ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000044

Complaints for Resolution:

Date of Adjudication Hearing: 07/12/2015

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Act, 1967, Section 11 of the Minimum Notice and Terms of Employment Act ,1973, Section 27 of the Organisation of Working Time Act, 1997 and Section 7 of the Terms of Employment( Information Act,) 1994 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 Complainant stated that she commenced work as a Chef on April 14^th, 2010 at the respondent Bar. She earned €400 per week for a 40 hour working week. The Bar closed on April 6^th, 2015 following a fire. A period of uncertainty followed the fire but in essence, the Business ceased to trade from that date. On 24^th June, 2015, the Complainant gave the Respondent notice of her maternity leave. At this time, she was claiming job seekers benefit. She sought confirmation of continuity of employment and outstanding holiday pay. On 25^th June, 2015, the Respondent notified the Department of Social Protection of the cessation of trading from April 6^th.

On July 8^th, the Respondent wrote to the complainant indicating that he would not be re- opening the Bar. He confirmed that he intended to pay her four days outstanding annual leave days when the Insurance claim was settled. The Complainant received her P45, dated 6^th April, 2015 on July 8^th, 2015. She was unable to obtain her Maternity Benefit as the premises had ceased to trade before her due date.

On 21^st July, 2015, The Citizens Information Centre wrote to the Respondent claiming on behalf of the Complainant:

1 Redundancy   to the sum of                                                                                             €4,384.00.

2 Minimum Notice of                                               €800.00

3 Annual Leave of                                                 € 320.00

4 Public Holiday (5 days)                                           €400.00

5 Compensation to cover failure to provide a contract of employment € 1,600

6 Sunday Working   (5 years)                                      €19,200

                                                   TOTAL   €26,704

On August 4^th, the Respondent contacted the Citizens Information Service, pleading an inability to pay the Complainant but offering a €1,000 figure in settlement. The Complainants representative asked the Respondent to obtain a letter confirming an “inability to pay “from his Accountant. The Respondent agreed. As no further contact was made between the parties, the Complainant lodged two complaints (CA 37 and CA38) to the WRC on 2^nd October, 2015. The Complainant withdrew CA 38 on 16^th October, 2015.

The Respondent did make some contact with the Complainant and her representative in advance of the hearing re-affirming his inability to pay and requesting that the claims be withdrawn from the WRC. The Complainant wished to proceed with her case and attended the Hearing on 7 December, 2015

Respondent’s Submission and Presentation:

On the morning of the Hearing, the Respondent did not attend. Mr R, Accountant, attended. He stated that the Respondent had been unable to travel from the North West, where he now lived. The Respondent had sought to alert the WRC that both his car and house were flooded but had been unsuccessful. Mr R availed of a pro-offered break of 15 mins to consult the Respondent on his instructions over the phone. Mr R agreed to represent the Respondent to contest the claims.

The Respondent is a Sole Trader, who did not own the Bar premises. He confirmed that the fire had caused the business to cease trading in April, 2015 and there were substantial debts outstanding on the business and that his client was simply unable to pay what he owed the Complainant .He had no wish to disadvantage the complainant but unless the Insurance Company paid out on compensation for the fire, the Respondent remained unable to pay. All records and rosters covering the complainant had been destroyed in the fire. Mr R disputed the timing of the claim for Sunday pay, alleging that it had not been raised whilst the Complainant was employed by the Respondent.

Findings:

The Complainant was represented by the Citizens Information Centre. At the commencement of the hearing, it became apparent that the Respondent was not in attendance. I am satisfied that all parties were on notice of the hearing on 7^th December, 2015. I adjourned the hearing to allow Mr R, the respondents Accountant to accept instructions. We reconvened after 15 mins, whereby Mr R agreed to represent the Respondent. The claims for Redundancy, Minimum Notice, and Annual Leave (4 days) were uncontested. Mr R took issue with the claims for outstanding Sunday premia and public holidays.

The Complainant had lodged an RP77 on the Respondent on the 10 July, 2015 but nothing followed. The Complainant gave a clear account of her time working at the Bar and produced pay slips and P 45 in evidence. I requested confirmation of an agreed start date and this followed by way of a copy of a tax deduction card which confirmed the start date as 15^th April, 2010. I was not shown a contract of employment and records of roster were reported as lost in the fire.

I asked the complainant during the hearing when the issue of Sunday premia and payment for public holidays was first rose with the Respondent. I was informed that there had been casual reference to these over the course of employment, but no definite outcome was recorded. The Respondent was unable to verify any of this.

Decision:

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

Issues for Decision:

The complainant is seeking redress in regard to five complaints

1 That she is entitled to redundancy from the Respondent for the period of April 15 2010 -6 April, 2015.

2 That she is entitled to minimum notice of two weeks or payment in lieu of notice of redundancy.

3 That she is entitled to be paid for 4 days annual leave on cessation of employment.

4 That she is entitled to compensation for the Employers omission to furnish her with a statement of the terms of her employment during the course of her employment.

5 That she is seeking payment for Sunday premia and payment for public holiday premia from the commencement of her employment.

Legislation:

1 Redundancy Claim

A “ redundancy situation “ is defined as occurring where there is a dismissal of an employee by an employer , not related to the employee concerned ,and the dismissal results “ wholly or mainly “ from one of the following situations :[1]

(a) Where an employer has ceased, or intends to cease, to carry on the business for the purposes for which the employee was employed by him, or has ceased or intends to cease to carry on that business in the place where the employee was so employed [2]

I find that the Complainant is entitled to a redundancy payment calculated on the following criteria;

Date of Commencement:   15 April 2010

Date of Termination:             6 April 2015

Gross Weekly wage:                 €400

The award is made subject to the Complainant having been in insurable employment under the Social Welfare acts during the relevant period.

2 Minimum Notice

The Complainant did not receive any notice from her Employer that her employment was to cease in April 2015. I find that she is entitled to two weeks pay (€800) in lieu of notice as provided for in S.11 of the Minimum Notice and Terms of Employment Act 1973-2005.

3 Annual Leave

The claim for 4 days outstanding annual leave was not contested by the Respondent. Section 25 of the Organisation of Working Time Act, 1997 requires the Respondent to maintain records of the Complainants holidays; no such records were made available at the adjudication hearing. Therefore, the respondent did not meet its statutory burden of complying with the Act. The complainant stated that she received job seekers benefit from April 7, 2015; she produced pay slips from 2014 which accounted for a weekly wage of €400 or €10 per hour. I find that the Complainant is due cesser pay of €320.

4 Terms of Employment Act 1994

Section 3(1) of the Act provides that “ An employer shall , not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the terms of employment “ [3]

There were no records opened to the Adjudication Officer on this statement. Therefore, I must conclude under Section 7 (2) (d) that no such record exists and that the complainants complaint is well founded. I award four weeks compensation for the breach of the Act. This amounts to €1600.

5 Sunday Premia and Payment for Public Holiday

The Complainant contended that she had worked most Sundays and Public Holidays during the course of her employment without receiving an additional premia for either . During the course of the hearing she referred to discussions with the respondent on the topic both on her behalf and on behalf of other employees but no progress had been made . I was also refered to a copy of an Employment Regulation Order dated 12^th May 2008 which covered the catering industry. I considered these submissions and the reservations expressed by the respondent.

Section 27(4) of the Organisation of Working Time Act 1997 states : A Rights Commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates “

And

Section 41(6)of the Workplace Relations Act 2015,states that an adjudication officer shall not entertain a complaint referred to her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the ate of the contravention to which the complaint refers “

Sunday Working

The Complainant last worked for the respondent on April 5^th 2015 and she lodged her claim with WRC on Oct 2 2015. Therefore, I find that she did not undertake Sunday working in this time period .I have no jurisdiction to address the retrospective element of the claims to April 2010...

Public Holiday

The Complainant did not work for the respondent after April 5, 2015. The Complaint was lodged with WRC on 2 October 2015. The provisions of S21 (4) of the Act apply

“ Subsection (1) shall not apply , as respects a particular public holiday ,to an employee unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before the public holiday “During the 6 months in advance of the complaint being lodged there were :

Easter Monday, May Day, June, and August. I find that the Complainant is entitled to payment for Easter Monday at €80. This was the only public holiday where the 40 hrs during the 5 week period were worked. I have no jurisdiction to hear the Complainant and her claim for public holiday’s retrospective to April 2010.

In IDM Construction and Services ltd v Vasile Buzatu[4] The Labour Court examined a similar set of circumstances surrounding a retrospective claim for Sunday and public holiday premia payment.

The Court held “The Court has considered all of the information and submissions before it. The Court takes the view that the statutory limit is clear and that it can only be sett aside where reasonable cause is shown. In this case the Court, having considered the submissions of both sides, is not persuaded that the Complainant has demonstrated reasonable cause for the delay in bringing the proceedings ….. The Court accordingly does not have jurisdiction to hear the Complainant.”

In conclusion , I do not accept that the Complainant was covered by the terms of the submitted Employment Regulation Order .

DECISION

1 I find that the Complainants claim for redundancy is well founded and   succeeds . I award the sum of €4384

2 I find that the Complainants claim for Minimum Notice is well founded and succeeds .I award the sum of €800

3 I find that the claim for 4 days Annual Leave succeeds .I award €320 .

4 I find that the claim for compensation for breach of the Terms of Employment Act 1994 is well founded and succeeds . I award €1600.

5 I find that the claim for Sunday premia falls through lack of jurisdiction .

     I find that the Complainant is entitled to be paid €80 for the Easter Monday public holiday, April 6 , 2015 , but that I do not have the jurisdiction to address the retrospective claim to 2010.

Dated:   23 March 2016

[1] Section 7(2) of the Redundancy payments Act, 1967

     [2] Section 7(2)(a) RPA Act 1967

[3] Section 3(1) Terms of Employment( Information Act ) 1994

[4] DWT 169 Labour Court Determination