ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008263

Complaints:

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-00010988-001	26/04/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00010988-002	26/04/2017

Date of Adjudication Hearing: 31/08/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 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 a Medical Secretary from 1^st June 2001 to 30^th December 2016. She was paid €458.00 per week and worked 20 hours per week. She has claimed that she did not receive statutory redundancy and minimum notice.

1) Redundancy Payments Act6 1967, CA 10988-001

Summary of Complainant’s Case:

The Complainant has been employed on a continuous basis since June 2001. There was a transfer of undertakings on 1^st September 2015. This transfer did not affect her terms and conditions of employment. For the purpose of these claims the transfer does not break the service.

On 29^th December 2016 she was told that the practice was closing on the next day. She was told that she would be entitled to redundancy. She did not receive her statutory entitlements. She is claiming statutory redundancy in compliance with the Redundancy Payments Act.

Summary of Respondent’s Case:

The Respondent has accepted that following the dissolution of the partnership a transfer of undertakings took place on 1^st September 2015. The business struggled following the loss of the medical card business. He was unable to pay the wages. The Complainant knew about the financial difficulties in the business. He was offered an alternative job and so decided to let the patients and staff know. He didn’t give formal notice. He recalls telling the Complainant on Tuesday that the business was closing on Friday. He accepts that she is entitled to statutory redundancy however he does not have the funds to pay it. He requested his accountant to issue a statement of affairs but he failed to do so.

Findings and Conclusions:

I find that the Complainant has continuous employment from 2001.

I find that a genuine redundancy has arisen.

I find that the Complainant is entitled to statutory redundancy as per the terms of the Redundancy Payments Act.

I note that her start date is 1^st June 2001 and the termination date is 30^th December 2016.

I note that her gross pay per week was 458.00.

Any award under the Redundancy Payments Act is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts.

Decision:

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.

I have decided that a genuine redundancy situation has occurred.

I have decided that the Respondent should pay the Complainant her statutory redundancy entitlements within six weeks of the date below.

2) Minimum Notice & Terms of Employment Act 1973, CA 10988-002

Summary of Complainant’s Case:

She stated that on 29^th December 2016 she was told that the practice was closing on the next day, 30^th December 2016. She did not get minimum notice as the Respondent advised that he did not have the funds to pay it. She has claimed 8 weeks’ pay.

Summary of Respondent’s Case:

The Respondent has accepted that following the dissolution of the partnership a transfer of undertakings took place on 1^st September 2015. The business struggled following the loss of the medical card business. He was unable to pay the wages. The Complainant knew about the financial difficulties in the business. He was offered an alternative job and so decided to let the patients and staff know. He didn’t give formal notice. He recalls telling the Complainant on Tuesday that the business was closing on Friday 30^th December 2016. He accepts the Complainant’s position that it may have been Thursday 29^th that she was told. He accepts that she is entitled to minimum notice but he does not have the funds to make the payment.

Findings and Conclusions:

I find that the Complainant has continuous employment since 1^st June 2001 to 30^th December 2016.

I note the circumstances surrounding the closure of the business.

I note the possible conflict regarding the date of notification of closure and the Respondent’s position.

So on the balance of probability I find that she was told on 29^th that the business was closing on 30^th. Therefore I find that she received 1 days’ notice.

I find that she is entitled to a total 8 weeks’ notice as per the terms of the Minimum Notice and Terms of Employment Act less the 1 day given.

Therefore I find that she is entitled to €3,511.33.

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.

I have decided that the Respondent has breached the Minimum Notice and Terms of Employment Act.

I order the Respondent to pay the Complainant €3,511.33 within six weeks of the date below.

Dated: 04/10/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly