€ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000619

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

Date of Adjudication Hearing: 23/03/2016

Workplace Relations Commission Adjudication Officer: David Iredale

Background

The Claimant commenced employment with the Respondent on 9 September 2013. He was employed as an Area Salesman working 48 hours per week and paid €2,083.00 gross per month.

On 15 June 2015 the Claimant was placed on temporary lay-off. On 27 July 2015 an Examiner was appointed to the Respondent by the Circuit Court. The Claimant was subsequently made redundant.

The Claimant presented a complaint on 15 November 2015 claiming that the Respondent was in breach of S.7 of the Redundancy Payments Act, 1967 (the “1967 Act”). He is seeking to be paid statutory redundancy as he claims he had in excess of 2 years service with the Respondent when his employment was terminated.

On 15 November 2015 the Claimant presented a complaint under S.27 of the Organisation of Working Time Act, 1997 (the “1997 Act”), seeking compensation for the Respondent’s failure to pay him his notice and outstanding annual leave entitlement when his employment ended.

Claimant’s Case – Breach of S.7 of 1967 Act

The Claimant was placed on temporary lay-off on 15 June 2015. He was informed by telephone on 6 August 2015 that his employment was being terminated. He requested his P45 and all outstanding wages and on 14 September he received his P45 by email. The P45 was back dated to 13 August 2015. On 2 February 2016 the Claimant received a letter from the Respondent dated 6 August 2015 which confirmed he was to be made redundant on 13 August 2015.

The Claimant contends that as the Respondent failed to give him notice in writing his employment with the Respondent continued beyond 2 years and gave him an entitlement to be paid statutory redundancy.

Respondent’s - Breach of S.7 of 1967 Act

In February 2015 the Respondent found itself in financial difficulties which resulted in it having to place the Claimant on temporary lay-off on 15 June 2015. On27 July the Respondent was placed in Examinership.

On 6 August 2015 the Claimant was informed that he was being made redundant and was given 1 week’s notice of his employment to terminate on 13 August 2015. This was confirmed to the Claimant by letter dated 6 August 2015.

The Respondent submits that the Claimant employment terminated, following 1 week’s notice, on 13 August 2015. As the Claimant did not have the requisite service of 2 years, he did not have an entitlement to a statutory redundancy payment.

Decision – Breach of S.7 of 1967 Act

There is no dispute between the parties that the Claimant was informed by telephone on 6 August 2015 that his employment was being terminated. Emails between the parties dated 7 August confirm that the Claimant was aware his employment was being terminated and was querying payment for notice and outstanding annual leave entitlement.

The Claimant contends that as he did not receive his notice in writing until after 8 September 2015, the date he attained 2 years service with the Respondent, he is therefore entitled to a statutory redundancy payment.

“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.”

S.4 (1) of the 1973 Act requires an employer to “give” notice of termination of employment to an employee. The Respondent has satisfied the provisions of S.4(1) by giving verbal notice as it is not specified that notice is required to be given in writing. I find that the Claimant was given notice on 6th August 2015 and his employment terminated on 13August 2015. As he had not attained 2 years continuous service on that date, he did not have an entitlement to a statutory redundancy payment. I therefore declare his complaint that the Respondent was in breach of the Redundancy Payments Act, 1967, not to be well founded.

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Claimant’s Case – Breach of S.23 of 1997 Act

The Claimant was placed on temporary lay-off on 15 June 2015. He was informed by telephone on 6 August 2015 that his employment was being terminated. He requested his P45 and all outstanding wages and on 14 September he received his P45 by email. The P45 was back dated to 13 August 2015. The Claimant did not receive payment for his entitlement to notice or compensation for his outstanding holiday entitlement.

The Claimant is seeking compensation for the non payment of minimum notice and his outstanding holiday entitlement when his employment was terminated.

Respondent’s Case - Breach of S.23 of 1997 Act

The Respondent accepted that the Claimant was due payment for 5.25 days annual leave and for 1 week’s notice.

Decision – Breach of S.23 of 1997 Act

The 1997 Act has no application to complaints of non payment of minimum or contractual notice. I declare the complaint concerning the non payment of notice not to be well founded.

The Respondent accepted that the Claimant had an entitlement to 5.25 when his employment when his employment was terminated. I therefore declare his complaint that the Respondent was in breach of S.23 of the 1997 Act.

I require the Respondent to pay to the Claimant the sum of €504.81 in compensation for being in breach of S.23 of the 1997 Act in that it had failed to compensate him for 5.25 days outstanding annual leave entitlement when his employment was terminated.

David Iredale

Adjudicator                                                                                       

Dated:  14/11/2016