ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00010706

Parties:

Complaint(s):

Date of Adjudication Hearing: 23/02/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014following 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 Driver with the Respondent since 1st June 2004. He worked an average 48-hour week and earned a gross salary of €576.45 per week. The Complainant was paid by cheque on a monthly basis.

The Complainant was made redundant on 27th February 2017 and on the 14th September 2017, he lodged a number of complaints to the WRC under the Redundancy Payments Act, the Protection Of Employees On Transfer Of Undertakings Regulations 2003, under the Organisation of Working Time Act 1997 for alleged non-payment of annual leave, and Under the Minimum Notice and Terms of Employment Act, 1973 for alleged failure to provide him with minimum notice on his termination of employment.

Summary of Complainant’s Case:

CA-00013944-001 Complaint under Section 39 of the Redundancy Payments Act, 1967    

The Complainant submitted that he was informed by the Respondent that he was being dismissed from his employment without notice due to redundancy on or about 27th February 2017. The Complainant maintained that the reason proffered by the Respondent for his position becoming redundant was due to a loss of contracts as a result of the Respondent not being able to obtain a haulage licence as he had no tax clearance certificate.

The Complainant maintained that at the time of his dismissal the Respondent made no reference to making any payment under the Redundancy Payments Acts 1967 to 2014, nor has he received any redundancy payment from the Respondent. He further maintained that he communicated with the Respondent on a number of occasions following his dismissal to discuss his redundancy payment, and despite commitments from the Respondent he received no offer of payment. Consequently, the Complainant made a form RP 77 application for a lump sum payment to Respondent on 27th September 2017 but no response was received from the Respondent.

The Complainant therefore submitted that in accordance with Section 7 of the Redundancy Payments Act 1967 he was entitled to his redundancy payment and was therefore seeking compensation pursuant to the provisions of the Redundancy Payments Acts.

CA-00013944-002 Complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)      

The Complainant submitted that at the time of his dismissal he received two pay slips for his January and February 2018 wages where these payslips were issued by a named limited company, and that the Complainant was not aware the named company was the actual name of the company he had been working for. He advised that prior to his dismissal he would have been paid by cheque by the Respondent, and would not have received a payslip prior to his redundancy.

The Complainant maintained that from the start of his employment in 2004 and up to 2015 a named person was his employer and this was demonstrated in his P 60s and as per his PAYE income records from the Office of the Revenue Commissioners. The Complainant advised he subsequently discovered that the company he had worked for was incorporated as a limited liability company on 7th July 2014. The Complainant maintained he first became aware of the existence of the limited company during consultation with his legal representative in July 2017. The Complainant therefore submitted that he had no knowledge of, nor did he receive any information regarding any suggested transfer of the business from the named person to a limited company at any stage.

On that basis the Complainant contended that the Respondent had failed in its obligations under regulation 10 of the Protection of Employees On Transfer Of Undertakings to consult or inform the Complainant either before or after transfer of the business to a newly named limited liability company, and this failure to consult or inform him amounts to a breach of the Regulations.

CA-00013944-003 Complaint under section 27 of the Organisation of Working Time Act, 1997      

The Complainant maintained that he only ever received 10 days annual leave for each year of his employment. He was now seeking the balance of the 10 days due to him on the basis the Respondent had breached his entitlements for annual leave under the Organisation of working Time act, 1997.

The Complainant acknowledged that his complaint under this Act was not made within the six months required, and he proffered the reason for this was that he had been engaging with the Respondent since his dismissal to seek his redundancy payment and other entitlements, and where he would have understood from the communication with the Respondent at the time that these payments would be forthcoming. It appears as part of these arrangements the Complainant and Respondent mutually agreed it would not be necessary to “go to court”, and that the entitlements would be paid. However, as time progressed the Complainant realised he was not going to receive his entitlements and the reason for not submitting his complaint to the WRC within six months was because he believed the Respondent would pay him his entitlements, but as it transpired such payments were not forthcoming he issues his complaint to the WRC on 14th September 2017.

CA-00013946-001 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973              

The Complainant submitted that upon his dismissal due to redundancy he was not provided with any notice and was therefore seeking six weeks’ notice he was entitled to under the minimum notice in terms of employment act, 1973.

Similar to the other complaints the Complainant acknowledged that his complaint under this Act was not made within the six months required and he proffered the reason for this was that he had been engaging with the Respondent since his dismissal seeking his redundancy payment and other entitlements, and where he would have understood from the communication with the Respondent at the time that these payments would be forthcoming. He agreed with the Respondent that he did not want to go to court but as time progressed he realised he was not going to receive his entitlements. The reason for not submitting his complaint to the WRC was because he believed the Respondent would pay him but such payments were not forthcoming.

Summary of Respondent’s Case:

The Respondent failed to attend the hearing nor did the Respondent make any written submission.

I am satisfied that the Respondent was provided with notice of the complaints and was provided with the time and date of this hearing. CA-00013944-001 Complaint under Section 39 of the Redundancy Payments Act, 1967

Findings and Conclusions:

CA-00013944-001 Complaint under Section 39 of the Redundancy Payments Act, 1967

Based on the uncontested submission made, I find that the Complainant was in continuous service from 1st June 2004 until his job was terminated on 21st February 2016 (as per the P45).

Section 7 (2) of the Actstates

…[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 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

I therefore find the Complainant was entitled to a lump sum redundancy payment as he was dismissed for his employment due to a redundancy where the Respondent had decided the role no longer existed in accordance with S7(2)(b) of the Act.

CA-00013944-002 Complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)      

Section 3(1) of the Regulations apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

Section 3(2) of the Regulations defines a “transfer” as the transfer of an economic entity which retains its identity; and where an “economic entity” means an organised grouping of resources which has the objective of pursuing an economic activity whether or not that activity is for profit or whether it is central or ancillary to another economic or administrative entity.

Evidence presented by the Complainant corroborates that his employer set up a new economic entity on circa 7th July 2014. The business was then transferred, unknow to the Complainant, most probably in January 2016, and this is supported by confirmation of PRSI contributions made by the Respondent up to the end of 2015, and where the Complainant received pay slips in February 2017 indicating he was being paid by the new economic entity. In addition, the Complainant’s last P60 issued by his former employer was issued for the year ending December 2014.

I find that a transfer therefore had taken place, most probably by January 2016, and the Respondent failed to consult and inform the Complainant as required.

CA-00013944-003 Complaint under section 27 of the Organisation of Working Time Act, 1997      

Section 19(1)(a) of the Organisation Of Working Time Act 1997 provides for an employee to be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to 4 working weeks in a leave year in which he or she works at least 1,365 hours.

As the Complainant has worked these hours he is entitled to 4 working weeks paid annual leave. In the absence of any response, I uphold the Complainant was not provided with 10 days of his annual leave entitlement each year.

In accordance with section 41 of the Workplace Relations Act, 2015 I may not entertain a complaint under the Organisation of working Time act, 1997 if it has been presented after the expiration of the period of six months beginning on the date of the contravention to which the complaints relate. However, under section 41(8) of the Workplace Relations Act, 2015 I may entertain a complaint if I am satisfied that the failure to present the complaint within the statutory time limits was due to reasonable cause.

I am satisfied the Complainant was seeking payment of his entitlements from the Respondent after his dismissal, and he genuinely understood these entitlements would be paid to him. In light of this I find the delay in the Complainant not submitting his complaint to the WRC until after six months was reasonable, and I therefore find the Complainant is entitled to the ten days annual leave due to him for 2016.

CA-00013946-001 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 put in S4(2)(d)- if the employee 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 his statutory notice period and accordingly find that the Respondent is in contravention of Section 4 of the Act.

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; and 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.

CA-00013944-001 Complaint under Section 39 of the Redundancy Payments Act, 1967

I have found the Complainant was made redundant.

The Complainant’s start date was 1st June 2004 and he was made redundant on 21st February 2017, this being the date of the termination of his employment. He has 12.75 years’ service with the Respondent.

The Complainant rate of pay was €576 gross per week.

I hereby decide the Respondent is to pay the Complainant an entitlement of 26.48 weeks’ pay, amounting to amounting to €15,252.48.

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.

This decision is based on uncontested evidence as the Respondent did not attend the hearing or make a submission to the Adjudication.

CA-00013944-002 Complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)      

Section 10 of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 requires that I make a decision in relation to the Complaint, and declare that the complaint is or, as the case may be, is not well founded.    The Complainant submitted that the transfer of the business took place in January 2016 and he lodged his complaint to the WRC on 14th September 2017.

In accordance with 10.(6) of the Regulations, I cannot entertain a complaint under this Regulation unless it is presented to me within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where I am satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as I consider reasonable.

As the transfer of the business appears to have taken place in January 2016, as asserted by the Complainant, I therefore find this complaint is out of time. Accordingly, as a period greater than 12 months has lapsed since the alleged contravention I am precluded from entertaining this complaint.

CA-00013944-003 Complaint under section 27 of the Organisation of Working Time Act, 1997      

A decision of an Adjudication Officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of S19 of the Organisation of Working Time Act, 1997 shall do one or more of the following, namely:

1. declare that the complaint was or, as the case may be, was not well founded,
2. require the employer to comply with the relevant provision,
3. require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

In the circumstances I find that the Respondent was in breach of Section 19 of the Organisation of Working Time Act, 1997 and accordingly decide the complaint is well founded. I therefore order the Respondent to pay the Complainant the sum of €1,152 for the non-payment of his annual leave entitlement during 2015, plus €1,000.00 in compensation, i.e. a total payment of €2,152 must be paid to the Complainant.

CA-00013946-001 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

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 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 employee compensation of six weeks’ pay, which represents his statutory notice, and amounts to €3,458.7.

Dated:   1st August, 2018.

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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