ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00012002(Conjoined with ADJ 11996)

Parties: 

Complaints:

Date of Adjudication Hearing:  01/05/2018

Workplace Relations Commission Adjudication Officer:  Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act , 2015,  Section 39 of the Redundancy Payments Acts 1967 - 2014 , Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 6 of the Payment of Wages Act , 1991, Regulation 18 of EC ( Road Transport) Organisation of Working Time of persons performing mobile road transport activities Regs 2012.S.I 36/2012 and Section 7 of the Terms of Employment ( Information ) Act , 1994 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:

Summary of Complainant’s Case:

The Complainant is a Carpenter who commenced work for the Respondent on 23 May, 1999.He worked as a full time permanent employee and his duties included manual handling and the operation of machinery.

Counsel for the Complainant submitted that the complainants gross pay was €658.29 per week. He had not been furnished with a contract of employment, payslips or a P45. A record of a continuous period of PRSI A1 contributions was submitted in evidence.

On 24 November 2016, the Complainant received a letter which stated “I do not have any work at this time for the complainant “.

Counsel for the complainant clarified that all claims save for the single claim for a Redundancy payment were being withdrawn at hearing. He submitted that some uncertainty had arisen in establishing the correct identity of the complainant’s employer and several potential respondents were cited on the complaint form.

 In early December 2016, the Complainant had experienced instability in his financial payments received from the Respondent when two cheques bounced. 

The Complainant submitted that uncertainty had lingered in relation to the correct title of the Respondent and on 21 November 2017 Revenue confirmed that the Respondent was the named Respondent outlined in ADJ 1196.

The Respondent handed the Complainant an RP50 form in early January, 2017 and completed the employee section on 12 January 2017. The form was never completed and the complainant had been denied his statutory lump sum Redundancy payment.

Counsel for the Complainant submitted that the Complainant satisfied the test for Redundancy outlined in Section 7(2) (b) (c) and (d) of the Act. He had the 104 weeks’ continuous service prior to the date of dismissal. The Complainant had not been replaced and the Respondent continued to trade.

The Respondent had not addressed his liability for Redundancy payment through arguments of inability to pay, solvency or financial position.

Counsel argued that the Complainant was entitled to the lump sum payment 36.04 weeks which amounted to €21,624.00. The Complainant had been in the dark on the reasons for this refused payment.

Summary of Respondent’s Case:

The Respondent attended at hearing and gave evidence of a difficult trading period where he had struggled to meet wages. He had encouraged the complainant to become a Sole Trader where he would be able to offer him work. He gave the name of the employer as that cited on ADJ 11996.

The Respondent did not dispute the claim for redundancy but pleased inability to pay. He undertook to furnish proof of this via his Accountants Office within two weeks of the Hearing. This was received on May 18, 2018 and exchanged with the Complainant.

The Accountants report clarified the legal entity as the Employer cited in ADJ 11996. The report confirmed that the Respondent had experienced significant financial difficulties over the last decade and could not  meet the claim for Redundancy. The Report reaffirmed that the Redundancy was not contested. 

Findings and Conclusions:

The Claim for a Redundancy Payment is the sole claim remaining from the original compliant form dated November 21, 2017. All other claims were withdrawn at hearing by the complainant’s representatives and this was accepted by the respondent.

Having heard and considered the submissions of the parties and having reviewed the Accountant report dated May 18, 2018. I find that the Employer is not correctly identified in this claim.

Given that this claim is conjoined with ADJ 11996, I have established that the employer is   correctly titled in the body of that complaint and I will proceed now to make a decision in that case.

Dated:   August 31st 2018

Workplace Relations Commission Adjudication Officer:  Patsy Doyle

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