ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006915
Parties:
| Complainant | Respondent |
Anonymised Parties | A Carpenter | A Builder |
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-00009389-001 | 30/01/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009389-002 | 30/01/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009389-004 | 30/01/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009389-005 | 30/01/2017 |
Date of Adjudication Hearing: 10/05/2017
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and section 27 of the Organisation of Working Time Act, 1997 and under section 7 of the Terms of Employment (Information) Act, 1994 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 by the respondent from 27th January 2014 until 9th December 2016 when he received notification he was being made redundant. He issued the respondent with an RP77 on 10th January 2017 requesting redundancy payment but did not receive any payment. During the three years of his employment the complainant did not receive any holiday pay and did not receive payment in lieu of public holidays. |
Summary of Complainant’s Case:
The complainant was employed by the respondent from 27th January 2014 until 9th December 2016 when he received notification he was being made redundant. He issued the respondent with an RP77 on 10th January 2017 requesting redundancy payment but did not receive any payment. During the three years of his employment the complainant did not receive any holiday pay and did not receive payment in lieu of public holidays. The complainant is requesting an extension of the six month period during which a complaint must be made on the basis that the respondent never gave him a copy of his terms and conditions of employment and the complainant only became aware of his entitlement when he consulted with the Citizens information Centre. |
Summary of Respondent’s Case:
The nature of the complainant’s work was unpredictable and intermittent at times. The respondent provided the complainant with a letter on 9th December 2016 for Social Welfare in which he stated that if he had further work for the complainant he would contact him. The respondent also offered the complainant work the following week which he did not accept as he was going away with his wife. The respondent asked the complainant to give him a call and let him know his plans and the respondent would work around them. In relation to annual leave the respondent informed the complainant that he would only get paid for the days he worked and this allowed the complainant to avail of social welfare payments on the days he did not work, as was the case through 2014. The respondent accepts that no written contract of employment was issued. The complainant was paid €80 nett per day from January 2014 until 28 October 2014, €100 per day until January 2016 and €105 per day thereafter. The respondent paid the relevant tax. |
Findings and Conclusions:
Under the Redundancy Payments Act 1967 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 is entitled to a redundancy payment. An employee is taken as having been laid off or kept on short-time for the minimum period if he has been laid off or kept on short-time for a period of four or more consecutive weeks, or for a period of six or more weeks which are not consecutive but which fall within a period of thirteen consecutive weeks. I accept the evidence from he complainant that he was laid off for a period in excess of the minimum stipulated in the Act and therefore he is entitled to a redundancy payment. This payment is calculated on the basis of two weeks’ pay per year of service plus one week. The complainant’s service equates to 3.87 years and his wages were €525 p.w. and therefore his entitlement to statutory redundancy is €4588. It is clear from the evidence provided at the hearing that the respondent did not pay holiday pay or pay in lieu of public holidays during the course of the complainant’s employment. It is now settled in jurisprudence that an infringement of the Act cannot occur until the expiry of the latest date on which an employer can lawfully comply with the relevant provision and it is from this date that the limitation period commences. Hence, in relation to annual leave, an infringement of the Act occurs if the leave due is not granted by the end of a six month period commencing at the close of the leave year to which it relates (30th September of each year) or on the cesser of employment if it occurs earlier. Section 23 of the Organisation of Working Time Act states; (a) an employee ceases to be employed, and (b) the whole or any portion of the annual leave in respect of the current leave year or, in case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave year or both those years, remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. Where the contract is silent as to the leave year or where there is no contract (as in this case) then the leave year runs from April 1 to March 31. The claimant therefore may claim annual leave for the previous leave year ie April 2015 to March 2016 . The employer has six months after the leave year ends to grant annual leave. Hence the infringement occurs in this case six months after March 2016 ie September 2016 as at any point up to then the annual leave could have been taken. The complaint was lodged in January 2017 and is therefore in time to capture the infringements of the previous year. The complainant is also entitled to the current leave year also i.e. 1 April 2016 to 9 December 2016 and to two bank holidays, August and October. The compensation owed in respect of annual leave and bank holidays is therefore €3,365. The respondent has confirmed that the complainant was not given a statement of his terms and conditions of employment and the complaint under section 7 of the Terms of Employment (Information) Act, 1994 is well founded. |
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.
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act
Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act
In accordance with s. 39 of the Redundancy Payments Acts 1967 – 2012, I order the respondent to pay the complainant the sum of €4588 In accordance with s.27 of the Organisation of Working Time Act, I order the Respondent to pay the Complainant the sum of €3,365 in respect of money due for annual leave and public holidays In accordance with s.7 of the Terms of Employment (Information) Act, 1994 I find that this complaint is well founded and I order the respondent to pay €1,100, being the equivalent of two week’s wages, to the complainant. The latter part of the award is in redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004. |
Dated: 14th July 2017
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Redundancy not paid. Annual leave entitlement not given. |