Complainant

Respondent

Parties

Lasma  Megne

Bidvest Noonan (Roi) Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Kelly Law Solicitors

Ruth Heenan IBEC

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-00054679-001

25/01/2023

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

CA-00054679-002

25/01/2023

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

CA-00054679-003

25/01/2023

The complainant submitted that she was unfairly dismissed, that she did not receive redundancy payment and that she was paid less than the amount due.

The complainant commenced employment on 26/08/2009 and her employment ended on 17/01/2023.  Her gross weekly was €750.75.  She worked 13 years with a clean record. The respondent never had any issues with any aspect of the complainant’s work performance.

In July 2022 the complainant went out sick due to a problem with her knee.  When she returned to work on 16/09/2022 she was advised on 30/09/2022 that her access to the building she worked in was revoked because of allegations of poor performance.  A meeting to investigate the allegations took place on 18/10/2022 and the investigation found that the complainant was underperforming and the matter went to disciplinary on 03/01/2023 where it was found that the complainant had no case to answer as the complainant could not be responsible for standards that had dropped when she had not been there for the 3-month period.  The complainant was deemed unfit for work from 06/12/2022 until she returned on 03/01/2023 and notified her line manager on the 30/12/2022 that she was fit for work. Her line manager informed her that she was on temporary lay-off and that she would not be paid. She received no work or pay since. At the disciplinary hearing the claimant was offered alternative work options at other city locations which she could not take up due to her family commitments coupled with her lack of transport. The complainant was proven not to have done anything wrong but yet she has been punished with her livelihood. The findings of the disciplinary hearing should have been communicated earlier in the interests of fairness. In light of all of these matters the claimant could not remain in this employment and was left with no option but to tender her resignation.

The complainant asked what were the complaints against her and was never told but did receive a letter saying that there were serious allegations against her that could constitute gross misconduct and dismissal.  This caused significant amount of distress, crying and anxiety as well as lack of sleep and visits to her gp.  She had worked with the respondent since 2016 with no issues and when she made contact with HR they advised that they did not know of the situation and had no knowledge of it.  She eventually received a letter from HR advising that the allegations were persistent unsatisfactory work.  The complainant had in fact complained about the quality of work by some employees so this came as a surprise to her to find out that the respondent was alleging that the complainant was not completing work satisfactorily. 

The complainant’s evidence was that she never had any issues at work and then she was told her access was removed and she did not know why.  Her job was both cleaning and catering.  She was not advised of disciplinary and then she was advised that she was under risk of redundancy.  She said that her role was working nights and then she moved to day shift.  She had a period of sick leave and returned in September 2022.  She said that she sent pictures to the company about the work that had been done by others and that no response was received and advised the respondent about the toilets and there was never mention about her performance.  She said she was then told that she would be redeployed and was surprised with this and was told she needed to do both catering and cleaning. 

She said on 30/09/2022 she received a call and was told that she would be redeployed and then access was removed but not told why.  The complainant said she was told to go to a different location and this was 03/10/2022 and she said she asked what the allegations were against her.  She sent an email on 05/10/2022 raising a grievance and did not receive a written response but received a phone call.  She was asked to confirm what had happened and asked for the allegations against her.  There was a preliminary investigation meeting and most of the questions were about a meeting on 05/07/2022.  The complainant went out sick with stress and returned on 03/01/2023.  The complainant said she was offered alternative jobs but they were unsuitable as she does not drive and the walk was 10 minutes longer.  She said she began to struggle financially and had to chase down her manager to find out what happened and could not claim social welfare.  The complainant said she was on medication to help her sleep and she had no choice but to leave.  She said in her evidence that she was able to return to work on 27/05/2023 and secured employment on 30/05/2023 and that she has had no loss in earnings.

Cross Examination of Complainant:

The complainant said she did not get a warning and she was not dismissed and that she left her role as after all that happened and then she was not made redundant.  She said she raised a grievance about her concerns.  She said efforts were made to find alternative employment and that some of the jobs were similar and she confirmed that she was not told that she was being made redundancy and that the respondent was in the middle of a process to find her alternative jobs.  She said it was her understanding that she was on lay-off because the building was closing down and that she could only work certain hours owing to childcare and that they never apologised for their behaviour.  She said her role included preparing meeting rooms and making tea and coffee.  She said she complained about the quality of cleaning by others.  The complainant said she was owed monies for holidays that she accrued totalling 7.21 days which was approximately €541.69.

The Complainant worked as a Cleaning Operative for the Respondent from 26/08/2009 until her resignation on 17/01/2023. The Complainant earned €728.86 net per week.  Her duties included catering and cleaning duties.

In May 2022, the Respondent received complaints from the Client regarding cleaning standards at Block B where the complainant worked. Initially, Ms Geda Gudaviciute, Key Account Manager, considered that the issues might have been caused by the night shift and staff were changed. Given the Complainant’s significant experience, Ms Gudaviciute did not consider that the issues could relate to her performance at first. The meeting with the client of 14/06/2022 brought these issues to a head when the client discussed and highlighted their concerns again.  When the cleaning concerns did not change with different staff introduced on the night shift, the Respondent looked to the day shift as the likely source of performance concern. Ms Gudaviciute attended the Block B site on 05/07/2022 to audit cleaning and noticed that the toilets had not yet been checked and asked the Complainant to step outside to discuss. In response to being asked why the toilets had not been cleaned, the Complainant stated that she had no time as she had been fulfilling catering duties. There had not been catering responsibilities on that day and in response to this the complainant shouted and walked out and went on sick leave from 08/07/2022 until 15/09/2022 and the standard of cleaning noticeably improved during this time, but fell again upon the complainant’s return. 

The client requested that the complainant was not to work in Block B and on 06/10/2022 the Respondent wrote to the complainant and advised that they had succeeded in redeploying her on a temporary basis owing to the client’s request.  The complainant was advised that as a result of a number of allegations, including site access removalandallegedly bringing the company into disrepute that an investigation process would commence which took place on 18/11/2022.  As a result of that investigation it was determined that the complainant was underperforming and that a disciplinary process should proceed which took place on 06/01/2023 albeit the decision was that the complainant had no disciplinary case to answer to. 

On 17/11/2022 the complainant was advised that she was at risk of redundancy owing to the closure of the site where she had been temporarily placed.  On 06/12/2022 the complainant reported ill health and was absent until 03/01/2023.  The site she had been relocated to closed and on the complainant’s return to work a further consultation took place on 04/01/2022.  The complainant was placed on lay off on 09/01/2023 and on 12/01/2023 and 13/01/2023 was further advised of efforts to secure an alternative place of work for her. 

Following personal and upsetting accusations against her manager Ms Gudaviciute stepped away from managing this issue and Mr A, Operations Director, took over.  On 17/01/2023 the Complainant wrote to the Respondent resigning from her position and the respondent replied that the complainant was offered temporary work but had refused such offers.  The complainant was asked to reconsider her resignation and on 23/01/2023 Mr A emailed the Complainant with multiple alternative roles and were advised by the complainant’s solicitor not to make further communication with the Complainant.  The Respondent contends that the Complainant was well aware that her site had closed upon her return to work on 3rd January. The closure had been discussed at the first consultation meeting.

It was denied that the complainant had been dismissed or that it was an unfair dismissal.  It was submitted that the complainant had not reached the burden of proof required and the employee had not acted unreasonably.  The respondent at all times operated within the terms of the contract of employment and fulfilled their obligations whereas the complainant had not exhausted procedures and acted in a hasty and unreasonable manner and her actions were not reasonable and failed to give the respondent an opportunity to respond.

Case law cited included: Conway v Ulster Bank, UD474/1981 McCormack v DunnesStores, UD 1421/2008, Travers v MBNA Ireland Limited, UD720/2006, Allianz Worldwide Care S.A. v Emmanuel Ranchin (UDD1636).

Ms Gudaviciute evidence was that there were complaints about the quality of work and they had to make some changes to try and improve matters.  The complainant was considered an experienced worker and it was not expected that there were any issues with her.    On 05/07/2022 they found that the toilet check list had not been signed and it had not been cleaned.  There had been no catering on that occasion.  She said that the meeting with the complainant did not go well and she had to ask the complainant to calm down and asked how this had happened.  The complainant went on sick leave and the complainant returned and there was no disciplinary.  Upon her return the client made complaints again about the quality of cleaning and the client was offered the opportunity to swop within the block but they did not want this.  The block where the complainant had been redeployed to was closing and alternative work was offered to her and she was to return to work and she did not return until 03/01/2023.  On 06/01/2023 the complainant had a second consultation meeting and was offered same type of work at a higher rate of pay and she was offered other roles.

Cross Examination:

Under cross examination Ms Gudaviciute said that she was in charge from June 2021 and there were no problems with her work and then on 05/07/2022 it was brought to her attention regarding poor quality of work. The complainant was given a letter of redeployment on 03/10/2022 and her access was removed by the client who communicated that standards had dropped.  She said that the client put the blame on the complainant and they said they saw the difference in standards between when the complainant was working and when she was not.  She said it was a big loss to lose the client who left and it appeared to be because of Block B and training had been done and cleaners changed.  She said she asked the complainant why she had not completed the check list in the toilet as she thought maybe the complainant had completed the work but had not ticked the box but the complainant said she had not gotten around to cleaning it.    The complainant said that the letter of 03/10/2023 was sent to the complainant regarding failures to follow procedure and that the witness was not involved in this.  She said when the complainant was out sick there were less complaints.  She said the complainant had complained about the quality of other people working and that it was not expected that the complainant had also let standards drop.

Evidence of Ms Linda Connolly was that she managers use templates when writing letters to employees and that if a client issues a site ban there is an obligation to adhere to it.  She said if there had been no alternative found then the complainant may have been made redundant.  She said that because the complainant resigned redundancy did not arise.  Ms Connolly said she was not aware of a grievance.

Under cross examination she said she was not involved with the complainant directly and that the letter the complainant received was a standard template letter.  She said considering the circumstances of the situation the letter outlining that the matter was “very serious” was appropriate.  She said it was not a redundancy because the complainant was offered alternative positions.  The witness said she did not accept that the complainant raised grievance and confirmed that the grievance policy does not require an employee to mention the word “grievance” when raising a grievance.

The complainant submits that she was left with no alternative but to resign her position owing to the behaviour of the respondent.  The respondent denies this and submits that the complainant resigned her position.

Under Section 1 of the Unfair Dismissal Act constructive dismissal is defined as:

“the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”.

Section 6(1) of the Act states:

“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.”

It was not disputed that the complainant had an unblemished record, that she raised with the respondent issues regarding the quality of cleaning by other workers and that a client was unhappy with the quality of cleaning.  It was not disputed that the complainant was told she had to be redeployed owing to a request from the client and that as the building the complainant was moved to was closing complainant needed to be redeployed again and in the interim was out of work on sick leave until 03/01/2023 and thereafter was on layoff.  It was also not disputed that there was an investigation which led to a disciplinary process upon which the complainant was deemed not to have a case to answer to.  It was disputed by the respondent that the complainant raised a grievance in her correspondence dated 05/10/2022 and/or 21/11/2022 and in her evidence Ms Connolly said that the complainant failed to mention specifically the word grievance and accepted that this was not specifically required within the process and that the respondent did not respond to these emails specifically. 

I note that there was communication between the parties including the complainant being advised that there was no case to answer in the disciplinary and on 11/01/2023 the complainant advised that she was anxious to return to work and then on 17/01/2023 she resigned her position owing to the disciplinary process and that she was on lay-off.

In a claim of constructive dismissal the Complainant must demonstrate that her decision to resign her employment resulted from either a repudiatory breach of her contract of employment by the employer, or such unreasonable behaviour by the employer that she could not fairly be expected to put up with it any longer.  The test by which a repudiatory breach of contract can be identified was set out in Western Excavating Limited (ECC) v Sharp [1978] IRLR 332 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

Having heard all the evidence and based on the facts, I do not find that the complainant has established that the respondent had made a repudiatory breach in the contract.  It would appear that  the complainant was on lay-off owing to the actions of a client and the complainant remained on lay-off as she could not accept the alternative offers of employment and it would appear the respondent was making efforts to seek alternative employment for her.  I also note that while the interaction of some of those from the respondent was unnecessarily hostile at times when engaging with the complainant, and the investigation and disciplinary process suffered delays, such delays were not fully the fault of the respondent.

Where the contract test is not satisfied the Complainant must show pursuit of her grievances through any relevant procedures before resigning. The Complainant must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have before resigning outlined in Conway v Ulster Bank Limited UDA474/1981.  In Beatty v Bayside Supermarkets UD142/1987, the Employment Appeals Tribunal held:-

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981.  In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

There were delays in the investigation and disciplinary process but not all such delays were the fault of the respondent.  It would also appear that while it was unfortunate that the complainant appeared to be negatively impacted by the actions of the client that resulted in her being redeployed and later redeployed again through a decision to close a building; however, the complainant was offered alternative work.  The concerns or grievance that the complainant raised in October would appear to be mostly with regard to the investigation and disciplinary which was disposed of on 09/01/2023.  It would appear that a hasty decision was made by the complainant to resign her position on 17/01/2023 having only a few days earlier on 11/01/2021 checked in with the respondent regarding other alternatives available.    I find, therefore that the complainant failed to act reasonably by providing the employer with an opportunity to address matters regarding alternative employment and her lay off.

Having regard to the facts of this case and the high bar set by the authorities in constructive dismissal cases, I find that the respondent did not repudiate the Complainant contract of employment or behave in such a manner such as to warrant the Complainant’s resignation and I find that the complainant was not unfairly dismissed and I dismiss the complaint.

The complainant commenced employment on 26/08/2009 and her employment ended on 17/01/2023.  Her gross weekly was €750.75.  She worked 13 years with a clean record. The respondent never had any issues with any aspect of the complainant’s work performance.

In July 2022 the complainant went out sick due to a problem with her knee.  When she returned to work on 16/09/2022 she was advised on 30/09/2022 that her access to the building she worked in was revoked because of allegations of poor performance.  A meeting to investigate the allegations took place on 18/10/2022 and the investigation found that the complainant was underperforming and the matter went to disciplinary on 03/01/2023 where it was found that the complainant had no case to answer as the complainant could not be responsible for standards that had dropped when she had not been there for the 3-month period.  The complainant was deemed unfit for work from 06/12/2022 until she returned on 03/01/2023 and notified her line manager on the 30/12/2022 that she was fit for work. Her line manager informed her that she was on temporary lay-off and that she would not be paid. She received no work or pay since. At the disciplinary hearing the claimant was offered alternative work options at other city locations which she could not take up due to her family commitments coupled with her lack of transport. The complainant was proven not to have done anything wrong but yet she has been punished with her livelihood. The findings of the disciplinary hearing should have been communicated earlier in the interests of fairness. In light of all of these matters the claimant could not remain in this employment and was left with no option but to tender her resignation.

The complainant asked what were the complaints against her and was never told but did receive a letter saying that there were serious allegations against her that could constitute gross misconduct and dismissal.  This caused significant amount of distress, crying and anxiety as well as lack of sleep and visits to her gp.  She had worked with the respondent since 2016 with no issues and when she made contact with HR they advised that they did not know of the situation and had no knowledge of it.  She eventually received a letter from HR advising that the allegations were persistent unsatisfactory work.  The complainant had in fact complained about the quality of work by some employees so this came as a surprise to her to find out that the respondent was alleging that the complainant was not completing work satisfactorily. 

The complainant’s evidence was that she never had any issues at work and then she was told her access was removed and she did not know why.  Her job was both cleaning and catering.  She was not advised of disciplinary and then she was advised that she was under risk of redundancy.  She said that her role was working nights and then she moved to day shift.  She had a period of sick leave and returned in September 2022.  She said that she sent pictures to the company about the work that had been done by others and that no response was received and advised the respondent about the toilets and there was never mention about her performance.  She said she was then told that she would be redeployed and was surprised with this and was told she needed to do both catering and cleaning. 

She said on 30/09/2022 she received a call and was told that she would be redeployed and then access was removed but not told why.  The complainant said she was told to go to a different location and this was 03/10/2022 and she said she asked what the allegations were against her.  She sent an email on 05/10/2022 raising a grievance and did not receive a written response but received a phone call.  She was asked to confirm what had happened and asked for the allegations against her.  There was a preliminary investigation meeting and most of the questions were about a meeting on 05/07/2022.  The complainant went out sick with stress and returned on 03/01/2023.  The complainant said she was offered alternative jobs but they were unsuitable as she does not drive and the walk was 10 minutes longer.  She said she began to struggle financially and had to chase down her manager to find out what happened and could not claim social welfare.  The complainant said she was on medication to help her sleep and she had no choice but to leave.  She said in her evidence that she was able to return to work on 27/05/2023 and secured employment on 30/05/2023 and that she has had no loss in earnings.

Cross Examination of Complainant:

The complainant said she did not get a warning and she was not dismissed and that she left her role as after all that happened and then she was not made redundant.  She said she raised a grievance about her concerns.  She said efforts were made to find alternative employment and that some of the jobs were similar and she confirmed that she was not told that she was being made redundancy and that the respondent was in the middle of a process to find her alternative jobs.  She said it was her understanding that she was on lay-off because the building was closing down and that she could only work certain hours owing to childcare and that they never apologised for their behaviour.  She said her role included preparing meeting rooms and making tea and coffee.  She said she complained about the quality of cleaning by others.  The complainant said she was owed monies for holidays that she accrued totalling 7.21 days which was approximately €541.69.

The Complainant worked as a Cleaning Operative for the Respondent from 26/08/2009 until her resignation on 17/01/2023. The Complainant earned €728.86 net per week.  Her duties included catering and cleaning duties.

In May 2022, the Respondent received complaints from the Client regarding cleaning standards at Block B where the complainant worked. Initially, Ms Geda Gudaviciute, Key Account Manager, considered that the issues might have been caused by the night shift and staff were changed. Given the Complainant’s significant experience, Ms Gudaviciute did not consider that the issues could relate to her performance at first. The meeting with the client of 14/06/2022 brought these issues to a head when the client discussed and highlighted their concerns again.  When the cleaning concerns did not change with different staff introduced on the night shift, the Respondent looked to the day shift as the likely source of performance concern. Ms Gudaviciute attended the Block B site on 05/07/2022 to audit cleaning and noticed that the toilets had not yet been checked and asked the Complainant to step outside to discuss. In response to being asked why the toilets had not been cleaned, the Complainant stated that she had no time as she had been fulfilling catering duties. There had not been catering responsibilities on that day and in response to this the complainant shouted and walked out and went on sick leave from 08/07/2022 until 15/09/2022 and the standard of cleaning noticeably improved during this time, but fell again upon the complainant’s return. 

The client requested that the complainant was not to work in Block B and on 06/10/2022 the Respondent wrote to the complainant and advised that they had succeeded in redeploying her on a temporary basis owing to the client’s request.  The complainant was advised that as a result of a number of allegations, including site access removalandallegedly bringing the company into disrepute that an investigation process would commence which took place on 18/11/2022.  As a result of that investigation it was determined that the complainant was underperforming and that a disciplinary process should proceed which took place on 06/01/2023 albeit the decision was that the complainant had no disciplinary case to answer to. 

On 17/11/2022 the complainant was advised that she was at risk of redundancy owing to the closure of the site where she had been temporarily placed.  On 06/12/2022 the complainant reported ill health and was absent until 03/01/2023.  The site she had been relocated to closed and on the complainant’s return to work a further consultation took place on 04/01/2022.  The complainant was placed on lay off on 09/01/2023 and on 12/01/2023 and 13/01/2023 was further advised of efforts to secure an alternative place of work for her. 

Following personal and upsetting accusations against her manager Ms Gudaviciute stepped away from managing this issue and Mr A, Operations Director, took over.  On 17/01/2023 the Complainant wrote to the Respondent resigning from her position and the respondent replied that the complainant was offered temporary work but had refused such offers.  The complainant was asked to reconsider her resignation and on 23/01/2023 Mr A emailed the Complainant with multiple alternative roles and were advised by the complainant’s solicitor not to make further communication with the Complainant.  The Respondent contends that the Complainant was well aware that her site had closed upon her return to work on 3rd January. The closure had been discussed at the first consultation meeting.

It was agreed that the Complainant’s location closed down and that she was put on lay off and was advised that she was at risk of redundancy and the complainant went on an extended period of sick leave.  There was meaningful consultation and various alternative roles were proposed to the Complainant, none of which were considered by her. The Respondent advised the complainant that they were looking at further roles which might be offered but the Complainant resigned from her role and no dismissal took place and she was never made redundant.  It was possible that redundancy might have been the outcome but the process had not concluded and she did not engage in any meaningful way and there is no redundancy payment owed to her. The complainant was asked to reconsider her decision to resign but advised the respondent not to contact her.

.

Evidence:

Ms Gudaviciute evidence was that there were complaints about the quality of work and they had to make some changes to try and improve matters.  The complainant was considered an experienced worker and it was not expected that there were any issues with her.    On 05/07/2022 they found that the toilet check list had not been signed and it had not been cleaned.  There had been no catering on that occasion.  She said that the meeting with the complainant did not go well and she had to ask the complainant to calm down and asked how this had happened.  The complainant went on sick leave and the complainant returned and there was no disciplinary.  Upon her return the client made complaints again about the quality of cleaning and the client was offered the opportunity to swop within the block but they did not want this.  The block where the complainant had been redeployed to was closing and alternative work was offered to her and she was to return to work and she did not return until 03/01/2023.  On 06/01/2023 the complainant had a second consultation meeting and was offered same type of work at a higher rate of pay and she was offered other roles.

Cross Examination:

Under cross examination Ms Gudaviciute said that she was in charge from June 2021 and there were no problems with her work and then on 05/07/2022 it was brought to her attention regarding poor quality of work. The complainant was given a letter of redeployment on 03/10/2022 and her access was removed by the client who communicated that standards had dropped.  She said that the client put the blame on the complainant and they said they saw the difference in standards between when the complainant was working and when she was not.  She said it was a big loss to lose the client who left and it appeared to be because of Block B and training had been done and cleaners changed.  She said she asked the complainant why she had not completed the check list in the toilet as she thought maybe the complainant had completed the work but had not ticked the box but the complainant said she had not gotten around to cleaning it.    The complainant said that the letter of 03/10/2023 was sent to the complainant regarding failures to follow procedure and that the witness was not involved in this.  She said when the complainant was out sick there were less complaints.  She said the complainant had complained about the quality of other people working and that it was not expected that the complainant had also let standards drop.

Evidence of Ms Linda Connolly was that she managers use templates when writing letters to employees and that if a client issues a site ban there is an obligation to adhere to it.  She said if there had been no alternative found then the complainant may have been made redundant.  She said that because the complainant resigned redundancy did not arise.  Ms Connolly said she was not aware of a grievance.

Under cross examination she said she was not involved with the complainant directly and that the letter the complainant received was a standard template letter.  She said considering the circumstances of the situation the letter outlining that the matter was “very serious” was appropriate.  She said it was not a redundancy because the complainant was offered alternative positions.  The witness said she did not accept that the complainant raised grievance and confirmed that the grievance policy does not require an employee to mention the word “grievance” when raising a grievance.

The complainant submits that she was placed on lay-off and advised of this on 09/01/2023 and the respondent did not pay her during her lay off and that she had no alternative but to resign her position and that the failure to secure employment amounted to redundancy.  The respondent submits that there is no redundancy payment due and that if the complainant had not resigned so hastily there may have been redundancy owing to her and that there was appropriate consultation and offers of alternative work.

Section 12 sets out the Right to redundancy payment by reason of lay-off or short-time.

12. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph ( a ) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

Section 13 sets out the Right of employer to give counter-notice.

13.— (1) Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2) Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.

(3) If, in a case where an employee gives notice of intention to claim and the employer gives a counter-notice, the employee continues or has continued, during the next four weeks after the date of service of the notice of intention to claim, to be employed by the same employer, and he is or has been laid off or kept on short-time for each of those weeks, it shall be conclusively presumed that the condition specified in subsection (1) was not fulfilled.

(4) For the purposes of section 12 and for the purposes of subsection (3)—

(a) it is immaterial whether a series of weeks (whether it is four weeks, or four or more weeks, or six or more weeks) consists wholly of weeks for which the employee is laid off or wholly of weeks for which he is kept on short-time or partly of the one and partly of the other.

(b) no account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or a lock-out, whether the strike or lock-out is in the trade or industry in which the employee is employed or not and whether it is in the State or elsewhere.

The complainant was placed on lay off on 03/01/2023 but by her resignation on 17/01/2023 she does not satisfy Section 12 and Section 13 as her lay off period was 2 weeks and she also did not notify the respondent of her intention to claim redundancy to allow for counter notice to the claim by the complainant.

Having heard the evidence and submissions, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 does not succeed and do not award a redundancy lump and the complaint is dismissed.

The complainant commenced employment on 26/08/2009 and her employment ended on 17/01/2023.  Her gross weekly was €750.75.  She worked 13 years with a clean record. The respondent never had any issues with any aspect of the complainant’s work performance.

In July 2022 the complainant went out sick due to a problem with her knee.  When she returned to work on 16/09/2022 she was advised on 30/09/2022 that her access to the building she worked in was revoked because of allegations of poor performance.  A meeting to investigate the allegations took place on 18/10/2022 and the investigation found that the complainant was underperforming and the matter went to disciplinary on 03/01/2023 where it was found that the complainant had no case to answer as the complainant could not be responsible for standards that had dropped when she had not been there for the 3-month period.  The complainant was deemed unfit for work from 06/12/2022 until she returned on 03/01/2023 and notified her line manager on the 30/12/2022 that she was fit for work. Her line manager informed her that she was on temporary lay-off and that she would not be paid. She received no work or pay since. At the disciplinary hearing the claimant was offered alternative work options at other city locations which she could not take up due to her family commitments coupled with her lack of transport. The complainant was proven not to have done anything wrong but yet she has been punished with her livelihood. The findings of the disciplinary hearing should have been communicated earlier in the interests of fairness. In light of all of these matters the claimant could not remain in this employment and was left with no option but to tender her resignation.

The complainant asked what were the complaints against her and was never told but did receive a letter saying that there were serious allegations against her that could constitute gross misconduct and dismissal.  This caused significant amount of distress, crying and anxiety as well as lack of sleep and visits to her gp.  She had worked with the respondent since 2016 with no issues and when she made contact with HR they advised that they did not know of the situation and had no knowledge of it.  She eventually received a letter from HR advising that the allegations were persistent unsatisfactory work.  The complainant had in fact complained about the quality of work by some employees so this came as a surprise to her to find out that the respondent was alleging that the complainant was not completing work satisfactorily. 

The complainant’s evidence was that she never had any issues at work and then she was told her access was removed and she did not know why.  Her job was both cleaning and catering.  She was not advised of disciplinary and then she was advised that she was under risk of redundancy.  She said that her role was working nights and then she moved to day shift.  She had a period of sick leave and returned in September 2022.  She said that she sent pictures to the company about the work that had been done by others and that no response was received and advised the respondent about the toilets and there was never mention about her performance.  She said she was then told that she would be redeployed and was surprised with this and was told she needed to do both catering and cleaning. 

She said on 30/09/2022 she received a call and was told that she would be redeployed and then access was removed but not told why.  The complainant said she was told to go to a different location and this was 03/10/2022 and she said she asked what the allegations were against her.  She sent an email on 05/10/2022 raising a grievance and did not receive a written response but received a phone call.  She was asked to confirm what had happened and asked for the allegations against her.  There was a preliminary investigation meeting and most of the questions were about a meeting on 05/07/2022.  The complainant went out sick with stress and returned on 03/01/2023.  The complainant said she was offered alternative jobs but they were unsuitable as she does not drive and the walk was 10 minutes longer.  She said she began to struggle financially and had to chase down her manager to find out what happened and could not claim social welfare.  The complainant said she was on medication to help her sleep and she had no choice but to leave.  She said in her evidence that she was able to return to work on 27/05/2023 and secured employment on 30/05/2023 and that she has had no loss in earnings.

Cross Examination of Complainant:

The complainant said she did not get a warning and she was not dismissed and that she left her role as after all that happened and then she was not made redundant.  She said she raised a grievance about her concerns.  She said efforts were made to find alternative employment and that some of the jobs were similar and she confirmed that she was not told that she was being made redundancy and that the respondent was in the middle of a process to find her alternative jobs.  She said it was her understanding that she was on lay-off because the building was closing down and that she could only work certain hours owing to childcare and that they never apologised for their behaviour.  She said her role included preparing meeting rooms and making tea and coffee.  She said she complained about the quality of cleaning by others.  The complainant said she was owed monies for holidays that she accrued totalling 7.21 days which was approximately €541.69.

The respondent submitted that they accepted the claim for annual leave.

The Complainant worked as a Cleaning Operative for the Respondent from 26/08/2009 until her resignation on 17/01/2023. The Complainant earned €728.86 net per week.  Her duties included catering and cleaning duties.

In May 2022, the Respondent received complaints from the Client regarding cleaning standards at Block B where the complainant worked. Initially, Ms Geda Gudaviciute, Key Account Manager, considered that the issues might have been caused by the night shift and staff were changed. Given the Complainant’s significant experience, Ms Gudaviciute did not consider that the issues could relate to her performance at first. The meeting with the client of 14/06/2022 brought these issues to a head when the client discussed and highlighted their concerns again.  When the cleaning concerns did not change with different staff introduced on the night shift, the Respondent looked to the day shift as the likely source of performance concern. Ms Gudaviciute attended the Block B site on 05/07/2022 to audit cleaning and noticed that the toilets had not yet been checked and asked the Complainant to step outside to discuss. In response to being asked why the toilets had not been cleaned, the Complainant stated that she had no time as she had been fulfilling catering duties. There had not been catering responsibilities on that day and in response to this the complainant shouted and walked out and went on sick leave from 08/07/2022 until 15/09/2022 and the standard of cleaning noticeably improved during this time, but fell again upon the complainant’s return. 

The client requested that the complainant was not to work in Block B and on 06/10/2022 the Respondent wrote to the complainant and advised that they had succeeded in redeploying her on a temporary basis owing to the client’s request.  The complainant was advised that as a result of a number of allegations, including site access removalandallegedly bringing the company into disrepute that an investigation process would commence which took place on 18/11/2022.  As a result of that investigation it was determined that the complainant was underperforming and that a disciplinary process should proceed which took place on 06/01/2023 albeit the decision was that the complainant had no disciplinary case to answer to. 

On 17/11/2022 the complainant was advised that she was at risk of redundancy owing to the closure of the site where she had been temporarily placed.  On 06/12/2022 the complainant reported ill health and was absent until 03/01/2023.  The site she had been relocated to closed and on the complainant’s return to work a further consultation took place on 04/01/2022.  The complainant was placed on lay off on 09/01/2023 and on 12/01/2023 and 13/01/2023 was further advised of efforts to secure an alternative place of work for her. 

Following personal and upsetting accusations against her manager Ms Gudaviciute stepped away from managing this issue and Mr A, Operations Director, took over.  On 17/01/2023 the Complainant wrote to the Respondent resigning from her position and the respondent replied that the complainant was offered temporary work but had refused such offers.  The complainant was asked to reconsider her resignation and on 23/01/2023 Mr A emailed the Complainant with multiple alternative roles and were advised by the complainant’s solicitor not to make further communication with the Complainant.  The Respondent contends that the Complainant was well aware that her site had closed upon her return to work on 3rd January. The closure had been discussed at the first consultation meeting.

The claims in relation to pay are twofold: that the Complainant is owed 14 days’ holiday pay and that she should be paid for the time when she was on lay off.  In relation to the holiday pay, a calculation has been completed by payroll and it is conceded that 13 hours’ outstanding holiday pay are owed to the Complainant who was paid 66.90 hours’ holiday pay in 2022.  Upon hearing evidence from the complainant the respondent accepted that there was annual leave totalling approximately   amounting to €561.69.

Evidence:

Ms Gudaviciute evidence was that there were complaints about the quality of work and they had to make some changes to try and improve matters.  The complainant was considered an experienced worker and it was not expected that there were any issues with her.    On 05/07/2022 they found that the toilet check list had not been signed and it had not been cleaned.  There had been no catering on that occasion.  She said that the meeting with the complainant did not go well and she had to ask the complainant to calm down and asked how this had happened.  The complainant went on sick leave and the complainant returned and there was no disciplinary.  Upon her return the client made complaints again about the quality of cleaning and the client was offered the opportunity to swop within the block but they did not want this.  The block where the complainant had been redeployed to was closing and alternative work was offered to her and she was to return to work and she did not return until 03/01/2023.  On 06/01/2023 the complainant had a second consultation meeting and was offered same type of work at a higher rate of pay and she was offered other roles.

Cross Examination :

Under cross examination Ms Gudaviciute said that she was in charge from June 2021 and there were no problems with her work and then on 05/07/2022 it was brought to her attention regarding poor quality of work. The complainant was given a letter of redeployment on 03/10/2022 and her access was removed by the client who communicated that standards had dropped.  She said that the client put the blame on the complainant and they said they saw the difference in standards between when the complainant was working and when she was not.  She said it was a big loss to lose the client who left and it appeared to be because of Block B and training had been done and cleaners changed.  She said she asked the complainant why she had not completed the check list in the toilet as she thought maybe the complainant had completed the work but had not ticked the box but the complainant said she had not gotten around to cleaning it.    The complainant said that the letter of 03/10/2023 was sent to the complainant regarding failures to follow procedure and that the witness was not involved in this.  She said when the complainant was out sick there were less complaints.  She said the complainant had complained about the quality of other people working and that it was not expected that the complainant had also let standards drop.

Evidence of Ms Linda Connolly was that she managers use templates when writing letters to employees and that if a client issues a site ban there is an obligation to adhere to it.  She said if there had been no alternative found then the complainant may have been made redundant.  She said that because the complainant resigned redundancy did not arise.  Ms Connolly said she was not aware of a grievance.

Under cross examination she said she was not involved with the complainant directly and that the letter the complainant received was a standard template letter.  She said considering the circumstances of the situation the letter outlining that the matter was “very serious” was appropriate.  She said it was not a redundancy because the complainant was offered alternative positions.  The witness said she did not accept that the complainant raised grievance and confirmed that the grievance policy does not require an employee to mention the word “grievance” when raising a grievance.

The complainant submitted that she was owed the sum of €561.69 and the respondent accepted her claim and that these monies were properly payable to the complainant and committed to pay the monies owed.  On 25/07/2023 the representative for the complainant advised that the monies still had not been paid.

The applicable law sets out under

Section 5 Regulation of certain deductions made and payments received by employers.

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i)is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

Taking into consideration the evidence of the complainant and the acceptance of the respondent of that evidence I find that the monies properly to the complainant, from the respondent; is €561.69.  I find that the complaint is well founded and I order the respondent to pay the complainant €561.69 gross.

CA-00054679-001

I find that the complainant was not unfairly dismissed and I dismiss the complaint.

CA-00054679-002

I find that the appeal under the Redundancy Payments Acts 1967 to 2007 does not succeed and do not award a redundancy lump and the complaint is dismissed.

 CA-00054679-003

I find that the complaint is well founded and I order the respondent to pay the complainant €561.69 gross.

Redundancy, lay off, disciplinary, investigation, grievance, unfair dismissal annual leave.