ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003133

Complaints and Dispute for Resolution:

Date of Adjudication Hearing: 30/11/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 7 of the Terms of Employment (Information) Act, 1994, Section 39 of the Redundancy Payments Acts, 1967, and Section 13 of the Industrial Relations Act, 1969, following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Complainant’s Submission and Presentation:

The complainant commenced work as a Manager at the respondent business on 28 May 2013. The business operated as a Pub and Restaurant. She ceased receiving pay slips in summer 2015.

On February 4, 2016, the owner of the bar phoned her during her sick leave stating that he was closing the bar and would re-open within a two week period. The complainant confirmed that she would be available for that date . This story was carried in the local papers and the closure was attributed to flooding. The complainant began to receive calls from customers of the business who had booked functions, including three weddings, seeking to ascertain the status of the business, the complainant was unable to access the building to secure the bookings diary .She tried to establish contact with the owner but was unsuccessful. Her access to the company social media site, which she self financed was, curtailed .The Accountant sought to issue a P60 dated March 1 2016. The locks on the business were changed.

The complainant experienced severe financial hardship without work and she gave evidence of being unable to pay rent and having been evicted from her home of ten years.

The complainant was at a loss to understand what happened as the owner had not expressed any cause for concern regarding the business during the February 4 phone call .She had sought other work but nobody was in a position to offer her work while her status with the respondent was unclear. The complainant submitted that she had worked hard at the business, overseen the business expand into Weddings and had been unfairly treated.

The complainant submitted that the business re-opened during the May Bank holiday weekend of 2016 but she had not had contact from the owners to come back .The staff had dispersed, but the previous Chef, Kitchen staff and two Bar Staff were re-employed. The complainant submitted two further documents to the hearing.

1 A CRO search on the respondent company dated 28 November 2016.

This confirmed date of incorporation as 7 June 2012 and an Annual returns due date of 28 February 2016.

2 A CRO search on a newly incorporated company dated 6 January 2016 and an annual returns due date of July 2017. An annual return was recorded in July 2016.

The complainant submitted that the owner of the respondent business had formed a new company with his wife and this was the business now trading without offering her work.

1 Claim under Terms of Employment Act, 1994 CA-00004527-001

The complainant submitted that she had not been provided with a written statement of her terms and conditions of employment or any other material document relating to grievance procedure or sick leave.

2 Claim under Industrial Relations Act 1969 CA - 00004527-002

The claimant submitted that she was unfairly treated by the respondent when the bar closed ,causing her to lose her job . She was not part of the re-opened bar .She was prevented from securing another position given the ongoing uncertainty surrounding the business .She was claiming loss of earnings and 10 days holiday pay . She had difficulty securing Job Seekers benefit due to the absence of a P45.

3 Claim Under Redundancy Payments Act 1967 CA -00004527-003

The complainant had not received a P45 or any notice of termination of employment. She was not contacted when the business was re-opened and the re-opened business did not have a Manager.

Respondent’s Submission and Presentation:

There was no appearance by or on behalf of the respondent at the hearing.

The Accountant acting for the company submitted an email to the WRC on the day before the hearing stating that the company was not trading, nor had it traded since February 2016. He further confirmed that there would be no attendance by the respondent at the hearing and any findings made by the Adjudicator, in favour of or against the company had no prospect of being complied with.

Decision:

Section 41(4) 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 and Section 7 of the Terms of Employment ( Information) Act , 1994,Section 39 of the Redundancy Payments Acts , 1967.

Section 13 of the Industrial Relations Act, 1969 requires me to investigate a Trade dispute and make a recommendation to the parties.

1 Claim under Terms of Employment (Information) Act 1994 CA -00004527-001

The Accountant for the respondent in correspondence before the Hearing informed the Workplace Relations Commission that it would not be sending a representative. As a result, I am satisfied that the respondent was properly on notice of the Hearing.

I have inquired into this complaint and based on the uncontested evidence of the complainant, I find that the respondent has continuously breached Section 3 of the Act and therefore, the complaint is well founded. I order the respondent to pay the complainant 4 weeks pay, €2412.00 in compensation for this breach.

3 Claim Under Redundancy Payments Act 1967 CA -00004527-003

The Accountant for the respondent in correspondence before the Hearing informed the Workplace Relations Commission that it would not be sending a representative. As a result, I am satisfied that the respondent was properly on notice of the Hearing.

Based on the uncontested evidence of the complainant, substantiated by her documentation from Revenue and a number of pay slips, I am satisfied that the complainant’s employment terminated by virtue of redundancy and award her a redundancy lump sum based on the following information: 

Date Employment Commenced:        28 May 2013

Date Employment Ended:                   4 February   2016

Gross weekly Pay     :                          €600.00

This award is made subject to the complainant having been in insurable employment, during the relevant period, in accordance with the Social Welfare Acts.

Recommendation: CA -00004725-002

Section 13 of the Industrial Relations Act, 1969 requires me to investigate a Trade dispute and make a recommendation to the parties.

I have considered the submissions as put forward by the claimant and I note that the claimant had a very difficult time in the aftermath of the February 4 phone call from the respondent. I was unable to hear any feedback from the respondent on this. This is a claim under the Industrial Relations Act and does not cover a statutory claim for unfair dismissal or holidays . The termination of employment due to redundancy has been dealt with earlier .

I find that the respondent has not shown any regard for proper staff and industrial relations and a complete disregard for the obligations of an employer in the face of a grievance raised by an employee in accordance with Statutory Instrument 146/2000.

In addition, the respondent has not respected the Statutory Body of Workplace Relations Commission, set up to assist the parties in disputes such as this .In addition , the changeover of the companies running the business ,information on which was withheld from the claimant,was regrettable .I cannot find any evidence that the employer took its responsibilities as an employer seriously . The consequences of this have been dire for the claimant .

As it is now clear that the claimant will not be returning to work for the respondent, I cannot make a recommendation for consideration in the workplace, therefore compensation is the only fair and equitable recommendation open to me in this case.

I recommend as a way forward in this case, that the respondent pays the claimant €5,000.00 in compensation in full and final settlement of the claim.

Patsy Doyle, Adjudicator

Dated:  21^st April 2017