Complainant

Respondent

Parties

Anita  Maher

Mairead Ahern t/a Maynooth Day Nursery

Representatives

  N/A

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058882-001

18/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act 1973

CA-00058882-002

18/09/2023

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

CA-00058882-003

18/09/2023

On 16 October 2006, the Complainant commenced employment with the Respondent as a childcare worker. She looked after children in both the Early Childhood Care and Education Scheme (“ECCE”) and afterschool rooms. The Complainant earned €466.15 gross weekly, working approximately 35 hours per week. On 15 May 2023, after her lunchbreak, the Respondent told the Complainant that Revenue had closed the business down. The Complainant finished up her work that day. She did not receive any redundancy payment, notice payment or payment for accrued annual leave. The Complainant filed her Complaint Form with the WRC on 18 September 2023.

The Complainant provided detailed oral submissions.

The Complainant submitted that she worked for the Respondent for over 16 years, since 2006. She submitted that she was the Respondent’s longest-serving member of staff. She submitted that she had a good relationship with the Respondent and loved her work. She submitted that she had no knowledge of the Respondent’s financial difficulties and that the closure of the business came as a shock to her.

CA-00058882-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act 1967 – Redundancy Pay:

The Complainant submitted that on 15 May 2023, two men from Revenue came to speak with the Respondent. When the Complainant returned from her lunchbreak, she was informed by the Respondent that Revenue had closed the business down. The Complainant submitted that when parents came to collect their children later that afternoon, they were told that the business was closing down and they were also provided with a letter to this effect.

The Complainant submitted that at the time, three other members of staff as well has herself, worked for the Respondent. She submitted that they were each called individually to the office and were told that the business was closing down. The Complainant submitted that the business has not operated since that date. The Complainant further submitted that she has returned to the business on approximately two occasions in order to collect her things and some paperwork.

The Complainant submitted that on 24 July 2023, she emailed the Respondent with the RP77 Form. On 2 September 2023, the Respondent messaged her via “WhatsApp” to tell her that she was unable to give the redundancy claim any attention and that she couldn’t afford to pay it. The Respondent advised the Complainant to seek “legal/WRC advice”. The Complainant submitted that she heard nothing further from the Respondent regarding her redundancy payment.

The Complainant filed her Complaint Form with the WRC on 18 September 2023.

CA-00058882-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act 1973 – Notice Pay:

The Complainant submitted that she received no notice whatsoever that the business was closing down and that her employment was ending. The Complainant submitted that she was paid only for her final week of work.

CA-00058882-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Accrued Annual Leave Pay:

The Complainant submitted that she received 20 days of annual leave each year. She submitted that the business closed for two weeks in July and for one week at Christmas, when she took a total of 15 days of annual leave. She believed that she was owed approximately two days of accrued annual leave when the business closed down.  

As set out above, the Respondent did not attend the Hearing.

CA-00058882-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act 1967 – Redundancy Pay:

The Law:

The Complainant seeks a statutory redundancy payment under section 39 of the Redundancy Payments Acts 1967, as revised (the “RPA”). In order to qualify, an employee must: (1) have at least two years’ continuous service; (2) be in employment which is insurable under the Social Welfare Acts – this is a matter for the Department of Social Protection; (3) be over the age of 16; (4) have been made redundant as a result of a genuine redundancy situation and/or if on lay-off or short-time, have complied with any statutory notice requirements; and (5) not have received a lump sum payment. Periods of lay-off are excluded from reckonable service.

Section 7 of the RPA sets out five specific circumstances in which an employee may be entitled to a redundancy payment, including:

“(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose 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”.

Schedule 3 of the RPA sets out what constitutes “normal weekly remuneration”:

“13. For the purposes of this Schedule, in the case of an employee who is paid wholly by an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration does not vary in relation to the amount of work done by him, his normal weekly remuneration shall be taken to be his earnings (including any regular bonus or allowance which does not vary in relation to the amount of work done and any payment in kind) for his normal weekly working hours as at the date on which he was declared redundant, together with, in the case of an employee who is normally expected to work overtime, his average weekly overtime earnings as determined in accordance with paragraph 14.”

Findings and Conclusion:

As the Respondent ceased to carry on the business for the purpose of which the Complainant was employed by her, the Complainant’s job became redundant. As the Complainant has completed more than two years of service; is over the age of 16; was made redundant as a result of a genuine redundancy situation; and did not receive any lump sum payment, I am satisfied that her complaint is well founded.

The Complainant is entitled to a redundancy payment based on the following facts established in evidence at the Hearing and confirmed in the documentation provided:

·            Date of commencement of employment: 16 October 2006.

·            Date of end of employment: 15 May 2023.

·            Gross weekly pay: €466.15.

Any award made under the RPA is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 – 1966. The calculation of the lump sum is a matter for the relevant Department.

CA-00058882-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act 1973 – Notice Pay:

The Law:

Notice entitlements are set out under section 4 of the Minimum Notice and Terms of Employment Act 1973, as amended (the “MNTEA”), as follows:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

[…]

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.”.

Findings and Conclusions:

The Complainant’s uncontested evidence was that on 15 May 2023, she was told that the business was closing down with immediate effect. The Complainant submitted that she received no notice or pay in lieu of notice.

The Complainant commenced work on 16 October 2006 and her employment was terminated on 15 May 2023. Pursuant to section 4(2)(e) of the MNTEA, the Complainant was entitled to eight weeks’ notice. In the circumstances, I find that the complaint is well founded. I direct the Respondent to pay the Complainant compensation in the amount of €3,729.20 (eight weeks’ pay).

CA-00058882-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Accrued Annual Leave Pay:

The Law:

Pursuant to section 19(1) of the Organisation of Working Time Act 1997, as amended (the “OWTA”), an employee is entitled to the following paid annual leave:

“(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks).

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

In Waterford City Council v. Mr. Stephen O’Donoghue, DWT0963, the Labour Court held:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Findings and Conclusions:

The cognisable period for this complaint runs from 19 March 2023 until 18 September 2023. The Complainant’s uncontested evidence was that she was not paid for her accrued annual leave when she was made redundant. The Complainant submitted that she had taken approximately 15 days of annual leave in total and that she believed that she was owed for approximately two days’ annual leave.

Section 2 of the OWTA provides that the “leave year” is any year beginning on 1 April. In this matter, the relevant leave year runs from 1 April 2023 until 31 March 2024. From 1 April 2023 until 15 May 2023 (when the Complainant was made redundant), the Complainant accrued approximately three days of her statutory annual leave entitlement. I note that the Complainant’s payslip dated 10 May 2023 indicates that she received one day of paid annual leave.

I find that the complaint is well founded. I order the Respondent to pay the Complainant €186.50 (approximately two days’ pay). This award is just and equitable having regard to all the circumstances.

CA-00058882-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act 1967 – Redundancy Pay:

For the reasons outlined above, the complaint is well founded.

The relevant criteria are:

·            Date of commencement of employment: 16 October 2006.

·            Date of end of employment: 15 May 2023.

·            Gross weekly pay: €466.15.

Any award made under the Redundancy Payments Acts 1967 as revised, is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 – 1966. The calculation of the lump sum is a matter for the relevant Department.

CA-00058882-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act 1973 – Notice Pay:

For the reasons outlined above, I find that the complaint is well founded. I direct the Respondent to pay the Complainant compensation in the amount of €3,729.20.

CA-00058882-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Accrued Annual Leave Pay:

For the reasons outlined above, I find that the complaint is well founded. I order the Respondent to pay the Complainant €186.50.

Redundancy Payments Act 1967, Minimum Notice and Terms of Employment Act 1973, Organisation of Working Time Act 1997.