Case Number: ADJ-00033548. Workplace Relations Commission

• Docket Number: ADJ-00033548
• Hearing Date: 29 September 2021
• Date: 03 November 2021
• Court: Workplace Relations Commission
• Respondent: Gilford Montessori School Ltd Gilford Montessori & Afterschool

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033548

Parties:

	Complainant	Respondent
Parties	Claire Humphreys	Gilford Montessori School Ltd Gilford Montessori & Afterschool

Representatives Vivian Cullen SIPTU-Trade Union Daragh Whelan IBEC

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00044367-001	27/05/2021

Date of Adjudication Hearing: 29/09/2021

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

This complaint relates to exceptional circumstances that flowed from the Pandemic and the closure of the Montessori school on the 12th March 2020. The complainant worked as an after school manager. She was rated an excellent employee. She initially spent 2 years with the school, left and then subsequently returned and commenced again on the 10th of April 2012. Just before the Pandemic forced the school to close, the complainant goes sick and this fact is crucial in understanding the confusion that unfolds concerning her employment rights. As the complainant was sick, a difference in treatment regarding payment under the Temporary Wage Subsidy scheme arose. Those working at the time of closure were entitled to this payment while those absent on sick leave were not. Anomalies around the scheme were subsequently resolved. The following are facts that the respondent rely upon: 14/04/2020 Ulla McCarthy (UMcC) email to CH stating Revenue rules are clear requiring employees to have been on the payroll, as a paid employee, as at 29/02/2020. CH out since January, see final Payslip (Appendix 3). Business closed so she cannot be re-hired from her period of lay-off as requested by CH, she had not returned to work before the business was closed, appendix 2. 09/05/2020 CH texted – She could not get COVID-19 payment. CH informed GMS that she found work with an essential worker; requested a reference. Changes to CH tax credits made with Revenue by CH, Appendix 2. 11/05/2020 CH phoned EMcC – CH detailed her request for a reference. EMcC stated CH would have to come off our payroll if she took up another employment and CH should reallocate her tax credits to her new employer. This was taken as notice from CH that she had left GMS Appendix 2. The respondent states that the complainant voluntarily resigned; while the complainant stated she never resigned. The complainant argues that the 11th of May 2020 was not the date of termination as she had every right to work elsewhere as she had no income; no COVID wage subsidy; and was laid off work. The fact that she worked for someone else did not mean that her contract could be terminated. She never resigned. The school was closed and it was uncertain and unclear when it would reopen. She was forced to leave her employment having regard to the stance of her employer first that she couldn’t work for someone else when laid off and the fact that her employer insisted that she resigned. All she did was to look for a reference when by a cruel combination of factors she was laid off and not entitled to the temporary wage subsidy. Only based on this untenable position lasting for close to a year, she was forced to leave her job.

Preliminary Matter

The respondent employer states that the complainant is out of time and statute barred as the complaint before the Adjudicator was registered with the Workplace Relations Commission on the 27th May 2021. The complainant had previously made a redundancy application and the date of termination on that form was the 14th of April 2020; this claim was withdrawn. However, the respondent contends that the voluntary cessation of the complainant’s employment occurred on the 11th May 2020.

It is well settled law that a complaint must be lodged withing the statutory time period; in this case 6 months and this maybe extended for reasonable cause to 12 months. Even on this basis, allowing for a 12 month period; the claim is statute barred. The respondent employer relies on the leading case in this regard Cementation Skanska v Carroll DWT0338. No cause has been advanced by the respondent. The test is an objective one and the circumstances that are relied upon must both explain why the delay occurred and that a causal link exists between the circumstances cited and the delay. That has not occurred in this case.

Evidence on oath was given by all witnesses. The employer states that their payroll record and Revenue records detail that the termination date was the 12th of May 2020.

The complainant commenced employment on the 10th of April 2012. The employer on oath based on contemporaneous notes and as detailed in their submission state:

11/05/2020 CH phoned EMcC – CH detailed her request for a reference. EMcC

stated CH would have to come off our payroll if she took up another

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