Complainant

Respondent

Anonymised Parties

Barman and Porter

A Hotel

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00002806-002

23^rd February 2016

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

CA-00002806-003

23^rd February 2016

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

CA-00002806-004

23^rd February 2016

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

The Complainant had originally submitted his complaints against two separate named Respondents, Respondent 1 and Respondent 2.   However the Complainant withdrew his complaint against Respondent 1 who were present and represented at the Hearing.   The Complainant said that based on the documentation presented by Respondent 1 his complaints against that Respondent was withdrawn, also the fact that a named member of management completed and signed Form RP50 on behalf of Respondent 2 and the fact that Revenue have confirmed to one of the 5 complainant’s Representatives 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 he now accepts that at the time of the termination of his employment the Respondent in the instant case was his employer and that they are now the sole Respondent in the instant case.

The Complainant was employed by the Respondent from 20^th September 2008 to 1^st July 2015 and his weekly rate of pay was €337.30c.

The Complainant said that he was employed by the Respondent from 1^st September 2008 to 1^st July 2015 and that his weekly rate of pay was €473.30c.     The Complainant made the following submissions and complaint under the 3 Acts:

The Redundancy Payments Act 1967:                                                                                                                  

SIPTU said that in April 2015 some changes began to take place at the Hotel and some confusion arose as to who exactly was running the business.   A named person had been managing the operation.   Employees were quite confused and were receiving mixed messages depending on who was communicating with them. In May 2015 the Complainant and others were told by management that they were no longer required – a letter to this effect was to issue to employees, but this never materialised.     In the Complainant’s case his hours of work were drastically reduced from 40 hours per week to a point where although he turned up for work he found that he was no longer rostered by management and he was regularly told he was not needed as there was no work for him and was sent home.

In July 2015 the Complainant found that he had no hours of work provided to him and SIPTU lodged a complaint on his behalf with the WRC under the Unfair Dismissals Act and a date was set for a Hearing of that case.   However in the meantime the management accepted that this was a redundancy situation and an RP50 was completed and signed by a named member of management for and on behalf of the Respondent.   Based on this SIPTU requested and was granted an adjournment by the WRC of the unfair dismissal claim.   The Complainant waited for some time for payment but this never occurred and he then submitted the instant complaints.

The Complainant said that his employment was terminated by reason of redundancy by the Respondent on 1^st July 2015, but that he was not paid his statutory redundancy payment by the Respondent, despite strenuous efforts by himself and his Trade Union and despite numerous promises from the Respondent.

The Complainant sought a finding and decision that he was entitled to his statutory redundancy payment.

Minimum Notice & Terms of Employment 1973:                                                                                            

SIPTU said the Complainant’s employment was terminated without notice or pay-in-lieu of notice on 1^st July 2015.  

The Complainant submitted that based on his more than 6 years service he was entitled to 4 weeks notice.   The Complainant confirmed that he did not obtain alternative work in the 4 weeks period of his notice     The Complainant sought a finding and decision that he was entitled to 4 weeks pay.

Payment of Wages Act 1991:                                                                                                                                

The Complainant submitted that there was a failure to pay him wages properly payable to him in connection with his employment and he submitted the following in that respect.

The Complainant said that he had not been paid for his outstanding accrued untaken annual leave at the time of the termination of his employment.   The Respondent said that he was due the sum of €2,413.36c in that respect (details provided to the hearing) and he sought a finding and 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 and 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 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 o 14^th March 2017 and the only submission made by them was that short email quoted from above.

Preliminary Issues:                                                                                                                                                  

2 preliminary issues arose 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 his complaints under the Minimum Notice & Terms of Employment Act 1973 and the Payment of Wages Act 1991 at an earlier date and that justified 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 are not the correct Respondent employer for the purposes of the complaints.   I have carefully considered this submission and based on the evidence available to me I cannot accept it for the following reasons:

• Form RP50 was completed and signed of behalf of the Respondent clearly indicating they were the Employer of the Respondent.
• The written Agreement between Respondent 1 and this Respondent.
• The fact that the Revenue Commissioners have confirmed to one of the Complainants’ Representative that the complainants were employed by the Respondent from the date of the Agreement between Respondent 1 and this Respondent
• I further note that the 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-00002806-003:                                                                                    

Based on the evidence available to me and in particular that the Respondent filled in and signed Form RP50 for the Complainant and also that it was not 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 1^st July 2015.
• The Complainant was employed by the Respondent on a period of unbroken continuous service from 20^th September 2008 to 1^st July 2015.
• The Complainant’s normal weekly rate of pay was €373.30c per week
• 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-00002806-002:                                              

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 his employment was terminated by the Respondent and that the complaint under the 1973 Act is well founded and it is upheld.

Payment of Wages Act 1991:   CA-00002806-004:                                                                                        

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 pay in respect of 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 it is upheld.

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

Redundancy Payments Act 1969:   CA-00002806-003:                                                                                 Based on the foregoing findings and conclusions I declare that the complaints under Section 39 of the Redundancy Payments Act 1967 is well found and it is upheld.

I require the Respondent to pay the Complainant his statutory redundancy based on his normal weekly wage of €373.30c and his continuous unbroken service from 20^th September 2008 to 1^st July 2015.      I so decide.

Minimum Notice & Terms of Employment Act 1973:   CA-00002806-002:                                                 

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 4 weeks notice in the sum of €1,493.20c and I require Respondent to pay him that amount within 6 weeks of the date of this decision.   I so decide.

Payment of Wages Act 1991: CA-00002806-004:                                                                                              

Based on the foregoing findings and conclusions I declare that the complaints under Section 6 of the Payment of Wages 1991 in relation to unpaid annual leave/holiday pay is well founded and it is upheld.

The amount due in accordance with the provisions under Section 6 of the 1991 Act is the total of €2,413.36c and I require the Respondent to pay the Complainant that amount within 6 weeks of this date.     I so decide.