Complainant

Respondent

Anonymised Parties

An Office Assistant

Printing Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00012210-001

30/06/2017

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

CA-00012210-002

30/06/2017

Complaint    seeking adjudication by the Workplace Relations Commission under Regulation    6 of the European Communities (Protection of Employment) Regulations 2000

CA-00012210-003

30/06/2017

The Complainant was employed as an Office Assistant by the   Respondent ABC Ltd. between 03/01/2003 and 31/05/2017. She has been   previously employed by a Company X between 01/09/1996 and 03/01/2003. There   was some confusion as to whether transfer of undertakings took place after   Company X had closed down. However, this is not a subject of this complaint.   Moreover, the Respondent in their calculations of service included the period   from 01/09/1996 until 31/05/2017.

The Complainant was paid €530 gross a week before she was   made redundant on 31/05/2017. She was paid her statutory redundancy.

The Respondent highlighted at the start of the hearing   that the Complainant is recognised as an excellent employee.

The Complainant submits that she has never received   written terms of employment. She requested the statement verbally at the end   of March 2017 and by email on 9^th May 2017. She claims that to   date she has not received it.

The Respondent submits that all employees of ABC Ltd.   including the Complainant were furnished with Terms of Employment in 2003.   However, the Respondent was not able to present a signed copy. In support the   Respondent produced an email dated 13^th July 2017 from Mr D, the   Director of ABC Ltd. stating that when ABC Ltd. was formed all staff were issued and signed   terms of employment.   The Respondent produced a template of the statement.

Section 3(1) of   the Terms of Employment (Information )Act, 1994 stipulates that “An employer shall, not later than 2   months after the commencement of an employee's employment with the employer,   give or cause to be given to the employee a statement in writing containing   the following particulars of the terms of the employee's employment…”

Section (4) instructs that “A statement furnished by an employer   under subsection (1) shall be signed and dated by or on behalf of the   employer.”

  Section (5) further requires that “A   copy of the said statement shall be retained by the employer during the   period of the employee's employment and for a period of 1 year thereafter.”

  I find that the Respondent was not in a position to present a copy of the   statement. Therefore, on balance of probabilities I find that the Complainant   was not provided with a written statement of Terms and Conditions of   Employment as per Section 3 of the Act.

The Complainant asserts that two companies ABC Ltd and AB   Ltd were linked and formed a company AB Group Limited. In support, the   Complainant’s solicitor presented a document dated in 2009 referring to AB   Group Ltd. and listing the Complainant as part of Internal Sales Support   Team.  She claims that, although she was employed by ABC Ltd. she would have   performed work for a named Company, the biggest client of AB Ltd. and would   be the primary worker on that contract. She felt that she was part of AB   Group Ltd.  The Complainant has learned that employees of AB Ltd. were paid enhanced   redundancy calculated at 3.5 weeks per year of service. She received her   statutory redundancy. She claims that   she has been treated unfairly and that the redundancy figures provided to her   fall short of her full entitlement.

The Respondent submits that the Complainant received a sum   in excess of her statutory entitlement   as the Complainants reckonable service was extended to include her   employment with Company X and also the Complainant’s redundancy was   calculated on the basis of a weekly salary of €600 not €550.  In relation to reference to a sub-office the Respondent’s position is that   there is no sub-office and therefore the Complainant’s claim that other   employees received preferential treatment is inaccurate. The document   presented by the Complainant’s solicitor has never been seen by the   Respondent and it’s inaccurate. The Respondent believes that it is a   marketing tool created by Mr D who, in the document, presented himself as   Director of AB Group Ltd. The Respondent clarifies that Companies AB Ltd.,   ABC Ltd. and AB Group Ltd. are three separate legal entities. The document presented is dated in 2009.   However, AB Group Ltd. was incorporated in 2012 and therefore was not in   existence at the time when the document was created. Moreover, Mr D was not a   Director of AB Group Ltd. He was Director of ABC Ltd., the Respondent and the   Complainant’s employer.   In relation to work performed by the Complainant in respect of the AB Ltd.   biggest contract the Respondent submits that the contract was secured between   AB Ltd and a named Company. As AB Ltd. is dealing mainly with manufacturing   there was an agreement put in place whereby ABC Ltd. provided services in   terms of sales and in return was paid 5% of monthly turnover for these   services.

I am satisfied   that the Complainant was dismissed by reason of redundancy and she received   her statutory entitlements under the Redundancy Payments Act, 1967.

The Complainant claims that the Respondent has failed to   provide her with a copy of her terms and conditions of employment, which may   have referenced to her redundancy entitlements and would clarify the   differential treatment between her and her colleagues in a sub-office.   Therefore, she claims that the Respondent did not supply her representative   with all the relevant information relating to proposed redundancies.

The Respondent’s asserts that this is not a collective   redundancy situation. The European Communities (Protection of Employment) Regulations,   2000 apply only to collective redundancies.

There were 5 people employed in ABC   Ltd. Two were made redundant four years ago, remaining three were made   Redundant at the same time as the Complainant. All received statutory redundancy.

1. Protection of Employment Act 1977 defines “collective redundancies” as   “dismissals   effected by an employer for one or more reasons not related to the individual   concerned where in any period of 30 consecutive days the number of such   dismissals is—

(a) at   least 5 in an establishment normally employing more than 20 and less than 50   employees,

(b) at   least 10 in an establishment normally employing at least 50 but less than 100   employees,

(c) at   least ten per cent of the number of employees in an establishment normally   employing at least 100 but less than 300 employees, and

(d) at least 30 in an establishment   normally employing 300 or more employees”

Both   Parties confirmed that there were three employees employed and made redundant   by the Respondent. Therefore, the European Communities (Protection of Employment) Regulations, 2000 and the   Protection of   Employment Act 1977 do not apply in the case before me.

For the reasons outlined above I form the view that the Respondent was   in breach of Section 3 of the Terms of Employment (Information), Act 1994 and   that the Complainant should have been furnished with the written statement of   Terms and Conditions of Employment. Therefore, compensation is warranted.

Section 7(2)(d) of the Act states that an employer can be ordered “to   pay to the employee compensation of such amount (if any) as is just and   equitable having regard to all the circumstances, but not exceeding 4 weeks   remuneration”.

In accordance with Section 41   (5) of the Workplace Relations Act 2015 and Section 7 of the 1994 Act I   declare the complaint is well founded.

I direct the Respondent to   pay the Complainant compensation of €2,120 (4 weeks remuneration) within 42   days of the date of this Decision.

I am satisfied that the Complainant has received her statutory   redundancy as required by the Redundancy Payments Act, 1967.

Therefore I find that the complaint is not well founded.

I have concluded my investigation of this   complaint. Based on all of the foregoing, I am of the opinion that the   complaint under Regulation 6 of   the European Communities (Protection of Employment) Regulations 2000 is misconceived   due to the fact that the Complainant’s redundancy does not fit within the   definition of ‘collective redundancy. Therefore I have no jurisdiction to   investigate the matter further.

redundancy, misconceived claim, terms of employment