Complainant

Respondent

Parties

Melissa  Kenny

Bernardine Gallagher t/a Irish College Of Hairdressing

Representatives

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-00066690-001

14/10/2024

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

CA-00066690-002

14/10/2024

The Complainant appeared in person and gave her evidence affirmation.

The Respondent was represented by Phelim McDonnell. Ms Gallagher gave evidence on affirmation.

Submissions were received by both sides and shared.

The Complainant stated that she had received only one contract from the Respondent, which she had already forwarded to the WRC. She did not receive or sign any subsequent contracts and had not seen them until they were attached to an email received recently. Due to the ongoing nature of the work and the expectation of further courses, she operated under the assumption that she was employed under a Contract of Indefinite Duration.

The only break in her engagement occurred between 26 November 2021 and 6 December 2021, during which the Respondent advised her to “sign on for the time being.” The Respondent later issued a termination letter, in which she expressed a wish for the Complainant to “return to our employment.” The Complainant questioned the validity of the termination, citing screenshots showing that the course initially cancelled due to low enrolment had, within days, gained sufficient numbers and commenced on 6 December 2021. Upon learning this, the Complainant closed her Jobseekers Claim and resumed work.

The Complainant noted that while the Respondent claimed to bear operational risk, in practice she expected the Complainant to absorb that risk. The Complainant recalled being told that ICE had secured a four-year tender to deliver courses, which gave the impression of job security. This assurance, combined with the consistent delivery of courses and the absence of further written contracts, reinforced the Complainant’s belief that she was employed under a Contract of Indefinite Duration.

She reiterated that she never received or signed any additional contracts beyond the one dated 4 May 2021. She requested that the Respondent be asked to provide proof of issuing and receiving signed contracts, which she believed would not be possible. The Complainant continued working with the Respondent until 4 October 2024, as reflected in her Revenue records. While there were gaps between course deliveries, these were covered by parental leave, annual leave, development days, or taken unpaid, and did not constitute breaks in employment.

The Complainant stated that the only time she applied for Jobseekers Benefit during her engagement with the Respondent was for one week between two specific courses. Documentation confirmed she received just one week of Jobseekers payments. She also provided evidence of receiving Parent’s Benefit during gaps between courses, supported by a letter from the Respondent to Social Welfare confirming her entitlement to Parents Leave. This, she submitted was further demonstrated the continuity of her employment.

In January 2024, the Complainant discovered via her Tax Credit Certificate that her employment had been ceased since October 2023. Upon contacting the Respondent, the cessation was reversed, with the Respondent stating it had been done in error.

The Respondent offered the Complainant an alternative role in Cahersiveen, Co. Kerry, approximately 360 km from her home in Sligo. The Complainant considered this commute unreasonable, especially given her family commitments and her husband’s full-time employment in Sligo. The Respondent was aware of these circumstances. Ultimately, the proposed course in Cahersiveen did not proceed, making the offer both impractical and unavailable.

The Respondent delivered training programmes on behalf of KT Business Skills Ltd., which had been contracted by various Education and Training Boards (ETBs) across Ireland through competitive tendering. These contracts were awarded with short lead times and carried no guarantee of renewal or continuation. Their implementation depended on enrolment levels and logistical arrangements, meaning they could be postponed, altered, or cancelled at short notice, outside the Respondent’s control.

The Respondent’s work was not permanent or ongoing. Once KT Business Skills Ltd. confirmed a programme and assigned the Respondent as the Subject Matter Expert (SME), the Respondent engaged a qualified tutor on a fixed-term basis, aligned precisely with the duration of the confirmed training delivery. These engagements were tied exclusively to the timeline and scope of each training contract, with no possibility of guaranteeing ongoing employment to tutors beyond the conclusion of each project, as the Respondent had no assurance of future work.

The Complainant was contracted by the Respondent on five distinct fixed-term contracts between 4 May 2021 and 4 October 2024, to deliver training programmes in Ballina, Co. Mayo. Each contract corresponded directly to a specific training programme awarded by an ETB and delivered through KT Business Skills Ltd. A table was provided detailing each engagement, including relevant ETB contract numbers. Each contract had a clearly defined start and end date, which had been communicated in advance and agreed upon in writing by the Complainant.

The Respondent emphasised that she bore the operational risk at all times, with no structural or financial security in the training arrangements. Given this commercial reality, it was not feasible to offer permanent roles. The Complainant’s fixed-term contracts reflected this and were transparently documented and mutually agreed at each stage.

The Complainant’s first contract with the Respondent began on 4 May 2021 and the final contract ended on 4 October 2024, spanning 3 years and 5 months. As the final contract neared completion in August 2024, the Respondent offered the Complainant a new contract in Cahersiveen, Co Kerry at another training centre including an offer of accommodation in her holiday home. It was her evidence that the Complainant declined.

The first matter to be considered is whether the Complainant had the requisite service to qualify for the general right to redundancy payment.

Section 7 (1) of Redundancy Payments Acts 1967 -2012 (the “Acts”) sets out the general right to a redundancy payment:-

“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 four years ending on that date”.

Section 7(5) of the Acts provides:-

“In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) . . . .”

Section 7(2) of the Acts states:-

“For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned 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 . . . .”

Section 9 (1) addresses dismissal by employer:-

9.—(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or

(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or

Schedule 3- Continuous Employment

5. Where an employee’s period of service has been interrupted by any one of the following—

(a) any period by reason of—

(i) sickness,

(ii) lay-off,

(iii) holidays,

(iv) service by the employee in the Reserve Defence Forces of the State,

(v) any cause (other than the voluntary leaving of the employment concerned by the employee) not mentioned in clauses (i) to (iv) but authorised by the employer,

continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has been given.

Reckonable service under the Acts is set out at Schedule 3:

“Where an employee’s period of service has been interrupted by any one of the following—

(a) any period by reason of—

(i) sickness,

(ii) lay-off,

(iii) holidays,

(iv) service by the employee in the Reserve Defence Forces of the State,

(v) any cause (other than the voluntary leaving of the employment concerned by the employee) not mentioned in clauses (i) to (iv) but authorised by the employer,

(b) a period during which, in accordance with the Adoptive Leave Acts 1995 and 2005, an adopting parent was absent from work while on adoptive leave or additional adoptive leave or while attending certain pre-adoption classes or meetings “…….(i) while on protective leave or natal care absence, within the meaning of Part IV of the Maternity Protection Act 1994 or to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act,

(ii) while on parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or on a flexible working arrangement under the Parental Leave Act 1998, or

(iii) while on carer’s leave under the Carer’s Leave Act 2001

(d) any period during which an employee was absent from work because of a lock-out by the employer or because the employee was participating in a strike, whether such absence occurred before or after the commencement of this Act,

(e) any period during which an employee was absent from work while on paternity leave or transferred paternity leave under the Paternity Leave and Benefit Act 2016,

(f) any period during which an employee was absent from work while on parent’s leave or transferred parent’s leave under the Parent’s Leave and Benefit Act 2019,

continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has been given.”

Also relevant to the facts of this case where there is a dispute about service is Section 9 of the Protection of Employees (Fixed-term Work) Act 2003:-

“9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.”

The Complainant presented contracts of employment which upon review can be summaries as follows:

The Complainant was provided with a series of five contract of employment, two open ended contracts and three consecutive contracts with a break of one month between each. The evidence of parental leave is accepted as is the annual leave which do not break service in accordance with Schedule 3 (iii) (e) of the Redundancy Payments Acts 1967. While it is noted the Complainant did apply for social welfare for one week on 29 November 2021 but by 30 November 2021, the Respondent advised that the course would begin on 6 December 2021. I find, having regard for the termination letter issued by the Respondent on 26 November 2021 , that it falls within the Schedule 3, Section 5 (a) (v) and amounted to lay off where the May 2021 and October 2021 were not fixed term contract, I find the Complainant has had continuous employment for the purpose of Section 7 (5) together with Schedule 3 of the Redundancy Payments Acts 1967  since 4 May 2021.

In considering the suitability of the alternative offer of employment in Cahersiveen, Co Kerry, the decision in Giancarlo Riozzi v Northway Personnel (ADJ-00047292) is helpful. The Adjudication Officer, in finding that the alternative offer of employment did not constitute as a suitable alternative held: -

“the offer of a position involving such additional commute times and related costs is a change of such magnitude, when considered from the Complainant’s perspective, that the refusal was not unreasonable.”

The commute from Sligo to South Kerry, along with the associated financial burden and familial obligations on the Complainant, cannot reasonably be considered a suitable alternative, even if the Respondent’s offer to allow her to stay in a holiday home was made in good faith.

CA-00066690-001 – Redundancy

For the reasons set out above, I find that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967

CA-00066690-002 – Minimum Notice

In light of the above finding where the Redundancy Payments Acts 1967 which accounts for minimum notice, I find this complaint is not well founded.

CA-00066690-001 – Redundancy

I direct the Respondent to pay the Complainant a redundancy lump sum payment under the Redundancy Payments Act 1967 (as amended) calculated on the basis of the following information.

The Complainant commenced employment on 4 May 2021.

The Complainant’s received notice on 4 October 2024.

The Complainant’s employment terminated on 18 October 2024 (to account for the Complainant’s minimum notice period)

The Complainant was paid €3,162.00 gross per month based on a 31.25-hour week

CA-00066690-002 – Minimum Notice

I find this complaint is not well founded.

Redundancy – Contract of Indefinite duration – Minimum Notice