ADJUDICATION OFFICER DECISION

CORRECTING ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT,1997AND/OR SECTION 41(16) OF THE

WORKPLACE RELATIONS ACT, 2015

The order corrects the original decision issued on the 13^th March 2017 and should be read in conjunction with that decision

Adjudication Decision Reference: ADJ-00004626

Complaints for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00006108-001	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006108-002	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006108-003	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00006108-004	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00006108-005	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00006108-006	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00006108-007	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006108-008	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00006108-009	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006108-011	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006108-012	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006108-013	22/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006108-014	22/07/2016

Date of Adjudication Hearing: 22/11/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, the Unfair Dismissals Act 1977, the Organisation of Working Time Act 1997, the Terms of Employment (Information) Act 1994, the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003, the Payment of Wages Act 1991, and the Employment Equality Act 1998, 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.

Complainant’s Submission and Presentation:

The complainant was employed by the respondent as a Retail Assistant, paid €9.85 per hour for a 17 hour week. She was in the employment from June 1999 until the shop closed on 5^th May 2016 and she was handed her final wages (of €253) and her P45. She submits the following complaints :

CA-00006108-001 – Unfair Dismissal

That the respondent unfairly dismissed the complainant when he furnished her with her final wages and P45 on 5^th May 2016.

CA-00006108-002 – Organisation of Working Time Act 1997

That the complainant did not receive her full complement of annual leave on cessation of her employment

CA-00006108-003 – Organisation of Working Time Act 1997

That the complainant was not given the provisions of the Act as it relates to Public Holidays

CA-00006108-004 – Terms of Employment (Information) Act 1994

That the respondent failed to furnish the complainant with written terms of employment as provided for in Section 3

CA-00006108-005 – Terms of Employment (Information) Act 1994

That no notice or written advice in change of terms of employment was furnished by the respondent to the complainant.

CA-00006108-006 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

That the respondent failed to observe Regulations 8 and 4 in that no information was given nor consultation was undertaken and the employees rights were not transferred.

CA-00006108-007 – Employment Equality Acts

That in not providing for the transfer of the complainant’s employment to the new owner of the shop, the respondent discriminated against the complainant on gender and age grounds.

CA-00006108-008 – Organisation of Working Time Act 1997

That the complainant, having been available for work, and given no work was entitled to the provision of the Act in relation to “zero hours”.

CA-00006108-009 – Payment of Wages Act 1991

That the complainant was entitled to statutory minimum notice.

CA-00006108-011 – Organisation of Working Time Act 1997

That the complainant did not receive the provisions of the Act as it relates to 2 weeks unbroken annual leave period.

CA-00006108-012 – Organisation of Working Time Act 1997

That the provisions of the Act as it applied to the Public Holiday falling in the week of the cessation of the complainant’s employment were not applied.

CA-00006108-013

That the value of the annual leave period accrued on cessation was not correctly calculated.

CA-00006108-014

That the public holiday rate of pay was not correctly calculated.

Respondent’s Submission and Presentation:

The respondent did not attend the hearing

Decision:

The complainant was employed by the respondent from June 1999 until May 2016 when the shop she worked in went out of business. The issue of whether there was a transfer of undertakings is the subject of Adjudication Decision 4635. That decision found that the Regulations on Transfer of Undertakings did not apply. I therefore base my findings in this instant case on the respondent being the employer of the complainant from June 1999 to 5^th May 2016.

CA-00006108-001 – Unfair Dismissal

Section 6 (4) (c) of the Act provides:

“(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from…

(c) the redundancy of the employee..

I note the respondent ceased trading on 5^th May 2016. In a letter dated 20^th October 2016 he confirmed that he ceased to operate the business on 5^th May 2016 and had no alternative but to make all of his employees redundant. In these circumstances, I find that the complainant was made redundant and therefore I find the dismissal not to be an unfair dismissal.

CA-00006108-002 – Organisation of Working Time Act 1997

The complainant gave evidence of receiving her final wages which included wages and annual leave accrued. The claim here is that having been entitled to 8 weeks statutory notice, annual leave for that period should have been included.

Section 19 of the Act provides :

“19.- (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to –

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)…

The complainant did not work during the statutory minimum notice period and I find therefore that the respondent did not breach the terms of section 19 (1) of the Act.

CA-00006108-003 – Organisation of Working Time Act 1997

That the complainant was not given the provisions of the Act as it relates to Public Holidays.

The complainant received pay equivalent to 25.5 hours in her final wages.

I find that the May public holiday was included in her remuneration and I do not find this complaint to be well founded.

CA-00006108-004 – Terms of Employment (Information) Act 1994

On the uncontested evidence of the complainant that the respondent failed to furnish the complainant with written terms of employment as provided for in Section 3 I find her complaint to be well founded and I require the respondent to pay to the complainant the sum of €650 compensation.

CA-00006108-005 – Terms of Employment (Information) Act 1994

The complaint here that no notice or written advice in change of terms of employment was furnished by the respondent to the complainant, appears to relate to the fact that the complainant believed her employment changed from Employer X to Employer Y. This was found not to be the case in ADJ-00004635 and I therefore do not find her complaint that the respondent failed to furnish her with written changes in her contract, to be not well founded.

CA-00006108-006 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

That the respondent failed to observe Regulations 8 and 4 in that no information was given nor consultation was undertaken and the employees rights were not transferred.

This is a duplicate claim which has already been adjudicated upon in ADJ-00004635. I do not uphold this part of her complaints.

CA-00006108-007 – Employment Equality Acts

That in not providing for the transfer of the complainant’s employment to the new owner of the shop, the respondent discriminated against the complainant on gender and age grounds.

As found in ADJ-00004635, the Transfer of Undertakings did not apply and the complaint under the Equality Acts are not well founded.

CA-00006108-008 – Organisation of Working Time Act 1997

That the complainant, having been available for work, and given no work was entitled to the provision of the Act in relation to “zero hours”.

Section 18 of the Act provides that an employer pay an employee in the event of not requiring the employee to work in certain circumstances namely where the employee is expected to make themselves available for work on a casual basis. In this instant case, the complainant was made redundant on 5^th May 2016 and Section 18 of the Act does not apply. I do not uphold this complaint.

CA-00006108-009 – Payment of Wages Act 1991

I find that the complainant was entitled to statutory minimum notice period of 8 weeks pay.

I find her complaint to be well founded and I require the respondent to pay to the complainant the sum of €1,339.60.

CA-00006108-011 – Organisation of Working Time Act 1997

That the complainant did not receive the provisions of the Act as it relates to 2 weeks unbroken annual leave period.

Section 19 (3) of the Act provides:

“(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any Employment Regulation Order, Registered Employment Agreement, Collective Agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks”.

On the uncontested evidence of the complainant, I find the complaint to be well founded and I require the respondent to pay to the complainant the sum of €500 compensation.