ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00010159

Parties:

Complaint(s):

Date of Adjudication Hearing:  08/03/2018

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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 did not attend the hearing.  I am satisfied the Respondent was properly notified of the time and place of the hearing.

Background:

The Complainant, was employed with the Respondent as a QC Assistant from 2 May 2005 until 2 June 2017.   Her wages were €4325.75 gross per week for a 37.5 hour week.

The Complainant alleged that she did not receive her minimum notice, nor did she receive payment for her untaken annual leave on cessation of her employment. The Complainant was seeking compensation for her losses.

Summary of Complainant’s Case:

Notice Period:

The Complainant advised that she was placed on lay off on 6th March 2017 and that was her last date of pay.  She submitted that she did not receive her notice period, and on 2nd June 2017 the Respondent closed its premises and moved location, and this was her effective date of termination.

The Complainant advised that since submitting her complaint to the WRC she has received payment  of four weeks’ notice which was paid to her in two separate amounts, and where the Respondent has indicated to her that she will receive payment for her final two weeks’ notice in April.  However, the Complainant maintained that the notice payments she received only paid her for a 36-hour week where she was entitled to be paid for a 37.5 hour week.

Holiday Pay:

The Complainant maintained at the time of her lay off she was due 14 days annual leave based on her untaken leave and as recorded by the Respondent at that time.  However, she has not been paid for the annual leave due to her.

I am satisfied that this complaint was entered into the complaint form submitted to the WRC on 22nd August 2017 and accordingly I am authorised to hear this element of the complaint.

Summary of Respondent’s Case:

The Respondent did not attend the hearing.  Prior to the date of the hearing the Respondent had advised the WRC in writing that the matter was being resolved between the Respondent and the Complainant. I am therefore satisfied the Respondent was properly informed of the time and location for the hearing.

Findings and Conclusions:

Minimum Notice:

Section 4 (2) 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 the continuous service of his employer for ten years or more, but less than fifteen 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.

Annual Leave

In accordance with Section 23(1) of the organisation of Working Time Act 1997, as amended,

 (a) Where

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period 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. 

(b) In this subsection—‘relevant period’ means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I)        the current leave year, and

(II)      the leave year immediately preceding the current leave year. 

I therefore find that as the Complainant had annual leave of 14 days due from the current and immediately preceding leave year, she is entitled to be paid for this leave on cessation of her employment.

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.

Minimum Notice

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. I have found the Respondent is in Contravention of the Act.

As the Respondent has only paid the Complainant for four weeks, and where she was not paid her full notice period for those weeks, being left short 1.5 hours for each of those weeks, I direct that the Respondent pay to the Complainant compensation of two weeks’ pay plus six hours, which represents the balance of her statutory notice, and amounts to €911.66.

Annual Leave

I have found the complaint that the Respondent is in breach of Section 20 of the Organisation of Working Time Act, 1997 is well founded.  I therefore order the Respondent to pay the Complainant the sum of €1,211.70 for the unpaid annual leave during 2015, plus €400 in compensation, i.e. a total payment of €1,611.70 must be paid to the Complainant.

Dated:   09 August 2018

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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