ADJ-00001249

ADJUDICATION OFFICER DECISION

Correction Order

A Care Assistant –V- A Home Care Provider

CORRECTION ORDER ISSUED PURSUANT TO 39 OF THE REDUNDANCY PAYMENTS ACT, 1967.

This order corrects the original decisions issued on 9^th May 2016 and should be read in conjunction with that decision which is amended by paragraph 6.3 below.

Adjudication Decision Reference: ADJ-00001249

1. Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 07/03/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

2. Procedure:

2.1. In accordance with Section 41(4) of the Workplace Relations Act, 2015; Section 39 of the Redundancy Payments Act, 1967; and Section 11 of the Minimum Notice and terms of Employment Act, 1973, 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(s)/dispute(s).

2.2. This complaint refers to the redundancy of the claimant where she alleged she did not receive any redundancy payments contrary to Section 7 of the Redundancy Payments Act, 1967; and where she alleged that she was not provided within written notice of her termination date of her employment contrary to Section 4 of the Minimum Notice and Terms of Employment Act, 1973.  

3. Attendance at Hearing:

3.1. The respondent did not attend the hearing and made a written submission to the WRC on 16^th February 2016.

4. Complainant’s Submission and Presentation:

4.1. The claimant was employed as a Care Worker with respondent from 11^th September 2006. She was employed on a casual basis, and paid hourly for her work. The claimant contended that up to November 2014 she had been working on average 20 to 23 hours per week, but that she did not receive any hours since November 2014.

4.2. The claimant stated that she was advised by letter of the 13^th March 2015 that the respondent was withdrawing their operations in the Republic of Ireland.

4.3. She received a further letter on the 5^th May 2015 from the respondent advising her that she was not due any monies as a result of her employment ceasing, and a P 45 was issued to her on 27^th May 2015 which was acknowledged as her termination date.

4.4. The claimant subsequently submitted a complaint to the Workplace Relations Commission on 2^nd December 2015 for:

4.4.1. breaches under Section 7 of the Redundancy Payments Act, 1967 in that she received no redundancy payment despite working with the company since 2006; and

4.4.2. Breached under Section 4 of the Minimum Notice and Terms of Employment Act, 1973 where she alleged that she was not provided with the required written notice of her termination date of her employment.  

4.5. At the hearing the claimant acknowledged that it's complaint under the minimum notice was outside of the six months period explaining that this was due to the fact that she was pursuing a redundancy payments claim.

4.6. The complainant argued that the redundancy payment calculations the respondent had applied was incorrect. The claimant contended the following rules should apply "if an employee is paid wholly or partly by piece rate, commissioned or related to output, then his or her normal weekly remuneration will be assessed by dividing the total remuneration over the 26 weeks which ended 13 weeks prior to redundancy by the total number of hours worked over the same period and multiplying by the average weekly working hours an average of the hours worked the 26 weeks ending 13 weeks prior to the date of decoration of redundancy. Where such employees do not work a week in the 26 week period, then the most recent week before the 26th week period applies and the weeks not worked would be disregarded. If an employee has no normal working hours then his or her normal weekly remuneration is the average of the 52 weeks prior to the date of declaration of redundancy".

4.7. The clamant submitted that it had requested from the respondent a copy of her payslips for the 52 weeks prior to 27 May 2015 and her P 60 for 2014 so that a correct calculation could be presented at the hearing. The claimant advised the respondent did not provide this information, however the claimant submitted sample payslips for the period 16 April 2014 (where she worked 16 ½ hours that week) and the period ending 30th of April 2014 (where she worked 25 hours). The claimant also submitted work rosters and weekly roster report for those weeks confirming her hours worked over those two periods. It was therefore submitted that the claimants average weekly working hours was 20 hours where the claimant contended that should have been the basis applied for the calculation of her redundancy payment entitlement. The claimant submitted that she was paid €12.20 per hour.

5. Respondent’s Submission and Presentation:

5.1.The respondent did not attend the hearing but submitted its response in writing on 16^th February 2016.

5.2. The respondent is based in Northern Ireland and withdrew it services from the Republic of Ireland in 2015.

5.3. In its response the respondent acknowledged that the complainant would have had 9 years’ service which in entitled her to 4 weeks’ notice. The respondent contended that it provided the complainant notice in the letter dated 13^th March 2015 which indicated it was withdrawing its operations from the Republic of Ireland.

5.4. It further advised the claimant in the letter on 5^th May 2015 that she was not due any monies as she had not been rostered for work since 2^nd November 2014. The respondent therefore contended that it provided the claimant with her statutory notice, and that based on its calculations the claimant had no redundancy payment entitlements.

6. Decision:

6.1. Section 41(4) 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. Section 39 of the Redundancy Payments Act, 1967 and Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to breaches of those Acts.

6.2. As the claim for a breach of the minimum notice in terms of employment act 1973 is out of time it is outside the jurisdiction of the Adjudication Officer to make any findings of this complaint. This complaint therefore fails.

6.3. In accordance with the rules for calculation of redundancy payments, I find that the claimant was entitled to redundancy payments based on a 20 hour week, which she was working before November 2014 and under which she qualifies for a redundancy payment. Therefore I find the claimant is entitled be paid be two (2) weeks for every year served which amounts to nineteen (19) weeks plus one (1) week- twenty (20)weeks in total.. The calculations should therefore be based be based on 20 weeks for a 20 hour week at €12.20

Dated:    9^th May 2016