ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002963

                                                                                           Adjudication Decision Reference ADJ -00000620

Complaints for Resolution:

Date of Adjudication Hearing: 10/08/2016

Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Act, 1967 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.

The Complainant was employed by the Respondent from 1^st July 2006 until the Complainant terminated the employment in March 2016 after which he has been claiming Job Seekers Benefit.

The Complainant had been paid €13.30 an hour and he worked 35 hours a week.

The Complainant referred a complaint to the Workplace Relations Commission on 29^th March 2016   alleging the Respondent had breached the Redundancy Payments Act and the Organisation of Working Time Act, 1977.

Summary of Complainant’s Position.

Redundancy Payments Act, 1967

The Complainant stated that he had worked 35 hours a week since the commencement of the employment. Effective from 7^th March 2015 his hours had been reduced to 4 to 8 hours a week. The Complainant provided evidence from his payslips which showed the following hours worked –

W/e 6^th March 2015                     28.5 hours

       13^th March 2015                    20 hours

       27^th March 2015                    19 hours

       3^rd April 2015                          4.5 hours

       10^th April 2015                       7.5 hours

       1^st May 2015                          4 hours

        8^th May 2015                         7 hours

         15^th May 2015                       12 hours

         22^nd May 2015                       16 hours

         29^th May 2015                       8 hours

         5^th June 2015                        8 hours

         12^th June 2015                      13 hours

         19^th June 2015                      7.5 hours

           3^rd July 2015                        9 hours

         10^th July 2015                       8 hours

         17^th July 2015                       12 hours

         7^th August 2015                    18 hours

         4^th September 2015            11.75 hours      

         11^th September 2015           24.25 hours

         18^th September 2015           7 hours

         23^rd October 2015                11 hours            

         30^th October 2015                4.5 hours

         6^th November 2015             12.5 hours                      

The Complainant stated that he served the RP9 Form on the Respondent on 27^th November 2015 and he received a response from the Respondent by letter dated 9^th December 2015 stating he did not understand the Form as there was no redundancy situation.

The Complainant stated that he was informed by the Named Assistant Manager that there was no full-time work available to him in February and March 2016. The Complainant terminated his employment on the basis of short-time work and he has been in receipt of Job Seekers Benefit from the Department of Social Protection effective from 13^th March 2015

He is claiming payment of his Redundancy entitlements.

Organisation of Working Time Act, 1997            

The Complainant stated that in November 2015 on specified dates his roster had been changed without any notification to him. This occurred on three occasions in November 2015 where the Respondent had changed his roster without any prior notification to him in contravention of Section 17 of the Act.

Summary of Respondent’s Position.

Redundancy Payments Act, 1967.

The Respondent confirmed at the Hearing that the Complainant’s hours had been cut. The Respondent was unable to provide any information to the Hearing in relation to actual hours worked by the Complaint prior or after the reduced hours were introduced. However the Respondent did not dispute the evidence from the Complainant supported by Payslips that the Complainants hours had been reduced effective from March/April 2015.

The Respondent confirmed that he had received the RP9 Form from the Complainant.

Organisation of Working Time Act, 1997.

The Respondent confirmed that the Rosters had been drawn up by the Manager usually on a Monday for the Respondent’s approval. The Respondent stated that he works on a Tuesday each week and he approved the rosters. He stated he did recall replacing the Complainant on the roster with himself as he was available to work. It is the responsibility of the Complainant to check the roster each week to note any changes.

On the basis of the evidence from both Parties I find as follows:

Redundancy Payments Act, 1967

The Complainant does have the requisite service as set out under Section 7 of the Act. Both Parties confirmed at the Hearing that the Complainant’s hours had been reduced effective from .Both Parties confirmed at the Hearing that the Complainant had been previously employed on a full-time basis.

The Complainant served the RP9 Form on the Respondent on 27^th November 2015. The Respondent replied by letter dated 9^th December 2015 stating there was no redundancy situation existing.

I find the Complainant has complied with Section 11 and 12 of the Act. I find that the Complainant is entitled to payment of Statutory Redundancy.

Organisation of Working Time Act, 1997.

Section 17 (1) of the Act requires an employer, in circumstances where the contract of employment does not provide for the normal or regular start and finishing time of work each day, to provide the employee of the start and finish time each day the employee is required to work, at least 24 hours in advance of the start time each day.

The evidence from both Parties was that in November 2015 on at least three occasions the Complainant’s rostered start and finish times were changed by the Respondent without the Complainant being notified 24 hours in advance by the Employer as required by the Act.

Redundancy Payments Act, 1967 ADJ-2963- CA -00003552-001; On the basis of the evidence from both Parties I find that the Complainant’s hours of work were reduced by more than 50%. The Complainant served the RP9 Form on the Respondent on 27^th November 2015.

The Complainant has not been paid his Redundancy entitlements as per the Act.

In accordance with Section 39 of the Redundancy Payments Act, 1967 I declare the complaint is well founded. I direct the Respondent to pay the Complainant his statutory redundancy entitlements in accordance with the Redundancy Payments Act, 1967 within 42 days of the date of this Decision.

Organisation of Working Time Act, 1997 ADJ 620- CA-00000871-001: This complaint was lodged with the Workplace Relations Commission on 29^th March 2016. In accordance with Section 27 of the Act the period covered by this complaint is from 30^th September 2015 to 29^th March 2016.

The complaint was that on three occasions in November 2015 the Complainant’s Rostered hours were changed and the Complainant was not notified 24 hours in advance as required by Section 17 of the Act.                 

In accordance with Section 41(5) of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act, 1997 I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €100.00 (one hundred euro) within 42 days of the date of this Decision.

Date 25^th October 2016