Complainant

Respondent

Anonymised Parties

A Waitress

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-00006241-001

02/08/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997

CA-00006241-002

02/08/2016

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Complainant said that based on the documentation presented by Respondent 1 her complaints against that Respondent was withdrawn and also based on the fact that Revenue have confirmed that she was employed by Respondent 2 from the date of the Agreement between Respondent 1 and Respondent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 terminated and another had Form RP50 filled in and signed by Respondent 2 the Respondent in the instant case – and 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 1^st October 2010 to 12^th May 2016 and her weekly rate of pay was €300.00c gross and €280.00c nett.

The Complainant said that she was employed by the Respondent from 1^st October 2010 to 12^th May 2016 and her weekly rate of pay was €300.00c gross and €280.00c nett.   The Complainant made the following submissions and complaints under the 3 Acts.

The Redundancy Payments Act 1967:                                                                                                                

SIPTU said that on 12^th May 2016 the Complainant was at work as normal when she was approached by 2 named Managers and told there was no more work available for her and she was no longer required. She understood this to mean that her job was being made redundant as there had been some restructuring and staff changes at the Hotel over the previous year.   The Complainant asked that she be issued with a letter to this effect.

On the same day the Complainant sent a text message to her named Line Manager.  The Complainant frequently communicated with her Line Manager is this way and equally the Line Manager used it as a means to communicate.   However on this occasion the Complainant received no response.

The Complainant had expected to receive written notice of the Respondent’s decision to make her redundant, but she heard nothing from them.

SIPTU then wrote to the Respondent on 7^th July 2016 seeking redress for the loss of the Complainant’s job; no response was received and the Complainant then submitted Form RP77 to the Respondent; however she received no response.

SIPTU said that from the foregoing it is clear that the Respondent’s employment was terminated by way of redundancy by the Respondent and accordingly sought a finding and decision that the Complainant was entitled to her statutory redundancy lump sum payment.

Organisation of Working Time Act 1997:                                                                                                                

SIPTU said that at the time the Complainant’s employment was terminated by the Respondent she did not receive pay for her accrued, untaken annual leave.   SIPTU said that the Complainant was due the sum of €1,069.90c in annual leave holiday pay.

SIPTU sought redress in the form of compensation as provided for in the 1997 Act.

The Respondent was not present or represented at the Hearing.

Following the Respondent being notified by the WRC by letter of 8^th February 2017 of the hearing 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 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 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 informed that it had sent it to the complainants and 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 than 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 part 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 and the only submission made by them was that short email quoted from above.

Preliminary Issue:  

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 the originally listed Respondent 1 was the correct 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:

• The written Agreement between Respondent 1 and Respondent 2
• The fact that the Respondent actually paid a redundancy payment to one of the 5 complainants
• The fact that a Form RP50 was completed and signed on behalf of the Respondent for another of the 5 complainants
• The written Agreement between Respondent 1 and this Respondent 2
• The fact that the Revenue Commissioners have confirmed to one of the Complaints’ Representatives that the complaints 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 the 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 direct 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:

Redundancy Payments Act 1967:   CA-00006241-001                                                                            .

Based on the evidence available to me and the fact that it has not been denied by any parties 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 12^th May 2016
• The Complainant was employed by the Respondent on a period of unbroken continuous service from 1^st October 2010 to 12^th May 2016.
• The Complainant’s normal weekly rate of pay was €300.00c gross.
• The Complainant submitted her complaint under the Redundancy Payment Act 1967 to the WRC on 2^nd August 2016.

Organisation of Working Time Act 1997:     CA-00006241-002:                                                                      

Based on the evidence available to me I have concluded that the Complainant did not receive payment for her accrued, untaken annual leave at the time the termination of her employment by the Respondent in breach of her rights and entitlements under Section 23 of the 1997 Act.

Based on the above findings and conclusions I have decided and I declare as follows in relation to the complaints under the 2 Acts:

Redundancy Payments Act 1969:   CA-00006241-001                                                                                      

Based on the above 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 based on her normal weekly wage of €300.00c and her continuous unbroken service from 1^st October 2010 to 12^th May 2016.     I so decide.

Organisation of Working Time Act 1997: CA-00006241-002:                                                                        

Based on the foregoing findings and conclusions I declare that the complaint under Section 27 of the 1997 Act in relation to annual leave entitlements in accordance with Section 19, Section 20 and in particular Section 23 of the 1997 Act is well founded and it is upheld.

I note that in accordance with the uncontested evidence of the Complainant the annual leave payment due to her is €1,069.90c.

I further note that Article 11 of the Council Directive 2002/15/EC upon which the legislation is based states: “Member States shall lay down a system of penalties for breaches of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that these penalties are applied.   The penalties thus applied shall be effective, proportional and dissuasive.”

Taking into account the above, and in accordance with the provisions of Section 27(3) of the Act, I now require the Respondent to pay the Complainant compensation in the sum of €2,000.00c within 6 weeks of the date of this decision for breaches of his rights under Section 19, 20 and 23 of the 1997 Act in relation to annual leave entitlements.