Complainant

Respondent

Parties

Cathy  Guirke

Board of Management of Drumbaragh National School

Representatives

Shane Lambert,  Fórsa Trade Union

Claire Bruton BL instructed by  Mason, Hayes & Curran LLP

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-00045595-001

09/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045595-002

09/08/2021

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

CA-00045595-003

09/08/2021

The complainant commenced employment as school secretary on 25 August 2020.  She worked 12 hours per week during term times and was paid €16.56 per hour.  Her employment ended on 11 June 2021.  The complainant claims she was unfairly dismissed.

The respondent denies the claim of unfair dismissal.  It is the respondent’s position that the complainant’s employment was terminated by reason of redundancy.

The complainant also claims she did not receive a statement of her terms and conditions of employment in breach of legislation and that she did not receive her proper payments for public holidays over a five-year period.  The respondent rejects these claims.

The complaints were received by the Workplace Relations Commission on 09 August 2021.

The school is a co-educational primary school.  The school employs five teachers, including a teaching principal, one cleaner and one caretaker.  The complainant was employed as school secretary between 25 August 2010 and 11 June 2021.  The complainant worked 12 hours per week and her gross salary at the time of her redundancy was €9,126 p.a.

The complainant was provided with a written contract of employment on 04 September 2019.  She did not sign or return this document.

The respondent school is a recognised primary school per the Education Act 1998 (as amended) which receives an Ancillary Services grant to fund the cost of employing secretarial and caretaking staff.  The Ancillary Services grant is based on the number of pupils enrolled on 30 September of the relevant year.  In 2020 – 21 the grant awarded to the respondent was €16,781.  In the previous year the grant awarded was €16,245 but the total expenditure was €23,189, an overspend of €6,944.  In 2020 -21 the total spend on ancillary staff wages to 31 March 2021 was €15,485.  Therefore, there would be a further overspend on wages paid to ancillary staff by the end of the school year.

Unfair Dismissal Claim

Following a financial review, it was decided that there was an urgent need to reduce expenditure.  The school had already reduced costs by changing suppliers of electrical and ICT services, but this was insufficient to deal with the financial deficit.  The respondent concluded it would prove difficult to ensure expenditure did not exceed income in 2020 – 21.  Therefore, the respondent had to take some difficult decisions about restructuring and reorganising the roles affected by the shortfall.  While the respondent was determined to accommodate the complainant, it was decided that an at-risk redundancy consultation process would be commenced with all ancillary staff.

The respondent held several consultation meetings with the complainant. 

05 March 2021

The first informal meeting took place on 05 March 2021.  The complainant was asked by the Principal to attend an informal meeting.  Two issues were discussed, a claim in respect of outstanding public holidays and the potential for redundancy of the secretary role due to the financial difficulties faced by the school.  The complainant was informed of the financial difficulties and the possibility that the role of secretary could be made redundant.  The respondent suggested various proposals which the complainant was asked to consider.  The complainant requested examples of proposals and was advised that a reduction in hours and a job share arrangement were being suggested.  The complainant refused to entertain any proposal that altered her terms of employment.  The complainant was invited to think about proposals that the respondent could consider in lieu of redundancy.  The complainant was invited to attend a formal consultation meeting on 10 March 2021.

30 March 2021

The meeting could not take place on 10 March 2021 as the complainant’s union representative was unavailable due to prior commitments.  Attempts were made to arrange a suitable date.  The first formal consultation meeting took place on 30 March 2021.  The complainant was represented by another union official. 

The purpose of the meeting was to engage in a consultation process about the complainant’s role given the financial difficulties the respondent was facing.  The financial position was described, and the complainant was given the opportunity to make any proposals with a view to considering the role in a more cost-effective manner.  It was noted that all ancillary staff were being engaged with to effect appropriate cost-cutting measures.  The complainant refused to consider any proposals to change pay or hours of work and did not offer any proposals to cut costs.  The complainant requested that her hard work and commitment to the school be noted, to which the respondent confirmed that there was no issue in relation to the complainant’s performance.  This consultation process was necessary because of the financial difficulties faced by the respondent.

12 April 2021

A second consultation meeting took place on 12 April 2021.  The fact that there was a significant overspend on the ancillary staff wages was outlined.  It was estimated that the overspend was approximately €7,000 and that was unsustainable.  The union representative queried the cost-cutting measures and who was being paid from the ancillary grant.  It was explained that the grant covered the secretary, librarian, caretaker and cleaner.  The role of the librarian was queried.  The complainant was given a letter informing her that the role of school secretary was at risk of redundancy, but she was invited to further engage in a consultation process as the respondent was seeking to avoid a redundancy situation.  The complainant was willing to engage in the consultation process but any attempt to change her terms and conditions would not be acceptable to her.

21 April 2021

 A third consultation meeting was held on 21 April 2021.  The financial difficulties of the school were reiterated.  The purpose of this meeting was to hear any suggestions or proposals that the complainant may have had in respect of her role.  The trade union representative advised that there would be no proposals put forward from the complainant.  A further meeting was proposed to allow the complainant the opportunity to provide alternatives to redundancy.

28 April 2021

No proposals were presented by or on behalf of the complainant.  The complainant’s representative stated that it was more appropriate that the matter be referred to the WRC.

The respondent wrote to the complainant citing the consultation meetings where she had been notified of the financial difficulties facing the school.  The letter set out the alternatives to redundancy that had been sought to be explored, including a reduction in the rate of pay and/or a reduction in the weekly working hours.  It was noted that the complainant strongly objected to engaging in reaching agreement and that no proposals of alternatives to redundancy were forthcoming.  In those circumstances the respondent had no alternative but to terminate the complainant’s employment by reason of redundancy.

The complainant was informed that she would be paid her salary up to her termination date and that she did not need to work out her notice period.  The termination date would be 21 May 2021. The letter stated that the complainant was entitled to a tax-free statutory redundancy payment of €4,467.23 and that she would be paid for any accrued but untaken holiday entitlement. 

Terms and Conditions of Employment Claim

At all times the complainant was aware of her terms and conditions of employment.  The complainant was provided with a copy of same in September 2019 and no breach of the Act arises.

Public Holiday Claim

The complainant claims she has not received her public holiday entitlements.  This claim is denied by the respondent. 

The relevant period for any breach of the Act is 6 months prior to the claim being lodged with the WRC. The claim was lodged on 09 August 2021.  The relevant period is 10 February 2021 to 09 August 2021.  All public holidays up to the date of termination were discharged to the complainant.

The complainant has been provided with a statement identifying her public holiday entitlements, even outside the relevant period, and has been paid accordingly.  The respondent repeatedly sought the particulars of any public holiday entitlements the complainant alleges are due.  No such particulars have been provided by the complainant.

Legal Submissions

The respondent submits that the complainant was dismissed wholly or mainly due to redundancy.  Redundancy constitutes a substantial reason to justify the termination of the complainant’s employment and is a full defence to a claim of unfair dismissal as provided for by section 6(4) of the Unfair Dismissals Act 1977 as amended. 

The factual matrix in place at the time of the complainant’s redundancy fits within section 7(2)(c) of the Redundancy Payments Acts 1967 as amended which defines dismissal by reason of redundancy as:

7 (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)    …

(b)    …

(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,

The respondent had genuine reasons for the eradication of the complainant’s role, including the need to reduce the overspend within the school.  The complainant has not been replaced and the role has been assumed by the principal.  The reasons for eradication of the role of secretary were explained at length during the four consultation meetings. 

There was no unfair selection within the meaning of section 6(3) of the Unfair Dismissals Acts and there was a genuine reason for the post being made redundant.  The decisions in McNally V Westwood [2010] E.L.R. 238 and Curtin v Mallow Golf Club UD964/2014 were cited and relied upon.  The respondent adopted an honest and transparent approach but unfortunately the complainant refused to engage on proposals as alternatives to redundancy.  The respondent cited the decision in Jeffers v DCC Ireland Ltd UD169/2000 and JVC Europe v Ponisi [2012] E.L.R. 70 as guidance for employers on handling redundancy situations.

Conclusions

The respondent requests that the claim of unfair dismissal be dismissed because the dismissal was for a substantial reason, redundancy.  The redundancy was genuine and legitimate, there was no unfair selection for redundancy and the decision to dismiss was made in a fair manner.

The respondent submits that the claims under the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997 are misconceived.

The complainant was employed as a grant paid secretary for almost 11 years.  She worked part-time 10am to 2pm Monday, Wednesday, and Friday.  Her hourly rate of pay was €16.56.  In 2019 the complainant made her employer aware that she was seeking additional working hours.

Grant paid secretaries are employed by the individual Boards of Management and the terms and conditions are set by each employing Board.  In general, grant paid secretaries do not get paid for mid-term breaks or summer holidays, instead they sign on with the Department of Social Protection in those periods.

The schools are provided with two grants, the Ancillary grant, and the Capitation grant.  The Ancillary grant is to pay for secretarial and caretaking services.  The Capitation grant is to pay for cleaning, building maintenance etc.  The surplus funds in either grant may be pooled and used as a common grant as needed.  However, this does not detract from the core purpose of each grant as stated in departmental circulars.  The respondent received additional funding in both grants each year from 2018 to 2021.

In October 2020 it was the Government’s stated policy to regularise pay, pensions and terms and conditions for grant paid secretaries.  An agreement was reached with the Department of Education in February 2022 to regularise the core terms and conditions of grant paid secretaries.

The complainant submitted three complaints to the WRC.  It is contended that whilst the complaints are separate and distinct, they relate to each other.  What started as grievances about working conditions, led to issues around working time, contracts or lack thereof and ultimately resulted in the complainant being placed through a charade redundancy process.  The respondent contends the redundancy was necessary because of financial difficulty but that is simply not supported by the evidence.

Unfair Dismissal Claim

05 March 2021

The Principal requested the complainant to attend an informal meeting.  The people at the meeting were the complainant, the Principal and the chairperson of the Board of Management.  The meeting had not been scheduled and the complainant asked if she should be attending the meeting without union representation.  No response to that question was forthcoming.

At the start of the meeting the complainant was given an envelope containing documentation about her public holidays.

Then the chairperson and Principal commenced a discussion about cuts that were required on advice from the accountant and the Financial Support Services Unit (FSSU).  The complainant was asked if she was willing to job-share with the school librarian.  The complainant refused to job-share.  She was then asked if she would reduce her hours of work.  She did not respond to this.  There were then references to a redundancy situation and comments about the school spending more money than it was getting in.  The complainant was informed that if she had views or ideas to save money, she could bring them to a meeting on 10 March 2021. 

The complainant’s union representative was not available on 10 March 2021 due to prior commitments.  There then followed an several communications about the financial position, outstanding issues, and availability for a meeting.  The complainant submitted a formal grievance on 26 March 2021.  The respondent indicated that a meeting would take place on 30 March 2021, regardless of the union representatives’ availability.

30 March 2021

As the union representative was unavailable another union official attended the meeting with the complainant.  The respondent stated that the purpose of this meeting was as a follow up to the meeting of 05 March 2021 at which the school’s financial concerns were communicated to the complainant.  The union representative put on record his concerns about this process.  He also sought information about the financial difficulties and when they became apparent.

The respondent indicated that the financial issues became apparent following an audit of the school’s accounts in February 2021.  The school was overspending, specifically on ancillary staff.  The position outlined by the representative was that neither the complainant or the union would be able to accept a reduction or alteration in the complainant’s terms and conditions. The representative was seriously concerned that the onus was being placed on the complainant to furnish cost saving proposals, which were being required by the following day.

12 April 2021

A second meeting took place with the complainant being represented by the same official as on 30 March 2021.  The complainant was given a letter stating that her role was at risk of redundancy because of the financial difficulties of the school. 

The complainant’s representative raised questions about the ancillary grant and how it was being spent by the school.  No clarity or details were provided by the respondent.

The representative queried the basis on which the role of secretary was being placed at risk of redundancy and how her work was intended to be done.  The respondent stated that an assessment of need had been carried out on all ancillary staff and in the event of a redundancy the work would be absorbed by other staff.

The representative stated that the union was open to engagement on any proposals the employer wished to put forward, but any unilateral reductions in terms and conditions would result in a referral to the WRC.  He noted the complainant was the longest serving member of the ancillary staff.

21 April 2021

The complainant was represented by Mr Lambert at this meeting.  Issues raised included the inappropriateness of other staff carrying out /absorbing secretarial duties, opposition to any proposed outsourcing and the requirement for evidence supporting the financial difficulty claims.

The assessment of needs was provided to the union on 28 April 2021.  Further details of financial overspend, additional funding requests and proposals from the employer were not forthcoming.

28 April 2021

The complainant was again represented by Mr Lambert.  Despite repeated requests for information no firm evidence was put forward to support the respondent’s position.  The respondent did not present proposals but focussed on the fact that the complainant nor the union had proposals to put to the respondent. 

Mr Lambert noted that talks were ongoing to regularise the terms and conditions of school secretaries, in line with Government policy. 

Mr Lambert noted that when the wages for the secretary and caretaken were taken from the ancillary grant there was a surplus of approximately €2,500.  As such the respondent’s contention of financial difficulty was not supported by evidence.  Mr Lambert suggested that there was a gap of trust between the parties and perhaps that could be bridged in conciliation at the WRC. 

Following that meeting Mr Lambert sent a referral to the conciliation service of the WRC and send an email to the respondent setting out the unions views and notifying them of the referral to the WRC.

30 April 2021

The complainant had her dismissal confirmed to her six minutes before she was due to finish work at 2pm that day.  The Principal handed the complainant a letter confirmed her redundancy.  The complainant was told to take her belongings and return her keys.  She was given 6 weeks’ notice with immediate effect.  She had no opportunity to prepare or say goodbye to colleagues after almost 11 years’ service.

The union representative was not informed by the respondent of the action taken that day.  The respondent took no cognisance of the referral to conciliation.

The complainant was not paid as usual for her final week at work.  The payment was made subsequently when the matter was raised by the union.  During the 6 weeks’ notice period the union continued to correspond with the respondent about the redundancy decision.  The complainant’s employment terminated on 11 June 2021.  The union continued contact with the respondent about outstanding pay for public holidays, and holiday.  The union referred the unfair dismissal, public holiday, and terms of employment complaints to the WRC on 09 August 2021.

Legal Submission

The complainant was placed through a sham redundancy process.  The respondent failed to substantiate the reasons why a redundancy was required.  There was no compassion or sensitivity shown to a staff member of almost 11 years.

The respondent did not act reasonably or impersonally throughout the redundancy process.  No alternatives to redundancy were put forward by the respondent.  The focus was on the complainant and the union to put forward alternatives to redundancy, despite the respondent refusing to state clearly what was required to be achieved by way of cost savings.  The complainant was asked to meet cost reductions without knowing what the target reduction was.

The selection process lacked clarity and the complainant’s length of service was not considered.  The complainant contends that due to lodging legitimate grievances and membership of the union she was selected for redundancy for personal reasons.

The complainant contends that the funding provided to the respondent was more than adequate to cover the cost of the secretarial and caretaker wages.  There were no requests for additional funding, and it is noted that a caretaker was hired at the time the complainant was made redundant.

The redundancy process was rushed, and the outcome was a forgone conclusion.  There was no real consideration of other alternative options to redundancy.

The decision in Beggs v Skerries Harps GAA Club ADJ-00035649 was cited as confirming that the decision to make an employee redundant must be impersonal and objective, particularly where selecting one post whilst retaining others.  It was emphasised that the onus is on the employer to demonstrate that they acted fairly and reasonably in choosing the employee to be made redundant when other personnel are being retained. 

The decision in C.D. v The Board of Management of a National School [2019] IEHC 819 was cited to highlight the obligation on decision makers to set out adequately the reasons for reaching a decision, particularly if that decision is to dismiss an employee.  There were no allegations made against the complainant in the instant case but, it is submitted that the same principle of transparency should apply in a redundancy situation.  Notwithstanding the subject matter of discussions, the dismissive and hostile attitude of the employer throughout all engagements can only be deemed unreasonable and personal.

Terms and Conditions of Employment Claim

The complainant was not provided with a written statement of her core terms and conditions of employment within two months of commencing employment.  The complainant disputes that she was provided with a contract that accurately reflected her terms and conditions. 

It is submitted that the respondent has breached the Terms of Employment (information) Act, 1994.

Public Holiday Claim

The complainant claims that she did not receive her correct entitlement for public holidays.  She was paid for some public holidays but it would appear that she was only receiving a payment of one-fifth even for public holidays that fell on days when she would normally be working.  The complainant believes she was only paid for one public holiday in 2016.  The complainant sought clarity from the respondent about her payment for public holidays, but the matter was not resolved. 

Should the respondent clearly demonstrate that the complainant has been afforded her full entitlements then this claim will be withdrawn.

Redress

Unfair Dismissal Claim

The complainant submits that the evidence shows that the respondent did not meet tests of acting fairly and reasonably in the alleged redundancy process.  At the outset the complainant sought reinstatement or re-engagement as redress but given the exchanges since and the passage of time these are no longer viable options.  The complainant seeks redress of compensation to the maximum allowable under the Act.  Full disclosure of mitigation measures is provided for consideration.

Terms of Employment Claim

The complainant was not provided with a written statement of her terms and conditions of employment.  She seeks an award of the maximum compensation payable under the provisions of the Act.

Organisation of Working Time Claim

The complainant seeks confirmation from the respondent that it has discharged its obligations for all public holidays that fall withing the valid timeframe of such a claim.

CA-00045595-001

Complaint submitted pursuant to section 8 of the Unfair Dismissals Act, 1977.

The complainant commenced employment as a part-time school secretary on 25 August 2010.  Her employment was terminated on 11 June 2021.  The respondent’s position is that the complainant was dismissed wholly or mainly by reason of redundancy.  The complainant’s position is that she was unfairly dismissed as there was no genuine redundancy situation, there was a lack of clarity regarding the selection process and the respondent did not act reasonably throughout the redundancy process.

Legislation

Section 6 of the Act provides:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2)  Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(aa) without prejudice to paragraph (a), the employee—

(i)                  being a member of a trade union which made a request referred to in section 2(1) of the Industrial Relations (Amendment) Act 2001,

(ii)                (ii) being in the employment of the employer concerned in the grade, group or category to which the trade dispute, referred to in that section, relates, and

(iii)               having provided evidence or other information or assistance to any person, for the purposes of the examination of that request by the Labour Court or in respect of an investigation made by it under that Act pursuant to that request,

(b) the religious or political opinions of the employee,

(ba) the employee having made a protected disclosure,

(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,

(dd) the exercise or proposed exercise by the employee of the right to parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or a request for a flexible working arrangement under and in accordance with the Parental Leave Act, 1998, or carer’s leave under and in accordance with the Carer’s Leave Act, 2001,

(e) the race, colour or sexual orientation of the employee,

(ee) the age of the employee,

(eee) the employee’s membership of the travelling community,

(f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,

(g) the exercise or proposed exercise by the employee of the right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence, within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act,

(h) the exercise or contemplated exercise by an adoptive parent of the parent’s right under the Adoptive Leave Acts 1995 and 2005 to adoptive leave or additional adoptive leave or a period of time off to attend certain preadoption classes or meetings,

(i) the exercise or proposed exercise by the employee of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act,

(j) the exercise or proposed exercise by the employee of the right under the Parent’s Leave and Benefit Act 2019 to parent’s leave or transferred parent’s leave within the meaning of that Act.

(2A – 2D) …

(3)  Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(5) …

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

The legislation is clear that a dismissal that results wholly or mainly from redundancy of an employee shall be deemed, for the purposes of this Act, not to be unfair.  It is for the respondent to show that the dismissal resulted wholly or mainly from a redundancy situation.  The first question to be addressed is whether there was a genuine redundancy situation.

Section 7 provides that consideration may be given to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.

The respondent relied on the definition of dismissal by reason of redundancy contained in section 7(2) (c) of the Redundancy Payments Acts 1967 which provides:

(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) …

(b) …

(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,

Principal’s Evidence

The Principal was appointed in December 2020.  The principal is the secretary to the Board of Management.  In January 2021 the school had five teachers, one secretary (working 12 hours per week), one librarian (working 3 or 4 hours per week), one caretaker (working 6 hours per week) and one cleaner (working 18 hours per week)

The Principal stated that the school accounts are submitted by the end of February each year.   The school receives two funding grants, an Ancillary grant, and a Capitation grant.  The was an audit of the finances in February 2021.  The report of the accountant and the Financial Support Services Unit (FSSU) indicated that there was a significant overspend on the Ancillary Services Grant.

o   2019/2020 Ancillary Services Grant awarded to the school    €16,245

o   2019/2020 Total expenditure on ancillary staff wages             €23,189

o   Overspend                                                                                         €6,944

o   2020/2021 Ancillary Services Grant awarded to the school    €16,781

o   2020/2021 Expenditure on ancillary staff wages to 31/3/21 €15,485

These figures indicated a further overspend would occur by the end of the year 2020/2021.  As a result, a financial review was conducted looking at all expenditure.  Action was taken to reduce costs.  Suppliers of electricity and ICT were changed but this alone was insufficient to reduce the financial deficit.  Procedures were changed and tighter control of the budgets was implemented.  It was noted that there were two pay issues at that time – payment for public holidays outstanding and a claim for a pay increase from the cleaner.   The Board of Management concluded that because of the state of the financial affairs it would prove difficult to ensure that expenditure did not exceed income.  The February 2021 meeting of the Board was described as grim.  The Board directed that an at-risk redundancy consultation process would be entered into with all the ancillary staff.

The Principal described the changes that were made during the consultation process.  The Librarian was made redundant, the cleaner’s hours were reduced from 18 to 15 per week and the claim for an increase in pay per hour was rejected.

The Principal described the consultation process entered into with the complainant.  The meeting of 05 March 2021 was primarily to address the claim in relation to public holiday payments.  However, the complainant was informed about the school’s financial difficulties and was invited to a formal meeting on 10 March 2021 where she could be accompanied by her union representative.  The principal stated that the complainant was upset, and she told her she could leave early.  The complainant declined to leave work early that day.

The Principal recounted that consultation meetings took place on 30 March, 12, 21 and 28 April 2021 with the complainant and a union representative.  She stated the need for savings was set out clearly, but the complainant was not prepared to accept any changes.  The school identified three elements that would help to meet the financial needs of the school, reduced pay, reduced hours, and an assessment of needs.  The complainant was provided with a copy of the school’s assessment of needs on 28 April 2021.  There were no proposals presented by the complainant at any of the consultation meetings.

The school applied the last in first out policy and the role of Librarian was declared redundant. The duties of the school secretary were absorbed by the Principal and the complainant has not been replaced.   

As there were no proposals for changes from the complainant and the financial difficulties had to be address it was decided to confirm the redundancy.  The complainant was provided with a statutory redundancy payment which she returned as she did not want to accept the role was redundant.

Cross Examination

In reply to questions about the funding grants the Principal stated that the Ancillary grant provides for secretarial and caretaker wages.  The Capitation grant provides for lighting, heating, and cleaning.  The two grants may be pooled together. 

The Principal confirmed that there were four ancillary staff in January 2021.  The secretary, the librarian, the cleaner and the caretaker.  The caretaker resigned in January 2021 and a new caretaker was hired in April / May 2021.

In reply to questions about additional funds provided by the Department of Education for cleaning during the Covid-19 pandemic the Principal stated that such funds were to be ring fenced.  It was not permitted to use these funds for purposes other than the additional cleaning and equipment required for health and safety during the pandemic.

The Principal stated she could not answer for practices that were in place before she arrived.  How the role of the librarian was established was before her appointment.  When engaging with all ancillary staff the last in first out procedure was followed and the role of librarian was made redundant.  The assessment of needs confirmed that a caretaker was required for the school.  The caretaker had resigned in January 2021 and a new caretaker was hired in April / May 2021.  The Principal confirmed that taking on caretaker duties had not been discussed with the complainant as she would not entertain any change to her terms and conditions. 

In reply to questions about the financial deficit the Principal stated that the deficit was € 7,000 and that was unsustainable.  She confirmed that the Department of Education had refused any additional funding as the full grant had been provided and it was unusual to have an overspend in a school of this size.  The Principal confirmed that the Department was not told the role of secretary would be made redundant.  The Principal stated that her was no clarity about the national negotiations regarding school secretaries and the school had to deal with the immediate financial difficulty it was facing.

Re-examination

The Principal confirmed that he Ancillary and Capitation grants may be used by a school for a common purpose.  The additional funds provided for deep cleaning and PPE arising from the Covid-19 pandemic were ring fenced and were not permitted to be used to pay wages.  In fact, the total cost of the additional Covid related cleaning was more than the funding provided.

The Principal confirmed that the Librarian had looked after the school library and was not just involved with the book rental scheme.

The Principal confirmed that the complainant had never offered or suggested taking on the duties of the school caretaker.

The Principal stated that the school accounts are the property of the Board of Management, and it was not appropriate to disclose confidential accounts.  The school took legal advice on this point.  The amount of the deficit had been provided to the complainant.  The respondent had contacted the FSSU and the Department in early February 2021 requesting extra funding to pay salaries.  This request was refused as the full grants had been provided to the school.

The Principal confirmed that the school secretary had not been replaced.  She stated that some financial difficulties remained, and the school had to fundraise to meet expenditure on basic items such as oil.

The Principal confirmed that the complainant’s last day at work was 30 April 2021.

Complainant’s Evidence

The complainant outlined her work arrangements.  She was employed by the respondent as school secretary for almost 11 years.  She was a grant paid secretary, so she did not have public service terms and conditions.  She was not paid during vacation periods and so claimed jobseekers’ benefit.

The complainant described how on 30 April 2021 she was given notice of her redundancy by the Principal six minutes before she was due to finish her working day.  She was given a letter and was not allowed to work her notice period.  She was never in the school after that day.  Her service of almost 11 years was not acknowledged except by one teacher who gave her a gift.

The complainant stated that she had a wonderful working relationship with the previous Principal.  The new Principal started in January 2021 and a lot of the communication was by email.  On 05 March 2021 the Principal came to her and asker her to meet with the Chairman of the Board of Management.  He handed her a letter about payment for public holidays.  The complainant stated that the Principal asked her if she would job share or reduce her working hours.  Then she was asked for suggestions on cost savings.  The complainant asserted that she had saved the school thousands by negotiating better agreements.  The complainant stated that she was then surprised when the risk of redundancy was mentioned.  The Principal told her she could go home that day if she wished but she did not and did not take time off from work.

The complainant stated that after four further meetings she was still not aware of the financial difficulties mentioned.  No document was given setting out any financial difficulty.  She stated that she did not feel there was any financial difficulty but if there had been she would have worked with them.

The complainant stated that things could have been done differently.  She felt she was not treated with dignity and the respondent did not show any duty of care toward her.

The complainant stated that at the end of the meeting of 28 April 2021 she thought there would be a conciliation meeting.  Her union representative made a referral to the WRC.  However, that didn’t happen as she was made redundant on 30 April 2021 and not allowed to work her notice period.

The complainant contended that the redundancy process was not legitimate as the school was not in financial difficulty.  She stated that she felt victimised and bullied during the process.  She was the longest serving non-teaching member of staff and she stated that she was not given any details on a pay or hours reduction.

The complainant gave details of her efforts to mitigate her loss and her employment after redundancy.

Cross Examination

The complainant answered questions about her periods of employment after being made redundant and her efforts to mitigate any loss.

In reply to questions the complainant confirmed that in her role as secretary she had access to bank accounts.  However, she stated that she did not know the school was in financial difficulties.  She knew the ancillary grant was more than the wages of the secretary and caretaker posts.  She did not know that the librarian and caretaker were paid out of the ancillary grant.  The complainant stated that she was not aware the Principal was looking at changing suppliers as that had been part of the secretary’s role.

The complainant confirmed that she had a problem with the first meeting of 05 March 2021 as she did not have a representative with her.  She had no issue with the later meetings as she was accompanied to each by a trade union representative.

The complainant did not accept there was a legitimate redundancy situation.  She stated that if the facts had been given to her, she would have engaged.  She confirmed that she was told at the meetings that there was a deficit of €7,000.  The complainant also confirmed that she and her representative had not put forward any alternatives to redundancy as there was no legitimate redundancy. 

In reply to questions about her treatment during the process the complainant stated that she felt she was not well treated.  She confirmed that the Principal had offered her time off after the meeting of 05 March 2021.  The complainant confirmed that the librarian role was made redundant

Re-examination

The complainant stated that on 05 March 2021 although she was told that she could go home after the meeting, the Principal was not pleasant to her.  She was told she could take the following Monday off as a day in lieu of a public holiday.

The complainant said she was upset by the way she was treated.  On 30 April 2021 she was given six minutes to get out as she was not allowed to work her notice period.  There was no acknowledgement of her years of service in the way she was made redundant.

Findings

The Principal in her evidence described the financial position of the school when she took up her post in January 2021.  As with all primary schools the financial year ends on 31 August and the annual accounts must be finalised by 28 February the following year.  The financial concerns became apparent when the accounts were audited in February 2021.  For the year 2019/2020 there was an overspend on ancillary staff of €6,944.  In the year 2020/2021 the expenditure on ancillary staff to 31 March 2021 was €15,485.  The full Ancillary grant for 2020/2021 was €16,781 so clearly by the end of the year there would be another overspend if costs were not reduced.

Following the audit of accounts, the Principal brought the issues to the attention of the Board of Management.  It was decided that urgent action to reduce expenditure was required.  The Board directed engagement with all the ancillary staff to try to reduce costs and avoid redundancies.  In reply to a question from the AO the Principal stated that any overspend would have to be financed through fund raising and that is not sustainable in the long term.  The Principal clarified that funding provided by the Department of Education for deep cleaning and PPE due to the Covid-19 pandemic was ringfenced and could not be used for any other purpose.  Based on the submissions and evidence presented I am satisfied that the school was in financial difficulties in early 2021.

I am satisfied that action was taken to reduce the cost of services by changing suppliers, but these actions were insufficient to address the deficit.  The respondent reviewed the spend on wages for ancillary staff and assessed the needs of the school.  There were four ancillary services staff, the secretary, the librarian, the cleaner and the caretaker.  All posts were considered.  I am satisfied that changes had to be made to ensure that expenditure did not exceed income.

Following consultations, the cleaner’s hours of work were reduced, and a pay claim was rejected, the librarian was made redundant.  The caretaker had resigned in January 2021 and was not replaced until April/May 2021. 

The consultation with the complainant commenced at an informal meeting on 05 March 2021 and continued at formal meetings on 30 March, 12, 21 and 28 April 2021.  While the respondent did not present the complainant or her representatives with any document outlining the deficit and proposals on how the cost reductions might be achieved, I am satisfied, based on the evidence of both witnesses, that the complainant was informed of the amount of the overspend. 

I was provided with copies of the minutes of the formal consultation meetings.  I note that at the meeting of 12 April 2021 the complainant was told that there was overspending in the region of €7,000 annually and this was unsustainable.  A risk of redundancy letter was provided to the complainant.  The union representative stated that they were willing to engage in the consultation process but there would be no change to terms and conditions of employment.  It was also noted that there was a collective engagement ongoing with the Department of Education on the terms and conditions of school secretaries the outcome of which could mean the salary of the secretary being paid by the Department. 

I note that at the meeting of 21 April 2021, the union representative again stated they were willing to engage but they required access to the accounts, the assessment of needs and information on the cost cutting measures put in place across the school.  The complainant’s representative indicated that it was not possible to provide proposals until it was clear what the target to be met was.  The respondent indicated that for the role of secretary to start meeting needs and become financially viable an earlier start time, reduction to hours per week and a cut to the hourly rate would need to be explored.  The complainant’s representative responded that it may be possible to accommodate an early start, a reduction in hours could be discussed but a cut to the rate of pay would be more difficult but, only if full clarity on the financial situation and any request for additional funding was provided to substantiate the need.

I note that the assessment of needs document was sent by email on the morning of 28 April 2021.  A further consultation meeting was arranged for 3pm the same day.  No other documents were provided by the respondent to the complainant or her representative.  The position of both parties at the meeting that afternoon remained the same.  The complainant’s representative proposed referring the matter to conciliation at the WRC.

I find that the audit of the accounts disclosed overspending on the Ancillary grant in 2019/2020.  The level of spending in 2020/2021 at the end of March indicated another overspend by the end of year if no action was taken.  In those circumstances I am satisfied that the Board of Management was obliged to implement changes that would reduce costs.  The staff changes made in April 2021 included reducing the working hours of the cleaner and making the librarian redundant.  These changes were made in consultation with the relevant employees. 

The consultation process with the complainant did not reach any agreement on reducing costs that could avoid redundancy.  The respondent having assessed the needs of the school decided that the work for which the secretary had been employed could be absorbed by other employees and the role of secretary would not be replaced.  I am satisfied that this constitutes a redundancy as defined in section 7(2)(c) of the Redundancy Payments Act 1967 as amended.  Therefore, I find that a genuine redundancy situation existed.

The Act at section 6(4)(c) provides that redundancy is a fair reason for dismissal but there are circumstances where a dismissal on grounds of redundancy may be unfair.  Section 6(3) provides that dismissal by reason of redundancy may be unfair where one or more other employees in similar employment with the same employer have not been dismissed.  Such may occur where the selection of the employee for dismissal was based wholly or mainly on one or more of the unfair grounds in section 6 (2) of the Act or was made in contravention of an agreed procedure or a procedure established by custom and practice and where there were no special reasons justifying the departure from such procedure.  In this case there was no agreed procedure or custom and practice.  However, the respondent did use last in first out when making the librarian redundant in April 2021.  The only remaining ancillary services staff were the complainant as secretary and the cleaner.  As the two remaining employees were not in similar employment and the work done by the secretary could be absorbed by the Principal, there was no unfair selection for redundancy.

Section 6(7) of the Act provides that the adjudication officer may, if they consider it appropriate to do so, consider the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.  The complainant’s representative submitted that the respondent did not act reasonably or fairly throughout the engagements.  Before the financial problems were raised with the complainant, she had raised several issues, including a request for additional hours, payment for public holidays and her working space.  It was submitted that there was a personal feeling to the consultation engagement that was dismissive in tone combined with a lack of transparency.  The respondent submitted that it engaged in four consultation meetings adopting an honest and transparent approach but, the complainant had refused to put forward any proposals as alternatives to redundancy.

In JVC Europe Ltd v Panisi [2011] IEHC 279. Charleton J cited the comments of the Employment Appeals Tribunal in St. Ledger v Frontline Distributors Ireland Ltd [1995] E.L.R. 160 noting that impersonality and change run through all five definitions of redundancy in the Act.  Change may mean a reduction in the number of employees, or the way work is to be done in future.  An employer is entitled to reorganise and/or reduce employee numbers for legitimate business reasons.  Charleton J noted that in a redundancy situation “It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go should be examined.”.  In the instant case there was one informal meeting followed by four formal consultation meetings where the complainant was represented by her trade union official.  In those meetings the respondent set out the fact of the overspend on ancillary service wages and referred to job-sharing, reduction in hours, reduction in the hourly rate of pay being considered.  However, there was no evidence that the respondent proposed specific changes such as the reduction of how many hours per week or what reduction of the rate per hour that if agreed might avoid redundancy.  In my opinion the respondent did not act reasonably when it failed to provide specific details of the changes to hours of work or rate of pay that it believed might be sufficient to avoid a redundancy situation. 

The respondent was in possession of all the relevant information about the financial difficulties facing the school.  There was evidence of the overspend in 2019/2020 and a further potential overspend in 2020/2021 if no action was taken to reduce costs.  Clearly cost savings were required urgently.  Changes were being implemented, one employee already made redundant, another had their hours of work reduced.  In those circumstances the respondent should have been able to provide information to the complainant about the specific reduction in hours and rate of pay it was seeking, that might, if agreed to, avoid a redundancy. 

The last consultation meeting took place on 28 April 2021.  I note that the assessment of needs was provided to the complainant’s representative shortly before the meeting.  The meeting ended without agreement on any cost savings that might avoid redundancy.  The complainant’s representative indicated that he would refer the matter to the WRC for a conciliation conference.  

The respondent’s submission includes at Appendix 13 a copy of a letter headed Confirmation of Redundancy and dated the same day as the final meeting, 28 April 2021.  The letter states that no submissions were made by the complainant or her representative and this led the Board of Management to conclude that there was no alternative to redundancy in respect of her role.  As this letter is dated the same date as the final consultation meeting it suggests to me that a decision had been taken by the Board of Management to declare the role of secretary redundant before the consultations had concluded. 

The letter was to formally confirm that the role of secretary would no longer exist, and that the complainant’s employment would be terminated by reason of redundancy on 21 May 2021.  The complainant was to be required to partially work out some of her notice period up to Friday 07 May 2021.  This letter, exhibited by the respondent, was not in fact the letter given to the complainant to confirm her redundancy.  The complainant was not given a letter confirming her redundancy until two days later, Friday 30 April 2021.  A copy of that letter is exhibited at Appendix 22 of the complainant’s submission.  This letter was handed to the complainant by the Principal just before the end of her duty that day.  The complainant was informed that the school did not require her to work her six weeks’ notice period. 

There was no cogent explanation as to why an employee with almost eleven years’ service was given a few minutes notice of the termination of her employment.  There was no cost saving benefit to the school from such action as the complainant was paid for the notice period.  The respondent had stated that there was no issue about the complainant’s work performance during her employment.  I find that the way the termination of the complainant’s employment was handled on 30 April 2021 demonstrated a lack of respect for an employee with a good performance record and was not reasonable conduct by the respondent.

The respondent had a responsibility to address the significant overspend and ensure that expenditure did not exceed income.  Cost savings measures were implemented for both services and employment costs.  While a genuine redundancy situation existed, I find that the respondent’s conduct was not reasonable when it failed to specify what reduction in hours and rate of pay it was seeking agreement on from the complainant.  In addition, the assessment of need was only provided on the day of the last meeting allowing very little time for the complainant to consider the document.  The letter exhibited by the respondent, dated 28 April 2021, indicates that a decision to make the post redundant had been taken before the consultation with the complainant concluded.  In those circumstances I find the respondent did not engage in a meaningful consultation process. Due to the lack of reasonableness in the respondent’s conduct of the redundancy process I find the dismissal of the complainant was unfair.

Redress

The complainant initially sought re-instatement but by the time of the hearing she had concluded that neither re-instatement nor re-engagement was a viable option.  Consequently, the complainant sought the maximum allowable compensation that can be provided under the Act.

Taking account of the circumstances and the views of the complainant I consider the appropriate redress to be an award of compensation.  Section 7(1)(c)(1) of the Act provides:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

The Act also sets out the items to be considered in determining the amount of compensation:

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

(2B) Where—

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.

(3) In this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

I am satisfied that the complainant was diligent in her efforts to mitigate her loss arising from her unfair dismissal.  She provided documentary evidence of her employment since April 2021 and her applications for employment.  She succeeded in obtaining temporary employment but at a lower hourly rate by the end of May 2021.  Her notice period ran to 11 June 2021 so initially there was no financial loss.  That temporary contract ended in November 2021.  The complainant obtained another temporary contract from April to September 2022.  She then obtained a temporary Clerical Officer post at the end of October 2022 which employment was continuing at the date of the hearing.  Details of the hourly rates of pay were provided for each employment and in each case the rate was lower than the rate when employed by the respondent.

Having regard to all the circumstances and taking account of actual loss and estimated future loss and loss of redundancy rights I consider the appropriate compensation to be €8,000 in addition to the redundancy payment made on termination.

CA-00045595-002

Complaint submitted pursuant to section 7 of the Terms of Employment (Information) Act,1994.

The complainant alleges that the respondent did not provide her with a written statement of her core terms and conditions within 2 months of her commencing employment.  The complainant disputes that a contract of employment was furnished to her at a meeting in 2019.  It is contended that if a contract that accurately reflected her terms and conditions of employment had been provided, she would have no reason not to sign and accept such contract.

The respondent’s position is that the complainant was at all times aware of her terms of employment.  Further the respondent asserts that a statement of terms of employment was provided to the complainant in September 2019.

Legislation

Section 3 of the Act as amended provides:

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 …

[all the required terms are set out in the Act]

(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,

(4) A statement furnished by an employer under subsection (1) or (1A) shall be signed and dated by or on behalf of the employer.

The legislation requires an employer to provide a statement in writing of the terms of employment.  If an employer fails to provide either the five-day statement or the full statement of terms in writing not later than one month after commencing employment, they are in breach of sections 3 and 3 (1A).  The Act transposes into Irish law Directive 91/533/EC and must be applied in the context of EU law.  The decision in An Animal Carer v An Employer ADJ-00009820 sets out the reasons why a contravention of section 3 is a subsisting contravention if no statement of terms of employment in compliance with the Act is provided at any stage during the employment.

In this case the complainant commenced her employment in 2011 and was not provided with a written statement of her terms of employment.  The respondent asserts that in September 2019 the complainant was provided with a contract.  The respondent exhibited handwritten minutes of a meeting that took place on 04 September 2019 together with a document headed Contract of Employment.  The handwritten document describes a discussion about hours of work which issue was to be referred to the full Board of Management.  The only reference to a contract is “Contract offered to & it was refused.” The contract exhibited has various sections printed in red and it is unsigned.  It appears to be a draft contract which was unfinished.  I am satisfied that this unsigned document did not comply with the requirements of the Act.

I find that the complainant was not provided with a statement in writing of her terms of employment.  The respondent contravened section 3(1) and 3(4) of the Act in failing to provide the complainant with a statement in compliance with the Act.  The complaint is well founded.  Having regard to all the circumstances I consider it just and equitable to order the respondent to pay to the complainant compensation of €400, that is slightly more than two weeks’ pay.

CA-00045595-003

Complaint submitted pursuant to section 27 of the Organisation of Working Time Act. 1997.

The complainant raised a complaint with the respondent on 14 December 2020 claiming that she had not received her public holiday entitlements.  The respondent asserts that the complainant was provided with a statement identifying her public holiday entitlement and that she was paid accordingly for any unpaid public holidays.  The respondent sought particulars of any public holiday entitlements that the complainant alleged she was due, but that information was not forthcoming.  The respondent submits that the relevant period for a complaint of a breach of the Act is 6 months prior to the date the complaint submitted to the WRC.  The cognisable period it is submitted is 10 February 2021 to 09 August 2021.

Legislation

Public holiday entitlements are provided for in section 21 of the Organisation of Working Time Act, 1997:

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) …

(3) …

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) …

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

The correct pay for public holidays is to be determined in accordance with the regulations contained in S.I. 475/1997 – Organisation of Working Time (Determinations of Pay for Holidays) Regulations 1997.  In brief a part-time employee who works for at least 40 hours in the 5 weeks before a public holiday is entitled to be paid for the day if the holiday falls on a day that the employee would normally work.  When the public holiday falls on a day that the employee would not normally work, they should be paid one-fifth of their weekly pay. 

Where an employee does not receive the appropriate compensation for the public holiday, they may submit a complaint to the WRC.  The Workplace Relations Act, 2015 sets out the time within which complaints may be presented.

Section 41 (6) and (8) of the Workplace Relations Act 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 complainant submitted this complaint to the WRC on 09 August 2021 but did not specify the date of the contravention to which the complaint relates.  In Royal Liver Assurance Ltd v Macken [2002] 4 IR 427 Lavan J held that an infringement of section 21 would arise on the date of the public holiday itself.  Therefore, I may only consider complaints concerning the public holidays that occurred In the period from 10 February to 11 June 2021, the date of termination.  There were four public holidays in that period, 17 March (Wednesday), 05 April (Easter Monday), 03 May (Monday) and 07 June (Monday). 

I do not have jurisdiction to adjudicate on complaints relating to public holidays between 2016 and 2020.  I note that at the meeting on 05 March 2021 the respondent presented the complainant with a summary of public holidays between 2016 and 2020 for which she had not been paid.  The respondent calculated that the complainant was due payment of €975.37 based on 1/5th of her weekly wage for each listed holiday.  I understand this payment was made. 

The document provided to the complainant on 05 March 2021 showed all calculations for public holidays were based on 1/5th of her weekly wage.  Such a calculation only arises where the public holiday occurs on a day on which the employee would not normally work.  As this is the only document concerning public holiday payments provided by the respondent, I conclude that the complainant was paid 1/5th of her weekly wage for each of the four public holidays that occurred between 10 February and 11 June 2021.  The complainant normally worked on Monday, Wednesday, and Friday.  The public holiday occurring on 17 March, 05 April, 03 May, and 07 June 2021 all fell on either Monday or Wednesday.  As these were days that the complainant would normally work, she was entitled to be paid for her normal four-hour day.  The complainant took up other employment on 22 May 2021 during her notice period and therefore would not qualify for compensation for the June public holiday.  Payment of 1/5th instead of for a full day would result in an underpayment of €26.50 per day.   I declare that the complaint, concerning public holiday payment in the cognisable period 10 February to 11 June 2021, is well founded.  Having regard to all the circumstances I decide that it is fair and equitable to direct the respondent to pay to the complainant compensation in the amount of €80.

CA-00045595-001

Complaint submitted pursuant to section 8 of the Unfair Dismissals Act, 1977.

I find that a genuine redundancy situation existed and that there was no unfair selection for redundancy.

However, I find the respondent did not engage in a meaningful consultation process as it failed to provide information to the complainant about the specific reduction in hours and rate of pay it was seeking, that might, if agreed to, avoid a redundancy.  The letter exhibited by the respondent, dated 28 April 2021, indicates that a decision to make the post redundant had been taken before the consultation with the complainant concluded.  In those circumstances I find the respondent did not engage in a meaningful consultation process. Due to the lack of reasonableness in the respondent’s conduct of the redundancy process I determine that the complainant was unfairly dismissed.

I find that the way the termination of the complainant’s employment was handled on 30 April 2021 demonstrated a lack of respect for an employee with a good performance record and was not reasonable conduct by the respondent.  This action held no cost saving for the respondent.

Having regard to all the circumstances I consider it appropriate to direct the respondent to pay compensation to the complainant in the amount of €8,000.   This award of compensation is in addition to the payment made to the complainant on termination of her employment.

CA-00045595-002

Complaint submitted pursuant to section 7 of the Terms of Employment (Information) Act,1994.

I find that the complainant was not provided with a statement in writing of her terms of employment.  The respondent contravened section 3(1) and 3(4) of the Act in failing to provide the complainant with a statement in compliance with the Act.  I am satisfied that there was a subsisting contravention of the Act throughout the complainant’s employment.  I declare that the complaint is well founded.  Having regard to all the circumstances I consider it just and equitable to order the respondent to pay to the complainant compensation of €400.

CA-00045595-003

Complaint submitted pursuant to section 27 of the Organisation of Working Time Act. 1997.

I declare that the complaint, concerning public holiday payment in the cognisable period 10 February to 11 June 2021, is well founded.  Having regard to all the circumstances I decide that it is fair and equitable to direct the respondent to pay to the complainant compensation in the amount of €80.

Unfair Dismissal

Redundancy

Fair Procedure

Terms of Employment

Public Holiday Compensation