Complainant

Respondent

Anonymised Parties

Accounts Manager

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-00002807-001

23^rd February 2017

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

CA-00002807-002

23^rd February 2017

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

The Complainant had originally submitted her complainants 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said that based on the documentation presented by the Respondent 1 her complaints against that Respondent was withdrawn and the fact that Revenue have confirmed that she was employed by Respondent 2 from the date of the Agreement between Respondent 1 and Respondent 2 and also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 she had been paid a redundancy payment by Respondent 2 when her employment was terminated, 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 21^st September 1997 and 7^th November 2014 and her weekly pay rate was €805.00c gross and €590.00c

The Complainant said she was continuously employed by the Respondent from 21^st September 1997 to 7^th November 2014 and she said that her weekly rate of pay was €805.00c gross and €590.00c nett.   The Complainant made the following submissions and complaints under the two Acts:

Minimum Notice & Terms of Employment Act 1973:                                                                                    

The Complainant said that her employment was terminated by the Respondent by reason of redundancy and due to lack of work on 7^th November 2014 and it was terminated without notice or pay-in-lieu of notice.   The Complainant submitted that based on her more than 17 years service she was entitled to 8 weeks notice and that this equated to the sum of €6,440.00c and she sought   a decision to that effect.   The Complainant confirmed that she did not obtain alternative work in the 8 week period of her notice.

Payment of Wages Act 1991:                                                                                                                                

The Complainant said that this complaint under the 1991 act was brought only as an alternative to the above one under the 1973 Act.

The Respondent was not present or represented at the Hearing.

Following the Respondent being notified by the WRC by letters of 8^th January 2017 of the hearings on 14^th March 2017, in relation to the 5 complainants, the Respondent sent and email stating:

“We would advise that these individuals are employed by (Respondent 1).   They have never transferred to our Company under TUPE arrangement 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 claim 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 complainant it was extremely important that they attend the Hearing as the Adjudication Officer will goo 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 Time Limits:   I have carefully considered the evidence and the submissions made in relation to time limits for complaints.

In relation to the Section (Section 27) of the Interpretation Act 2005 quoted by the Complainant I note it refers to a situation where an enactment is repealed, but the Minimum Notice & Terms of Employment Act 1973 was not repealed; rather it was amended by the provisions of the Workplace Relations Act 2015.   Accordingly the section of the Interpretation Act 2005 quoted by the Complainant has no relevance whatsoever to the position in relation to time limits under the 2015 Act and those submissions are rejected by me.

However notwithstanding the foregoing I note that the complaint in relation to minimum notice entitlements arose before the enactment of the Workplace Relations Act 2015 and that Act was not retrospective and accordingly she is entitled to the benefit of the time limits that applied at the time the alleged breach occurred i.e. 7^th November 2014, and accordingly the Complainant is entitled to have her complaint under the Minimum Notice & Terms of Employment Act 1973.

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 one of the complainant’s Representatives that the complainants were employed by the Respondent from the date of the Agreement between that Respondent (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 the Complainant, I have concluded that the correct respondent is Respondent 2.     I further note that 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 2 Acts.

Minimum Notice & Terms of Employment Act 1973:     CA-00002807-001:                                                  

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 have concluded that the Complainant did not receive any minimum notice when her employment was terminated by the Respondent and that accordingly the complaint under the 1973 is well founded and it is upheld .

Payment of Wages Act 1991: CA-00002807-002:                                                                                          

This claim/complaint under the Payment of Wages Act 1991 was only brought as an alternative to the complaint under the Minimum Notice & Terms of Employment Act 1973 and as I have already found in favour of the Complainant in that complaint under the 1973 Act there is no further need for me to consider it under the 1991 Act.   Accordingly I must find and conclude that the complaint under the 1991 Act is not well founded; it is rejected and it is not upheld.

Based on the foregoing findings and conclusions I have decided and I declare as follows in relation to the complaints under the two Acts:

Minimum Notice & Terms of Employment Act 1973:   00002807-001:                                                        

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 17 years service the Complainant was entitled to 8 weeks notice in the sum of €6,440.00c 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-00002807-002:                                                                                              

As the complaint under the Payment of Wages Act 1991 was only brought as an alternative to the complaint under the Minimum Notice & Terms of Employment Act 1973 and as I have already awarded the Complainant redress under the 1973 Act it is neither necessary or appropriate for me to consider the matter again under the 1991 Act and accordingly I must decide and declare that the complaint under Section 6 of the Payment of Wages Act 1991 is not well founded; it is rejected and is not upheld.   I so decide