Complainant

Respondent

Parties

Tara  Motherway

Rosaleen Cotter trading as First Steps Creche

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

 Self-Represented

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-00064252-001

24/06/2024

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

CA-00064252-002

24/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Parent’s Leave and Benefit Act 2019

CA-00064252-003

24/06/2024

The Complainant referred a complaint to the WRC on the 24th June 2024 wherein she claimed that she did not receive her outstanding annual leave entitlement or statutory redundancy entitlement.  

The Complainant relied on the narrative as outlined in the WRC Complaint Form and the written submission, documentation and evidence submitted to the WRC on the 30th August 2024 in support of her case. No objection was raised to the Complainant reading from the narrative on her complaint form and from the written submission in the making of her case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent relied on the documentation submitted to the WRC on the 4th September 2024 and oral evidence in support of her defence of the Complainant’s complaints. The evidence adduced by the Respondent was challenged as appropriate by the Complainant.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

CA-00064252-001: Organisation of Working Time Act 1997

The Complainant gave evidence that she was on maternity leave from the 6th October 2023 until the 4th April 2024 and thereafter on parent’s leave until the 26th May 2024 and that her employment ended by reason of redundancy on the 5th June 2024. She said that in May 2024 she queried her outstanding annual leave with the Respondent who informed her that she would have to look into the matter. On the 5th June 2024 the Complainant was informed by the Respondent that she was not entitled to holiday pay or public holiday pay because the creche where she worked closed down due to flooding and all holidays were suspended. The Complainant claimed to be owed 13.48 days, 5 public holidays and 8.48 days annual leave for the period from the 1st January 2024 to the 26th May 2024.

The Respondent gave evidence that all of the staff employed at the Respondent’s creche in Midleton, Co. Cork were laid off in October 2023 when the creche closed due to extensive damage caused by flooding. She stated that she informed the Complainant on the 5th June 2024 that she had been advised by her accountant that the Complainant did not accrue annual leave or public holiday entitlement while the creche was temporarily closed.

It was common case that the Complainant had commenced maternity leave prior to the flooding of the creche in Midleton, Co. Cork and that she was on maternity leave from the 6th October 2023 until the 4th April 2024 and then on parent’s leave until the 26th May 2024. There was no evidence of a contractual provision or a custom and practice permitting the Respondent to place the Complainant on a period of lay-off and no evidence that the Respondent had put the Complainant on notice of lay-off prior to their telephone conversation on the 5th June 2024.

In all the circumstances of the instant case I am satisfied that the Complainant was on protective leave between the 6th October 2023 to the 26th May 2024 and that her annual leave and public holiday entitlements built up during that period.

(i)                  Annual Leave entitlements

Section 23 of the Organisation of Working Time Act 1997 provides for compensation on cesser of employment:

23(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

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.

The WRC Complaint Form was received by the WRC on 24th June 2024. The Complainant’s stated that her employment ended on the 5th June 2024. She claimed to be entitled to 8.48 days annual leave for the period from the 1st January 2024 to the 26th May 2024 and that she was not compensated for the loss of that annual leave when her employment ended on the 5th June 2024. I note that the Respondent did not dispute the Complainant’s calculation only that the Complainant had an outstanding annual leave entitlement.

Having considered the evidence of the parties I find that the complaint in respect of non-payment of annual leave on the cessation of the Complainant’s employment with the Respondent is well-founded.

(ii)                Public Holiday entitlements

Section 21(1) of the Organisation of Working Time Act 1997 states that:

(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.

Entitlement to public holidays is separate to the entitlement to annual leave. It was held by the High Court in Royal Liver Assurance v. Macken [2002] 4 IR 427 that where the employer fails to comply with the provisions of section 21 of the 1997 Act the date of contravention is the date of the public holiday itself. As the Complainant referred this complaint to the WRC on 24th June 2024 the five public holidays claimed for by the Complainant, namely the 1st January 2024, 5th February 2024, 17th March 2024, 1st April 2025 and 6th May 2024, fall within the cognisable period.

Having considered the evidence of the parties I find that this complaint is well-founded.

CA-00064252-002: Redundancy Payments Act 1967 (as amended)

The Complainant provided evidence of her redundancy, evidence of her calculated entitlement and evidence in support of her contention that the statutory redundancy payment was never made to her.

The Complainant stated that she was on maternity leave from the 6th October 2023 until the 4th April 2024 and then on parent’s leave until the 26th May 2024. In May 2024 the Complainant made a number of attempts to contact the Respondent by telephone, text message and email to enquire about her return date following protective leave. The Complainant was eventually informed that the creche in Midleton, Co. Cork suffered damage in October 2023 after the Complainant commenced maternity leave and that the remedial works had yet to be carried out by the Respondent’s landlord and that it would be another few months before the creche could open again and that it remained closed. There was no position available in the Respondent’s creche in Silversprings, Co. Cork. The Complainant sent a Form RP9 to the Respondent however she received no response.

The Respondent accepted that she did not respond to the Form RP9 stating in evidence that she did not recall receiving the Form but that if she did it was overlooked. She stated that the creche in Midleton Co. Cork was closed while the Respondent waited for the landlord to carry out repair works following flooding in October 2023 and that there was no alternative employment available in the Respondent’s creche in Silversprings, Co. Cork. She stated that all staff who had not handed in their notice following the closure of the creche in Midleton, Co. Cork in October 2023 were placed on temporary lay-off and that she was advised by her accountant that if at any stage during 2024 she could offer thirteen weeks employment to any of her staff they were not entitled to a statutory redundancy payment. In response to questions from the Adjudication Officer the Respondent confirmed that she had ceased to carry on her business from the place where the Complainant was employed in October 2023 and that she could not say when she would recommence carrying on her business from the place where the Complainant was employed. The Respondent also confirmed that she had laid-off the Complainant, that there was no alternative position available to offer the Complainant and that even if she had received the RP9 the Complainant would not have entered into a period of employment of not less than thirteen weeks with the Respondent as there was no position or employment available.

This complaint is for a statutory lump sum payment under section 39 of the Redundancy Payments Acts 1967 (as amended).  The Acts, related legislation and Regulations made thereunder require that in order to qualify for a statutory redundancy payment, an employee must -

(1)    have at least 2 years’ continuous service;

(2)    be in employment which is insurable under the Social Welfare Acts;

(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.

Section 7(2) of the Redundancy Payments Act 1967 (as amended) states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained…

Having heard the evidence of the parties, I am satisfied the Complainant’s situation falls to be considered under 7(2) above.  I am satisfied that the Complainant is entitled to a redundancy payment pursuant to the Redundancy Payments Acts 1967 (as amended).  I am satisfied that the Respondent has not paid any monies to the Complainant in respect of his statutory redundancy entitlement as at the date of hearing. The calculation of gross weekly pay is subject to a ceiling of €600.00.  The calculation of the lump sum is a matter for the relevant department.

CA-00064252-003: Parent’s Leave and Benefit Act 2019

This complaint was withdrawn at the hearing.

CA-00064252-001: Organisation of Working Time Act 1997

Section 27(3) of the 1997 Act states the following:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

This complaint is deemed well-founded for the reasons set out above. Initially, I grant an award of €1,500.00 for the unpaid annual leave, which also incorporates a compensation component in accordance with section 27(3) of the 1997 Act. Additionally, I grant a further award of €750.00 for the unpaid public holidays, which also includes a compensation element as per section 27(3) of the 1997 Act cited above.

Therefore, I issue an overall award of €2,250.00 in respect of this complaint for the Respondent's failure to remunerate the Complainant for annual leave and public holidays, as outlined above, considering it just and equitable.

CA-00064252-002: Redundancy Payments Act 1967 (as amended)

Having considered all the written and oral evidence presented in relation to this matter my decision is to allow the Complainant’s appeal against the failure of her employer to pay a redundancy.  I decide that the within complaint is well-founded and I decide that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payment Act 1967 (as amended) based on the following criteria:

Date of Commencement: 13th January 2020

Date of Notice of Termination: 5th June 2024

Date Employment Ended: 5th June 2024

The Complainant was on maternity leave from the 6th October 2023 to the 4th April 2024 and on parent’s leave from the 8th April 2024 until the 26th May 2024.

Gross Weekly Wage: €680.00. This figure is capped at the maximum figure of €600.00 as her weekly wage exceeded that sum.

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00064252-003: Parent’s Leave and Benefit Act 2019

This complaint was withdrawn at the hearing.