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Case Law - Reviewed under the WRC

Case Law - Reviewed under the WRC

Date published on: 01/12/2019

In this month’s newsletter the team at Adare Human Resource Management consider in detail a number of cases as adjudicated under the Workplace Relations Commission.

Complainant unsuccessful as he received legal and tax advise on severance package

Adjudication Reference: ADJ-00023448


Background:

The Complainant commenced employment with the Respondent on the 25th March 2002.  On January 7th 2019, having returned from his holidays, the Complainant was offered a severance package during a meeting with the MD and the HR Manager. He subsequently received legal and tax advice surrounding the package, which was paid for by the Respondent, prior to signing an agreement on 30th January 2019.

 

Summary of Complainants Case:

The Complainant stated that he was pressured into signing the severance agreement and did not have appropriate time to process the decision. He also stated that his legal advisors informed him that the Respondent wanted to exit him from the Company and would be doing so over time.

 

Summary of Respondent’s Case:

The Respondent’s representative disputed that the Complainant was dismissed.  The representative claimed that the Complainant availed of a voluntary redundancy package, having signed an agreement in full and final settlement of all claims due to him, following receipt of legal and tax advice.  It was also claimed that the Complainant was informed that he could continue working with the Respondent if he did not wish to avail of the voluntary redundancy offer.

 

Findings and Conclusions:

On the basis of the evidence presented, the Adjudicator was satisfied that the Complainant signed a settlement agreement, having obtained the appropriate legal and tax advice, thus waiving all sums due to him by the Respondent. The Adjudicator also believed the Complainant had an adequate period of time to consider the decision, as there was a period of over three weeks between the initial offer being made and the agreement being signed.   His claim is not well founded.

 

Decision:

Section 41 of the Workplace Relations Act 2015 requires a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.  This claim is not well founded.

 

Adare Human Resource Management Commentary:

In the event that you are looking to a agree an exit package with an Employee, it is a necessity that the individual in question receives the appropriate legal and tax advice, as well as adequate time to consider the package, in order for the Organisation to be in a position to stand over the Agreement in the event a claim is taken thereafter.

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Complainant successful in unfair dismissal claim when the Company failed to TUPE her employment whilst on maternity leave

Adjudication Reference: ADJ-00023179

 

Background:

The Complainant has brought a claim against her former employer in regards the manner of the termination of her employment with the company.

 

Summary of Complainants Case:

The Complainant was represented at the hearing and also gave evidence on her own account as well providing a full submission. The Complainant was on maternity Leave when she received a P45 from her Employer. There had been no lead up to this event and the Complainant’s subsequent communications with the Respondent were confusing and unhelpful. The Respondent eventually went into Liquidation.

 

Summary of Respondent’s Case:

The appointed Liquidator initially took the view that the Complainant must have transferred to another company. The Adjudicator accepts that he has since resiled from that position. The Adjudicator is assured that the Liquidator will abide by any decision made, recognising the Complainant as an Employee of the now Liquidated Respondent Company.

 

Findings and Conclusions:

The Complainant had been working with the Respondent since early 2017. In November 2018 the Complainant went on her maternity leave and was not due back to work until May 2019. Unexpectedly, the Complainant received her P45 on the 1st of January 2019. This came from her Employer and the P45 confirms this. The Complainant was upset at this turn of events and communicated immediately with the HR Manager.

The Complainant understands that some, though not all, of her colleagues were ultimately engaged by another Service Provider who took over the service Contracts heretofore held by the Respondent Company. The Complainant was never included in any TUPE arrangement and has never had any clarity in relation to what was supposed to happen to her and her position. The Complainant takes the view that she was never transferred to another company and it was her Employer who issued her with a P45 in the course of her maternity leave. The Adjudicator was inclined to agree with the Complainant on the facts presented.

The Adjudicator stated it was regrettable that the Complainant’s maternity leave became so difficult and that she was denied the comfort of enjoying her paid and unpaid maternity Leave in the manner she expected when she embarked on this leave.

The Respondent company went into Liquidation and the Liquidator was appointed and the Complainant entered into communication with the Liquidator so appointed. The Liquidator was initially reluctant to accept that the Complainant had any rights against the Respondent company (set out in an email sent on the 5th of June 2019).

Happily, the Liquidator has since advised that he will take receipt of any decision reached under this legislation and, if appropriate, will process any award through the Insolvency fund. In making this commitment, the Adjudicator is satisfied that the Liquidator is accepting that the Complainant’s assertion that she is and always has been an employee of the now liquidated Respondent company is valid.

On balance, the Adjudicator is satisfied that the Complainant herein has been unfairly dismissed from her employment when she became an accidental victim of the financial fall-out of the Respondent company having to go into Liquidation. The situation became more complicated by reason of the fact that the Complainant was out on protected Leave and not in a position to vindicate her rights and have her voice heard. In assessing the loss, the Adjudicator had to be mindful of the fact that the workplace has ceased to exist and that the remunerative losses are therefore limited.

 

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The employee has been unfairly dismissed and shall be entitled to redress pursuant to Section 7 of the 1977 Act.  Compensation to the amount of €5,000.00 was granted.

 

Adare Human Resource Management Commentary:

In the event a business is going through organisational change and has an Employee on any period of protected leave, it is critical that these individuals are kept up-to-date and informed of any changes to their terms and conditions of employment. Specifically, section 26 of the Maternity Protection Acts, 1994 – 2004 outlines that an Employee is entitled to return to work to the same job with the same contract of employment and if this is not reasonably practicable, section 27 of the Acts states that an Employer must provide an Employee with suitable alternative work, with terms no less favourable than those of the previous job.

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Complainant unsuccessful as they were given a statement of terms and conditions of employment but no job description

Adjudication Reference: ADJ-00021043

 

Background:

The Complainant issued a complaint against his Employer regarding the details of his Contract of Employment.

 

Summary of Complainants Case:

The Complainant attended with support and the Adjudicator heard his evidence.

 

Summary of Respondent’s Case:

The Complainant IR Manager attended on behalf of the Company and the Adjudicator heard her submission on behalf of the Company.

 

Findings and Conclusions:

The Complainant has been an Employee of the Respondent Transport company since 2004. In 2007 he moved to a position of Administrative support in a Dublin based training centre.

The Complainant says that in this role he performed tasks under the heading of Railway Infrastructure as well as Railway Undertaking. The Complainant states these are two distinct areas and it is unusual that an employee would have tasks in both.  The Complainant has been in talks with Management for some time trying to get a detailed job description. The Adjudicator understood that a bullet point job description was prepared in-house in August of 2019.  The Complainant has been out sick due to the increased workload that has been inappropriately piled upon him.

The Respondent made the case that the complaint is utterly misconceived. There is no question but that the Complainant has always been in possession of a statement of his terms of employment. The Respondent states that the Complainant has raised a legitimate Grievance concerning his workload and that this is being dealt with in the normal way, though the Complainant is out sick.

The Respondent states that the Complainant has a generic administrative role and that the grade of “Clerical Officer” is appropriately assigned to him in this position. There are all sorts of generic jobs and tasks to be performed by Clerical Officers, and it would not be possible or practical to detail these in the Contract of Employment. Flexibility and adaptation are part of the requirement placed on the Clerical Officer. There are rarely specifics.

The Respondent submitted that the Complainant was putting forward a re-grading claim and that this is still in the process of being dealt with but currently stalled as the Complainant is out sick.

The Adjudicator is satisfied that the Complainant has (at all material times) been provided with a Statement of the terms of the employment as specified in Section 3 of the 1994 Act. The requirements of the Act have therefore been satisfied. It would not be appropriate for the Adjudicator to interpret the Act as imposing any further obligation on the Employer to detail down what is expected of the employee.

 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complaint is not well-founded and therefore fails.

 

Adare Human Resource Management Commentary:

Although it is best practice to ensure all Employees are issued with a detailed and accurate job description, like with any claim being taken it is imperative that a claim is taken under the correct piece of legislation, otherwise this could be thrown out of a WRC hearing as a preliminary point. Employers are encouraged to ensure their representation at a third party is aware of such points.