Case Number: ADJ-00000105. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00000105
Date25 October 2016
PartiesAn Employee Vs An Employer
ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000105

Complaint for Resolution:

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-00000110-001

07/10/2015

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946

CA-00000110-002

07/10/2015

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00000110-003

07/10/2015

Date of Adjudication Hearing: 27/01/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The respondent took over the complainant’s then employer in or around 15th April 2014. The applicant had worked for that former company since 2000. There had been redundancy situations in the intervening period and she submitted that it was the custom and practice to pay enhanced redundancy payments.

The respondent did not pay her an enhanced redundancy and has since argued that this only happens in voluntary redundancy situations. She submits that this was not the case and believed that the custom and practice ordinarily formed a contractual term that would have transferred under the Transfer Regulations.

She submitted that the failure to issue a Certificate of Redundancy meant that the employers obligations under the Redundancy Payments Act had not been met and that the payment made to her could only be regarded as an ex gratia payment with her entitlement to the statutory payment remaining unmet

Between 30th April 2014 and July 2015, there was intended to be training on a new system operated by the Respondent. She says she was denied access to training giving rise to a case under the Employment Equality Act by reference to a comparable younger male colleague who was. The case under the civil status and family grounds was withdrawn at the hearing.

Regarding the case under the Industrial Relations Act she submitted that these related to bullying and harassment which had never been properly investigated by the respondent.

Respondent’s Submission and Presentation:

The company provides outsourced software services and on acquiring the complainant’s former company moved to rationalise and centralise some administrative services, including some payroll activity carried out by her.

This took place over a period but when fully effected meant that her position became redundant, although the company says it retained the complainant in employment even after this happened.

The respondent says that the claim under the Equality Act is not within the prescribed time limits. While the complainant states that the last date of discrimination was July 2015 no details of an act of discrimination occurring on that date have been provided. It also says that the only possible act of discrimination (which it denies) took place on November 12th 2014 and as the complaint was submitted only on October 7th 2015 it falls outside the time limits.

Findings and Conclusion:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have considered all the relevant oral and written evidence that was laid before me prior to and n the course of the hearing.

Turning to the complaint under the Employment Equality Act first, the complainant has failed to establish a prima facie case of less favourable treatment and the comparator against whom unfavourable treatment is alleged is not an appropriate comparator. Her complaint was that she received inadequate training but the role of the comparator she chose is in fact to deliver training.

It would have been necessary to identify a person in similar circumstances to the complainant who was more favourably treated on one of the discriminatory grounds and she failed to do so.

The training may, in her view have been inadequate but this is a separate matter and does not, of itself, give rise to a claim under the Employment Equality Act

In any event I find that the last identifiable incident to which the claim relates falls outside the time limits and accordingly I find there is no case to answer under the Employment Equality Act.

Regarding the issues arising under the Industrial Relations Act some confusion surrounded these. It appeared initially that the claim here was for an enhanced redundancy payment, but this changed in the course of the hearing.

The respondent says that no formal grievance was raised by the complainant and therefore it could not trigger the necessary response. It is easy to see from the evidence that the situation following the takeover was stressful and uncertain for the complainant, and there may well have been room for improvement in the communications within the company.

However there was no evidence laid before me, nor any basis to make a finding in relation to this complaint under the Industrial Relations Act.

Regarding the claim made under the Redundancy Payments Act, the complainant submitted, as noted above, that failure to provide a redundancy certificate effectively voided such payment as the respondent believed it was making under the act and turned it into an ex gratia payment, leaving compliance with the Act outstanding.

The parties were invited to make written submissions on this point after the hearing and did so.

The complainant repeated the view that there was a strict obligation on the employer. It relied o the the decision of the High Court in the case of Minister for Labour v O'Connor, High Court, March 6, 1973 (reported at (1985) 4 J.I.S.L.L. 72) and citing the fact that it was approved in the subsequent case of Talbot Ireland Limited v the Minister for Labour and others).

The respondent replied to this as follows;

In [Minister of Labour] the employee was dismissed by reason of redundancy and his statutory entitlement was £132. The employee was paid £500 by way of compensation and a dispute arose as to whether this included his statutory lump sum. The employee had not been given the prescribed certificate.

In relation to this case, it is respectfully submitted that the Claimant is in fact misinterpreting the decision as the argument posed in the O’Connor case is entirely different to what she is now maintaining. In the O’Connor case, Kenny J stated

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