Complainant

Respondent

Parties

Margaret  Gorman

No Mess Cleaners Ltd.

Representatives

Phyllis Vaughan for Peader Toibin TD Aontu

Marcin Szulc, Rostra Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00059973-012

13/11/2023

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

CA-00059973-001

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059973-002

13/11/2023

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

CA-00059973-003

13/11/2023

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

CA-00059973-004

13/11/2023

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

CA-00059973-005

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00059973-006

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00059973-007

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00059973-008

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00059973-009

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00059973-010

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00059973-011

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00059973-013

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00059973-014

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00059973-015

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00059973-016

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00059973-017

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00059973-018

13/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00059973-019

13/11/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant, her representative and a witness for the respondent undertook to give evidence under affirmation, cross examination was facilitated.

The parties agreed that the transfer of the business took place in November 2021.  The complaints were lodged 13 November 2023 at the earliest.

The complainant argued strongly that she was dismissed from her employment with effect from 28 November 2021 when she was removed from the Revenue Commissioners record of employees.  At the time she was in receipt of the Pandemic Unemployment Payment.  When that payment ceased, she was moved to a Jobseeker’s Allowance.

CA-00059973-001 Terms of Employment

The complainant submitted that she was not notified of a change to her terms and conditions of employment.

CA-00059973-002 Unfair Dismissal

The complainant submitted that she was unfairly dismissed by the respondent.

CA-00059973-003, -004, -005 Redundancy Payments Act

The complainant submitted that she was entitled to a Redundancy payment lump sum

CA-00059973-006, -007, -008 Redundancy Protection of Employment Act

The complainant submitted that the respondent did not follow the appropriate procedures related to a redundancy.

CA-00059973-009, - 010 Minimum Notice

The complainant submitted that she was not given the minimum notice payment to which she was entitled.

CA-00059973-012 Payment of Wages

The complainant submitted that she was not given paid in accordance with the Act.

Witness testimony:

The complainant stated that she worked for the company since 2008 as a canteen assistant. She stated that when COVID hit, she like everybody, was put on the pandemic unemployment payment. She stated that when the PUP finished, she was placed on job seekers allowance. She noted that she only became aware that she had been let go from employment when, chasing up allowances with the Revenue Commissioners for her partner, she became aware that she was let go in November 2021. The company was sold at that point, and she was aware that it was sold but she understood that her contract was moving to the new company.

Furthermore, she stated that she messaged the new owner of the company repeatedly after lockdown finished after COVID, she noted that she was offered a cleaning role but not her previous position as canteen worker back.

The complainant stated that as she had a bad back, she would not be able to undertake cleaning duties and so when she was offered a position with the employer in the position of a cleaner she turned it down.

She stated that the company gave her a letter to bring to social welfare stating she was still in employment after November 2021, so she was not aware that she had already been let go. She stated that the company was sold on 26 November and then the employer closed down her employment with Revenue on the 28th of November.  She stated that she sought a position in her old placement location and the owner said that he would check, this was in August 2022, once again implying that she was still an employee.  She said that it was unfair that she was let go without being aware of it and that it was deceitful of the company to have interacted with her so far out of time.

Under cross examination the complainant confirmed that she had a weak back and was on sick leave until May 2021. She confirmed that she was in receipt of job seekers allowance from February 2022 and that the new owner had offered her position as a cleaner from October 2022. The complainant confirmed that she wasn't aware of whether she replied to that offer of employment or not. She confirmed that the text received followed a phone call although she can't recall it and she doesn't ever remember speaking to the new owner.

The witness confirmed that she was never a cleaner she was always canteen assistant. She confirmed that she had a lumbar issue since 2015. She was asked again whether she informed her employer regarding reasons for refusing the position offered to her and it was put to her that she did not want to give it a go because although it was not a handy number it was not strenuous, but it was hard work. She was asked did she ask what the new duties would entail, and she responded no.  She was asked if she shared her concerns with the employer but also responded no. It was put to her then that how was the employer supposed to know about her concerns if she didn't indicate it to them and she responded that she didn't know the answer to that.

The respondent submitted as a preliminary matter that the complaints were all out of time according to the legislation.

The respondent submitted that the claims are misconceived and based on a false premise that lack of registration with Revenue is equivalent to lack of employment or termination thereof. This is confirmed by the complainant herself when she stated that as long as she corresponded with the respondent “up until Aug 2022 asking for hours” the employer “had even up until then given impression that I could have hours of employment and never said I didn’t and was no longer employed by them”. Her ordinary duties are not available anymore. She was offered alternative duties, in keeping with her contract of employment, which she refused quoting her health condition. The complainant also confirmed that the respondent offered her a cleaning position in school but my back would not be able to do cleaning job and this wasn’t my area of work prior, so I had no choice but to refuse. The respondent submitted that one does not offer work to someone who is not an employee. The reasons for situation the complainant found herself in are due to her health condition, not dismissal or redundancy.

CA-00059973-001 Terms of Employment

The respondent submitted that the narrative in the complaint form does specify which exactly terms of employment were allegedly changed and not notified.

CA-00059973-002 Unfair Dismissal

The respondent denied that a dismissal took place. It submitted that it is clear from the claimant’s submissions that she believed herself to be employed until she checked the Revenue records at unknown date and discovered that she is not registered as an employee of the respondent Transferee company. The respondent submitted that Revenue registration is not equivalent to commencement of employment, just like issuing P45, is not equivalent to dismissal.

The respondent submitted that in the case of Farrell v Farcourt Foods Limited UD610/89 or Crampton v Butlers Engineering Limited, UD599/95: “While the issue of a P-45 […] is evidence of termination of employment it is not conclusive evidence. To decide whether employment ends it is necessary to consider the surrounding circumstances.”  The respondent noted that in her own submissions the claimant stated that the respondent acknowledged that the contract of employment is still alive, offered duties and hours to the complainant and denied the fact of dismissal.

The respondent submitted that it offered duties and hours to the complainant. Those duties and hours were in line with the Terms and Conditions of Employment. The terms and conditions require the employee to be flexible in this position and “undertake such other work as may be assigned […] by the Company from time to time. Such work may be outside of your normal duties and it may be for such subsidiary companies as the Company may require.” The terms and conditions of employment also require the complainant “from time to time to work at the employer’s other places of business and / or at the premises of such subsidiary companies or organisations as the employer may require.”. The duties offered, by complainant’s own submissions, (“I would be unable to do cleaning duties with my back”) were incompatible with her health condition and she was not able to perform those and declined the offer.

CA-00059973-003, -004; -005 Redundancy Payments Act

While the work of Canteen Assistant at the primary location had indeed ceased, the respondent offered duties and hours to the complainant. Those duties and location were in line with the Terms and Conditions of Employment. The terms and conditions require the employee to be flexible in this position and “undertake such other work as may be assigned […] by the Company from time to time. Such work may be outside of your normal duties and it may be for such subsidiary companies as the Company may require.” The terms and conditions of employment also require the employee “from time to time to work at the employer’s other places of business and / or at the premises of such subsidiary companies or organisations as the employer may require.”. The duties offered, by complainant’s own submissions, were incompatible with her health condition and she was not able to perform those and declined the offer.

The respondent offered a suitable reasonable employment to the complainant in accordance with Section 15 of the Redundancy Payments Act 1967. She refused to accept same without giving any reason. Those reasons are only stated in the complaint form, name her health. Those were not shared with the employer at the time and could not have been addressed or assessed by the respondent.

The respondent submitted that such a refusal must be reasonable according to the Section 15 of the Act and that subsection 2A provides for a trial period of which the complainant did not avail. The Labour Court noted in Mr Garrett Browne -V- Ms Isabella Di Simo (RPA/19/18):

As she did not avail of the offer made to continue in employment with the Respondent, even on a trial basis, the Court is of the view that there are no grounds to substantiate her concerns. […] In all the circumstances, therefore, the Court is satisfied that the offer made by the Respondent to continue the Complainant’s employment on the same terms and conditions 10 Margaret Gorman v No Mess Cleaners Limited Ref. No. ADJ-00052868 / CA-000 of employment amounted to suitable alternative employment within the meaning of Section 15 of the Act. Furthermore, the Court finds that the Complainant’s refusal to accept the option of working in the […] was unreasonable.

It is submitted that the alternative duties, which were offered to the complainant did not differ (or did not differ significantly) from the corresponding provisions of her employment contract before the transfer, given the flexibility imposed in the Terms of Employment and similarity of the duties, which in both places consisted effectively of manual labour and cleaning duties.

CA-00059973-006; -007; -008 Redundancy Protection of Employment Act

The respondent submitted that there was no collective redundancy involved in this case.

CA-00059973-009; -0010 Minimum Notice

The respondent submitted that no dismissal took place and thus no notice period is due to the complainant. The respondent noted that the fact that the complainant does not work is due to the fact that she refuses to accept alternative duties, offered in compliance with her Terms and Conditions of Employment and the fact that she “would be unable to do cleaning duties with [her] back”

Witness Testimony:

The witness outlined the purchase of the business query in a transfer of undertaking took place and 20 plus employees transferred over. When asked did he let anybody go it was noted that mostly there was work for everybody although some employees were on the pandemic unemployment payment.

The witness noted that they didn't take anybody off revenue listing of staff. The witness clarified that although the complainant is working for them she was not paid and because she was on covered payment she was not registered in revenue after the transfer of undertakings. The witness was asked whether they would consider complainant to be entitled to redundancy and responded no never as she was still an employee.

The witness noted that with the complainant wanted letter from them for social welfare which he provided. He noted that the complainant rang him towards the end of August 2022 to check whether her original location is open again. He noted that she suggested if it was not open that she could apply for redundancy. The witness noted that the complainant only contacted him twice on the 1st instance she was offered a job may 2022 but declined it. He noted that he never fired the complainant but that she was not physically taking money from the company.

Transfer of Undertakings Regulations

Complaints CA-00059973-013 to -019 all related to the transfer of the business that took place in November 2021.  The earliest possible date for the lodgement of the complaint is 13 November 2023. Section 10(6) of S.I. 131/2003 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, and Section 41(6) & (8) of the Workplace Relations Act govern the timeframes within it is permitted to take a compliant to the Director of the WRC.  They state as follows:

Section 10(6) of SI 131/2003 contains the following timeframes:

(6)      A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.

Section 41(6) and (8) of the Workplace relations Act, 2015

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(…)

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The parties confirmed that they were aware of the Transfer taking place around the time it occurred.  Accordingly, I find that the complaints relating to the transfer of undertakings are outside the timeframes permitted for pursuing a complaint.

Remaining Complaints – lodged on 13 November 2023

Prefacing the remaining complaints, the complainant argued strongly that she was dismissed from her employment with effect from 28 November 2021 when she was removed from the Revenue Commissioners record of employees.  The respondent argued that it continued to consider her an employee, even providing a letter for the purposes of Social Welfare in May 2022 that she was still in employment.  The respondent clarified that the complainant was not listed as its employee with revenue and that the complainant was not on its payroll at the time.  The complainant confirmed that during this period she was in receipt of the Pandemic Unemployment Payment (PUP).  When that payment ceased, in or around February 2022, she confirmed that she was notified that she was being moved to receiving Jobseeker’s Allowance.

On the basis of the written and oral evidence of both parties, I am satisfied that the complainant’s employment with the respondent terminated with effect from 28 November 2021 when she was removed from the Revenue Commissioners register of employees for the respondent.

The complainant argued that she was not told by the respondent that they were dismissing her but confirmed that she was informed when her PUP was changed to Jobseeker’s Allowance. At no time did she receive any payments from the respondent.

On the basis of the foregoing, I find that the complainant’s employment came to an end on 28 November 2021.

CA-00059973-001 Terms of Employment

Having regard to my finding that the complainant’s employment came to an end on 28 November 2021, I find that the compliant was lodged with the WRC outside the timeframe permitted under S.41 of the Act.

CA-00059973-002 Unfair Dismissal

Section 8(2) of the Unfair Dismissals Act states that

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General … to the employer concerned as soon as may be after the receipt of the notice by the Director General.

Having regard to my finding that the complainant’s employment came to an end on 28 November 2021, I find that the compliant was lodged with the WRC outside the timeframe permitted under S.8(2) of the Act.

CA-00059973-003, -004, -005 Redundancy Payments Act

Time-limit on claims for redundancy payment.

Section 24 of the Redundancy Payments Act, 1967 states as follows:

24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General—

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate,

the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.

The respondent submitted that the complainant only submitted her complaint when she included additional detail in a response submitted to the WRC on 5 December 2023.  However, she included detail of the date of the termination of her employment in the original complaint form submitted to the WRC on 13 November 2023.  The respondent indicated that she was informed by it of the detail of the Transfer of Undertakings process in a text dated 30 November 2021.  This was disputed by the respondent witness who initially indicated that the text was sent to a WhatsApp group but changed his testimony to say that it was issued to all employee individually.  He further indicated that there were three employees who did not transfer over, in that they were not registered with the Revenue Commissioners.  However, in May 2022 in response to a request from the complainant for information for the Department of Social Welfare, he provided a letter indicating that the complainant was still an employee.  As a result of this, the complainant outlined that she did not become aware of her status as an employee (or otherwise) until August 2022.  On balance, I prefer the complainant’s account.

In all the circumstances of this complaint, I find that the failure of the complainant to make a claim for her lump sum was due to reasonable cause and that this complaint falls within the circumstances comprehended by Section 24 (2A) of the Redundancy Payments Act, 1967.  Accordingly, I find that the employee’s compliant falls within the time limits envisaged by the Acts.

Offer of Alternative Employment

Notwithstanding my finding above that the complainant’s employment came to an end on 28 November 2021, and that her complaint falls within the time limits laid down in Section 24(2A) The issue of redundancy needs to be considered in light of the Act as a whole.

Section 15(1) of the Acts states as follows:

15.—(1) An employee … shall not be entitled to a redundancy payment if …—

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of F35[the termination of his contract], and

(d) he has unreasonably refused the offer.

The respondent offered the complainant an alternative position.  This fact was confirmed by the complainant herself in evidence.  She also confirmed that she refused the position offered but did not provide reasons for the refusal to the respondent.  Accordingly, I find that this complaint falls under Section 15 (1) of the Acts and the complainant shall not be entitled to a redundancy payment in accordance with the Acts.

CA-00059973-006; -007; -008 Redundancy Protection of Employment Act

As the complainant was not subject to a collective redundancy, I find that this complaint is misconceived.

CA-00059973-009 Minimum Notice

Having regard to my finding that the complainant’s employment came to an end on 28 November 2021, I find that the complaint was lodged with the WRC outside the timeframe permitted under S.41 of the Act.

CA-00059973-0010 Minimum Notice

Having regard to my finding that the complainant’s employment came to an end on 28 November 2021, I find that the complaint was lodged with the WRC outside the timeframe permitted under S.41 of the Act.

CA-00059973-0011 Minimum Notice (Employer)

As the complainant was not the employer, I find that this complaint (which relates to minimum notice received by an employer) is misconceived.

CA-00059973-0012 Payment of Wages

Having regard to my finding that the complainant’s employment came to an end on 28 November 2021, I find that the compliant was lodged with the WRC outside the timeframe permitted under S.41 of the Act.

CA-00059973-001 Terms of Employment

Having regard to the date of termination of employment, my decision is that the complaint was lodged outside the time limits comprehended by the legislation

CA-00059973-002 Unfair Dismissal

Having regard to the date of termination of employment, my decision is that the complaint was lodged outside the time limits comprehended by the legislation

CA-00059973-003, -004, -005 Redundancy Payments Act

Having regard to the provisions of the Redundancy Payments Act, 1967 as outlined above, my decision is that the complainant is not entitled to a redundancy lump sum in accordance with the Statutory Provisions, and I disallow the complainant’s appeal.

CA-00059973-006, -007, -008 Redundancy Protection of Employment Act

Having regard to the fact that this complaint does not refer to a collective redundancy situation, my decision is that this complaint is misconceived.

CA-00059973-009, -0010 Minimum Notice

Having regard to the date of termination of employment, my decision is that the complaint was lodged outside the time limits comprehended by the legislation

CA-00059973-0011 Minimum Notice (Employer)

Having regard to the fact that this complaint has not been taken by an employer, my decision is that it is misconceived.

CA-00059973-0012 Payment of Wages

Having regard to the date of termination of employment, my decision is that the complaint was lodged outside the time limits comprehended by the legislation

Complaints CA-00059973-013 to -019

Having regard to all the written and oral testimony submitted in relation to these complaints, my decision is that the complaints were taken outside the timeframe permitted under the legislation.

Redundancy Payment Act – s.24 Awareness of redundancy – alternative offer of employment. – Time limits for taking a complaint – Payment of Wages Act – Time limits for taking a complaint – Minimum notice - Time limits for taking a complaint - Unfair Dismissal - Time limits for taking a complaint – Terms of Employment - Time limits for taking a complaint