Complainant

Respondent

Parties

Dorota  Sokol

Owen Mansfield Care Company Limited By Guarantee

Representatives

Donal Holohan Maguire McClafferty LLP

 Scott Mansfield, Director

Act

Complaint Reference No.

Date of Receipt

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

CA-00068103-001

13/12/2024

The start date of the Complainant’s employment is a matter in dispute and is dealt with further below. However, the Complainant was employed by the Respondent until 20th August 2024 and has not worked for the Respondent since that date. Her hourly salary was €17.17 and she worked approximately 48 hours per week.

Both the Complainant and Respondent were sworn in and gave evidence.

The Complainant commenced employment with Cheshire Ireland on 1st September 2009. She gave evidence that the purpose of this employment was to provide care for Mr. Owen Mansfield. A subsequent contract dated 5th November 2012 was submitted into evidence. This contract was also with Cheshire Ireland and stated that the purpose was to work as a Community Care Support Worker to provide care and support to Mr. Owen Mansfield. A renewal letter dated 28th June 2013 was sent from Chesire Ireland to the Complainant. The Complainant received a further contract with a commencement date of 1st June, 2017 from Aiseanna Tacaiochta. The overall purpose of the job as described in this contract was to provide “assistance in all areas of personal and domestic need, and by acting as a support in the social and day-to-day activities” of Owen Mansfield. On 8th September 2017, the Complainant received a contract from the Respondent with a commencement date of 8th September 2017. The contract stated that the overall purpose of the job was to provide “assistance in all areas of personal and domestic need [….]” of Mr. Owen Mansfield. This contract was renewed on 7th September 2018.  The Complainant’s case is that, since 1st September 2009, she has worked as a care assistant for Mr. Owen Mansfield until he passed away in December 2023. Despite two changes in the entities that employed her, her role did not change at all during that time. The Complainant noted that there were 4 employees who together provided 24 hour care for Mr. Mansfield. The Complainant’s position is that a transfer of undertakings has taken place and that for the purposes of calculating the period of employment for redundancy purposes, the entirety of her employment should be used.

The Complainant submits that her redundancy was confirmed on 20th August 2024 in an email from a director of the Respondent company, Mr. Scott Mansfield. That email says “There are numerous paragraphs in the statement of employment […] which clarify the termination of Miss Sokol’s employment due to the unforeseen circumstances of her employer’s passing.”

The Complainant is seeking what she is entitled to under the Redundancy Acts.

The Respondent states that he cannot dispute the Complainant’s evidence as he did not have any interactions with the company affairs until after the death of his brother. He notes that the company is funded by the HSE and cannot say if there are sufficient funds to make any redundancy payment.

Section 7 of the Redundancy Payments Act 1967, as amended (the “Act”), provides as follows:

"7. (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, 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 provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish […]

(3) For the purposes of subsection (1), an employee shall be taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks."

Section 12 of the Redundancy Payments Act, 1967 provides:

" 12. (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.”

I am satisfied, based on the uncontested evidence of the Complainant, that she meets the criteria set out above under the Act and is therefore entitled to a redundancy payment.

I must then consider whether or not the TUPE regulations apply and thereby determine the length of service of the Complainant.  The law in this area is governed by the relevant provisions of Directive 77/187/EEC and Statutory Instrument Number 131/2003 –European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003.

Based again on the uncontested evidence of the Complainant, I am satisfied that the entity of Chesire Ireland transferred that part of it’s functions relating to the care of Mr. Owen Mansfield to Aiseanna Tacaiochta. I am further satisfied that Aiseanna Tacaiochta transferred that same part of it’s functions relating to the care of Mr. Owen Mansfield to the Respondent. I accept that the identity of this part of those entities remained unchanged and that the purpose of the Complainant’s role in each of those entities was to provide care for Mr. Owen Mansfield. This has never changed and as such I am satisfied that the Regulations apply. I note that only part of a business need transfer for the Regulations to apply, and I am satisfied that they apply in this case.  I therefore accept that for the purpose of calculating a redundancy payment, the Complainant’s date of commencement is 1st September, 2009.

The Complainant provided an Employment Detail Summary for the year 2023 which showed her gross pay for that year as €57,324.57. I have calculated the Complainant’s gross weekly wage by dividing this by 52 which equals €1,102 per week.

Section 39 of the Redundancy Payments Acts 1967, as amended, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the Act.  Based on the uncontested evidence of the Complainant, I find that the Complainant is entitled to a redundancy payment.

I declare that the Complainant is entitled to a statutory redundancy lump sum payment calculated in accordance with the following criteria:

·       Date of commencement: 1st September 2009

·       Date of termination: 20th August 2024

·       Gross weekly wage: €1,102 (subject to the statutory wage ceiling of €600 per week)

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy - TUPE