ADJUDICATION OFFICER DECISION
Correcting Order Issued Pursuant to Section 39 of the Organisation of Working Time Act, 1997.
This order corrects the original Decision and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00006698
Parties:
| Complainant | Respondent |
Anonymised Parties | Photographer’s Assistant | Photography Business Owner |
Representatives | Self | Orlaith Traynor, Solicitor |
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-00008797-001 | 15/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00008797-002 | 15/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00008797-003 | 15/12/2016 |
Date of Adjudication Hearing: 08/08/2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 – 2012, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The complainant was employed as an Assistant to the respondent who was also her brother and who operated a photography business. She commenced work in January 1980 and was continuously employed until the death of the respondent and business owner in January 2016. From 2012 the complainant had been working one day a week. |
Summary of Complainant’s Case:
The complainant was employed by the respondent in the business from January 1980 until the death of the owner in January 2016. The complainant’s understanding is that the respondent operated as a sole trader. The complainant’s employment was continuous. The complainant’s employment ceased with the death of the respondent. |
Summary of Respondent’s Case:
No appearance. |
Findings and Conclusions:
The respondent’s wife attended the hearing with representation. Some of the documentation regarding the complaint had been addressed to her. Her evidence was that her husband had been adjudged a bankrupt in June 2013 and that his affairs were in the hands of the Official Assignee, Insolvency Service of Ireland. The respondent unfortunately died on 23 January 2016. It was accepted by the complainant that the respondent’s wife had no involvement with the business whatsoever and that she had no wish to include her in this matter. The complainant gave evidence that she had been employed on a continuous basis by the respondent since 4 January 1980 and had reduced her working hours to one day per week in 2012. She acted as an assistant with the photography and printing and also had direct dealings with customers. It would appear that the respondent traded under a number of different titles during this period but that at all times the respondent was the owner of the business. The complainant was never advised of any transfer of her employment. The complainant was never issued with a formal contract. The complainant stated that she was completely unaware of the respondent’s bankruptcy until after his death. The business had continued to operate during this period and the complainant continued to be paid. In recent times she did not receive a pay slip as such but rather an email advising her of the amount paid into her bank account. These payments continued up to the time of the death of the respondent in January 2016. These pay slips indicate that the complainant was paid €93.00 for each day that she worked. Section 21 of the Redundancy Payment Act, 1967, states: (1) Where, in accordance with any enactment or rule of law, any act on the part of the employer or any event affecting an employer (including, in the case of an individual, his death) operates so as to terminate a contract under which an employee is employed by him, that act or event shall for the purposes of tis Act be treated as a termination of the contract by the employer, if apart from this subsection, it would not constitute a termination of the contract by him. (2) Where – (a) subsection (1) applies, (b) the employee’s contract of employment is not renewed, and (c) he is not re-engaged under a new contract, as provided by Section 9(2), he shall for the purposes of this Act be taken to be dismissed by reason of redundancy if the circumstances in which his contract is not renewed and he is not re-engaged (as provided by the said Section 9(2)) are wholly or mainly attributable to a fact specified in Section 7(2). Section 3 of Schedule 2, Part 1 of the Act states that an employee who has his contract renewed or is re-engaged by a personal representative of the deceased (within 8 weeks) shall not be treated as being dismissed. In this particular case the respondent’s wife has clarified that she had no involvement in the business at all. The complainant has stated that her employment ended with the death of the respondent. Based on the evidence before me I am satisfied therefore that the complainant was made redundant in accordance with the terms of Section 21 of the Redundancy Payments Act, 1967. I am also satisfied that the complainant received no notice in this respect.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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.
Complaint No. CA-00008797-001: This is a complaint under the Redundancy Payments Acts, 1967 – 2012. Based on the uncontested evidence before me I find that the complainant was made redundant on 23 January 2016 in accordance with Section 21 of the Redundancy Payments Act, 1967, and that she is entitled to a lump sum payment having regard to the following criteria: Commencement Date: 4 January 1980 Termination Date: 23 January 2016 Gross Pay: €195.00 per week Any award under the Redundancy Payments Acts is subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts.
Complaint No. CA-00008797-002: This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. Section 4(2) of the Act states: The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be – (e)if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks
Based on the uncontested evidence before me I find that the complaint is well founded and award the complainant the sum of €1,560.00 as compensation in that regard.
Complaint No. CA-00008797-003:
This appears to be a duplicate of the previous complaint under the Minimum Notice and Terms of Employment Act, 1973, and is accordingly dismissed. |
Dated: 15th November 2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Key Words:
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ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006698
Parties:
| Complainant | Respondent |
Anonymised Parties | Photographer’s Assistant | Photography Business Owner |
Representatives | Self | Orlaith Traynor, Solicitor |
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-00008797-001 | 15/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00008797-002 | 15/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00008797-003 | 15/12/2016 |
Date of Adjudication Hearing: 08/08/2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 – 2012, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The complainant was employed as an Assistant to the respondent who was also her brother and who operated a photography business. She commenced work in January 1980 and was continuously employed until the death of the respondent and business owner in January 2016. From 2012 the complainant had been working one day a week. |
Summary of Complainant’s Case:
The complainant was employed by the respondent in the business from January 1980 until the death of the owner in January 2016. The complainant’s understanding is that the respondent operated as a sole trader. The complainant’s employment was continuous. The complainant’s employment ceased with the death of the respondent. |
Summary of Respondent’s Case:
No appearance. |
Findings and Conclusions:
The respondent’s wife attended the hearing with representation. Some of the documentation regarding the complaint had been addressed to her. Her evidence was that her husband had been adjudged a bankrupt in June 2013 and that his affairs were in the hands of the Official Assignee, Insolvency Service of Ireland. The respondent unfortunately died on 23 January 2016. It was accepted by the complainant that the respondent’s wife had no involvement with the business whatsoever and that she had no wish to include her in this matter. The complainant gave evidence that she had been employed on a continuous basis by the respondent since 4 January 1980 and had reduced her working hours to one day per week in 2012. She acted as an assistant with the photography and printing and also had direct dealings with customers. It would appear that the respondent traded under a number of different titles during this period but that at all times the respondent was the owner of the business. The complainant was never advised of any transfer of her employment. The complainant was never issued with a formal contract. The complainant stated that she was completely unaware of the respondent’s bankruptcy until after his death. The business had continued to operate during this period and the complainant continued to be paid. In recent times she did not receive a pay slip as such but rather an email advising her of the amount paid into her bank account. These payments continued up to the time of the death of the respondent in January 2016. These pay slips indicate that the complainant was paid €93.00 for each day that she worked. Section 21 of the Redundancy Payment Act, 1967, states: (1) Where, in accordance with any enactment or rule of law, any act on the part of the employer or any event affecting an employer (including, in the case of an individual, his death) operates so as to terminate a contract under which an employee is employed by him, that act or event shall for the purposes of tis Act be treated as a termination of the contract by the employer, if apart from this subsection, it would not constitute a termination of the contract by him. (2) Where – (a) subsection (1) applies, (b) the employee’s contract of employment is not renewed, and (c) he is not re-engaged under a new contract, as provided by Section 9(2), he shall for the purposes of this Act be taken to be dismissed by reason of redundancy if the circumstances in which his contract is not renewed and he is not re-engaged (as provided by the said Section 9(2)) are wholly or mainly attributable to a fact specified in Section 7(2). Section 3 of Schedule 2, Part 1 of the Act states that an employee who has his contract renewed or is re-engaged by a personal representative of the deceased (within 8 weeks) shall not be treated as being dismissed. In this particular case the respondent’s wife has clarified that she had no involvement in the business at all. The complainant has stated that her employment ended with the death of the respondent. Based on the evidence before me I am satisfied therefore that the complainant was made redundant in accordance with the terms of Section 21 of the Redundancy Payments Act, 1967. I am also satisfied that the complainant received no notice in this respect.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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.
Complaint No. CA-00008797-001: This is a complaint under the Redundancy Payments Acts, 1967 – 2012. Based on the uncontested evidence before me I find that the complainant was made redundant on 23 January 2016 in accordance with Section 21 of the Redundancy Payments Act, 1967, and that she is entitled to a lump sum payment having regard to the following criteria: Commencement Date: 4 January 1980 Termination Date: 23 January 2016 Gross Pay: €93.00 per week Any award under the Redundancy Payments Acts is subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts.
Complaint No. CA-00008797-002: This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. Section 4(2) of the Act states: The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be – (e)if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks
Based on the uncontested evidence before me I find that the complaint is well founded and award the complainant the sum of €744.00 as compensation in that regard.
Complaint No. CA-00008797-003:
This appears to be a duplicate of the previous complaint under the Minimum Notice and Terms of Employment Act, 1973, and is accordingly dismissed. |
Dated: 15th November 2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Key Words:
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