the School gave evidence on oath.
The respondent raised a preliminary issue concerning the time limit within which complaints are to be submitted to the Workplace Relations Commission.
Background:
The complainant commenced employment with the respondent in September 2007. She is the Administrator of the Adult Education Programme. She currently works 25 hours per week at the rate of €21.28 gross per hour. The complainant was laid off between April 2020 and September 2021 due to the restrictions in place arising from the COVID-19 pandemic. During that period, she received the Pandemic Unemployment Payment. On returning to work in September 2021 the complaint claims a significant part of her job had been taken away. She requested redundancy in October 2021 but was refused. The complainant claims she is entitled to a redundancy payment as her job had been disbanded and she is not being given an alternative commensurate position. The complainant also claims she was never issued with a statement in writing containing the particulars of the terms of her employment.
The respondent is a publicly funded national secondary school. The respondent disputes the complaints in full. It is submitted that Section 7 of the Redundancy Payments Act, 1967 applies to a situation where there has been a dismissal by reason of redundancy. The complainant continues to carry out the duties she carried out prior to September 2021 except for processing payroll and invoice rentals.
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Preliminary Issue
Summary of Respondent’s Case:
The respondent submits that in accordance with Section 41(6) of the Workplace Relations Act, 2015 an adjudication officer shall not entertain a complaint if it has been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. The complaint form was received by the Workplace Relations Commission on 03 June 2022. The cognisable period runs from 04 December 2021 to 03 June 2022. The respondent referred to a communication from the complainant’s representative stating that the complainant became aware of her complaints on her return to school in September 2021. The respondent resists the application made by the complainant for an extension of time because the complainant has failed to show reasonable cause as per section 41(6) of the Workplace Relations Act, 2015. The respondent asserts that it is evident that the complainant was aware of the alleged changes to her employment and did not initiate a claim until 9 months later. The respondent submits the complaints were submitted outside the cognisable period and the Workplace Relations Commission lacks jurisdiction to adjudicate on the complaints. |
Summary of Complainant’s Case:
The complainant was laid off in April 2020 due to the Covid-19 pandemic health and safety restrictions. She returned to work in September 2021 and became aware that her job content had changed dramatically. She wrote to the Principal on 14 October 2021 requesting clarification and if her suppositions were correct, that she be paid a redundancy payment considering the changes. This was a letter of enquiry; it was not a formal serving of notice. The complainant received a reply on 29 November 2021 following a meeting of the Board held on 10 November 2021. It was stated that a decision would be made following further advice. It was also stated that they were confident of providing the complainant with meaningful alternative roles. On 17 February 2022 the complainant received a letter enclosing a fixed-term contract that had a cessation date. The complainant initiated a grievance on 01 March 2022. A sub-committee of the Board was convened to consider her grievance. By letter dated 09 May 2022 the complainant’s grievance was dismissed. The complainant relied on the assertion by her employer that they were seeking advice, presuming this to be legal advice. She did not have legal advice at that material time. She relied on the bona fides of her employer’s written promise to provide meaningful employment. It is submitted that the letter of 09 May 2022 is the reasonable cause date on which it became clear that the complainant was not going to be provided with a meaningful role within her employment. Consequently, she then sought advice and initiated her complaint within time. The complaint was submitted on 03 June 2022. The complainant submits that the only application for an extension of time was in respect of the complaints submitted under the Protection of Employees on Transfer of Undertakings Regulations. This is now moot as the respondent has confirmed the only employer is the Board of Management of the school and no transfer of an undertaking occurred. In respect of the complaint submitted under the Terms of Employment (information) Act it is submitted that the breach of obligation is ongoing throughout her employment. Therefor the complaint is not out of time. |
Findings and Conclusions:
The respondent’s submission about the complaints being submitted outside the statutory time limit was made when all the original complaints were to be considered. When the respondent made its submission setting out clearly that the only employer was the Board of Management of St. Colmcille’s Community School the issue of a transfer of undertaking having taken place was no longer relevant. The complainant withdrew those complaints. The respondent in its submission also confirmed that the complainant has been in continuity of her employment since 2007. There was no fixed-term contract in being, nor had there been such since 2011. The complainant withdrew the complaints submitted under the Protection of Employees (Fixed-Term Work) Act 2003. The complaints remaining to be adjudicated upon are those submitted under the Redundancy Payments Act 1967 and the Terms of Employment (Information) Act 1994. Legislation Section 24 of the Redundancy Payments Act, as amended provides the following in respect of the 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. The time permitted to submit a claim for a redundancy payment is 52 weeks beginning on the date of dismissal or the date of termination of employment. Whether the relevant date is September 2021 or May 2022 the complaint was submitted on 03 June 2022, therefore within 52 weeks of both dates. This complaint was submitted within the time permitted by the legislation. Section 41 of the Workplace Relations Act, 2015 provides the following in respect of the presentation of complaints: 41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer. Schedule 5 Part 1 of the Act includes complaints submitted under 4. Section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G of the Terms of Employment (Information) Act 1994 Section 41 ss (6) and (8) provides: (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. (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. The Terms of Employment (Information) Act transposed Directive 91/533/EEC into Irish law. Article 2 provides that an employer shall notify the employee of certain essential aspects of the employment relationship. The Court of Justice of the European Union has held that Article 2 is directly effective as against the State and against bodies and authorities under the control of the State. (Cases C-253/96 to C256/96). Section 3 of the Terms of Employment (Information) Act, as amended, is clear that an employer shall provide the employee with a statement within one month of the start of the employment relationship. The contravention of Section 3 is a subsisting and continuing contravention if the employee remains an employee not in possessions of a statement. Therefore, if no statement is issued the employee may submit a complaint at any time during their employment. Where a statement in compliance with the legislation is issued during the period of employment, the time limit for submitting a complaint is determined from the date the statement was issued to the employee. I decide that I have jurisdiction to hear this complaint as the facts will determine whether the complaint was submitted within time or not. |
Summary of Complainant’s Case:
CA-00054756-001 Complaint pursuant to Section 39 of the Redundancy Payments Act, 1967 The complainant commenced employment in 2005 on a part-time basis, as a Library Assistant. In 2007 she commenced working as an administrator in the Adult Education Programme as well as continuing with her Library work. As the Adult Education Programme Administrator, the complainant carried out all administrative duties relating to the Programme including enrolment of students, payroll administration for teachers, payment of invoices and bank lodgements. In addition, the complainant took on responsibility for all administrative duties relating to the school’s evening and weekend rental for the sports hall and classrooms, and the evening study programme. In 2009, in reliance on her security of tenure with the respondent in her role as Administrator of the Adult Education Programme and Library Assistant, the complainant left her job as a school traffic warden and commenced working full-time at the school. In 2017, due to the continued success of the Adult Education Programme and the growing number of students the complainant stopped her role as Library Assistant and worked solely as Administrator for Adult Education, Hall Rental and Evening Study. In March 2020 the school and the Adult Education Programme closed due to the Covid-19 health and safety restrictions. The complainant was placed on the Pandemic Unemployment Payment (PUP) scheme in April 2020. She did not receive any formal communication from the respondent relating to her placement on PUP. As a result of the closure of the school, because of the Covid-19 pandemic, the 2020 Spring Adult Education programme was cancelled. The students who had enrolled for classes were issued with refunds by the school’s accountant. In November 2020 the Adult Education Programme ran 11 courses. Because the Adult Education Programme had re-commenced and certain functions of the complainant’s role were being performed by another employee, the complainant wrote to the respondent on 08 December 2020, requesting information on the status of her employment, particularly referring to the Spring 2021 term. Following that letter the complainant met with the Principal. Despite the majority of the complainant’s role being performed by another employee the complainant was informed that it was intended that she would come off PUP and return to her role at the appropriate time. In January 2021 the Adult Education Programme commenced a 25-course programme to run through to Spring 2021. In February the school accountant sent an email to a payment processing company informing it that “Mary Ward is no longer working with us so I would be grateful if you could update your contact details”. The company was also asked to close the Adult Education account as “we no longer have a need for it”. The complainant believed that the school was waiting for normality to return and after that she would resume her position. In fact, the respondent had taken express steps, without advising her, that were consistent with a position that they had deemed her post redundant. The complainant asserts that the email to the payment processing company is a clear admission that her role no longer existed at the material time and had been made redundant, without any consultation or agreement. Not having received an update from the respondent as to the status of her continued employment the complainant sought a meeting with the Principal. She met with the Principal in August 2021 and returned to work on 06 September 2021. The complainant was not provided with any formal written communications about her return to work. On returning to work the complainant found that her role was reduced to processing student enrolments for Adult Education courses and answering phones. This work is only required for 3 -4 weeks each term. All other aspects of her role were and continue to be performed by another employee. The complainant was not consulted about the changes to her role, and she was not provided with any formal written communications addressing the change to her role. Consequently, the complainant wrote to the Principal on 14 October 2021 requesting redundancy. The complainant’s request for redundancy was considered by the Board of Management and the Principal responded by letter dated 29 November 2021. The Board deferred making a decision pending advice from the Association of Community and Comprehensive Schools (ACCS). In the letter it was stated that “The schools’ needs are ever changing and the Board is confident that [the complainant] had the skills and adaptability to meet these changing needs” and that the school was “willing to agree with [the complainant] meaningful alternative roles”. It is submitted that this is an admission that the complainant’s role within Adult Education had ceased, or at a minimum, substantially diminished and that the role had in fact been made redundant. The complainant was flexible and accepted the bona fides of the Board in assuring her that her tenure was secure and was willing to go along with the changes. In the months following the complainant was, without consultation or agreement, asked to carry out duties that lacked substance. First, the role of processing lates and absences for students in the school. This was the work of another employee, and the complainant was met with hostility from that employee. The school subsequently implemented an IT solution to process lates and absences. Then the complainant was asked to perform administrative tasks relating to the ex-curriculum programme only to be informed by the co-ordinator of the programme that the role was not required. On 17 February 2022 the complainant received a letter from the Principal enclosing a fixed-term employment contract covering a period from 06 September 2021 to 27 May 2022. In the letter it was stated the complainant’s duties would “support both the Adult Education Department and main office as required”. The complainant initiated a formal grievance on 01 March 2022. When the complainant returned to work in September 2021 her duties had been incorporated into the job of another person. It is submitted that an employer has a right to decide that the business can be carried out by fewer employees and in such a situation it gives a right to a redundancy situation. As the stand-alone role no longer exists the complainant sought a redundancy payment. The respondent countered with an offer of alternative employment in the form of meaningful administrative work. However, the work being assigned to the complainant is not meaningful and is derisory. The complainant’s willingness to accept and try alternative duties does not disentitle her to redundancy. The complainant asserts that her role no longer exists, and that the respondent has conceded that by its actions. It is submitted that section 15 of the Act obliges an employer to provide commensurate employment to the employee, this is a subjective test based on the employee, not the employer’s view of what is alternative. Section 7(2) of the Redundancy Payments Acts, as amended, provides five circumstances wherein a redundancy situation may arise. The first two, change in purpose or place of business and reduction in the requirements of the business, do not arise in this case. Diminution in the required number of employees – it is submitted that the amalgamation of the payroll and the recruitment of a qualified accountant gave rise to this situation. The complainant cited the decision in Lillis v Kiernan UD1351/2003 in support of the contention that a redundancy situation may arise where an employer decided to redistribute functions among other employees. Change in work methods – The complainant submits that the utilising of software by the qualified accountant has led to a change in work methods, giving rise to a redundancy situation for the complainant. The decision in Daniels v Co, Wexford Community Workshop (New Ross) Ltd [1996] E.L.R. 213 was cited as supporting the contention that a redundancy situation may arise where, because of the need to change work methods, a complainant does not accept an alternative role. Change in work – The complainant submits that where an employer has decided that the work for which the complainant was employed should be done by a person who is capable by a person who is also capable of doing other work for which the complainant is not qualified or trained then a redundancy situation exists. In those circumstances ‘other work’ offered to an employee must be other work and not more of the same work. The decisions in St. Ledger v Frontline Distributors Ireland Limited [1995] E.L.R. 16 and O’Brien v Hays Specialist Recruitment (Ireland) Limited UD1172/2006 were cited. The complainant submits that her former role now is no more. The respondent refuses to acknowledge that the complaint’s distinct role has been diminished and she has not been provided with meaningful alternative work. The complainant has been undermined by the non-existence of a role within her place of work commensurate with the status of her distinct role of Adult Education Administrator. The complainant submits that for a redundancy situation to arise dismissal is not a necessary precondition. The requirement for notification to the Minister for Enterprise, Trade and Employment where there is an intention for collective redundancies to occur is to provide an opportunity to enter alternative arrangements or support to avoid redundancies. Dismissal is not therefore a necessary element of redundancy for a redundancy situation to arise. The complainant submits she is entitled to a redundancy payment as by any objective assessment her job has been disbanded and she is not being given an alternative commensurate position. CA-00054756-003 Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994. The complainant has worked for the respondent for 17 years. She was never issued with a statement of her terms of employment or a contract of employment. The Act obliges an employer to furnish an employee with a statement in writing not later than two months after the commencement of employment. The respondent has breached its obligation throughout the complainant’s employment, and this has given rise to uncertainty and prejudice. It is submitted the complainant should be awarded the maximum award in respect of this claim. |
Summary of Respondent’s Case:
CA-00054756-001 Complaint pursuant to Section 39 of the Redundancy Payments Act, 1967 The respondent is a publicly funded national secondary school. It relies on funding from the Department of Education, adult education income and contributions from parents to provide salaries for the staff in the school. There is only one employer, that is the Board of Management of the school. The Board of Management is a statutory board pursuant to section 14(2) of the Education Act, 1998. The complainant commenced employment with the respondent as an administrator on 01 September 2007. The complainant currently works 25 hours, over four days per week between September and May the following year. The complainant is laid off for the months of June, July, and August, and is in receipt of social welfare during this period. It is important to note that the complainant is a very valued member of staff. The complainant was employed mainly as an administrator of the Adult Education Programme. Her duties included: taking bookings for classes, preparing class lists, planning room allocations, printing resources for classes, setting up classes on Easi payment, managing email and phone communications, evening support at the beginning of term, co-ordinating the calendar for after school events, proofing the Adult Education Programme brochure, DES returns, payroll, rental invoices, admin support for evening study and Librarian services. Due to the Covid-19 pandemic health and safety restriction the Adult Education Programme could not continue to run. The complainant was laid off between April 2020 and September 2021. During that period the respondent’s bookkeeper left and was replaced by a qualified accountant who now manages the respondent’s finances, including processing the payroll for the tutors who teach on the Adult Education programme and invoicing of rental facilities. The processing of payroll was a minor duty that was delegated to the complainant as it occurred only twice a year for the tutors who are paid at the end of both semesters. In addition, the complainant processed a fortnightly payroll for four employees, including the complainant. The respondent was operating two payroll packages, one for the school and one for Adult Education. With the hiring of the accountant, it was decided to streamline the process into one payroll. The complainant was not satisfied that she no longer operated payroll for Adult Education, however this duty was minor in nature, and she was provided with additional tasks in line with her role and grade. On return to work the complainant was provided with an increase in her rate of pay by €2.28 per hour. The complainant’s duties now include: taking bookings for classes, preparing class lists, planning room allocations, printing resources for classes, setting up all classes on Easi payments, managing email and phone communications, evening support at the beginning of term, co-ordinating the calendar for after school events, DES returns, proofing the Adult Education brochure, co-ordinating an on-linen survey of all Adult Education participants after each term, on-line class registrations on Excel, administrative support in the administration office, cost analysis spread sheet for all classes each term, update on-line contact list and monitor/update the Adult Education website. It is the respondent’s position that the complainant is not entitled to a redundancy payment as the role exists and is not redundant. Section 7 of the Redundancy Payments Acts provides that “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—…” 7(2) (a) – (e) sets out circumstances that wholly or mainly result in a redundancy situation. The respondent submits that section 7 of the Act applies to a situation where there has been a dismissal by reason of redundancy. The complainant has not been dismissed. It is submitted that the change of some duties does not equate to a dismissal as sought by the complainant. The complainant continues to carry out duties that she carried out prior to September 2021, the only difference being she does not process payroll or invoice rentals. The respondent cited the decision in St. Ledger by Frontline Distributors Ireland Limited UD56/1994 [1995] E.L.R. 160 where it was stated that the statutory definition of redundancy has two important characteristic, “impersonality” and “change”. The impersonality of redundancy was emphasised by Charleton J in JVC Europe Ltd v Panis [2012] E.L.R.70 where he described it as the “economic or technological reorienting or an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner”. The respondent submits that the complainant’s role has not been made redundant and that her work is not carried out in an entirely different manner. It is submitted that this is not a claim that falls under the Redundancy Payments Act. The complainant is not entitled to the relief claimed or any relief. CA-00054756-003 Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994. The Principal wished to provide the complainant with an updated contract which reflect an increase in pay. On 17 February 2022 the complainant was provided with the updated contract. The complainant refused to execute said contract. The Principal executed the contract as provided for under section 3(4) of the Terms of Employment (Information) Act, 1994. The complainant is not entitled to the relief claimed or any relief.
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Findings and Conclusions:
CA-00054756-001 Complaint pursuant to Section 39 of the Redundancy Payments Act, 1967 The complainant’s claim is for a redundancy payment. The respondent’s position is that no redundancy payment is due as the role of Administrator of the Adult Education programme has not been declared redundant and the complainant has not been dismissed. Legislation The Redundancy Payments Act, as amended, provides the following concerning the right to a redundancy payment: 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 (b) the fact that the requirements of that business 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, or (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or (e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained, Complainant’s Evidence The complainant in her testimony stated that she enjoyed her work in Adult Education until things were changed during her period of lay-off. She was laid off in April 2020 because of the Covid-19 pandemic restrictions. She was in receipt of the Pandemic Unemployment Payment between April 2020 and September 2021. In late 2020, while on lay off, she became aware that classes in Adult Education were being arranged for Spring 2021. She made enquiries but did not get a reply, so she arranged to meet with the Principal. That meeting took place in December 2020. Because restrictions were re-imposed at the end of December 2020 the classes which had been planned were cancelled. The refunds to the participants were handled by the school’s accountant. The complainant stated she understood that she would be back to work later in 2021 when restrictions were eased. The complainant stated that she did return to work in September 2021. She expected to return to the full role she held before being laid off. However, her role had been changed. She handled the enrolments, but all other duties were gone. The complainant stated that before the school employed an accountant she had looked after all accounting for the Adult Education Programme. The complainant stated that a substantial part of her role was accounts and payroll. Teachers that were on monthly contracts were paid monthly and the complainant had managed all that. The complainant disagreed that payroll was a minor part of her role. The payroll was not just twice a year because some teachers had to be paid monthly. The complainant stated that as her role had changed so much, she wrote to the Principal on 14 October 2021 requesting that she be considered for redundancy as there was a lot of uncertainty in the alternative roles being offered to her. She had been asked to handle lates and absences but was met with a hostile reaction from another member of staff who was already doing that work. Then she was asked to take responsibility for administrative tasks relating to the ex-curriculum programme only to be told by the co-ordinator of the programme that the work was unnecessary. Other work involved answering phone calls, but these were about school business rather than Adult Education and she had little knowledge about school issues. The complainant stated this work was to fill a gap and was not a meaningful role. The complainant was issued with a fixed-term contract, but she did not sign it as she was disappointed not to have a meaningful role. The complainant submitted a grievance. She met with representatives of the Board of Management in April 2022. The complainant stated that she thought she was following a system to resolve her issues, but nothing was resolved. In reply to questions in cross examination the complainant described her role in Adult Education as well as evening study and managing room rental. The complainant did not accept the description of her role as contained in the respondent’s submission. She stated that payroll and accounts was not a minor part of her duties, in 2020 she had been processing 36 teachers on monthly payroll. The complainant acknowledged she had received a salary increase in 2021. Principal’s Evidence The Principal described his role which in addition to being an educator included managing all aspects of the school and acting as secretary to the Board of Management. There is a Director of the Adult Education Programme who reports to the Board through the Principal. The Adult Education Programme has, in addition to the Director, an administrator (the complainant) and three other staff. The Principal described how the complainant had initially done voluntary work at the school, including working in the library. She started to volunteer when her children were attending the school. The Principal regards the complainant as a valued member of staff. The Principal described how the Adult Education Programme began on a small scale in 2003. The programme had to be self-financing. The Director of the programme took responsibility, and he asked the complainant to become involved. She agreed and began doing general administration work, enrolments, taking cash payments and meeting the participants. The Principle stated that these duties still exist. The complainant also had responsibility for the rental of the sports hall and invoicing. As the role expanded the complainant gave up her role as a traffic warden. The Principal stated that the bookkeeping was done by another member of staff and the books were sent out to an accountant. That staff member left employment. The post was advertised. The successful applicant is a qualified accountant. The school had not had an accountant on staff previously. The Principal stated that the list of duties for the role of Adult Education Administrator included in the respondent’s written submission is accurate. He stated that these duties are essential to the running of the Adult Education Programme. The Principal described the complainant as being essential to the running of the Adult Education Programme. He stated that the complainant would be replaced if she left employment. The programme requires a dedicated administration person. The Principal stated that he believed he had a good relationship with the complainant, and he was not comfortable with the situation that had now evolved. It may be that he had not appreciated fully the complainant’s feelings about the change in the role. He had regarded payroll as a part of the duties, but the complainant put more value on that part of her duties. He had been happy to discuss alternatives duties. In his view the duties in the front office were high profile and could give a greater sense of worth to the complainant. The Principal stated that the complainant was laid off in April 2020 as her salary is generated by the income from the Adult Education Programme. The Department of Education only provided salary payments for staff funded by the Department. The complainant’s role is not funded by the Department of Education. The complainant was brought back in September 2021 when the Adult Education Programme returned and began to generate an income from which her salary could be paid. The Principal restated the importance of having an administrator for the Adult Education Programme. In reply to questions under cross examination the Principal stated that when the accountant was recruited all aspects of the school finances were reviewed and discussed. The Adult Education Programme must be self-financing but nothing in the school is stand alone. The finances were streamlined but the programme is self-financing, it is not funded by the Department of Education. The Principal stated that the complainant has been and continues to be the administrator of the Adult Education Programme. The Principal stated that in 2020 when the Adult Education courses had to be cancelled the refunds to participants were handled by the school accountant. The complainant was the only employee laid off as her role was not funded by the Department of Education and there was no income to pay her salary. The accountant was making the finance function more efficient, and procedures changed. The Principal stated that he now understood that the payroll and accounts element of the administration of the Adult Education Programme were important to the complainant but that he would not have fully appreciated that at the time. He had sat with the complainant and discussed other duties that would fulfil her requirements. He accepted that the duties had changed but he did not believe the role had changed significantly. The Principal confirmed that he had conversations with the complainant about her duties and alternative duties. The Board responded to the complainant through him as secretary to the Board. The Principal stated that the role of administrator of the Adult Education Programme continues, and the complainant continues as an employee in that role. Findings It was clear at the hearing that there had been a good working relationship between the complainant and the respondent before April 2020, when she was laid off. The complainant became aware of changes in the financial operation of the school during the period of lay-off. She raised her concerns about how the changes might affect her role before her return to work and again after resuming her duties. The respondent acknowledged there was a change in the duties by the reallocation of payroll and accounts to the school accountant. However, the Principal stated that the role of administrator for the Adult Education Programme continues and if the complainant were to leave her employment, he would recruit a replacement. The complainant continues to be employed as the administrator of the Adult Education Programme. In my opinion the communication to the complainant of the changes in her duties were not well handled and alternative duties that she was asked to carry out were not properly planned. However, apart from payroll and accounts the respondent requires all the other administrative duties of the role to be carried out for the Adult Education Programme. The respondent has not declared the role to be redundant. The complainant’s claim is for a redundancy payment. The language of section 7 of the Act is clear that an employee, if dismissed by their employer by reason of redundancy shall, subject to certain conditions, be entitled to a redundancy payment. The complainant was not dismissed by her employer, and she continues in her employment. The complainant’s representative cited the decisions in Lillis v Kiernan UD1351/2003, Daniels v Co. Wexford Workshop (New Ross) Limited [1996] E.L.R. 213, St. Ledger v Frontline Distributors Ireland Limited [1995] E.L.R. 160 and O’Brien v Hays Specialist Recruitment (Ireland) Limited UD1172/2006 in support of the claim. However, in all those cases the complainant had been dismissed. The complainant’s submission refers to the requirement in collective redundancy situations to notify the Minister for Enterprise and to enter consultations as support for the contention that a dismissal is not a precondition for a redundancy situation. I do not accept that view as correct, section 7 specifically states an employee shall be entitled to a redundancy payment if dismissed by reason of redundancy. Conclusion Having carefully considered the submissions and evidence presented I am satisfied that the role of administrator of the Adult Education Programme is not a redundant role. There have been changes to the role but on the evidence presented by the respondent most of the administrative duties continue to exist. I find the testimony of the Principal persuasive when he stated that if the complainant left her employment, he would have to recruit a replacement administrator for the Adult Education Programme. I am satisfied that the complainant has not been dismissed by reason of redundancy and therefor there is no entitlement to a redundancy payment.
CA-00054756-003 Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994. The complainant claims that she was never provided with a contract of employment or statement in writing of her terms of employment as required under section 3(1) of the Act. On two occasions, first in 2019 and again in 2022, the complainant was issued a contract framed as a fixed-term contract. In 2019 the contract was not signed by the employer as the rate of pay had not been finalised. In 2022 the contract was not signed by the employer. The respondent asserts that a contract was issued to the complainant on 17 February 2022 which reflected an increase in pay. The complainant refused to execute the contract. The Principal of the respondent executed the contract as provided for under section 3(4) of the Act. Legislation Section 3 of the Act provides the following: 3.— (1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say— (fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, (ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, (j) any terms or conditions relating to paid leave (other than paid sick leave), (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes, (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, (m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made, (n) the training entitlement, if any, provided by the employer, (o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and (p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of — (i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours, (ii) the reference hours and days within which the employee may be required to work, and (iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and (q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer. (1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say: (a) the full names of the employer and the employee (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014); (c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; (d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000; (e) the number of hours which the employer reasonably expects the employee to work— (i) per normal working day, and (ii) per normal working week; (f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated, (g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places; (h) either— (i) the title, grade, nature or category of work for which the employee is employed, or (ii) a brief specification or description of the work; (i) the date of commencement of the employee’s contract of employment; (j) any terms or conditions relating to hours of work (including overtime); (k) where a probationary period applies, its duration and conditions.
Findings The complainant has been employed by the respondent since 2007. It is common case that between 2007 and 2019 the complainant was not issued with any statement of her terms of employment. In 2019 a fixed-term contract was issued which was not properly executed. Therefore, it did not meet the requirements of the Act. In 2022 the complainant was again issued with a contract that was stated to be for a fixed-term commencing on 06 September 2021 and ceasing on 27 May 2022. The respondent in their written submission acknowledged that the complainant was in continuous employment since 2011 and by operating of law could not be a fixed-term employee. This contract was therefore not in compliance with the requirements of section 3 of the Act. I am satisfied that throughout her employment the complainant was not issued with a statement in writing of her terms of employment as provided for under section 3 of the Act. The contravention of Section 3 is a subsisting and continuing contravention if the employee remains an employee not in possessions of a statement. Therefore, if no statement is issued or a defective statement is issued the employee may submit a complaint at any time during their employment. Where a statement in compliance with the legislation is issued during the period of employment, the time limit for submitting a complaint is determined from the date the statement was issued to the employee. This complaint was not submitted out of time as no accurate statement of terms was issued to the complainant. Conclusions Having considered the submissions and evidence presented I am satisfied that the respondent has been in breach of section 3 of the Act throughout the employees’ period of employment. The employee is entitled to receive a statement in writing of her terms of employment in compliance with the requirements of section 3 of the Act. I conclude that this complaint is well founded. |
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-00054756-001 Complaint pursuant to Section 39 of the Redundancy Payments Act, 1967 Having carefully considered the submissions and evidence presented I am satisfied that the role of Administrator of the Adult Education Programme is not a redundant role. I am satisfied that the complainant has not been dismissed by reason of redundancy and therefor there is no entitlement to a redundancy payment. I disallow the complainant’s appeal. CA-00054756-003 Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994. Having carefully considered the submissions and evidence presented I am satisfied that the respondent has been in breach of section 3 of the Act throughout the employees’ period of employment. The employee is entitled to receive a statement in writing of her terms of employment in compliance with the requirements of section 3 of the Act. I decide that this complaint is well founded. Having regard to all the circumstances, in particular the length of time the complainant has been without a statement of her terms of employment, I consider it just and equitable to order the respondent to pay to the complainant compensation in the amount of €2,128, that is 4 weeks remuneration. I require the respondent to give to the complainant a statement in writing of her terms of employment as required by section 3 of the Act, as amended, including confirmation of her contractual status as a person employed on a contract of indefinite duration. |
Dated: 08th of March 2024
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Redundancy Dismissal by reason of redundancy Terms of Employment Statutory Time Limit |