ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010969
Parties:
| Complainant | Respondent |
Anonymised Parties | A Shop Assistant | A Retail Premises |
Representatives | In Person | IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00014687-001 | 29/09/2017 |
Date of Adjudication Hearing: 20/12/2017
Workplace Relations Commission Adjudication Officer: Michael Hayes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The complainant works as a shop assistant and has been employed by the respondent since the 24th of January 2013. She earns €393 net per week. The parties made oral submission to the hearing. |
Summary of Complainant’s Case:
The complainant submits that she was asked to attend a meeting on the 25th of May 2017 at which she was told that her workplace was to be refurbished. She was asked to make a social welfare claim as the respondent was not able to pay her. The closure commenced on the week of the 29th of May for a period of three weeks. There was no difference on her return and she was short of €600 for the period in question. There are two separate shops adjacent to one another either of which could be closed off to facilitate work. |
Summary of Respondent’s Case:
The respondent submits that its board took a decision on the 25th of May 2017 to cease operations at the premises and informed staff on the same day. The decision was taken based on an informal report/observation of a consulting engineer who surveyed the premises during the week on which it was made. The service manager had initiated the process in May when he asked the question concerning Health and Safety Regulation with emphasis on fire assessment and certification. He met with staff on the 25th inst. and offered HR support if required. The respondent relies on the authority of the EAT as it relates to s. 11 of the Redundancy Payments Act, 1967. |
Findings and Conclusions:
The respondent confirmed that there was no contractual provision extant concerning the issue of lay-off. The complainant stated that the premises was closed for refurbishment for a two-week period in December 2016. The respondent stated that staff were facilitated by recourse to annual leave. The complainant demurs to the extent that she says a colleague was paid. Referring now to the respondent’s reliance upon of the Redundancy Payments Act, 1967 which states at s. 11(1): - (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent and (b) the employer gives notice to that effect prior to that cessation, that cessation shall be regarded for the purposes of the Act as lay-off. I agree that the above noted s. 11 is relevant generally however I am of the view that it should be notified in advance of application. Independent of my view in the matter, a closure precedent existed (offer to facilitate the taking of annual leave) in this case. It is my view that a reasonable employer would have afforded staff at least a choice in the matter. Accordingly, I find for the complainant. |
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.
The complaint is well founded and I hereby require that the respondent pay the complainant €600 (say six hundred euro) net for breach of s. 5 of the Act. |
27/08/18
Dated:
Workplace Relations Commission Adjudication Officer: Michael Hayes