Complainant

Respondent

Parties

Sorcha  Rice

The Sunflower Clinic

Representatives

  Self-Represented

 Respondent Clinical Director

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00064836-001

18/07/2024

The complainant has submitted a complaint under the Redundancy Payments Acts 1967 -2014, seeking a redundancy payment in accordance with section 7 of the Acts.

The complainant was employed from the 19/7/2021 as an occupational therapist in the respondent’s clinic which provides therapies to children with special needs.

Her fortnightly gross pay amounted to €2000.

She was made redundant on 30/8/24.

She submitted her complaint to the WRC on 18/7/2024.

The complainant maintains that the job for which she was employed no longer exists and she is entitled to a statutory redundancy payment.

The complainant gave evidence under affirmation.

 On 13/3/2024 the respondent told the witness that he intended to sell the business within the next few months. On 14/3/ 2024 the respondent spoke to the senior occupational therapist in her presence about selling the business to her and the costs involved. In April 2023 the respondent director told the complainant that he was going to close the clinic

On 22/4/2024 the respondent director informed the complainant that he had changed his mind about selling the business as one of the occupational therapists was due to return to work on a fixed term contract until November 24. The complainant was worried that the respondent would close the business at the expiration of her colleague’s contract in November.

On the 15/5/24, the respondent promoted the complainant to the role of senior occupational therapist but offered the complainant a salary that was €10,000 below the Health Service Executive scale. Her salary had been previously aligned with the HSE scales. She believed that she had no choice and accepted the offer.

The complainant submitted her resignation on 24/6/24.

On 28/6/24 the director emailed the clinical team to say, “he simply cannot continue in the current environment.”

On 28/6/24, the respondent advised the complainant’s colleague that he would pay redundancy to the complainant.

On 1/7/2024 the respondent emailed the complainant stating her final day of work is Friday 30/8/2024.

On 24/7/24, the respondent advised the occupational therapists and the senior language therapist that he was unable to get staff for the clinic and he would have to close the clinic with therapy sessions to finish on 28 August. Everything was to be packed up on 29 and 30/8/2024.

The complainant’s last day working in the clinic was the 30/8/2024. She was paid two weeks leave after that date.

In July the respondent advised the complainant that he would not pay her redundancy monies.

She emailed the respondent director on three occasions seeking a statutory redundancy payment, but he did not respond.

The complainant maintains that she is entitled to a redundancy payment as the closure of the respondent’s clinic was a foregone conclusion and she was still working her notice when the closure of the clinic was announced.

The respondent contests the complainant’s claim for a statutory redundancy. She is not entitled to redundancy payments. She resigned on 24 /6/24 prior to his decision to close the clinic.

Evidence of the clinical director given under affirmation.

The respondent ran nine clinics offering occupational therapy, speech and language therapy and various other therapies for children with special needs.

He closed six of his nine clinics during the Covid 19 pandemic and retained three.

In February / March 2024, the director discussed the possible sale of the clinic to senior occupational therapists. These discussions concluded in early May without an agreement being reached.

He discussed revamping the Rathcoole clinic with the complainant and others and reinvesting funds in the clinic. The directors subsequently decided to keep the clinic open and to hire additional staff.

All staff, including the complainant were informed of this, verbally, in early May.

There was a shortage of qualified occupational therapists in Ireland in and in June 2023, the director closed the Limerick clinic.

The respondent advertised for a speech and language therapist on 21/6/24 to replace a departing occupational therapist in the Rathcoole clinic where the complainant worked.

The witness agreed that she would complete her current caseload by the end of August.

On Monday 24th June, the complainant called him and informed him that she too was handing in her notice. Whist surprised and disappointed, he accepted, and asked her to confirm by email, which she did on the same day.

Subsequently, the directors of the clinic (in conjunction with other staff members), held discussions as to the future of the clinic, as the complainant and the other senior occupational therapist were resigning. They came to the inescapable decision on the 28th of June that they would have to close the clinic permanently due the lack of available senior staff, which the clinic needs due to the complexity of the caseload.

The director decided that 30/8/24 would be the last day on which the clinic would be open for clients.

He agreed with the complainant that she would work up to Friday 5th of September and then take 2 weeks of paid annual leave which she was due. He paid the complainant up to 20th September 2024 as previously agreed when she initially resigned

The complainant resigned on 24/6/24 and has asked me to find that she is entitled to a statutory redundancy payment.

Relevant Law.

Section 7(1) of the Act provides that,

“An employee, if he is dismissed by his employer by reason of redundancy or is laid off…shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment…”

So, the first step in establishing an entitlement to a statutory  redundancy payment is evidence of a dismissal.

 The complainant presented no evidence of having been dismissed by the respondent. She did not claim that she had been dismissed. Rather she claims that she is entitled to statutory redundancy as the respondent decided to close the clinic four days after her resignation and during her notice period which she states extends up until 5 September.

However, the employee, not the employer, made the decision to end the employment relationship.

A general notification issued to all staff on the 28/6/24 to state that the clinic would close on 30/8/24, again, after the complainant’s resignation. The complainant also believes that she is entitled to a statutory redundancy payment as the closure of the business was probable at the date on which she submitted her resignation. But the Act requires that a dismissal must have occurred in order to trigger an entitlement to a redundancy payment as opposed to a probable closure looming in the near future.

It is correct that the respondent’s intentions were in a state of flux as to maintaining the clinic but what is key is that at the point at which she resigned, the job continued to exist, albeit for 4 days.

The evidence is that the respondent was intent on hiring new staff around the point at which she resigned. The complainant may believe that this is a cynical move and perhaps it was, but cynical stratagems- if that is what they were- is not what triggers an entitlement to a redundancy payment. It is dismissal first because the job no longer exists. This did not happen. At the point of resignation, it did exist.

In Denis McCallig v Bord Iascaigh Mhara (BIM), ADJ00052727, the Adjudication Officer determined that:

“The question to be answered in this case, therefore, is whether the Complainant was dismissed by reason of redundancy, or did he resign from his employment with the Respondent. As the Complainant does not allege that he was dismissed, the first criterion in section 7 of the Act, that a dismissal must have taken place, has not been discharged…. Based on the totality of the evidence, both oral and written, put before me, I am satisfied that no dismissal took place. As no dismissal took place, no redundancy could be said to have occurred. I find, therefore, that this complaint is not well founded.”

The set of facts above mirror the instant situation.

 As I find that the complainant was not dismissed, she cannot establish eligibility for the payment of statutory redundancy.

Aside from the complainant’s inability to meet section 7 of the Act, a further difficulty arises for the complainant in succeeding in her complaint in that the breach of one’s entitlement to statutory redundancy payments crystallises at the point of the alleged redundancy and not at the point of notice or during the notice period.

The complainant lodged the complaint on 18/7/2024 and the clinic closed on the 30/8/25. She continued working until the 5/9/24. The complaint was lodged in advance of the alleged breach occurring.

Based on the evidence and the law, I do not find that the complainant has established an entitlement to a statutory redundancy payment.

I decide that the complainant is not entitled to a statutory redundancy payment and, therefore, I disallow the complainant’s appeal.

Resignation v redundancy.