ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048765
Parties:
| Complainant | Respondent |
Parties | Aoife McHugh | Rinocloud Limited |
Representatives | Self-represented | Not in attendance |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059902-001 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059902-002 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00059902-003 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00059902-004 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00059902-005 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00059902-006 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00059902-007 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00060320-001 | 30/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00061777-001 | 26/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00061777-002 | 26/02/2024 |
Date of Adjudication Hearing: 04/12/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
Background:
The Respondent’s business closed while the Complainant was on maternity leave. When she was due to return to work, the Complainant was locked out of her place of work and was locked out of IT systems. The Complainant’s complaints are in respect of her employment rights under the Organisation of Working Time Act, the Redundancy Payments Act, the Employment Equality Act and the Payment of Wages Act. The Complainant attended the hearing convened to consider her complaints. The Respondent did not attend despite a number of attempts to contact them.
Summary of Complainant’s Case:
The Complainant was employed as a Senior Scientist on €60,000 per annum (€5,000 per month) from 13th September 2021. She went on maternity leave on 20th February 2023 and was due to return to work on 6th November 2023 following maternity leave, additional maternity leave and parental leave. These periods of leave were agreed with her employer, and she was in contact throughout the period, until about two weeks before her return to work date. At that point all contact ceased and her place of work was closed and she was locked out of IT systems. She had received a redundancy warning on 23rd February 2023 but as she had commenced maternity leave the employer agreed that this was void. She accrued annual leave and public holidays when she was on maternity leave. She was advised in February 2023 that she would receive a month’s minimum notice pay, statutory redundancy and payment for annual leave and public holidays. She received no payment for any of these and she believes her fellow employees did receive their entitlements. She contends that she was discriminated against because she was on maternity leave. The Complainant submitted voluminous calculations of wages she contended were due to her.
Summary of Respondent’s Case:
The Respondent did not attend the hearing. Hearing notices were issued to offices of the Respondent in Ireland and the U.K.
Findings and Conclusions:
CA-00059902-001 Organisation of Working Time Act 1997
The Complainant seeks payment for annual leave accrued at the end of her employment, which ended on 6 November 2023 when she attempted to return to work from maternity leave and parental leave. The Complainant submitted calculations which included the provisions in her contract which added annual leave to public holidays and she also referred to carry over leave. The applicable law in relation to statutory entitlement to annual leave is contained in Section 19 of the Act which provides for 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)”.
Section 23 of the Act provides that where an employee ceases to be employed the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.
In this instant case, based on the statutory entitlement, I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €5,000 compensation.
CA-00059902-002 Organisation of Working Time Act 1997
The Complainant seeks payment for public holidays accrued while she was on maternity leave and for which she was not compensated at the end of her employment. She seeks compensation for 6 public holiday entitlements for 2023. I find that from 20th February to 6th November 2023 the Complainant was entitled to the provisions of the Act in relation to public holidays.
Section 21 of the Act provides:
“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”.
In the period February to November 2023, the Complainant was entitled to compensation for 6 public holidays. I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €1,500 compensation.
CA-00059902-003 Payment of Wages Act 1991
The Complainant seeks one month’s pay in lieu of notice as provided for in her written contract of terms of employment. I find that the Complainant was given no notice of the termination of her employment when she attempted to return to work. The complaint is well founded and I require the Respondent to pay to the Complainant the sum of €5,000.
CA-00059902-004 Employment Equality Act 1998
The Complainant contends that the Respondent discriminated against her on the grounds of family status and other. Her contention is that the site in which she worked was closed due to her pregnancy. She also contended that another colleague or colleagues were paid notice pay and she was not. The Employment Equality Act 1998 prohibits discrimination as between any two persons in employment on the following nine grounds as contained in Section 6 (2) of the Act as follows: (a) That one is a woman and the other is a man (in this Act referred to as “the gender ground”). (b) That they are of different civil status (in this Act referred to as “the civil status ground”). (c) That one has family status and the other does not (in this Act referred to as “the family status ground”). (d) That they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”). (e) That one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”). (f) That they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”). (g) That one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”). (h) That they are of a different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”). (i) That one is a member of the Traveller community and the other is not (in this Act referred to as “the traveller community ground”). Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows: “(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.” Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred. If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur. The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must: “establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”. In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down. In this instant case, it is established that the Respondent closed the business due to financial difficulties and served redundancy warnings to staff. I do not find that the site in which the Complainant was employed was closed due to her pregnancy. The matters relating to notice pay and payment of wages are dealt with elsewhere in this decision. The Complainant has failed to establish a prima facie case and the complaint is not well founded. |
CA-00059902-005 Redundancy Payments Act
The Complainant seeks statutory redundancy payment for the period in which she was employed up to the expiry of her maternity leave.
Section 23 of the Maternity Protection Act 1994 provides:
23.—Each of the following shall be void:
(a) any purported termination of an employee’s employment while the employee is absent from work on protective leave;
Section 24 provides:
24.—Any notice of termination of employment given in respect of an employee or any suspension from employment imposed on an employee—
(a) before the receipt by the employee’s employer of a notification under section 9, 12, 14, 14B, 15, 15A, 15B, 16 or 16B] (or, where appropriate, under section 28), or
(b) before the production for the employer’s inspection of a certificate under section 11,
and due to expire during the employee’s absence from work on protective leave, during a period of natal care absence or during a period of absence from work to attend ante-natal classes in accordance with section 15A or for breastfeeding in accordance with section 15B shall be extended by the period of such absence.
In this instant case, I note the original notice of termination of the Complainant’s employment due to redundancy was issued to her on 23rd January 2023 with notice to expire on 28th February 2023, by which point the Complainant was on maternity leave. In accordance with Section 24 (b), the period of such notice should therefore be extended to the date she was due to return from maternity leave. I find the Complainant is entitled to a statutory redundancy payment based on the following criteria:
Date of Commencement: 13 September 2021
Date of Termination: 6 November 2023
Gross Weekly Pay: €600
This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
CA-00059902-006 Minimum Notice & Protection of Employees Act 1973
The Complainant seeks one month’s payment in lieu of notice. This complaint has been dealt with in CA-00059902-003. The complaint is well founded and I make no further award.
CA-00059902-007 Maternity Protection Act 1994
The Complainant contends that she was prevented from returning to work on expiry of her maternity leave.
Section 30 of the Act provides for the referral of a dispute except where it relates to the dismissal of an employee. In this instant case, the Complainant was effectively dismissed from her employment for reasons of redundancy. This is covered in complaint CA-00059902-005. It is a fact that the Respondent company went out of business and the Complainant and her colleagues were made redundant. In such circumstances the referral of the dispute under the Maternity Protection Act 1994 is misguided. I find the complaint to be not well founded.
CA-00060320-001 Payment of Wages Act 1991
The Complainant contends that as she never received valid notice of termination of her employment she is owed wages for the month of November 2023.
In this instant case, the Complainant has been treated in a most egregious manner by the Respondent who has failed to make contact with her on and just before the due date of her return to work following maternity leave. The Respondent business closed before her return date and the matter of redundancy, wages for minimum notice, annual leave and public holidays have been dealt with elsewhere in this complaint. I find the complaint under CA-00060320-001 to be not well founded.
CA-00061777-001 Payment of Wages Act 1991
The Complainant contends that as she never received valid notice of termination of her employment she is owed wages for the month of December 2023 and that as her employment was not properly terminated, she is due wages for annual leave accrued. The Respondent business closed before her return date and the matter of redundancy, wages for minimum notice, annual leave and public holidays have been dealt with elsewhere in this complaint. I find the complaint under CA-00061777-001 to be not well founded.
CA-00061777-002 Payment of Wages Act 1991
The Complainant contends that as she never received valid notice of termination of her employment she is owed wages for the month of January 2024 and that as her employment was not properly terminated, she is due wages for annual leave accrued. The Respondent business closed before her return date and the matter of redundancy, wages for minimum notice, annual leave and public holidays have been dealt with elsewhere in this complaint. I find the complaint under CA-00061777-002 to be not well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00059902-001 Organisation of Working Time Act 1997
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint under that Act.
Based on the reasons cited, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €5,000 compensation.
CA-00059902-002 Organisation of Working Time Act 1997
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint under that Act.
Based on the reasons cited, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €1,500 compensation.
CA-00059902-003 Payment of Wages Act 1991
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the provisions of that Act.
Based on the reasons cited, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €5,000.
CA-00059902-004 Employment Equality Act 1998
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Based on the reasons cited, I have decided that the complaint is not well founded.
CA-00059902-005 Redundancy Payments Act
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have decided that the Complainant is entitled to a statutory redundancy payment based on the following criteria:
Date of Commencement: 13 September 2021
Date of Termination: 6 November 2023
Gross Weekly Pay: €600
This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
CA-00059902-006 Minimum Notice & Protection of Employees Act 1973
Section 12 of the Minimum Notice & Terms of Employment Act requires that I make a decision in accordance with the provisions of that Act.
I have decided that the complaint is well founded and I make no further award.
CA-00059902-007 Maternity Protection Act 1994
Section 30 of the Maternity Protection Act requires that I make a decision in accordance with the provisions of that Act.
For the reasons cited, I have decided that the complaint is not well founded.
CA-00060320-001 Payment of Wages Act 1991
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the provisions of that Act.
For the reasons cited, I have decided that the complaint is not well founded.
CA-00061777-001 Payment of Wages Act 1991
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the provisions of that Act.
For the reasons cited, I have decided that the complaint is not well founded.
CA-00061777-002 Payment of Wages Act 1991
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the provisions of that Act.
For the reasons cited, I have decided that the complaint is not well founded.
Dated: 19th February 2025
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Minimum notice, redundancy, annual leave, public holidays |