ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00012204

Parties:

Complaint(s):

Date of Adjudication Hearing: 15/03/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 8 of the Unfair Dismissals Acts, 1977 – 2015; and Section 79 of the Employment Equality Acts, 1998 - 2015, 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.

The Respondent failed to attend the hearing or make any written submission. I am satisfied the Respondent was properly notified of the complaints and the date and time of the hearing.  

Background:

The Complainant, a Lithuanian national, was employed from 6th December 2009 until his termination date of 11th August 2017. He was employed as a machine operator on an hourly rate of €10 per hour.

His complaints refer to the alleged non-payment of annual leave entitlements, an allegation of being unfairly dismissed, an alleged failure to receive his minimum notice, and an allegation of not receiving equal pay on the grounds of race when compared to an Irish national.

Summary of Complainant’s Case:

CA-00015991-001 Complaint under section 27 of the Organisation of Working Time Act, 1997   

The Complainant advised that this complaint had been submitted to an earlier hearing under ADJ 10001 where he was awaiting a decision. Accordingly, this complaint was withdrawn.

CA-00015991-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant advised that his employment started with a different company, but on 11th October 2016 he received notification that a transfer of the business had occurred to the Respondent and that this transfer had taken place on 19th September 2016. He was advised that there would be a continuation of the service and that his service had not been broken or affected in any way.

He submitted that on 10th July 2017 he received a text advising that the morning shift was cancelled and that nothing was happening regarding work for the following day. He advised that there was no work available for him until he received a text on 2nd August 2017 from a manager advising that a number of staff were to be made redundant the following week. He was advised that not all of the details in relation to the redundancy were available but that the person will be in touch. The Complainant advised that on 3rd August 2017 he was invited by the Respondent to come to a meeting on 4th August with. The Complainant maintained that these text messages had sent from a manager of the Respondent.

The Complainant advised that he received the letter on 8th August 2017 advising him that he was being offered redundancy which was due to unforeseeable circumstances, and that the Respondent’s current financial provider had pulled all funding meaning that the Respondent was unable to pay the Complainant and therefore had to offer him redundancy. He was further advised that the Respondent would not be in a position to pay this redundancy and the Complainant was advised to seek a statutory redundancy.

The Complainant submitted that on 9th August 2017 he was advised in writing that the Respondent was not refusing to pay his redundancy but that the company did not have the financial ability to pay the redundancy. He was further advised that a break in service was due to no work and where his break in service was not deemed to be a layoff. The letter also informed him that the Respondent would sign off the redundancy forms once they were completed correctly.

On 11th August 2017 the Complainant received correspondence to confirm that he had been offered and taken redundancy from the Respondent and that he was no longer an employee of the Respondent. The Complainant submitted that the Respondent stated on the P 45 that his date of cessation was 22nd July 2017. He contended this date and maintained that his date of dismissal was 11th August 2017 in accordance with the written correspondence from the Respondent.

The Complainant maintained that he did not receive any redundancy payments, did not receive any consultation or notification regarding a redundancy prior to a meeting on 4th August 2017, and that there were no redundancy procedures put in place prior to 11th August 2017. He further submitted that eight people were dismissed that day, and 26 people continue working with the Respondent.

The basis the Complainant was submitting he was unfairly dismissed was because no redundancy procedures were put in place, nor has he received redundancy payment.

The Complainant’s was seeking compensation for his dismissal and advised that he had been seeking employment from the date of his dismissal, was in receipt of job seekers benefit, but was unable to find alternative work. The Complainant submitted confirmation of his applications for alternative employment from 4th August 2017 to 29th January 2018 where he submitted evidence of seven applications for alternative employment.

CA-00015991-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant maintained that he received no notice of his termination of employment contrary to the minimum notice and terms of employment act, 1973. He was therefore seeking payment for his minimum notice.

CA-00016662-001 Complaint under section 77 of the Employment Equality Act, 1998

The Complainant submitted that he was employed as a Machine Operator and was in receipt of €10 per hour. He advised that from 8th March 2017 he noticed he was discriminated with regard to its pay when compared to an Irish employee. He maintained that his rate of pay was €10 per hour whereas the Irish Operative, who is a named comparator, was paid €13.50 per hour. He advised that he performed the same work as the comparator since he started his employment and he worked at the same machines and for the same conditions. He submitted this complaint to the Respondent on 8th March 2017 seeking a resolution of the matter on the basis he was doing like work but he was on a lower rate of pay to an Irish colleague.

The Complainant submitted that the Respondent failed to address this complaint and where he wrote again to the Respondent on 19th July 2017 outlining that the Irish comparator was working under his supervision as an assistant but that he did not receive any response with regard to receiving equal pay.

The Complainant submitted payslips for himself and his named comparator where he was paid €10 per hour and the comparator was paid €13.27 per. The Complainant submitted correspondence he received from the Respondent dated 20th July 2017 which acknowledged receipt of his complaint and on 8th August 2107 he received a letter from the Respondent stating that it accepted the Complainant’s rate of pay was less than the rate of pay of an Irish comparator; however the Respondent advised they could not offer him additional payment from the beginning of his employment to April 2017 due to unforeseeable situation occurring as a result of the loss of the contract.

Summary of Respondent’s Case:

The Respondent did not attend the hearing or make any response to the complaints.

Findings and Conclusions:

CA-00015991-001 Complaint under section 27 of the Organisation of Working Time Act, 1997   

This Complainant has been withdrawn by the Complainant.

CA-00015991-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

Section 6(4)(c) of the Act states that 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 the redundancy of the employee. I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

It appears, based on the correspondence between the Complainant and the Respondent that the Respondent advised the Complainant that his job was made redundant and 11th August 2017 and the Complainant received notification to that effect. The evidence further supports that the Complainant had not received work from 10th July 2017, but was not put on notice of layoff, or short time. The Complainant would also have been advised that the basis of the redundancy was due to the Respondent’s financial provider having pulled its funding, and where the Respondent advised the Complainant that this meant it was not able to pay the Complainant and therefore had to offer him redundancy. It is understood other employees were also made redundant at this time.

Section 7 (2) of the redundancy Payments Act, 1967 as amended,states …[A]n employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concernedthe dismissal is attributable wholly or mainly to

• the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

• the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

• the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

• the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

• the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Based on the evidence presented, and the contemporaneous correspondence from the Respondent to Complainant, I am satisfied the Respondent appears to have lost funding and a contract, and therefore decided in accordance with Section 7(2) of the Redundancy Payments Act to make the Complainant’s role (along with other employees) redundant. The Complainant is therefore entitled to receive his statutory redundancy payment.

On that basis I do not find the Complainant was unfairly dismissed. Section 6(4)(c) of the Unfair Dismissal Act, 1977 deems that a redundancy is not an unfair dismissal. I find that the Complainant is entitled to be paid his redundancy payment.

CA-00015991-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Section 4 of the Minimum Notice & Terms of Employment Act, 1973 requires that an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provision set in S4(2)(d)- if the employee has been in the continuous service of his employer for five years or more, but less than ten years, six weeks.

I therefore find that the Complainant did not receive her statutory notice period and accordingly find that the Respondent is in contravention of Section 4 of the Act.

CA-00016662-001 Complaint under section 77 of the Employment Equality Act, 1998

Having reviewed the matter, and based on the submission made, I am satisfied that in accordance with Section 7 of the Employment Equality Act 1998, as amended, the Complainant, as the primary worker and a non-Irish national has identified a comparator, an Irish National who is doing similar work; and additionally, where the work of the primary worker also appears to be of a higher value to the comparator. I therefore find the Complainant was in receipt of less pay than an Irish comparator.   Section 28(1) of the Act identifies that specific provisions as to equality applies in relation to the grounds of nationality.

Furthermore, based on the evidence provided, the Respondent in correspondence to the Complainant on 8th August 2017, accepted that the Complainant’s hourly rate of pay was less than the hourly rate of the named Irish comparator, but that the Respondent was not in a position to offer him additional payment from the beginning of his employment due to an unforeseen situation in relation to a loss of a contract.

I therefore find that that the Respondent is in breach of Section 7(3) of the Act on the grounds of nationality, and where the Complainant had been treated less favourably than a comparator. The Complainant was entitled to receive equal pay of €13.21 per hour compared to his rate of pay which was €10 per hour. I find this amounts to a shortfall of €3.21 per hour, and based on his most recent P60 where he would have worked an average 44.15 hours per week.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 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 9 of the Protection of Employees (Employers’ Insolvency) Acts, 1984 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00015991-001 Complaint under section 27 of the Organisation of Working Time Act, 1997   

This complaint was withdrawn by the Complainant.

CA-00015991-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

For the aforesaid reasons, I find this complaint is not well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant was not unfairly dismissed by the Respondent.

CA-00015991-003 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Section 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act. As I have found the Respondent is in Contravention of the Act and I direct that the Respondent pay to the Complainant compensation of four weeks’ pay, which represents her statutory notice, and amounts to €2,400.

CA-00016662-001 Complaint under section 77 of the Employment Equality Act, 1998

In accordance with Sec 29(1) of the Act, it shall be a term of the contract under which the Complainant is employed that, subject to this Act, the Complainant shall at any time be entitled to the same rate of remuneration for the work which he is employed to do as the Comparator who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

Section 29(2) requires that for the purposes of applying the same rate of pay, a relevant time is any time which falls during the 3 years which precede, or the 3 years which follow, the particular time. Section 82(1)(a) of the Act by way of redress allows for an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision.

I therefore decide that the Respondent pay the Complainant compensation of three years at an amount of €133.22 per week over three years, amounting to €20,782.

Dated:   30th August 2018.

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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