ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002846

Complaints for Resolution:

Date of Adjudication Hearing: 10/08/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle, Adjudicator.

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 11 of the Minimum Notice and Terms of Employment Act, 1973, and section 27 of the   Organisation of Working Time Act, 1997, 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.

:

                                         A truck driver v a logistics Company

Complainant’s Submission and Presentation:

The complainant commenced work as a driver at the respondent company on 27 September, 2015. He worked a 55 hr week and received €120.00 nett per day He worked all night shifts on either a 5 night or 6 night basis of 10 -12 hr duration. His employment ended on 14 February, 2016 when the respondent lost a business contract. He did not receive a P60 or a P45.

The complainant placed three documents before the hearing.

1. A statement of main terms of employment, signed by both parties on 17 December, 2015.

2. A Pay slip dated 13 February ,2016 indicating that a payment of €930.00 had been made to him, In reality , he received €450.00 as a final payment , comprised of

1. €240.00 nett pay for 2 days work

2. €210.00 nett pays for annual leave.

       3 A one page extract on annual leave from the staff handbook.

The complainant is seeking

1 CA-00003926-001 a claim for minimum notice of two weeks.

2 CA-00003926-002 a claim for 4 public holidays in the reference period.

3 CA-00003926-03   a claim for unpaid annual leave of 8 days minus €210.00 paid on 13 February, 2016.

Respondent’s Submission and Presentation:

The respondent was notified of the claims before the WRC on 3 May, 2016.On the 6 May, 2016, the respondent wrote to the WRC offering a correction on the correct name of the company. They disputed the claims and notified the WRC that the company was no longer trading and was in the process of being wound up.

On July 12, 2016, the respondent was notified of the time and place assigned to the hearing of the complainants case .On August 9, the respondent informed the WRC that they were not in a position to have representation at the hearing. There was no appearance on behalf of respondent .There were no further submissions.

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. It is my understanding that the respondent company continued in existence throughout the life time of this complaint .No evidence was adduced on any examinership, receivership, or Liquidation process by either party . The respondent submitted that the company had cease trading .

Decision:

1. CA-00003926-001 Claim for Minimum Notice: under the Minimum Notice and Terms of Employment Act, 1973.

The complainant submitted his written statement of his terms and conditions, co signed by the respondent and the complainant on 17 December, 2015. Notice of termination to be given by the employer for a period of 13 weeks service but less than 5 years service amounts to 2 weeks. This is an enhancement on the legislative framework on notice.

Minimum period of notice.

Section 4

4. —(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week

I accept the complainant’s uncontested evidence that the employer failed to give him the required one week notice under the Act and I order the respondent to pay the complainant the sum of €720.00 nett in compensation for the breach of section 4(2) of the Act.

2. CA -00003926-002 Claim for 4 Public Holidays: Organisation of Working Time Act, 1997

Entitlement in respect of public holidays.

Section 21

1. —(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) A paid day off on that day,

(b) A paid day off within a month of that day,

(c) An additional day of annual leave,

(d) An additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time 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 that public holiday.

The complaint was submitted to the WRC on 18 April, 2016. The complainant commenced work on September 27^th, 2015 and left on 14 February, 2016. I am satisfied that there are three public holidays encompassed by the terms of the Act. 21(4) applies to the October public holiday as the complainant did not work 40 hours during the period of 5 weeks ending on the day before that public holiday .

I find the complaint to be well founded and while I note the notification from the respondent accountant dated March 2016

“There were no additional payments given for public holiday”I also note the mandatory requirement to work the public holiday provision contained in the statement of terms of employment I find the complaint to be well founded. I order the respondent to pay the complainant €360.00 nett in compensation. This is response to non payment of three public holiday periods .

3 CA-00003926-003 Claim for annual leave at cessation of employment. Organisation of Working Time Act, 1997 .

The complainant states that he was not provided with paid annual leave in accordance with Section 19 of the Act and further that his cesser pay for outstanding annual leave was incorrectly recorded when his employment concluded in February, 2016.

Section 25 of the Act requires the respondent to maintain records of the complainant’s holidays. I did not receive this record. The respondent cannot, therefore satisfy the required burden of proof.

Compensation on cesser of employment.

Section 23.(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection—

‘relevant period’ means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

The complainant told the hearing that he received a standard cesser payment of €210.00 nett in respect of 3 days annual leave untaken at the time of his termination . I accept the evidence adduced that his period of leave in January 2016 was rightly regarded as compassionate leave and not annual leave . I also accept that the complainant frequently worked a 55 hr week . I find the complaint to be well founded and I award €600.00 in compensation for untaken annual leave on cessation of employment .

I award the total sum of € 1,680 in compensation to be paid by the respondent to the complainant .

CA-00003926-001 €720.00

CA-00003926-002   € 360.00

CA-00003926-003     €600.00  

Dated:   07-11-2016