Complainant

Respondent

Anonymised Parties

A Veterinary Assistant

A Veterinary Business

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00019312-001

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00019312-003

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019312-004

21/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019312-005

21/05/2018

This case ran on October 22 last following an earlier postponement in August 22. The case concerns the span of employment undertaken by the complainant in a Veterinary practice over the course of 6 years. The practice has now closed and the Respondent has relocated to Europe maintaining a 2-3 monthly attendance in Ireland. Issues arose for the Respondent about the scheduling of both hearings in August and October. The Respondent applied for and secured a postponement in August 2018 citing “work obligations abroad “

CA-00019312-001: Claim for Redundancy: The Complainant sought application of Section 7 of the Redundancy Payments Acts to her termination of employment. She based this on her continuous service as a sole employee from September 2011. She sought access to a lump sum payment on termination calculated on the redundancy calendar as €5115.00. The complainant contested the duration of the time the respondent attributed to her a direct employee. The Complainant stated that she was directed by the Respondent always, and had no autonomy. She had replaced a Polish employee and she donned the Uniform of the business. The Complainants Solicitor relied on case law in Kirwan V Dart Industries and Leahy 1980 and referred to the test where the EAT set out a number of factors to be considered in determining the status of an employee as opposed to a contractor .The Complainant submitted that the Respondent had acted in bad faith in underpaying the complainant in terms of her supplementary payment to the tune of €1,250.00 and she had not been paid notice .She was currently subsisting on job seekers benefit .She had endeavoured to open a conversation on her rights to a Redundancy payment on 19 December, 2017 and she was informed that she “ was wrong “

CA-00019312-003 Terms of Employment The Complainant outlined that she had never been provided with a statement of her terms of employment. This contravention of Section 3 of the Act had disadvantaged her in her employment and her Solicitor sought a maximum award in compensation.

CA-00019312-004 Annual Leave: The Complainant submitted that she was owed 99.84 hours of annual leave as cessor pay   at €15.62 per hour based on the salary of €375 per week. In responding to the Respondents paper submission, she recalled taking some days sick for which she believed that she was paid. She also recalled the Respondent son working in the practice during the summer of 2017 and the Respondent remarked that he wasn’t going “to pay both of you “. She disputed that she had taken her full leave.

CA-00019312-005     This Claim was withdrawn by the Complainant at the commencement of the Hearing

There was no appearance by the Respondent in this case. A late application for a second postponement of the case was refused one day before the hearing. The Respondent submitted a paper submission on 10 August 2018. This disputed the complainant’s status as a direct employee prior to January 1, 2016 and confirmed that she had been a private contractor up to this point

CA-00019312-001 In the Respondent paper submission dated August 10, 2018, he stated that the complainant did not have the require service to ground a claim for Redundancy as she did not commence direct employment prior to January 1, 2016 and did not 24 months continuous employment.

CA-00019312-003 Terms of Employment. There was no defence to this claim.

CA-00019312-004 The Respondent submitted on his paper submission that all annual leave had been taken by the complainant. He submitted records of leave taken in 2016 and 2017.

CA-00019312-005 The Respondent confirmed compliance with Public Holiday requirements.

I have considered the claims before me. I allowed ample time for the Respondent to attend the hearing. He did not appear. I was struck that he had applied for a postponement in August 2018 to permit his attendance but relied on an inability to get time off to attend the hearing on both occasions. I have found that the Respondent has not demonstrated any respect for the Statutory Employment body or indeed a former employee and the claims have been sought to be avoided.

My findings in this case are based on uncontested evidence. I found the paper submission of 10 August from the Respondent to be of limited benefit with no probative value.

CA-00019312-001 For the purposes of the Redundancy Payments Acts, an employee is dismissed because of redundancy, if “for one or more reasons not related to the employee concerned, his dismissal is attributable “wholly or mainly “to one of the five situations outlined in Section 7(2) of the Act. This is also accompanied by a right to a redundancy lump sum payment. I explored the nature of the complainant’s employment relationship and based on her uncontested evidence, I have found that she commenced and concluded her span of employment as an employee. I appreciate that there was a background of Revenue interface with the Respondent, but this did not alter the employment relationship outside a stratification in the payment of wages in 2017. I am satisfied in all the circumstances of the case that the complainant satisfied employee status. I am further satisfied that her employment was ended by way of Redundancy in accordance with Section 7(2) (c) of the Act on 22 December 2017 without notice. Notice of Redundancy ought to have been issued in this case, as it would have facilitated the complainant with time off to secure new work. I commend the complainant’s efforts to resolve this situation on December 19 by way of direct communication. I find the claim to be well founded.      

CA-00019312-003 Terms of Employment. I accept the uncontested evidence of the complainant on this claim. I have established a connection between the ongoing lack of compliance with Section 3 of the Act and the circumstances surrounding the complainant’s termination of employment. She did not possess concrete documentation on her employment and this militated against a respectful termination of employment. In accordance with my powers under Section 7 of the Act, I find that compensation is the most just and equitable remedy for the continuous breach of Section 3 of the Act. I find the claim to be well founded.

CA-00019312-004 Annual Leave. The Complainant outlined that she had accrued 99.84 hours annual leave entitlement as 8% of hours worked. She submitted that she was owe €1559.50 in cessor pay. The Respondent claimed that he had no liability in this regard. Given that I did not have the benefit of a record of the way the Respondent paid the complainant for annual leave taken and in considering the complainants uncontested evidence I have found that the complainant should receive 80 hours of cesser pay in accordance with Section 23 of the Act. I find the claim to be well founded.

CA-00019312-005 This Claim was withdrawn at the commencement of the hearing.

Redundancy, Terms of Employment, Annual leave.