ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003161

Complaints for Resolution:

Date of Adjudication Hearing: 02/08/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 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.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant began work with the respondent as a van driver in 2005. The respondent company provided delivery services on contract to a third party in the wholesale sector.

After about two years the complainant got his truck driving licence and moved up to driving a truck on the same client contract.

On February 17^th 2015 he was given notice that the third party client intended to employ delivery drivers itself; a process that would commence on May 18^th and conclude on June 12^th 2015.

However, it was anticipated that the complainant and his co-workers would continue to be employed as well as the new drivers and indeed this is what happened, and the complainant continued to work on a full time basis albeit on somewhat different work.

Then, by means of a letter actually dated November 30^th the complainant was given notice that his employment would terminate on November 27^th. As far as he is aware all his co-workers also got the same notice although not necessarily at the same time.

He did approach the respondent to inquire about redundancy but was told that there was no money for redundancy.

Respondent’s Submission and Presentation:

There was no appearance by the respondent

Findings and Conclusions

I am satisfied that the respondent was properly on notice of the hearing and that, as no reasonable explanation was submitted for his failure to attend I was entitled to proceed to a hearing.

There are aspects of the case which clearly suggest that a Transfer of Undertakings had taken place but this was not before me for a decision.

There were five complaints; one relating to the non-provision of payslips and the failure to notify of the hourly rate under the Payment of Wages Act. However this is not within the jurisdiction of the Adjudication service as it falls to be dealt with under section 4 of the Act.

It is quite clear that a redundancy situation existed by reason of the failure of the respondent to continue to provide the complainant with work due to the changes in respect of the provision of direct services by the former third party client. Likewise the respondent failed to provide evidence of his inability to make a redundancy payment and this complaint also succeeds.

As the respondent did not attend the precise status of the company could not be established. I find that the complainant has not received a payment under the Protection of Employees (Employers Insolvency Act) and this complaint also succeeds.

Finally, the complainant was given no notice, (indeed taken on its face the notice was retrospective) and therefore his complaint also succeeds under the Minimum Notice and Terms of Employment Act. He had over ten years’ service.

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.

Complaint CA 00004467-002 is the complaint under section 6 of the Payment of Wages Act but relates to an alleged breach of section 4 of the Act which is not within the jurisdiction of the Adjudication service.

Complaint CA 00004467-003 is the first claim under the Redundancy Payments Act; that he did not receive a redundancy payment. The complainant is entitled to a redundancy payment based on ten and a half years of service which I calculate at twenty one weeks plus one further week, which is a total of twenty two weeks at a rate of €600 per week giving a total entitlement of €13,200 which I award him.

Complaint CA 00004467-004 that his employer did not certify that he was unable to make the redundancy payment and I also uphold this complaint.

Complaint CA 00004467-005 is the complaint under section 9 of the Protection of Employees (Employers’ Insolvency ) Act 1984 and I uphold this claim.

Complaint CA 00004467-006 is the complaint under the Minimum Notice and Terms of Employment Act and I award him six weeks pay in the amount of €6,500.

Dated:   7/11/2016