ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002123

Complaints for Resolution:

Date of Adjudication Hearing: 11th August 2016

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

In accordance with Section 80 and/or Section 41(4) of the Workplace Relations Act 2015 and Section 7 of the Terms of Employment (Information) Act 1994, Section 8 of the Unfair Dismissals Act, Section 27 of the Organisation of Working Time Act 1997, and Section 6 of the Payment of Wages Act 1991 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.

Background:

The Complainant was submitting that:

1. He had been unfairly dismissed by the Respondent in breach of his rights under the Unfair Dismissals Act 1977.

2. He had not been provided by the Respondent with a written statement of the particulars of his terms and conditions of employment in accordance with the requirements of Section 3 of the Terms of Employment (Information) Act 1994.

3. He had not received his annual leave entitlements in accordance with the provisions of Sections 19, 20 and 23 of the Organisation of Working Time Act 1997

4. He had not received his public holiday entitlements in accordance with the provisions of Sections 21, 22 and 23 of the Organisation of Working Time Act 1997.

5. That the Respondent had failed to pay him wages ‘properly payable’ in relation to his minimum notice entitlements in breach of his rights under Section 5 of the Payment of Wages Act 1991.

The Complainant was employed by the Respondent from 1^st May 2013 to 23^rd September 2015 and his nett weekly rate of pay was €580.00c.

Summary of Complainant’s Cases:

The Complainant said that he commenced employment with the Respondent as the Operations Manager on 1^st May 2013.   He said that he worked in that position without any significant problem until he went on one week’s annual leave from 3^rd July 2015.  

He said that on the Sunday prior to his date to return to work he spoke to the Managing Director (MD) in relation to his return.   He said the MD informed him that they were waiting on new orders and he was hoping to get work from the UK. He said the MD told him there would be no work and a layoff for all staff for 2/3 weeks.  

The Complainant said 3 weeks later, in August, he rang the MD, who told him that it was taking longer than he expected to secure work and the MD also told the Complainant that they could not pay him for his annual leave either.   The Complainant said that he was informed by the Respondent that he would be updated weekly thereafter.

The Complainant said that he went to visit the workplace premises and he found the Quality Manager and the Maintenance Worker performing some of the work that he normally did.    

The Complainant said that the other 7 employees wanted to meet with the MD and he attempted to arrange this but the MD would not agree to do this.

The Complainant said that he was not getting an weekly update from the MD, so on 23^rd September 2015 he again visited the premises and again found the Quality Manager and Maintenance Worker performing his work.    

The Complainant said that he then went to M D’s House and met with him outside his house.   He said that he was told by the MD that he, the Respondent MD, did not have work for him and the MD further told him that they (the Respondent) could not pay him his annual leave/holiday pay due.  

The Complainant said that he asked the MD was it ‘last in first out’ but got no answer.   He said he asked the MD “So I’m gone?” and the MD agreed.   He said that he asked could he have the monies, i.e. wages and holiday pay due to him and the MD told him they could not pay him.

The Complainant said that he knew he was not the ‘last in’ with the shortest service and he knew there were others doing his work.

The Complainant then had his Solicitor write to the Respondent on his behalf and that letter of 27^th October 2015 stated:

“We act on behalf of the above named (the Complainant’s name and address).

(The Complainant) instructs that he commenced employment with your Company in or around May 2013, in the role of Operations/Production Manager.   In July of this year, (the Complainant) took oneweek’s annual leave, however prior to his return from annual leave he was advised that there was presently no work for him, despite the fact that 2 more junior employees were retained inemployment.   We would be obliged if you could please confirm (the Complainant’s) employment status with the Company by return.

(The Complainant) also advised that he is presently owed approximately 6 weeks annual leave from the Company together with the sum of €84 in respect of 2 months email hosting which he paid for on the Company’s behalf.   You might also please advise as to the Company’s intention regarding these monies owed to (the Complainant).

Finally (the Complainant) advises that a number of his personal belongings remain on the Company’s premises and needless to say he would like to attend at the said premises in order to remove these belongings.   You might please confirm that it is in order for (the Complainant) to so attend at the premises.

We await hearing from you.”

The Complainant said that neither he nor his Solicitor received any reply from the Respondent.

The Complainant said that he did not hear anything further from the Respondent.

The Complainant submitted the following in relation to each of his complaints under each of the 4 Acts:

Unfair Dismissals Acts 1977.                                                                                                                              . The Complainant said it was clear from the foregoing that he was unfairly dismissed.   He had not been made redundant by the Respondent.   As his work continued to require to be done and was done by other with less service and experience than him, there was no valid reason for his dismissal.   His dismissal was effected by the Respondent in clear and flagrant breach of fair procedures, natural justice and his constitutional rights.

The Complainant gave evidence of his efforts to secure alternative employment and mitigate his losses.

The Complainant sought redress in the form of compensation as provided for in Section 7 of the 1977 Act.

Terms of Employment (Information) Act 1994.                                                                                          . The Complainant said that the Respondent had failed to provide him with a written statement of the particulars of his terms and conditions of employment in accordance with the provisions of Section 3 of the 1994 Act at any stage during his employment with the Respondent.

The Complainant sought redress in the form of compensation as provided for Section 7(2) of the 1994 Act.

Organisation of Working Time Act 1997.                                                                                                    . The Complainant sought an extension of the normal 6 month time limit in relation to his complaints under the 1997 Act.   The Complainant submitted that there was ‘reasonable cause’ in accordance with Section 41(8) of the Workplace Relations Act 2015 that justified extending this by a further 6 months.     The Complainant said that the Respondent was suggesting and telling him that he would receive his outstanding annual leave and public holiday entitlements and he had no reason to doubt this.   He said that it was only when the Respondent did not respond to the letter of 27^th October 2015 in relation to these matters that it became apparent that the Respondent was not going to afford him his entitlements under the Act and that it became appropriate to refer complaints under the Organisation of Working Time Act 1997 to the WRC.   The Complainant submitted that this was ‘reasonable cause’ that justified extending the normal 6 months time limit by a further 6 months.

The Complainant submitted that the Respondent was in breach of his rights under the Act in respect of the following:

1. Annual Leave:   The Complainant said that the Respondent was in breach of his rights under Sections 19, 20 and in particular Section 23 of the 1997 Act in relation to annual leave.

    

   The Complainant said that at the time of the termination of his employment by the Respondent he had accrued untaken or unpaid annual leave entitlements (including annual leave carried over from the previous holiday leave year by agreement between the parties) of 6 weeks (details provided to the hearing).

    

2. Public Holidays:   The Complainant said he did not receive any public holiday entitlements from the Respondent in the relevant period, including the extended period in accordance with the requirements of Sections 21, 22 and 23 of the 1997 Act.

The Complainant sought redress in accordance with the provisions of Section 27(3) of the 1997 Act.

Payment of Wages Act 1991.                                                                                                                       . The Complainant said that the Respondent had dismissed him without any notice or pay in lieu of notice and he said that in accordance with his continuous service of 2 years and 5 months he was entitled to 2 weeks minimum notice.  

The Complainant said that minimum notice pay is explicitly described a “wages” for the purpose of the Payment of Wages Act 1991 and that accordingly the failure to pay it to him is a direct breach of the provisions of Section 5 of the 1991 Act and he said that this is well established by numerous decisions of the Employment Appeals Tribunal.

The Complainant submitted that he was due the nett sum of €1,160.00c in this respect (€580 x 2) and he sought a decision to that effect under Section 6 of the Act.

Summary of Respondent’s Position:  

The Respondent was not present or represented at the hearing and they sent no submissions.

Findings and Decision:

Section 41(4) and Section 80 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.

Section 8 of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of the 1977 Act.

Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint under the Act in accordance with the relevant redress provision of the same Section of that Act.

Section 27 of the Organisation of Working Time Act 1997 requires that I make decisions in relation to the complaints under the Act in accordance with the relevant provisions of the same Section of the Act.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint under the Act in accordance with the relevant redress provisions of the same Section of that Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

The Respondent was not present or represented at the hearing and they sent no submissions, accordingly I only have the evidence and submissions of the Complainant to rely upon in these matters.

Based on the uncontested evidence and submissions of the Complainant I find and declare that all of the complaints are well founded and they upheld in full by me.

The following are my findings and decisions in relation to the specific complaints under each of the 4 Acts.

Unfair Dismissals Act 1977:   CA-00002840-001:                                                                                 . Based on the uncontested evidence of the Complainant I find and declare that he was unfairly dismissed by the Respondent, the complaint is well founded and it is upheld.

In considering the appropriate redress I have taken into account all factors including the views of the Complainant as expressed at the hearing and I have concluded that there is an absence of the minimum level of trust necessary to sustain an employer/employee relationship and that accordingly the only appropriate redress is compensation in the instant case.

The Complainant was unfairly dismissed by the Respondent and I require the Respondent, in accordance with the provisions of Section 7(1) of the Act, to pay the Complainant compensation in the sum of €6,000.00c within 6 weeks of the date of this decision.

Terms of Employment (Information) Act 1994:   CA-00002840-002:                                               . Based on the uncontested evidence of the Complainant I find and declare that there was a failure by the Respondent to provide the Complainant with a written statement of the particulars of his terms and conditions of employment in accordance with the requirements of Section 3 of the 1994 Act.  

Accordingly I find and declare, in accordance with Section 7(2) of the 1994 Act, that the complaint is well founded and it is upheld.    Also in accordance with Section 7(2) of the 1994 Act I require the Respondent to pay the Complainant compensation in the sum of €1,750.00c within 6 weeks of the date of this decision.

Organisation of Working Time Act 1997: CA-00002840-03 and CA-000002840-05:                      .                                                                                      Preliminary Issue: I am satisfied that, in accordance with Section 41(8) of the Workplace Relations Act 2015, the failure to present the complaints under the 1977 Act was due to ‘reasonable cause’ that justifies extending the normal 6 month period for consideration of complaints under the 1997 Act by a further 6 months.  

Accordingly the period under consideration for the purposes of annual leave complaints is from 1^st April from 1^st April 2014 to the date the employment terminated, 23^rd September 2015 and in the case of public holidays from 24^th February 2015 to 23^rd September 2015.

Organisation of Working Time Act 1997:   CA-00002840-003:                                                             . Based on the uncontested evidence of the Complainant I find and declare that there was a failure by the Respondent to afford the Respondent to afford the Complainant his annual leave entitlements in accordance with the provisions of Sections 19, 20 and 23 of the 1997 Act in the relevant period and accordingly I find and declare that the complaint in relation to annual leave entitlements is well founded and it is upheld.

I note that the amount of annual leave due is 6 weeks, which based on the Complainant’s weekly rate of pay of €580.00c equals the sum of €3,480.00c.

I further note that Article 11 of Council Directive 2002/15/EC upon which the legislation is based states: “Member States shall lay down a system of penalties for breaches of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that these penalties are applied.   The penalties thus provided shall be effective, proportional and dissuasive”

Taking into account the above, and in accordance with the provisions of Section 27(3) of the Act, I now require the Respondent to pay the Complainant compensation in the sum of €6,750.00c within 6 weeks of the date of this decision for breaches of his rights under Sections 19, 20 and 23 of the 1997 Act in relation to annual leave entitlements.

Organisation of Working Time Act 1997: CA-00002840-005:                                                             . Based on the uncontested evidence of the Complainant I find and declare that there was a failure by the Respondent to afford the Complainant his public holiday entitlements in accordance with Sections 21, 22 and 23 of the 1997 Act in the relevant period and accordingly I find and declare that the complaint in relation to public holiday entitlements is well founded and it is upheld.

I note that there were 5 public holidays in the relevant period, i.e. St. Patrick’s Day, Easter Monday, First Monday in May, First Monday in June and First Monday in August this equates with 5 days or one weeks pay in the sum of €580.00c.

I again refer to the above quote from Article 11 of the Council Directive upon which the Act is based.

Taking into account the above, and in accordance with the provisions of Section 27(3) of the Act, I now require the Respondent to pay the Complainant compensation in the sum of €1,200.00c within 6 weeks of the date of this decision for breaches of his rights under Sections 21, 22 and 23 of the 1997 Act in relation to annual leave entitlements.

Payment of Wages Act 1991: CA-00002840-006:                                                                                . Based on the uncontested evidence of the Complainant I find and declare the failure by the Respondent to pay the Complainant his 2 weeks minimum notice entitlements upon the termination of his employment by the Respondent represents a failure by the Respondent to pay the Complainant ‘wages’ ‘properly payable’ to him by the Respondent and in turn represents a deduction from his wages in breach of the provisions of Section 5 of the 1991 Act as the deduction was not:

1. required or authorised to be made by virtue of any statue or any instrument made under statue

2. authorised to be made by virtue of any term of the Complainant’s contract of employment included in the contract before, and in force at the time of the deduction -   or

    

3. the Complainant had not given his prior consent in writing to it

Accordingly I must find and declare that the complaint is well founded and it is upheld.   The nett amount due to Complainant is €1,160.00c and I require the Respondent to pay him that amount within 6 weeks of the date of this decision.

Seán Reilly, Adjudication Officer

Dated: 11^th November 2016