Complainant

Respondent

Anonymised Parties

A Manager

A Hotel

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00002811-001

23rd February 2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act 1973

CA-00002811-003

23^rd February 2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991

CA-00002811-004

23^rd February 2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991

CA-00002811-005

23^rd February 2016

There were complaints by 5 separate Complainants against the Respondents heard on the same day.

The Complainant had originally submitted her complaints against two separate named Respondents Respondent 1 and Respondent 2.   However the Complainant withdrew her complaints against Respondent 1, who were present and represented at the Hearing.     The Complainant said that based on the documentation presented by Respondent 1 her complaints against that Respondent was withdrawn and the fact that Revenue have confirmed that she was employed by Respondent 2 from the date of the Agreement between Respondent 1 and Respondent 2 and also the fact that one of the 5 complainants had actually been paid a redundancy payment by Respondent 2 when her employment was terminated and that she now accepts that at the time of the termination of her employment the Respondent in the instant case (Respondent 2) was her employer and they are now the sole Respondent in the instant case.

The Complainant was employed by the Respondent from 25^th February 1999 to 24^th June 2015 and her weekly pay rate was €801.49c gross and €700.00c nett.

The Complainant said that she was employed by the Respondent from 25^th February 1999 to 24^th June 2015 and that her weekly rate of pay was €801.49c gross and €700.00c nett.   The Complainant made the following submissions and complaints under the 3 Acts.

The Redundancy Payments Act 1967:                                                                                                          

The Complainant said that her employment was terminated by reason of redundancy by the Respondent on 24^th June 2015, but she was not paid her statutory redundancy payment by the Respondent, despite strenuous efforts by herself and her Trade Union and despite numerous promises from the Respondent.

The Complainant sought a finding and decision that she was entitled to her statutory redundancy lump sum payment.

Minimum Notice & Terms of Employment Act 1973:                                                                                    

The Complainant said that her employment was terminated without notice or pay-in-lieu of notice on 24^th June 2015.   The Complainant said that based on her more than 16 years consecutive service she was entitled to 8 weeks notice.   The Complainant confirmed that she did not obtain alternative work in the 8 weeks period of her notice.

The Complainant sought a finding and decision that she was entitled to 8 weeks pay.

Payment of Wages Act 1991:                                                                                                                           

The Complainant submitted that there was a failure to pay her wages properly payable to her in connection with her employment and she submitted the following in that respect:

Unpaid Wages: The Complainant submitted that she was due the nett sum of €2,016.00c in unpaid wages in the relevant period (details provided to the Hearing).

Holiday Pay: The Complaint submitted that she was due the nett sum of €332.48c in respect of accrued, untaken annual leave entitlements at the time of the termination of employment by the Respondent (details provided to the Hearing)

The Complainant said that she was due the total nett sum of €2,348.48c and she sought a decision to that effect.

The Respondent was not present or represented at the Hearing.

Following the Respondent being notified by the WRC by letters of 8^th February 2017 of the hearings of 14^th March 2017 in relation to the 5 complainants the Respondent sent an email stating: “We would advise that these individuals are employed by (Respondent 1).   They have never transferred to our Company under TUPE arrangements and we are not responsible for them in any way.

We would ask you to forward any evidence of TUPE transfer, contract of employment etc to us and we will review, but we are fully aware that no such documents exist.

Should there be any claims they should be directed to (Respondent 1 details)”

The WRC responded by letter of 9^th March 2017 and acknowledged receipt of the email and informing that it had sent it to the complainants and to the other parties to the complaints (including Respondent 1).   The correspondence informed that all 5 complainants had named the Respondent in their complaints to the WRC.   The correspondence informed that where there is a dispute as to the correct respondent then the Adjudication Officer hearing the case will determine the matter and based on the evidence before him will make a legally binding and enforceable decision as to which legal entity is the employer.     It further informed that all matters in relation to the complaints will be considered at the Hearing which will proceed on 14^th March 2017.   It also stated that as the Respondent had been named as a party to the complaints, if they wished to defend same or question the complainants it was extremely important that they attend the Hearing as the Adjudication Officer will go ahead and hear evidence on the day and based on the information before him will make his decision.

Nothing further was heard from the Respondent.

The Respondent did not attend the Hearing on 14^th March 2017 and the only submission made by them was that short email quoted from above.

Preliminary Issues:                                                                                                                                                    

2 preliminary issues arise as follows:

1 The Time Limits:   I am satisfied that there was reasonable cause in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015 that was the cause of the Complainant not presenting her complaints under the Minimum Notice & Terms of Employment Act 1973 and the Payment of Wages Act 1991 at an earlier date and that justifies extending the normal 6 month period for the presentation of complaints by a further period of 6 months and accordingly the complaints under the Minimum Notice & Terms of Employment Act 1973 and the Payment of Wages Act 1991 are now within the statutory time limits.

2 Who is the correct Respondent/Employer: In their email to the WRC the Respondent submitted that they were not the correct Respondent Employer and that in fact the originally listed Respondent 1 was the correct Respondent employer for the purposes of the complaints.   I have carefully considered this submission and based on the evidence available to me including the written Agreement between Respondent 1 and Respondent 2, also on the fact that the Revenue Commissioners   have confirmed to the one of the Complainant’s Representatives that the complainants were employed by the Respondent from the date of the Agreement between Respondent 1 and Respondent 2 who is now the sole remaining Respondent in  these matters – and in addition that the Respondent actually paid redundancy payment to one of the 5 complainants who are involved in these matters I have concluded that the correct respondent is the Respondent named in these decisions Respondent 2.   I further note that this Respondent did not attend the Hearing and give direct evidence and exercise their right to challenge the Complainant and the other named Respondent (against whom complaints were withdrawn).     I note that in accordance with the rules of evidence I must prefer the evidence of the parties who were present at the Hearing, gave direct evidence and answered questions over that of the Respondent who did not attend the Hearing and only gave extremely limited indirect evidence.    

Based on the foregoing I find and have concluded that the correct employer of the Complainant at the relevant time and for the purposes of these complaints is the only remaining Respondent, Respondent 2.

Substantitive Issues:                                                                                                                                                

The following are my findings and conclusions in relation to the complaints under the 3 Acts.

Redundancy Payments Act 1967: CA-00002811-001:                                                                                  

Based on evidence available to me and the fact that it has not been denied by any party that the Complainant was made redundant I have concluded and I find that the following facts were established at the Hearing:

• The Complainant’s employment with the Respondent was terminated by reason of redundancy on 24^th June 2015
• The Complainant was employed by the Respondent on a period of unbroken continuous service from 25^th February 1999 to 24^th June 2015.
• The Complainant’s normal weekly rate of pay was €801.49c gross
• The Complainant submitted her complaint under the Redundancy Payments Act 1967 to     the WRC on 23^rd February 2016

Minimum Notice & Terms of Employment Act 1973: CA-00002811-003:                                        

Based on the evidence available to me and the fact that it has not been denied by any party that the Complainant’s employment was terminated without any notice I find and conclude that the Complainant did not receive any minimum notice when her employment was terminated by the Respondent and that the complaint under the 1973 Act is well founded and is upheld.

Payment of Wages Act 1991:   CA-00002811-004 and CA-00002811-005:                                    

Based on the evidence available to me and the fact that the complaints under the 1991 Act have not been denied by any party I find and have concluded that the complaints under the 1991 Act in relation to unpaid wages and unpaid pay in relation to accrued untaken holidays/ annual leave due to the Complainant at the time of the termination of his employment by the Respondent is well founded and they are upheld.

Based on the above findings and conclusions I have decided and declare as follows in relation to the complaints under the 3 Acts.

Redundancy Payments Act 1969:   CA-00002811-001:                                                                                    

Based on the foregoing findings and conclusions I declare that the complaint under Section 39 of the Redundancy Payments Act 1967 is well founded and it is upheld.   I require the Respondent to pay the Complainant her statutory redundancy payment based on her normal weekly wage of €801.49c and her continuous unbroken service from 25^th February 1999 to 24^th June 2015.    I so decide.

Minimum Notice & Terms of Employment Act 1973:     CA-00002811-003:                                                  

Based on the foregoing findings and conclusions I declare that the complaint under Section 11 of the Minimum Notice & Terms of Employment Act 1973 is well founded and it is upheld.    In accordance with the provisions of Section 12 of the 1973 Act and based on her more than 16 years service the Complainant was entitled to 8 weeks notice in the sum of €6,411.92c and I require the Respondent to pay her that amount within 6 weeks of the date of this decision.   I so decide.

Payment of Wages Act 1991:   CA-00002811-004 and CA-00002811-005:                                                 

Based on the foregoing findings and conclusions I declare that the complaints under Section 6 of the Payment of Wages Act 1991 in relation to unpaid wage and unpaid holiday pay are well founded and they are upheld.

The amount due to the Complaint in accordance with the provisions under Section 6 of the 1991 Act is the nett total of €2,348.48c (€2,016.00c in relation to unpaid wage and €332.48c in relation to unpaid annual leave/holiday pay) and I require the Respondent to pay the Complainant this amount of €2,348.48c within 6 weeks of this decision.   I so decide.