Complainant

Respondent

Parties

Viktorija  Danilova

Tiktok Technology Limited

Representatives

None

Kiwana Ennis, BL instructed by  A&L Goodbody LLP

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-00071961-001

28/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 18 of the Parental Leave Act, 1998

CA-00071961-002

28/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 30 and 31 of the Maternity Protection Act, 1994

CA-00071961-003

28/05/2025

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

CA-00071967-001

28/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 18 of the Parental Leave Act, 1998

CA-00071967-002

28/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 30 and 31 of the Maternity Protection Act, 1994

CA-00071967-003

28/05/2025

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

CA-00071967-004

28/05/2025

The Complainant alleges contraventions of the Redundancy Payments Act 1967, the Parental Leave Act 1998; the Maternity Protection Act 1994; and the Payment of Wages Act 1991.  The Respondent denies in full the Complainant’s claims.

Oral Testimony of the Complainant (under affirmation)

CA-00071967-001 – Complaint under the Redundancy Payments Act 1967

The Complainant’s role was made redundant on 16th April 2025.  She confirmed that since the referral of her complaint to the WRC, she has received the correct statutory redundancy payment.  However, she contends the payment was not made on the date it fell due to be paid.  The Complainant maintains the redundancy payment should have been paid on 16th April 2025, or within a few days of that date, as had been advised by HR.  She outlined that, during this period, she was required to repeatedly email the Respondent seeking payment of what was owed to her while dealing with medical issues and caring for a newborn child.  The delay in payment, together with being placed on an incorrect tax bracket, had adverse financial consequences for her.

CA-00071967-002 – Complaint under the Parental Leave Act 1998

The Complainant outlined that she was not challenging the fact her position was made redundant.  Rather she is challenging the process leading to her position becoming redundant which took place while she was on parental leave.  She contends that the Respondent contravened the Parental Leave Act 1998 when the Respondent:

(i)               contacted her and served her with formal notice of redundancy on 24th February 2025 while she was on parental leave;

(ii)              did not permit her to return to work or offer her suitable alternative employment following the end of the parental leave period on 17th March 2025; and

(iii)            treated her less favourably than other employees at risk of redundancy who were not on parental leave in so far as: (a) she was required to seek out and apply for other roles while on parental leave,  and (b) when she identified suitable alternative roles she was denied access to these roles on the basis that other employees not on parental leave were already redeployed into these roles. 

CA-00071967-003 – Complaint under the Maternity Protection Act 1994

The Complainant outlined that she was not challenging the fact her position was made redundant.  Rather she is challenging the process leading to her position becoming redundant.  She contends that the Respondent contravened the Maternity Protection Act 1994 when:

(i)               HR made unsolicited contact with her while she was on protected leave to advise that her role was at risk of redundancy;

(ii)              she was not permitted to return to her role on 20th January 2025 when her maternity leave ended and she was not offered suitable alternative employment;

(iii)            she was treated less favourably than other employees at risk of redundancy who were not on protective leave in so far as: (a) she was required to seek out and apply for other roles while on protected leave, and (b) when she identified suitable alternative roles she was denied access to these roles on the basis that other employees not on protected leave were already redeployed into these roles; and

(iv)            she was pressurised to complete a performance review while on protected leave.

The Complainant outlined that her complaint under the Maternity Protection Act 1994 was different in substance and time compared to her previous complaint already decided by the WRC.  The instant complaint relates to her treatment while on protected leave, whereas her previous complaint concerned her employment rights.  The Complainant applied for parental leave prior to the end of her maternity leave period, but she had to chase the Respondent to have same approved. 

The Complainant acknowledged that EU case law (as highlighted by the Respondent) does not give employees on protective leave priority, however, the 1994 Act confers on an employee the right to return to work after a period of maternity leave and the right to be offered suitable alternative employment.  The Complainant outlined she had identified four suitable alternative roles and maintains she should have been offered one of these roles.

CA-00071967-004 – Complaint under the Payment of Wages Act 1991

The Complainant outlined that pay in lieu of notice was paid in two instalments, with the final instalment not being paid on the date it fell due, namely, on the employment termination date of 16th April 2025.  Similarly, the cesser holiday pay was not paid on the date it fell due, namely, 16th April 2025.

Cross-examination

In cross-examination in relation to the four complaints, the Complainant confirmed she received all payments due to her including the redundancy payment, cesser holiday pay and pay in lieu of notice.  She also confirmed that she received these payments at the end of May 2025. 

The Complainant confirmed that her complaint relates to what she perceives as a delay in receiving these payments.  She outlined that on 24th February 2025, HR informed her that the payments would be made upon termination of her employment or shortly thereafter.  She also confirmed that this payment timeframe was not provided to her in writing by HR.

The Complainant accepted that she had up until 16th April 2025 to apply for alternative roles.  However, she did not accept that the Respondent was unable to process the termination payments until after this date for that reason. 

The Complainant accepted that she was normally paid at the end of each month.  However, she outlined that this is for “normal salary” and, as she was no longer an employee of the Respondent after 16th April 2025, the normal pay role cycle was no longer applicable to her.  The Complainant was asked if she accepted that the payroll cut-off date for April 2025 was 8th April 2025, and that payroll for 2,100 employees is a defined and cyclical process.  The Complainant reiterated that as she was no longer an employee after 16th April 2025, the normal payroll cycle did not apply to the termination payments due to her.   

The Complainant was asked what provision of the Redundancy Payment Act and the Payment of Wages Act she was relying on to ground her claim that the redundancy payment, pay in lieu of notice and cesser pay was payable on the date of termination.  The Complainant responded that she could not identify a provision under either statute.

The Complainant was asked to elaborate on how her complaints under the Parental Leave Act, and the Maternity Protection Act were different in “substance and time” as per her oral testimony.   It was put to the Complainant that her complaint was that she was not permitted to return to work and no new statutory provision/s were being relied on in the instant complaint.  The Complainant agreed she could not point to new provision/s being relied on under the Maternity Protection Act. 

It was put to the Complainant that both her maternity and parental leave complaints concern her not being permitted to return to work.  The Complainant responded: “yes partially, and the rest is the treatment during leave including contact during protected leave, the need to compete with active employees and the carrying on duties of the 360 review”.  The Complainant confirmed the latter issue was not in the narrative of her complaint to the WRC and was being raised for the first time at the hearing.  It was put to the Complainant that she had already ventilated these complaints before the WRC; that she had been unsuccessful; and that the decision was currently on appeal to the Labour Court.  The Complainant responded that she was not going to discuss this and that this was irrelevant to her current complaint.  It was put to the Complainant that if her position had not been made redundant, she would not have a complaint before the WRC.  This was accepted by the Complainant.

In response to a question from the Adjudication Officer, the Complainant confirmed she accepted an invitation to consult with the Respondent whilst on maternity leave, and that she had also requested the consultation process resume while she was on parental leave.

Oral testimony of Chris Howe (under affirmation)

The witness outlined her role as a payroll analyst.  She processed the final payments due to the Complainant after the termination date of 16th April 2025.  The witness outlined that the cut-off date for April and May payroll was 8th April 2025 and 9th May 2025 respectfully.  Terminations occurring after 8th April 2025 are processed in the next available payroll period provided the necessary detail is supplied to payroll before COB 9th May 2025.   The witness confirmed that the Complainant’s details were supplied to payroll for processing on 6th May 2025 and accordingly were processed in the May payroll cycle.  The witness could not say why pay in lieu of notice was processed in two instalments as she was not privy to the reasons for same.  She outlined that there are usually no exceptions to the monthly payroll process but added that this depends on whether upstream provides details requiring exceptional payments.  

In cross-examination the Complainant asked the witness if the instruction to process the Complainant’s termination payments had issued to her late.  The witness replied that she could not comment on that as she has no knowledge of that.  The witness outlined why the termination payment was processed for taxation purposes in the manner it was.  The witness outlined that it was normal practice for a termination payment to be processed after an employee had ceased employment, in accordance with the payroll cycle.

Summary of the Respondent’s Written Outline & Legal Submission & Closing Submission

Counsel for the Respondent submitted that the complaints before the WRC all concern the Complainant’s redundancy.  The Complainant was made redundant on 16th April 2025 as part of a collective redundancy.  The termination followed a fair and thorough consultation process.  The Complainant had extensive opportunities to look for available alternative roles within the company.  She refused to avail of those opportunities.  The Complainant’s termination date was later than other redundancies effected by the Respondent as she had been on maternity and parental leave. 

Claim under the Redundancy Payment Act 1967

Counsel for the Respondent outlined that the Complainant received her full statutory redundancy entitlement on 29th May 2025 as detailed in her final payslip dated 30th May 2025.  In circumstances where the Complainant received her full statutory redundancy payment, no breach under the Redundancy Payments Acts arises and it is submitted that this claim should be dismissed.

Claims under the Parental Leave Act and the Maternity Protection Act

Counsel for the Respondent submitted that the Complainant is in effect seeking to challenge the redundancy process leading to her termination by redundancy under both these statutes.  The WRC has no jurisdiction to adjudicate on these claims for two reasons.  First, both statutes expressly exclude disputes concerning dismissal, such that the WRC is precluded from examining the merits or fairness of the Complainant’s redundancy when determining either claim.  Second, the Complainant previously challenged the redundancy process in an earlier complaint to the WRC on 15th October 2024 wherein she claimed she was discriminated against during the redundancy process.  An appeal of the decision in that case is awaiting hearing before the Labour Court.  In so far as the Complainant seeks to challenge her redundancy and/or the redundancy process, she has a further opportunity to do so in her Labour Court appeal.  Permitting her to do so again before the WRC is unfair and/or amounts to an abuse of process.

In relation to the claim under the Parental Leave Act specifically, the Respondent submits that this complaint is misconceived.  The Complainant’s claim that she was not permitted to return to her role at the end of her parental leave specifically concerns her challenge to her dismissal due to her role becoming redundant – being the only reason she was not permitted to return to work.  Section 18(2) of the Act confirms that disputes under the Act do not include disputes concerning the dismissal of the employee.  Further, the Complainant already challenged the redundancy process in her first complaint to the WRC currently pending an appeal hearing before the Labour court.

Similarly, the Complainant’s appeal under the Maternity Protection Act is misconceived.  First, the Complainant has not identified any substantive issue within the remit of the Maternity Protection Acts alleged to have occurred during the cognisable period from 29th December 2024 until 28th May 2025.  The Complainant’s reference to events that occurred prior to the cognisable period – such as her claims that the Respondent initiated the collective redundancy process whilst she was on maternity leave during which leave she claims to have received unsolicited contact (which claims are denied) – refer to alleged events that are all statute barred.

Second, her claim that she was not allowed to return to her role or to an equivalent role after her maternity leave concluded is again effectively a claim challenging her dismissal by reason of redundancy which claim is also expressly excluded from the remit of the Maternity Protection Acts by s. 30(1)(a) of that Act.  The hearing was directed to the decisions in Arlene Reynolds v. Scalapay Limited (ADJ-00054841) and Aoife McHugh v. Rinocloud Limited (ADJ-00048765).

Third, and without prejudice to the foregoing, in so far as the Complainant maintains that during the collective redundancy process she was entitled to priority status as a pregnant employee and to be offered a suitable alternative role without having to undergo any application or interview process, this is the subject of her first WRC complaint.  It is open to the Complainant to pursue such an argument in her separate appeal pending before the Labour Court.  It is the Respondent’s position that the law does not impose such an obligation on the Respondent in the course of a collective redundancy (Porras Guisado Bankia SA C-103/16 [2018] IRLR 563).  The requirements contained in Article 10 of the Pregnant Workers Directive have been fully complied with by the Respondent.

CA-00071967-001 – Complaint under the Redundancy Payments Act 1967 (as amended) (“the 1967 Act”)

Relevant Law

Section 19(1) of the 1967 Act provides:

“Upon the dismissal by reason of redundancy of an employee who is entitled under this Part to redundancy payment, or where by virtue of section 12 an employee becomes entitled to redundancy payment, his employer shall pay to him an amount which is referred to in this Act as the lump sum.”

Section 38 of the 1967 Act provides:

“(1) Subject to this Act and in accordance with any relevant regulations, every question arising—

(a) as to who is the employer of an employee,

(b) in relation to the payment from the Social Insurance Fund of—(i) rebates to employers under section 29, (ii) lump sums to employees under section 32, or (iii) payments to employees under section 32A(6) in respect of certain lay-off periods during the period referred to in section 32A(1)(c), or

(c) on such other matters arising under this Act as are prescribed, shall be decided by a deciding officer.

(2) A reference in this section to a question arising in relation to a claim for a weekly payment includes a reference to a question whether a weekly payment is or is not payable.”

(Emphasis added)

Section 39(15) of the 1967 Act provides:

“(15) Any employer who is dissatisfied with a decision given by the Minister in relation to a rebate or with any decision given by a deciding officer in relation to any question specified in section 38 (1) (e) or 38 (1) (f), or any employee who is dissatisfied with a decision given by a deciding officer under section 38 or with any decision of an employer under this Act may appeal to the Director General against the decision . . . ”

(Emphasis added)

Section 39(16) of the 1967 Act provides:

“A deciding officer may if he so thinks proper, instead of deciding it himself, refer to the Director General for a decision thereon any question which falls to be decided by him under section 38.”

Section 39(16A) of the 1967 Act provides:

“The Director General shall refer to an adjudication officer for adjudication by that officer an appeal under subsection (15) or a question referred to the Director General under subsection (16).”

Findings

The Complainant’s role became redundant on 16th April 2025.  On 28th May 2025 she referred a complaint to the WRC claiming the Respondent had failed to pay the redundancy payment in a timely and lawful manner.  It is common case the Complainant received the redundancy lump sum on 29th May 2025.

At the hearing the Complainant outlined that the Respondent was in breach of the 1967 Act when it failed to pay the redundancy payment on 16th April 2025 as required under the 1967 Act or within days of that date as promised by HR.  In cross-examination the Complainant accepted she was unable to identify the precise provision of the 1967 Act the Respondent had allegedly breached.  She also confirmed that she had not received written confirmation from HR committing to a payment date. 

Counsel for the Respondent submitted that there is no basis to pursue a complaint regarding a perceived delay under the Redundancy Payments Acts.  Without prejudice to that position, Counsel submitted that the redundancy payment was correctly processed within the next available payroll cycle.  The pay-roll cut-off date for the month of April was 8th April 2025.  As the Complainant’s termination date fell after that date, her redundancy payment was processed in the next available pay-roll cycle.  An instruction to make a statutory redundancy payment cannot be made until after the Complainant’s termination date as it remained open to her to find an alternative vacant role up to this date.  In cross-examination, the Complainant accepted a monthly pay-roll period was in operation, however, she maintains that, as she was no longer an employee after 16th April 2025, she was not subject to the normal monthly pay-roll cycle.

The Adjudication Officer requested the Respondent to comment on the provisions of s. 19(1) of the 1967 Act, and in particular, the words “Upon the dismissal” within that section.  Counsel for the Respondent submitted that s. 19(1) of the 1967 Act does not specify a time limit for the redundancy payment to be made.  Further a cause of action does not arise if the payment is not processed on the termination date.  Rather, the 1967 Act allows a 52-week period within which to refer a complaint in relation to claiming a redundancy payment.

I disallow the Complainant’s appeal under the 1967 Act.

One of the purposes of the 1967 Act is to provide for the making by employers of payments to employees in respect of redundancy.  I am satisfied that the wording of s. 19(1) of 1967 Act identifies the point at which the redundancy lump sum becomes payable.  The section imposes a mandatory obligation (“shall”) on the employer to pay the redundancy lump sum to the employee upon the employee’s dismissal by reason of redundancy.  An employee who is dissatisfied with “any decision” of their employer made under the 1967 Act, may appeal that decision to the WRC.  The Complainant was dismissed by reason of redundancy on 16th April 2025.  On the date of the referral of her complaint to the WRC i.e., 28th May 2025, the Complainant had not yet received the redundancy lump sum.  Accordingly, the Complainant was entitled to make an appeal for this lump sum to the WRC after 16th April 2025.  However, I am satisfied there is no power conferred on an Adjudication Officer under the 1967 Act to award redress where payment of the redundancy lump sum does not occur upon the date of dismissal.  As the Complainant received the redundancy lump sum owing to her on 29th May 2025, I disallow the Complainant’s appeal. 

CA-00071967-003 – Complaint under the Maternity Protection Act 1994 (as amended) (“the 1994 Act”)

Relevant Law

Section 26(1) of the 1994 Act provides for a general right to return to work on expiry of protective leave as follows:

“Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work . . . (emphasis added)

Section 27 of the 1994 Act provides:

“(1) Where an employee is entitled to return to work in accordance with section 26 but it is not reasonably practicable for the employer . . .  to permit the employee to return to work in accordance with that section, the employee shall, subject to this Part, be entitled to be offered by the employer, the successor or an associated employer suitable alternative work under a new contract of employment . . . .” (emphasis added).

Section 30(1) of the 1994 Act provides:

“This Part [Part V Resolution of Disputes] does not apply to a dispute relating to— (a) the dismissal of an employee . . . .”

Findings

It is common case the Complainant took maternity leave from 22nd July 2024 to 19th January 2025.  On 28th May 2025 the Complainant presented a complaint under the 1994 Act to the WRC. 

The Complainant contends that the Respondent contravened the 1994 Act when:

1.      HR made unsolicited contact with her on 29th July 2024 while she was on protected leave to advise that her role was at risk of redundancy. 

2.      She was not permitted to return to her role on 20th January 2025 when her maternity leave ended and was not offered suitable alternative employment.

3.      She was treated less favourably than other employees at risk of redundancy who were not on protective leave in so far as she was required to seek out and apply for other roles while on protected leave, and when she identified suitable roles, she was denied access to these roles on the basis that other employees not on protected leave were already redeployed into these roles.

4.      She was pressurised to complete a performance review while on protected leave.

The Complainant outlined that this complaint under the 1994 Act is different in substance and time compared to her previous complaint already decided by the WRC. 

Counsel for the Respondent submits this complaint under the 1994 Act is misconceived, and submits:

1.      The Complainant has not identified any substantive issue within the remit of the 1994 Act alleged to have occurred during the cognisable period for the complaint.

2.      Her claim that she was not allowed to return to her role or to an equivalent role after her maternity leave concluded is in effect a claim challenging her dismissal by reason of redundancy: a claim which is expressly excluded from the remit of the 1994 Act by s. 30(1)(a) of that Act. 

3.      To the extent that the Complainant contends that, during the collective redundancy process, she was entitled, by virtue of her pregnancy, to priority status and to be offered a suitable alternative role without being required to participate in any application or interview process, this matter forms the subject of her first WRC complaint.  The Complainant should not be entitled to pursue “overlapping and/or collateral challenge” to the redundancy process in parallel proceedings.

Previous Complaint to the WRC (“the first complaint”)

On 15th October 2024 the Complainant referred two complaints to the WRC under the Employment Equality Acts 1998-2015 alleging discrimination on the family status and the race ground (ADJ-00054586).  The most recent date of discrimination given for both complaints was the 15th October 2025.  At this time, the Complainant was on maternity leave but had not yet given birth.  She alleged that she experienced discriminatory treatment during the redundancy process while on maternity leave including:

(i)               Failure to offer her a suitable alternative role without interviews in breach of the Maternity Protection Act.

(ii)              Emotional distress.

(iii)            Inconsistent treatment and discrimination compared to a colleague also on maternity leave in that the Complainant was contacted during protected leave whereas her colleague who was also on maternity leave did not receive the same communications.

(iv)            Failure to consider her for four roles identified by her.

The above complaints were the subject of an adjudication hearing on 26th March 2025.  A decision issued on 23rd April 2025.  The Adjudication Officer found that the Complainant failed to establish facts from which it may be presumed that there has been discrimination on the family status and race ground in relation to her.  This decision is currently on appeal to the Labour court. 

I will consider each of element of the instant complaint under the 1994 Act in turn:

HR made unsolicited contact with her on 29th July 2024 while she was on protected leave to advise that her role was at risk of redundancy:

The Complainant contends that the Respondent contravened the 1994 when HR made unsolicited contact with her on 29th July 2024 while she was on protected leave to advise that her role was at risk of redundancy. 

The cognisable period for this complaint is 29th November 2024 until 28th May 2025.  Therefore, I am satisfied that I have no jurisdiction to consider this element of the complaint under the 1994 Act as it falls outside the cognisable period for the complaint. 

She was not permitted to return to her role on 20th January 2025 when her maternity leave ended and was not offered suitable alternative employment:

The Complainant referred her first complaint to the WRC on 30th October 2024 alleging discriminatory treatment during the redundancy process while she was on maternity leave.  Her maternity leave did not end until 20th January 2025.  Section 26 of the 1994 Act (general right to return to work) refers to “on the expiry of a period” of maternity leave.  Section 27 of the 1994 Act provides for the right to alternative work if entitled to return to work in accordance with s. 26 of the 1994 Act.  Therefore, in my view, a breach, if any, of s. 26 and/or s. 27 the 1994 Act would not crystallise in this case until 20th January 2025.  Accordingly, I am satisfied there is nothing to prevent the Complainant from submitting a new complaint in relation to matters that arose after her first complaint was presented to the WRC.  However, I accept the submission of the Respondent, that this element of the complaint under the 1994 Act – that she was not allowed to return to her role when her maternity leave ended and was not offered suitable alternative employment after her maternity leave concluded - is in effect a claim challenging her dismissal.  Such a dispute is expressly excluded from the remit of the 1994 Act by s. 30(1)(a) of the 1994 Act.  Accordingly, I find I have no jurisdiction to consider this element of the complaint.

She was treated less favourably than other employees at risk of redundancy who were not on protective leave in so far as she was required to seek out and apply for other roles while on maternity leave, and when she identified suitable roles, she was denied access to these roles on the basis that other employees not on protected leave were already redeployed into these roles:

It was clear from the Complainant’s oral testimony that her issue was that she should not have had to seek out and/or interview for alternative roles.  Instead, she argues, alternative roles should have been offered to her.  The Complainant contends that the requirement placed on her to seek out and apply for other roles constitutes less favourable treatment given she was on maternity leave at the relevant time. 

In the first complaint referred to the WRC on 30th October 2024, the Adjudication Officer identified the core of the Complaint’s claim to be this precise issue.  The Complainant elected to have this complaint adjudicated upon under the Employment Equality Acts 1998-2015 when she referred her first complaint to the WRC.  I am satisfied that this element of the Complainant’s instant complaint has already been decided.  While the 1994 Act does not contain a statutory prohibition on duplication of claims, in common law the doctrine of res judicata normally prohibits a party from seeking to litigate the same issue twice.  This doctrine has been applied by the WRC and the Labour Court previously (see for example, Sandra Cooneys Home Care Ltd v. Morgan, HSD244).  Accordingly, I find I have no jurisdiction to consider this element of the complaint.

She was pressurised to complete a performance review while on protected leave:

The Complainant did not give evidence in relation to when this alleged occurrence took place and did not identify any particular breach of the 1994 Act.  Accordingly, I find this element of her complaint under the 1994 Act is not well founded.

CA-00071967-002 - Complaint under the Parental Leave Act 1998 (as amended) (“the 1998 Act”)

Relevant Law

Section 15(1) of the 1998 Act provides:

“On the expiration of a period of parental leave  . . .  the employee concerned shall be entitled to return to work . . .

Section 16(1) of the 1998 Act provides:

“Where an employee is entitled to return to work pursuant to section 15 but it is not reasonably practicable for the employer to permit the employee to return to work in accordance with that section, the employee shall be entitled to be offered by his or her employer suitable alternative employment under a new contract of employment.”

Section 18(2) of the 1998 Act provides:

“(2) This Part does not apply to a dispute —

(a) relating to a dismissal from employment, including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007,

(b) consisting of a question to which section 39(15) of the Redundancy Payments Act 1967, applies.”

Findings

It is common case the Complainant took parental leave from 20th January 2025 until 16th March 2025. 

The Complainant contends the Respondent contravened the 1998 Act when she was:

1.      Contacted and served with formal notice of redundancy on 24th February 2025 while on parental leave.

2.      Not permitted to return to work following the end of the parental leave on 17th March 2025 and was not offered suitable alternative employment on the expiry of the parental leave.

3.      Treated less favourably than other employees at risk of redundancy who were not on parental leave in so far as she was required to seek out and apply for other roles while on parental leave,  and when she identified suitable roles she was denied access to these roles on the basis that other employees not on parental leave were already redeployed into these roles.

Counsel for the Respondent submits this complaint under the 1998 Act is misconceived, and submits:

1.      Her claim that she was not allowed to return to her role or to an equivalent role after her parental leave concluded is in effect a claim challenging her dismissal by reason of redundancy: a claim which is expressly excluded from the remit of the 1998 Act by s. 18(2) of the 1998 Act. 

2.      To the extent that the Complainant contends that, during the collective redundancy process, she was entitled to be offered a suitable alternative role without being required to participate in any application or interview process, this matter forms the subject of her first WRC complaint.  The Complainant should not be entitled to pursue overlapping and/or collateral challenge to the redundancy process in parallel proceedings.

I will consider each of element of the instant complaint under the 1998 Act in turn:

Contacted and served with formal notice of redundancy on 24th February 2025 while on parental leave:

I am satisfied that this alleged contravention of the 1998 Act on 24th February 2025 was not the subject of the Complainant’s complaint to the WRC on 30th October 2024. 

I am satisfied there is no provision under the 1998 Act, and none was brought to my attention during the hearing or in the written submissions, which precludes an employer from making contact with and/or serving notice of redundancy during parental leave.  Accordingly, I find this element of the complaint under the 1998 Act is not well founded.

Not permitted to return to work following the end of the parental leave on 17th March 2025 and was not offered suitable alternative employment on the expiry of the parental leave:

I accept the submission of the Respondent, that this element of the complaint under the 1998 Act – that the Complainant was not allowed to return to her role when her parental leave ended and was not offered suitable alternative employment on the expiry of her parental leave - is in effect a claim challenging her dismissal.  Such a dispute is expressly excluded from the remit of the 1998 Act by s. 18(2)(a) of the 1998 Act.  Accordingly, I find I have no jurisdiction to consider this element of the complaint.

Treated less favourably than other employees at risk of redundancy who were not on parental in so far as she was required to seek out and apply for other roles while on parental leave,  and when she identified suitable roles she was denied access to these roles on the basis that other employees not on parental were already redeployed into these roles:

It was clear from the Complainant’s oral testimony that her issue was that she should not have had to seek out and/or interview for alternative roles while on parental leave.  Instead, alternative roles should have been offered to her.  The Complainant contends that the requirement to seek out and apply for other roles constitutes less favourable treatment given she was on parental leave. 

In the first complaint referred to the WRC on 30th October 2024, the Adjudication Officer identified the core of the Complaint’s claim to be this precise issue albeit her first complaint was related to the redundancy process during maternity leave as opposed to parental leave.  The Complainant elected to have this complaint of less favourable treatment adjudicated upon under the Employment Equality Acts 1998-2015 on grounds of family status.  I am satisfied that this element of the Complainant’s instant complaint has already been decided.  While the 1998 Act does not contain a statutory prohibition on duplication of claims, in common law the doctrine of res judicata normally prohibits a party from seeking to litigate the same issue twice.  This doctrine has been applied by the WRC and the Labour Court previously (see for example, Sandra Cooneys Home Care Ltd v. Morgan, HSD244).  Accordingly, I find I have no jurisdiction to consider this element of the complaint.

CA-00071967-004 – Complaint under the Payment of Wages Act 1991

Relevant Law

Payment of Wages Act 1991 (as amended) (“the 1991 Act”)

Section 1(1) of the 1991 Act defines “wages” as:

". . . any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice . . .

Provided however that the following payments shall not be regarded as wages for the purposes of this definition . . .

(iii) any payment referable to the employee's redundancy . . . . ” (emphasis added)

Section 5 of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it . . .

(6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

In Marek Balans v. Tesco Ireland Limited [2020] IEHC 55, the High Court outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

Findings

The Complainant outlined that she received payment in lieu of notice (“PILON”) in two instalments, with the final instalment not being paid on the date it fell due, which she contends was 16th April 2025.  She also claims that cesser holiday pay was not paid on the date it fell due, namely 16th April 2025.  Ms Howe outlined in her oral testimony that terminations occurring after 8th April 2025 are processed in the next available payroll period provided the necessary detail is supplied to payroll before COB 9th May 2025.   Ms Howe gave evidence that the Complainant’s details were supplied to payroll for processing on 6th May 2025 and accordingly were processed in the May payroll cycle.  The witness could not say why PILON was processed in two instalments as she was not privy to the reasons for same. 

Section 5(6)(a) of the 1991 Act provides that, where the total amount of wages paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.  Accordingly, and in line with Balans, the first issue to be determined is whether the PILON and cesser holiday pay were properly payable to the Complainant on 16th April 2025.  If I find these payments were properly payable on this date, it must then be established whether there was a shortfall between the amounts properly payable on that occasion and the amounts actually received and, if so, whether the shortfall arose for one of the reasons set out in section 5(1) of the 1991 Act.

I find that PILON and cesser holiday pay was not properly payable on 16th April 2025 for the reasons set out below.

A provision permitting PILON was provided for at clause 19.5 of the written ‘Employment Agreement’ between the parties.  I also note clause 9 of the same agreement outlines inter alia that wages are “payable in arrears by equal monthly instalments by direct credit transfer to your bank account”.  In cross examination, the Complainant accepted that she was normally paid at the end of each month.  However, she argued that this applied only to “normal salary”, and, as she was no longer an employee of the Respondent after 16th April 2025, the normal pay role cycle was no longer applicable to her.  I do not accept that argument.  Holiday pay and PILON are included within the meaning of “wages” at s. 1(1) of the 1991 Act.  I am satisfied that it is the termination of employment that triggers any obligation or agreement to pay PILON and cesser holiday pay.  In this case the Complainant was dismissed on 16th April 2025.  It is common case that wages were paid on a monthly cycle at the end of each month.  The uncontested evidence of Ms Howe is that terminations which occurred after 8th April 2025 were processed in the next available payroll period i.e., the May payroll cycle.  I am therefore satisfied that cesser holiday pay and PILON was not properly payable to the Complainant on 16th April 2025, but rather at the end of May 2025.   It is common case the Complainant received the full amount of PILON properly payable and the full amount of cesser holiday pay properly payable on the date it fell due to be paid i.e., 29th May 2025.  No deficiency or non-payment arises on the facts.  Accordingly, I am satisfied this complaint under the 1991 Act is not well founded.

CA-00071961-001

This complaint was withdrawn at the commencement of the hearing.

CA-00071961-002

This complaint was withdrawn at the commencement of the hearing.

CA-00071961-003

This complaint was withdrawn at the commencement of the hearing.

CA-00071967-001

I decide to disallow the Complainant’s appeal under the Redundancy Payment Act 1967 (as amended).

CA-00071967-002

I decide this complaint under the Parental Leave Act 1998 (as amended) is not well founded.

CA-00071967-003

I decide this complaint under the Maternity Protection Act 1994 (as amended) is not well founded.

CA-00071967-004

I decide this complaint under the Payments of Wages Act 1991 (as amended) is not well founded.

Right to return to work. Unfavourable treatment. Redundancy payment.