ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006300
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | Construction Company |
Representatives | Citizens Information Service |
|
Complaint(s):
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-00008510-001 | 01/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00008510-002 | 01/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00008510-003 | 01/12/2016 |
Date of Adjudication Hearing: 24/04/2017
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Procedure:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967-2014followingthe referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant worked for the Respondent from 3rd January 2007 until the 25th March 2016. The Complainant was paid €650 gross per week of a 42.5 hour week
The Complainant alleged that he did not receive a Redundancy Payment, Minimum Notice or Holiday entitlement and is seeking redress on these matters.
Summary of Complainant’s Case:
CA-00008510-001: Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967
The Complainant submitted that from 14th January 2014 until the 15th March 2016 he went through a series of Short Term and Lay-offs. The Complainant alleged that on the 15th March 2016 he was approached by the Respondent’s son and informed that there would be no work the following day. Despite many attempts to correspond with the Respondent over the following 8/9 weeks to agree a resolution, the Complainant got no response. Accordingly, the Complainant maintained his position was made redundant and he is seeking a redundancy payment under the Redundancy Payment Act 1967.
The Complainant received no communication from the Respondent since the 26th March 2016 until he made contact himself on the 2nd/3rd week in May 2016 by phone to ascertain his situation. The Complainant states that during the phone conversation, the Respondent advised him that he would sign whatever documents were needed for the Complainant to claim Redundancy. On the 24th May the Complainant received his P45 in the post, with a cessation date of 25th March 2016.
On the 31st May 2016 the Complainant issued the Respondent with an RP77 supported by a letter explaining the situation and advising the Respondent that a RP50 form could be completed online. The Complainant offered to meet the Respondent to complete and sign the RP50 if needed. However, the Complainant had received no further correspondence from the Respondent and has not received any redundancy payment. The Complainant maintained that he is entitled to €12,432 redundancy payment.
The Complainant submitted that the Respondent continues to trade despite an involuntary strike off from the companies register.
CA-00008510-002: Complaint seeking adjudication under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
The Complainant contends that he received no notice of his termination of employment and therefore the Respondent is in contravention of the Minimum Notice and Terms of Employment Act 1973. Based on his years’ service the Complainant submitted that he was entitled to six weeks’ notice.
CA-00008510-003: Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997
The Complainant maintained that he is owed four day’s holiday accrued in 2016 up to the date of cessation of his employment. On that basis, the complainant is seeking payment for four day’s annual leave.
Summary of Respondent’s Case:
CA-00008510-001: Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967
The Respondent maintained that he was insolvent and was trading under a different name. He explained that a downturn in the construction industry had impacted on his business. He was therefore not in a position to pay redundancy.
CA-00008510-002: Complaint seeking adjudication under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
The Respondent maintained this complaint was out of time.
CA-00008510-003: Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997
The Respondent maintained this complaint was out of time.
Findings and Conclusions:
CA-00008510-001: Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967
Section 7(1) of the Redundancy Payments Act states an employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act be entitled to the payment of moneys which shall be known [and are in this Act referred to] as redundancy payment provided -
(a) he has been employed for the requisite period, and | ||
(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date. |
The minimum period for lay off or short time, in accordance with Section 12(1) of the Act, is where the employee has been laid off or kept on short-time for four or more consecutive weeks. The evidence supports that the Respondent was not provided work by the Respondent from 14th January 2014 until the 15th March 2016, and as such he was laid off over this nine-week period.
I therefore find that the Complainant was made redundant and is entitled to a redundancy payment.
CA-00008510-002: Complaint seeking adjudication under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
In accordance with Section 41(6) of the Workplace Relations Act 2015, an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
I therefore find that this complaint falls as it is out is out of time.
CA-00008510-003: Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997
Evidence provided demonstrates that the Complainant ceased his employment on 25th March 2016. He lodged his complaint to the WRC on 1st December 2016.
In accordance with Section 41(6) of the Workplace Relations Act 2015, an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
I therefore find that this complaint falls as it is out is out of time.
Decision:
CA-00008510-001: Decision Regarding the Complaint seeking adjudication under Section 39 of the Redundancy Payments Act, 1967
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
As I have found the Complainant was made redundant on 25th March 2016, and where he has 9 years’ service, I hereby decide the Complainant is entitled to 19.48 weeks’ pay at €650 per week, amounting to a total redundancy payment of € €11, 688.00
CA-00008510-002 and CA-00008510-003:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have found these complaints fall as they are out of time.
Dated: 18/12/17
Workplace Relations Commission Adjudication Officer: Gerry Rooney