ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003469

Complaints for Resolution:

Date of Adjudication Hearing: 17th August 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 80 of the Workplace Relations Act 2015, Section 39 of the Redundancy Payments Act 1967, Section 11 of the Minimum Notice and Terms of Employment Act 1973, Section 27 of the Organisation of Working Time Act 1997 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 employed by the Respondent from 17^th August 2012 to 12^th April 2016 as a part-time worker and her weekly rate of pay was €115.73c.

The Complainant was submitting that:

1. She was not afforded her statutory redundancy payment when her employment was terminated by reason of redundancy by the Respondent in breach of her rights under the Redundancy Payments Acts.

2. Her employment was terminated by the Respondent without proper or appropriate notice in breach of her rights under the Minimum Notice & Terms of Employment Act 1973.  

3. She did not receive pay-in-lieu of her accrued untaken annual leave entitlements at the termination of her employment by the Respondent.

Summary of Complainant’s Case:

The Complainant said that she was employed by the Respondent from 17^th August 2012.   She said that she and her colleagues was informed by the Respondent on 12^th April 2016 that the business was closing and their employment would be terminated on 17^th April 2016 and she said that their employment ended on that day.   She said that she and her colleagues (a) did not receive their statutory redundancy payments on the termination of their employment, (b) did not receive their proper and appropriate notice or pay-in-lieu of notice on the termination of her employment (c) did not receive pay-in-lieu of accrued, untaken annual leave entitlements, when her employment was terminated by the Respondent.

The Complainant submitted the following in relation to the specific complaints under the 3 Acts.

Redundancy Payments Act 1967:                                                                                                                . The Complainant said that on 17^th April 2016, the employment in which she and her colleagues were employed closed down with the loss of all jobs.   The Complainant said that plainly what occurred was redundancy as defined under the Act; however she did not receive her statutory redundancy payments despite seeking it from the Respondent.

The Complainant sought a decision that she was entitled to her statutory redundancy payments.

Minimum Notice & Terms of Employment Act 1973:                                                                               . The Complainant said that her employment was terminated by the Respondent on 17^th April 2016, but she was only afforded one week of notice, but in accordance with her continuous service of 3 years and 35 weeks she was entitled to two weeks minimum notice, which she did not receive.

The Complainant sought a decision that she receive the one weeks outstanding minimum notice pay of €115.73c due to her.

Organisation of Working Time Act 1997:                                                                                                   . The Complainant said that she did not receive outstanding, accrued, untaken annual leave entitlements at the termination of her employment by the Respondent.   The Complainant said that at the time of the termination of her employment by the Respondent she had accrued untaken annual leave entitlements of 4 weeks in the relevant period (details provided to the hearing).

The Complainant sought a favourable decision and she sought redress in the form of compensation as provided for in 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 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 39 of the Redundancy Payments Act 1967, requires that I make a decision in relation to the complaint consisting of a grant of redress in accordance with the relevant redress provisions of the same Section of that Act.

Section 11 of the Minimum Notice & Terms of Employment Act 1973, requires that I make a decision in relation to the complaint consisting of a grant of redress in accordance with the relevant provisions of the same Section of that Act.

Section 27 of the Organisation of Working Time Act 1997, requires that I make a decision in relation to the complaint consisting of a grant of redress in accordance with the relevant provisions of the same Section of that Act.

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

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

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

The following are my findings and decisions in relation to the specific complaints under each of the 3 Acts.

Redundancy Payments Act 1967: CA-00004819-001:                                                                                   . Based on uncontested evidence of the Complaint I find and declare that the complaint under Section 39 of the Redundancy Payments Act 1967 is well founded and it is upheld.

The Complainant was continuously employed, without any break in service, by the Respondent from 17^th August 2012 to 12^th April 2016, a period of 3 years and 35 weeks/245 days, which is 3.67 years continuous service.   Based on this I calculate the following in relation to the Complainant’s entitlements:

• 3.67 years service x 2 weeks + 1 week = 8.34 weeks
• 8.34 weeks x €115.73c per week = €965.19c

I find and declare that the Complainant is entitled to the sum of €965.19c in statutory redundancy payments and I require that the Respondent should pay her that amount.

Minimum Notice & Terms of Employment Act 1973:   CA-00004819-002:                                       . Based on the uncontested evidence of the Complainant I find and declare that the Complaint under Section 11 of the Minimum Notice and Terms of Employment Act 1973 is well founded and it is upheld.

Based on her 3 years and 35 weeks continuous service the Complainant was entitled to two weeks minimum notice or pay-in-lieu of notice at the termination of her employment by the Respondent, but she only received one weeks notice, leaving her due one further weeks wages in the sum of €115.73c in accordance with the provisions of the Act.   I require the Respondent to pay the Complainant the sum of €115.73c in that respect within 6 weeks of the date of this decision.

Organisation of Working Time Act 1997:   CA-00004819-003:                                                             . Based on the uncontested evidence of the Complainant I find and declare that there was a failure by the Respondent to afford the Complainant her annual leave entitlements in accordance with the provisions of Sections 19, 20 and 23 of the Organisation of Working Time Act 1997 in the relevant period and accordingly I find and declare that the complaint under Section 27 of the Organisation of Working Time Act 1997 in the relevant period is well founded and it is upheld.

I note that the amount of annual leave due to the Complainant is 4 weeks, which based on the Complainant’s weekly rate of pay of €115.73c, is €462.92c.

I also note that Article 11 of the EC 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 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 1997 Act, I now require the Respondent to pay the Complainant compensation in the sum of €950.00c within 6 weeks of the date of this decision for breaches of her rights under Sections 19, 20 and 23 of the 1997 Act in relation to annual leave entitlements.

Dated: 18^th November 2016