ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000870

Complaints for Resolution:

Parties:                                Mr Oliver Peden and Blackchurch Homes Limited.

At:                          Workplace Relations Commission, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 29/03/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 7 of the Terms of Employment (Information) Act, 1994, Section 27 of the Organisation of Working Time Act, 1997 and Section 8 of the Unfair Dismissals Act, 1977 and 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.

The Complainant has been employed with the Respondent since 13^th December 1993. He stated he was paid €1000.00 a week as a Construction Manager and he worked on average 45 hours a week. He referred a complaint to the Workplace Relations Commission on 24^th November 2015 alleging the Respondent had breached Section 3 of the Terms of Employment (Information) Act, 1994; Section 19 and 21 of the Organisation of Working Time Act, 1997 and Section 8 of the Unfair Dismissals Acts, 1977 alleging Constructive Dismissal.

Terms of Employment (Information) Act, 1994 - Summary of Complainant’s Position.

During the course of his 23 years of employment in different Companies within the Group he stated he had never been given a written statement of his Terms and Conditions of Employment. The Complainant confirmed at the Hearing that he had not requested the Respondent to provide him with a Statement of Terms and Conditions.

Organisation of Working Time Act, 1997 – Summary of Complainant’s Submission.

The Complainant stated that he had taken 2 weeks annual leave, the first two weeks in September 2014 in the 2014/2015 annual leave year. He stated that he had worked April and May 2015 but had not been paid his annual leave entitlements on termination of the employment on 25^th June 2015.

The Complainant stated that he is entitled to be paid for one Public Holiday in June 2015.

Unfair Dismissals Acts, 1977 – Summary of Complainant’s Position.

The Complainant was placed on Lay-Off along with his three colleagues on 27^th May 2015. However two of his colleagues were subsequently re-employed within another of the Group Companies, even though they had less service than the Complainant.

The Complainant received a letter dated 29^th May 2015 confirming his employment within the Group of Companies since December 1993. After being on lay-off for 4 weeks he was approached by the Respondent and informed he would have to sign Part B of the RP9 Form under the Redundancy Payments Acts 1967 – 2007. The Complainant was paid €26,544.00 from the Insolvency Fund.

Decision:

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.

On the basis of the evidence and a written submission on behalf of the Complainant I find as follows:

Terms of Employment (Information) Act, 1994. Section 3(7) of the Act provides as follows: This section, other than subsection 6, shall not apply or have effect as respects contracts of employment entered into before the commencement of the Act. This Act came into effect on 5^th April 1994 and the Complainant’s employment commenced on 13^th December 1993. The Complainant confirmed that he had not requested a Statement of his Terms and Conditions from the Respondent.

Organisation of Working Time Act, 1997. On the uncontested evidence of the Complainant he stated he had 2 weeks annual leave in the 2014/2015 annual leave year. The Complainant worked in excess of 1365 hours and therefore is entitled to 2 weeks annual leave for the 2014/2015 annual leave year. The Complainant worked April and up to 27^th May 2015. This is a total of 315 hours worked (45 hours a week x 7 weeks) x 8% = 25.2 annual leave due. The Complainant is claiming payment for the June 2015 Public Holiday. The Complainant was requested and agreed to forward payslips but did not do so. The Complainant is entitled to payment of 1 days’ pay for the Public Holiday.

Unfair Dismissals Act, 1977 – The Complainant lodged a complaint of Constructive Dismissal to the Workplace Relations Commission on 24^th November 2015. The evidence presented at the Hearing made no reference to the complaint of “constructive dismissal”. The Complainant advanced an argument in relation to his lay-off and his dismissal. The Complainant stated he had worked for 20 days since the termination of his employment in June 2015 and was in receipt of Jobseekers Benefit. The Complainant was requested to forward a statement from the Department of Social Protection to confirm the dates he was in receipt of Jobseekers Benefit but he did not do so.

In accordance with Section 41 940 of the Workplace Relations Act, 2015, Section 7 of the Terms of Employment (Information) Act, 1994; Section 27 (3) of the Organisation of Working Time Act, 1997 and Section 8 of the Unfair Dismissals Act, 1977 I declare as follows:

Terms of Employment (Information) Act, 1994: I do not have jurisdiction to hear this complaint as the Complainant was employed before the commencement of the Act on 5^th April 1994.

Organisation of Working Time Act, 1997: I declare the complaint is well founded. I order the Respondent to pay the Complainant €560.00 in respect of annual leave due and not paid on termination of the employment as set down under Section 23 of the Act. I order the Respondent to pay the Complainant the sum of €200.00 in respect of the June 2015 Public Holiday. The total amount of €760.00 to be paid to the Complainant within 42 days of the date of this Decision.

Unfair Dismissals Act, 1977: There was no evidence presented to me at the Hearing in relation to the complaint of constructive dismissal as lodged on 24^th November 2015. I declare the complaint of “constructive dismissal” is not well founded.

Date:__7^th June 2016_______________________________________________