ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00055413

Parties:

Complaints:

Date of Adjudication Hearing:  27/01/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and section 27 of the Organisation of Working Time Act 1997following 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 Complainant submitted two complaints under the Act.  It is contended that she was adversely treated for refusing to work having been given less than 24 hours’ notice.  It is further submitted that the Respondent incorrectly calculated the Complainant’s annual leave compensation on cessation of her employment.

Summary of Complainant’s Case:

CA-00067503-002           Organisation of Working Time Act 1997

The Complainant submitted this complaint on 19th November 2024.

She commenced her employment with the Respondent on 21st June 2021 and was made redundant with effect from 15th September 2024. 

Before the date of redundancy the Respondent advised her of another vacancy for which she could apply.  She noted that it was not the same role and she spent time preparing for and undergoing an interview.

This complaint relates to communications from the Respondent in and around 26th August 2024.  It is her contention that she was told that she was to come into work for training on 27th August 2024.  She had to decline as this was her day off and she had a prior appointment.  The contract was subsequently pulled and the job offer withdrawn. She was stressed and upset when the contract was pulled and despite spending time on preparation and interview, she was not given employment.  She contends she was adversely treated for having been unable to come in on 27th August 2024.

CA-00067754-001           Organisation of Working Time Act 1997

This complaint was submitted by the Complainant on 28th November 2024 by email in which she stated that her dispute regarding the hours of annual leave was included in her original complaint.

The Complainant submitted voluminous documentation tracing the dispute she had with the Respondent in relation to the calculation of her annual leave at the end of her employment.

Summary of Respondent’s Case:

The Claimant’s role and that of approximately 80 colleagues on the team with the Respondent were placed at risk of redundancy in July 2024. The consultation process concluded on 31 July 2024. By letter dated the 31st July 2024, the Claimant was notified of the termination of her employment with effect from 15th September 2024. On 1st August 2024, the Claimant was given a letter with an Acceptance form providing her with an opportunity to take an ex-gratia payment in addition to her statutory entitlements. 

Specific complaints

CA-00667503-0002 – Hours of Work, Organisation of Working Time Act 1997

The Claimant alleges she was treated adversely for refusing work where she was given less than 24 hours’ notice of work. The facts of the Claimant’s complaint are unclear. It is respectfully submitted that the Claimant’s role was confirmed as redundant on 31 July 2024 and the Claimant was working her notice until 15 September 2024 when her contract would terminate.

The Respondent, at all times in a collective redundancy consultation, seeks to redeploy its employees and avoid redundancy where at all possible, even after the date upon which an employee’s role is confirmed as redundant. The Claimant participated in an internal recruitment process for a new potential role.

1. It is accepted that a conversation between the Claimant and Respondent’s Talent Acquisition team (“the recruiter”) took place on 26 August 2024 regarding the commencement of training for this role.
2. It is accepted that the Claimant was not available for training on 27th August 2024 as she was on a scheduled day off.
3. It is denied that the Claimant was treated adversely – and no information about adverse treatment has been provided in the Claimant’s complaint form. It appears that the Claimant perceives that she was adversely treated because she would not be available for training (that did not happen) on 27th August 2024 and that she would lose the job offered to her. The exchange of emails between the recruiter and the Claimant exhibited by the Claimant in her complaint form are of relevance. An extract of the relevant content is set out below.

At 4pm on 26 August 2024, the recruiter updated the Claimant by email that the role for which she had applied would be fully onsite (not hybrid as anticipated). The email states as follows:

“Please note that as per our previous conversation I am sad to inform you that the client has given us an update on the Expert Rater role that is going to be fully onsite. The training is supposed to start tomorrow. Please let me know if you would like to accept the role by tomorrow at 9am.”

At 4.57pm on 26 August 2024, the Claimant replied to the recruiter and stated, inter alia:

“As I mentioned during our call, tomorrow is my day off….Therefore, I won’t be able to start the new position tomorrow, especially without having signed a prior contract outlining my schedule and conditions. Considering the circumstances, it seems that these conditions are changing overnight. So it does not give me security not to have a pre-signed contract. (sic) I want to confirm that the start date was agreed upon last Friday via email for September 2nd. If this situation leads to my rejection from the position, I need to know if my redundancy will remain in effect. I am not the one rejecting the job: rather, it is Telus that is changing the original conditions from time to time.”

At 5.08pm on 26 August 2024, the recruiter emailed the Claimant again and stated: ““Please find below what was communicated last week. “We had an update from the client today that they require additional time, so we are now looking at the 2nd of September as the start date for the Expert Rater, and we will have more details next week. We will be back in touch with you next week individually with specifics, but for now, there is no class starting on Monday.” Unfortunately as of now we don’t expect to have a class starting from next week. Would you consider a potential start date for Wednesday the 28th of August? I would need to know as soon as possible to see if this can be accommodated from the management. If you verbally accept the offer we will be in the position to send you the addendum to the contract.” It is clear from the emails exhibited by the Claimant that she was asked to confirm if she wanted to accept the role, not to start the role. It is also clear that the recruiter had no difficulty with the Claimant’s scheduled day off on 27th August 2024 and asked the Claimant if she would be willing to start the role on Wednesday, 28th August 2024. Furthermore, if the Claimant wished to accept the offer of suitable/alternative employment with the Respondent, the recruiter confirmed that she would send the Claimant an addendum for her contract of employment.

A HR representative on behalf of the Respondent emailed the Claimant on 27 August 2024 to confirm that if the Claimant decided not to proceed with the role offered to her, then her position with the Respondent would “end on 15th September by reason of redundancy”. Unfortunately, the Respondent’s client decided not to proceed with any of the roles that the impacted employees and the Claimant were offered. This was not personal to the Claimant and communicated by telephone and email to the Claimant (and the others impacted) on 30 August 2024 as outlined in the Claimant’s complaint form. The email dated August 30 2024 at 3.41pm to the Claimant states as follows:

“I am following up on our conversation from earlier today. As explained to you, regrettably, due to unforeseen circumstances beyond our control, we are no longer in a position to proceed with your proposed employment in the role of Expert Rate and have to therefore rescind the verbal job offer as it is now no longer available. As mentioned, we remain open to offering you further opportunities with us that become available. If you see any roles advertised that you are interested in, please let me know.“

The Claimant’s role terminated in accordance with the redundancy notification shared with the Claimant on 31 July 2024 on her final date of employment, 15th September 2024.

It is respectfully submitted that the Claimant was not treated adversely for refusing work on 27th August 2024 as she was not in fact asked to work any hours on 27th August 2024 as is clear from the exhibited emails. It is unfortunate that the Respondent’s client decided not to proceed with any “Expert Rater” roles in September 2024 and all employees, including the Claimant were made redundant.

CA- 00067503 – Hours of Work, Organisation of Working Time Act

The Claimant alleges that she did not receive 8 hours of holiday pay from 2023 upon termination of her employment on 15 September 2024. The sum of €101.84 gross is in dispute. It is accepted that there was an error in the Claimant’s final pay. It is the Respondent’s respectful submission that this was rectified and the Claimant has been paid in full for her accrued holidays. Notwithstanding that the Claimant signed a Waiver precluding her from seeking any further payments other than those outlined in the Waiver, the Respondent engaged fully to understand the Claimant’s claim for unpaid holidays and resolved it. The Respondent sent 12 emails to the Claimant about her holiday pay. Further, the Respondent explained the basis for the calculation to the Claimant. Finally, it is submitted that the Claimant’s complaint is out of time as the alleged 8 hours (which it is submitted have been paid) relate to 2023 (the tenure payment). For completeness, the Claimant’s annual leave accrued to 15th September 2024 was 219 hours, divided as follows:

1. Carry-over from 2023 42 hours
2. Tenure payment (long service = additional day’s annual leave) 8 hours
3. Public holiday entitlement for 2024 56 hours (7 days)
4. Annual leave entitlement to termination date 113 hours Total 219 hours of the 219 hours allocated to the Claimant, 116 hours were used. The balance of 103 hours was paid to the Claimant across two payments namely on 9th and 16th October 2024.

Conclusion

Preliminary argument

By way of preliminary application, it is submitted that the Claimant executed a waiver in respect of her redundancy from the Respondent on 19 September 2024 waiving her entitlement to take any claims against the Respondent in relation to her employment or the termination of her employment with the Respondent. The Claimant is precluded from taking these complaints against the Respondent and both complaints should be held to be not well founded and/or dismissed.

Strictly without prejudice to the foregoing The Respondent submits that the Claimant was not treated adversely for refusing to work on the 27 August, as she was never asked to work on 27 August 2024. Furthermore, the Claimant’s role was made redundant on 31 July 2024 (with effect from 15 September 2024) well in advance of the date of alleged adverse treatment. Unfortunately, a new line of business that the Respondent expected to commence did not commence and the Claimant’s role terminated in line with the notification to her at the end of July 2024. The Respondent respectfully submits that the Claimant’s complaint should be dismissed and cannot succeed. Separately, the Claimant’s claim for holidays is for 8 hours pay. Notwithstanding the Waiver executed by the Claimant, the Respondent engaged with the Claimant post-termination of employment during the month of October 2024 to rectify an error in failing to pay 42 hours of annual leave that had carried over from 2023. The Respondent respectfully submits that the Claimant’s annual leave record has been carefully reviewed and all hours due and owing to her have been paid. No further sums are due.

Findings and Conclusions:

Preliminary argument

The Respondent argues that the Claimant executed a waiver in respect of her redundancy from the Respondent on 19 September 2024 waiving her entitlement to take any claims against the Respondent in relation to her employment or the termination of her employment with the Respondent and therefore the Claimant is precluded from taking these complaints against the Respondent and both complaints should be held to be not well founded and/or dismissed.

The issue of waivers has been addressed by the Labour Court in Keelings Retail Unlimited Company – and – Wasim Haskiya UD/19/96 UDD2023.

In Sunday Newspapers Limited v Kinsella and Bradley FTD6/2006 [2006] ELR 227 the Court addressed the question if an agreement signed by a Claimant accepting certain payments in full and final discharge of all claims precluded him from pursuing a claim against an employer.  The Court cited the case of Fitzgerald v Pat the Baker [1999] ELR 227 where the Employment Appeals Tribunal drew a distinction between settlements which were prepared and signed by parties after meaningful negotiations and professional advice having been sought and given, and settlements which were essentially imposed by one party on the other without negotiation or professional advice.

The Court stated that case law indicates certain considerations which are relevant in distinguishing the former from the latter, including inter alia:

An agreement to waive statutory rights must be supported by adequate consideration

The waiver should normally arise from an agreement reached as a result of meaningful negotiations and professional advice having been sought and given

It is for the employer to ensure that the worker is capable of giving an informed consent and the employer should normally advise the worker in writing to obtain professional advice before inviting him or her to sign a waiver.

In this instant case, I note that while seeking professional advice was referred to in the redundancy latter, I find that the Complainant was not specifically offered the opportunity and did not seek professional advice and I find therefore the complaints are properly before me.

Substantive complaints

CA-00067503-002           Organisation of Working Time Act 1997

Section 17 of the Act provides

“(1) If neither the contract nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days.

(1A) When the requirements of subsection (1) are not met by the employee’s employer, an employee shall have the right to refuse to work during the reference hours and days predetermined by the employer in accordance with that subsection without adverse consequences.”

The Complainant contends that she was adversely treated for refusing to work having been given 24 hours’ notice.

I note the Respondent was making efforts to provide the Complainant with alternative employment in the period leading up to the effective date of redundancy.  The email dated 26th August 2024 at 4pm stated “training is supposed to start tomorrow”.   The Complainant was asked to confirm that she would accept the role.  At 5.08pm on the same day a further email was sent to the Complainant indicating that the role would commence on 2nd September and would she agree a start date of 28th August.  In any event, the offer of the role fell through when the client contract did not materialise.

I find that the provisions of Section 17 of the Organisation of Working Time Act 1997 are designed to protect employees who have no certainty of knowledge of their regular start and finish times during their employment.  In this instant case, I find the Respondent did not breach the provisions of the Act in that the emails of 26th August were designed to ascertain if the Complainant was free to come in for training and latterly designed to update her in relation to potential start dates.

I find this complaint is misconceived and not well founded.

CA-00067754-001           Organisation of Working Time Act 1997

Section 19 of the Organisation of Working Time Act 1997 provides that an employee shall be entitled to paid annual leave equal to:

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-00067503-002           Organisation of Working Time Act 1997

For the reasons outlined, I have decided the complaint is not well founded.

CA-00067754-001           Organisation of Working Time Act 1997

For the reasons outlined, I have decided the complaint is not well founded.

Dated:   12th March 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: