ADJ-00006898

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006898

Parties:

 Complaints:

Date of Adjudication Hearing: 19/04/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Location of Hearing: Lansdowne House, Dublin 4

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and following the 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 was employed as Head Chef from January 2010 until the employment was terminated without notice on 1^st August 2016. The Complainant was paid €500.00 gross per week and he worked 50 hours a week. The Complainant referred complaints to the Workplace Relations Commission on 26^th January 2017 alleging the Respondent had breached Section 3 of the Terms of Employment (Information) Act, 1994 – had breached the Payment of Wages Act, 1991 in relation to payment of minimum notice – had breached the Organisation of Working Time Act, 1997 in relation to Section 23 and payment of Annual Leave on termination of employment and the payment of a Sunday Premium and had breached the Redundancy Payments Act, 1967.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994. The Complainant stated he had not been provided with a written statement of his Terms and Conditions of Employment.

Payment of Wages Act, 1991. The Complainant stated that on termination of his employment he had not been paid his Minimum Notice

Organisation of Working Time Act, 1997. The Complainant stated that he had been provided with two weeks annual leave in March/April 2016 but had not been provided with any annual leave in the 2016/2017 annual leave year. He is claiming payment of accrued annual leave on termination of the employment on 1^st August 2016. The Complainant stated that he worked each Sunday but had not been paid a Sunday Premium during the course of the employment. The Complainant stated that he worked in excess of the maximum working hours. He stated that he worked in excess of 50 hours each week in the 12 months prior to his redundancy.

Redundancy Payments Act, 1967. The Complainant stated that he had not been paid his statutory redundancy payments on termination of the employment.

Summary of Respondent’s Position.

The Respondent did not attend the scheduled Hearing on 19^th April 2017.

Findings

Terms of Employment (Information) Act, 1994. On the uncontested evidence of the Complainant I find that the Complainant was not provided with a written statement of Terms and Conditions of Employment as required by Section 3 of the Act, which requires that an Employer must provide an employee with a written statement of specified Terms and Conditions of Employment within two months of the commencement of the employment. The Respondent has breached Section 3 of the Act.

Payment of Wages Act, 1991. On the uncontested evidence of the Complainant I find that the Complainant was not paid Minimum Notice on termination of the employment on 1^st August 2016. The Complainant commenced employment in January 2010 and the employment terminated on 1^st August 2016. Section 4 (2) (c) of the Minimum Notice and Terms of Employment Act, 1973 provides as follows “if the employee has been in the continuous service of the employer for five years or more, but less than ten years, 4 weeks”. I find the Complainant is entitled to payment of four week’s minimum notice on termination of her employment.

Organisation of Working Time Act, 1997. Section 23 of the Act provides that an Employer should pay an Employee accrued annual leave on termination of the employment and if the termination of employment occurs in the first six months of the current annual leave year then the Adjudication Officer has jurisdiction to include the previous annual leave year. As the termination occurred on 1^st August 2016 i.e. within the first six months of the 2016/2017 annual leave year then I have jurisdiction to consider both the 2015/2016 and the 2016/2017 annual leave years. The evidence of the Complainant was that he received two weeks annual leave in March/April 2016. The Complainant worked in excess of 1365 hours a year therefore he was entitled to 4 weeks paid annual leave for the 2015/2016 annual leave year. I find the Complainant is entitled to payment of €1000.00 The Complainant worked 50 hours per week over 18 weeks = 900 hours worked x8% =               72 hours annual leave due = €720.00. The Complainant is due a total of €1700.00.

The Complainant stated that he worked each Sunday but was not paid a Sunday Premium. This complaint was lodged with the WRC on 26^th January 2017 therefore in accordance with Section 41(6) of the Act the period covered by this complaint is from 27^th July 2016 but the employment terminated on 1^st August 2016 .There is one Sunday i.e. 31^st July 2016 in this reference period. The Complainant stated that he worked that Sunday but was not paid a Sunday Premium. I find that the Complainant should have been paid a Sunday Premium of €70.00.

The Complainant stated that he worked in excess of 50 hours each week in the 12 months prior to his redundancy. Section 15 of the Act provides that an Employer shall not require an employee to work, in each period of 7 days, more than an average of 48 hours, in a reference period that does not exceed 4 months. This complaint was lodged with the WRC on 27^th January 2017, therefore in accordance with Section 41(6) of the Workplace Relations Act, 2015 the period covered by this complaint if from 27^th July 2016 to the termination of the employment on 1^st August 2016. In accordance with Section 15 of the Act of 1977 the four month period is from April to July 2016. I find I do not have jurisdiction to hear this element of the complaint as the complaint does not comply with Section 41(6) of the Act of 2015.

Redundancy Payments Act, 1967. On the basis of the evidence I find that the Complainant is entitled to payment of his statutory redundancy entitlements.

Decision:

Section 41 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.

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.

Terms of Employment (Information) Act,, 1994.CA-00009335-005

On the uncontested evidence of the Complainant and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €1000.00 within 42 days of the date of this Decision.

Payment of Wages Act, 1991.CA-00009335-001

On the uncontested evidence of the Complainant and in accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant four weeks Minimum Notice of €2000.00, subject to any lawful deductions, within 42 days of the date of this Decision.

Organisation of Working Time Act, 1997.CA-00009335 -002 – 003 -004

On the uncontested evidence of the Complainant and in accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant –

€1700.00 in respect of annual leave due and not paid - €70.00 in respect of the payment of a Sunday Premium for 31^st July 2016 and compensation of €1000.00 for breaches of the Working Time Act, 1997. These sums to be paid to the Complainant within 42 days of the date of this Decision.

Redundancy Payments Act, 1967.CA-00009335-006

On the uncontested evidence of the Complainant and in accordance with Section 39 of the Act I declare this complaint is well founded. I direct the Respondent to pay the Complainant his statutory redundancy entitlements in accordance with the Act. This to be paid to the Complainant within 42 days of the date of this Decision.

Dated:   06/07/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Key Words: