ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031579
Parties:
| Complainant | Respondent |
Parties | Seamus Rellis | PML Enterprises Ltd |
Representatives | Donna Kelly BL | Des Kavanagh |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00041945-001 | 12/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00041945-002 | 12/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00041945-003 | 12/01/2021 |
Date of Adjudication Hearing: 14/07/2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
These complaints were submitted to the WRC on January 12th 2021 and, in accordance with section 41 of the Workplace Relations Act 2015 and section 8 of the Unfair Dismissals Acts 1977 - 2015, they were assigned to me by the Director General. Due to the closure of the WRC because of the Covid-19 restrictions, a hearing was delayed until July 14th 2021. On that date, I conducted a remote hearing, in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. At the hearing, I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.
The complainant was represented by Ms Donna Kelly BL, instructed by Ms Fiona Mulligan, solicitor, Coughlan Kelly Solicitors. The respondent was represented by Mr Des Kavanagh of Des J Kavanagh, HR Consultancy Limited. The owner of the public house, and the managing director of the business, Ms Pauline McLoughlin, attended the remote hearing and gave evidence. She was accompanied by her accountant, Mr Roy Hussey and another bar tender, Ms Annette Whitty.
At the opening of the hearing, I alerted the parties to the judgement of the Supreme Court in the case of Zalewski v Adjudication Officer and WRC [2021] IESC 24 which was delivered on 6th April, 2021 with a further ruling on 15th April 2021. I informed them that, from April 6th 2021, hearings at the WRC may be held in public and that it is likely that the parties will be named in the published decisions. I also informed them that evidence may be heard under oath. On the date of this hearing, the legislation had not been amended to provide for prosecution for the giving of false evidence. The parties confirmed that they were willing to proceed in these circumstances.
Background:
The complainant commenced working in the respondent’s public house on January 1st 2011. He worked between 10 and 14 hours a week over two nights from 7.00pm until closing time. He earned around €140 per week. On March 15th 2020, the pub closed because of the Covid-19 pandemic. The complainant did not return to work and, on January 12th 2021, he submitted these complaints to the WRC. In the first instance, he claims that he was dismissed. Secondly, he claims that his dismissal amounts to a redundancy and that he is entitled to a redundancy payment. Lastly, under the heading of the Terms of Employment (Information) Act 1994, he claims that he was not notified in writing of a change to his terms and conditions of employment. |
Preliminary Issue: The Time Limit for Submitting Complaints
These complaints were submitted to the WRC 10 months after the complainant stopped working for the respondent. Section 41(6) of the Workplace Relations Act 2015 provides that a complaint must be submitted within six months from the date of the contravention to which it relates. It would appear therefore, that the complaints under the Unfair Dismissals Act and the Terms of Employment (Information) Act have been submitted outside the six-month time limit. Section 24 of the Redundancy Payments Act 1967 stipulates that a claimant has 52 weeks within which to submit a complaint, and the complaint under that legislation is within the time limit. Section 41(8) of the Workplace Relations Act provides that the time limit for submitting a complaint may be extended to 12 months, where the complainant can demonstrate that there was reasonable cause for the delay. The established test for deciding whether a complainant is entitled to an extension of the time limit is set out in the 2003 decision of the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll[1]. We know from this that the explanation for a delay submitting a complaint must be reasonable and, that there must be some connection between the explanation and the delay. By way of explanation, the complainant’s solicitor at the time, Mr Eric Furlong, wrote to the WRC on February 2nd 2021. He said that the complainant received correspondence from the Department of Social Welfare at the end of July the previous year, informing him that he was no longer employed by the respondent. He said that he was never informed by his employer that he was dismissed. I find it reasonable and understandable that the complainant was not aware that he was dismissed. However, having been informed that he was ceased on the payroll in July 2020, and having assumed that he was dismissed, it seems unreasonable to wait until January 2021 to submit a complaint to the WRC. That said, as it is the respondent’s case that the complainant was not dismissed, I have decided to accept the complainant’s explanation for the delay and to permit the extension of the time limit to 12 months for considering the complaint of unfair dismissal. In contravention of section 3 of the Terms of Employment (Information) Act 1994, the complainant said that he was not advised in writing of the respondent’s decision to lay him off on March 15th 2020. I am not satisfied that a reasonable explanation has been provided for the failure to submit a complaint regarding this matter within the six month time limit. For this reason and, in accordance with section 41(8) of the Workplace Relations Act, I have decided not to entertain this complaint. |
Summary of Respondent’s Case:
When she was notified about these complaints, the owner of the public house, Ms McLoughlin contacted Mr Des Kavanagh and on February 22nd 2021, Mr Kavanagh wrote to the WRC, setting out Ms McLoughlin’s response. Mr Kavanagh explained that the pub has been operating on the basis that, when the Covid-19 pandemic “has been brought under control” and when the business re-opens, and / or when the complainant is vaccinated, his job remains open to him. In a further submission shortly before the hearing, Mr Kavanagh set out the respondent’s position as follows: Ms McLoughlin’s pub was closed due to the Covid pandemic from March 15th 2020. It was open again for three months from June 29th until October 6th 2020 and for two weeks in December. When the pub closed in March, the complainant was informed that he was entitled to apply for the pandemic unemployment payment. Before the pub re-opened on June 29th, Ms McLoughlin met her employees and advised them that, if they had any concerns about their health and the possible risks associated with the Corona virus, they should remain off work. At the meeting, the complainant mentioned that he is a diabetic. He was advised by Ms McLoughlin that it would be unsafe for him to be in the pub. The complainant and one other employee did not return to work in the summer of 2020. Because he is a diabetic, the complainant was not called in to work in December 2020. In his submission, Mr Kavanagh referred to the guidance on the website on the HSE at the onset of the Covid-19 pandemic: “In the absence of a vaccine or effective anti-vital therapy, avoiding getting the infection is the best form of defence. Where possible, people living with diabetes should avoid attending hospitals, pharmacies or other facilities where the risk of acquiring the infection is increased.” In his book of documents submitted at the hearing, Mr Kavanagh included a letter from the respondent’s accountants, outlining how employees were treated from a payroll perspective, when the pub closed in March 2020. As instructed by Revenue, all employees were ceased and processed as leavers. Although they were categorised by the Revenue and the Department of Social Protection as leavers, no employee was dismissed and it was expected that they would all return to work when the pubs re-opened. Evidence of the Owner Ms McLoughlin said that “everyone heard the news” on March 15th 2020 that pubs and most other businesses were closing down due to the Corona virus. All her employees were laid off and advised to apply for the pandemic unemployment payment. Coming up to the end of June, when they were permitted to open up again, Ms McLoughlin said that she invited her employees to a meeting. She said that the complainant was at the meeting and that she discussed online training, sanitising and mask-wearing. As her pub served food, she was permitted to re-open on June 29th. At the meeting, the complainant raised the fact that he suffers from diabetes and Ms McLoughlin said that she advised him to contact his doctor to ask him if it was safe for him to be at work. She said that she didn’t hear back from him. One other employee was advised by his doctor not to come to work. Before the pub opened on June 29th, the complainant was put back on the roster for two nights from 7.00pm to closing time. Ms McLoughlin said that she was worried about the complainant coming back to work and she phoned him the day the roster was drawn up and asked him to contact his doctor and to ask for a medical cert to confirm he was fit to work. The complainant did not provide this letter and she took him off the roster. He was not rostered for the rest of the summer. In December 2020, when the pub was about to open again, Ms McLoughlin said that three more employees decided that it was unsafe to work and she was under pressure to get staff to come in. She said that she did not contact the complainant, due to his diabetes. When she received notification from the WRC regarding this complaint, Ms McLoughlin said that she tried to contact the complainant, but he didn’t respond. Following the hearing, Mr Kavanagh sent a copy of a text message dated February 5th 2021 in which she invited the complainant to “call down” or to contact the accountant who looks after her payroll. Ms McLoughlin said that the complainant was not dismissed. She said that she has never dismissed an employee since she took on the ownership of the pub. Although she feels that her relationship with the complainant has been damaged because he submitted these complaints to the WRC, she said that if he can provide a letter from his doctor to state that it is safe for him to work in her pub, she will put him on the roster. In cross-examining, Ms Kelly pointed out that the guidelines regarding returning to work were not mandatory, and that the complainant was responsible for his own health. She suggested that, if he was willing, he should have been permitted to come to work. Ms McLoughlin replied that she wasn’t willing to allow the complainant to take that risk. She said that she treated another employee in the same way, and didn’t put him on the roster. Ms Kelly asked Ms McLoughlin about a meeting she had with her employees in December. She asked why the complainant wasn’t at that meeting. Ms McLoughlin said that the complainant “never came back to me.” She said that three more employees decided not to return to work in December and that the Covid situation was getting worse. She said that she didn’t contact another employee whose doctor had advised that he shouldn’t return to work. |
Summary of Complainant’s Case:
Evidence of the Complainant Before the closure of the pub due to the Corona virus outbreak, the complainant was in receipt of job-seeker’s allowance for the days that he didn’t work for the respondent. When he was laid off from work on March 15th 2020, he said that he didn’t make a claim for the pandemic unemployment payment and he continued to claim the job-seeker’s allowance for the days he wasn’t working. Just before pubs were due to re-open at the end of June 2020, the complainant said that, on the advice of his employer, he asked his doctor for a letter confirming that it was safe for him to return to work. He said that his doctor didn’t provide the letter. In response to a question from me, he said that he didn’t tell Ms McLoughlin that he had difficulty getting his doctor to give him the letter and he just remained out of work. The complainant said that he was in touch with the Department of Social Protection at the end of July 2020 and he was informed that his employment with the pub had been ceased. On August 10th, he sent a text message to Ms McLoughlin in which he asked: “Am I definitely not working there anymore need to sort out with social welfare and look around for something else.” Ms McLoughlin replied: “No Seamus it’s too serious you and Marty have underlying problems better to be safe than sorry.” On August 30th, the complainant sent a text message to Ms McLoughlin asking for a P45. Ms McLoughlin explained that P45s are no longer in use and that the complainant came off the payroll on March 15th. On behalf of the complainant, Ms Kelly said that this limited communication shows that the respondent didn’t consider him to be an employee at that time. The fact that he was not put back on the roster in December 2020 is further evidence that he was dismissed. She argued that, for this reason, the complainant is entitled to redundancy pay. |
Findings and Conclusions:
CA-00041945-001: Complaint Under the Unfair Dismissals Act 1977 I have considered the written submissions and the evidence of both sides and I have reached the following conclusions: When he was laid off from work on March 15th 2020, the complainant was not dismissed. Although he assumed that the fact that he was ceased on payroll meant that his employment had been terminated, this was not the case. Across the country, regardless of the industry they worked in, employees who were laid off and who were eligible to claim the pandemic unemployment payment were ceased on their employer’s payroll. This is not the same as dismissal. When the pubs re-opened in the summer of 2020, the complainant was advised to get a letter from his doctor to confirm that, with his diabetes, it was safe for him to work in a pub. He said that his doctor didn’t give him the letter he asked for. The only logical conclusion I can reach regarding this is that, either the complainant didn’t ask his doctor for the letter or, having been asked, the doctor didn’t provide the letter. Regardless of the complainant’s failure to provide a letter, it is apparent from the HSE guidelines that it would have been unsafe for the complainant to work in a pub in the Covid environment. In December 2020, the complainant was not called into work because he has diabetes. It is the respondent’s case that the complainant and one other employee were not brought back to work because it would have been reckless to do so. The text message response on August 10th 2020 from Ms McLoughlin to the complainant’s question, “am I definitely not working there anymore?” was “no Séamus, it’s too serious….” I accept that this might give the impression that his employment was terminated. However, the complainant responded, “grand no bother.” This indicates to me that, either he was unconcerned about being dismissed, or he did not believe that he was in fact, dismissed. The complainant said that he was looking for other work and on August 30th, he asked for a P45. While he was entitled to look for other work, the respondent’s decision not to roster him in the pub before he was vaccinated does not amount to a dismissal. No evidence has been submitted by either side regarding any reason why the complainant might have been dismissed. It is my view the owner’s decision not to bring the complainant back from lay-off in June and December 2020 was not a dismissal. I have based this finding on the fact that the complainant is a diabetic, and the owner’s assertion that he is welcome to come back to work, subject to his doctor’s advice. CA-00041945-002: Complaint Under the Redundancy Payments Act 1967 It seems to me that, having been laid off from his part-time job with the respondent from March to August 2020, the complainant decided to look for another job. It is clear that he was not dismissed, but, at some point, he thought that he might be entitled to a redundancy payment. At the hearing, the owner of the pub said that, in December 2020, she was under pressure to find staff to work in her pub, as was the case across the hospitality sector. No evidence has been submitted that the complainant’s job as a bar man was or is redundant. It is evident that the complainant was not dismissed, that his job is not redundant and that a job is available for him in the respondent’s public house. CA-00041945-003: Complaint Under the Terms of Employment (Information) Act 1994 On page 3 above, I concluded that this complaint was submitted outside the six-month time limit. For the sake of completeness however, I have considered the complainant’s claim that he was not notified of a change in his employment status as a result of Covid-19. I agree that it would have been good practice to issue the complainant and his colleagues with a letter confirming their lay-off from work due to the pandemic; however, I also understand that in a business such as a small pub, the owner may have considered it sufficient to inform her employees in person or by telephone. Being laid off from work is not the same as a change to terms and conditions of employment. It is my view that the failure to issue a letter confirming the lay-off was not a contravention of section 3 of the Terms of Employment (Information) Act because it was not the intention of the employer to change the Complainant’s terms and conditions of employment. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 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. Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00041945-001: Complaint Under the Unfair Dismissals Act 1977 As I have concluded that the complainant was not dismissed, I decide that this complaint is not well founded. CA-00041945-002: Complaint Under the Redundancy Payments Act 1967 As I have concluded that the complainant was not dismissed, he was not dismissed due to redundancy and I decide that this complaint is not well founded CA-00041945-003: Complaint Under the Terms of Employment (Information) Act 1994 While no reasonable explanation has been given for the failure to submit this complaint within the six-month time limit, I have considered this complaint and I have decided that it is not well founded. |
Dated: 10th September 2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Dismissal in doubt, redundancy, lay-off |
[1] DWT0338