Complainant

Respondent

Anonymised Parties

A childcare worker

A leisure facility

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017756-001

05/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00017756-002

05/03/2018

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

CA-00017756-003

05/03/2018

The complainant filed her complaints on 5 March 2018, together with an identical complaint about a related company, which I had to dismiss for lack of jurisdiction because it had been dissolved. Both parties were informed by letter of the date of the hearing on 11 May 2018.   The owner of the both the current and former respondent companies was informed at the address given in the CRO database, which lists the within respondent as a going concern.   I held the hearing on 22 May 2018, but the respondent did not appear and was not represented. The respondent did not engage with the Commission during the entire process.

CA-00017756-001 – Redundancy:

The complainant is a play centre worker at a leisure facility. She stated in evidence that she commenced employment on 2 May 2012 with the previous owners of the business. Two years into her employment with the previous owners, she was shown a contract of employment and signed it, but never received a copy.   She did, however, receive correct payslips and pay.   In March 2016, the business transferred to the respondent company. Her working conditions deteriorated markedly. Her hours became irregular, and she and her colleagues were paid in cash in envelopes every week, and wrong amounts almost all the time. When staff highlighted this, or complained, they were screamed at and abused. Five staff had their employment terminated after the transfer.

The complainant went on sick leave in May 2016 and remained sick for a year. She regularly sent in sick certs. In May 2017, she called the owner of the respondent company to enquire about a return to work, and was advised that the company had gone out of business in March 2017. The complainant then requested her P45 and her P60 forms, which were subsequently issued to her. Her P45 was dated 2 April 2017. When the complainant asked the respondent about her redundancy payment, the respondent owner told her that he had no obligation toward her because she only worked for him for a few months, and that “receivers came and took the building back unannounced.” This was on 7 September 2017.   The complainant’s representatives sought to engage with the respondent on this matter, but with no success. On 5 March 2018, the complainant lodged her complaint.

As regards the identity of her employer amidst the number of companies which belong or belonged to the respondent owner, the complainant points out that her P60 and P45 both have the employer number of the within respondent.

It is the complainant’s argument that as per the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, a transfer of undertaking does not break continuity of service, which is correct.

The complainant seeks redress in the form of statutory redundancy.

CA-00017756-002 – Minimum Notice:

The complainant stated that due to the manner in which her employment came to an end, which is outlined above, she did not receive her statutory notice or pay in lieu of notice as per the Minimum Notice and Terms of Employment Acts 1973 to 2005. Given that the complainant had just under five years’ service at the date of her dismissal, she states that this entitles her to two weeks’ pay in lieu of notice.

CA-00017756-003 – Holiday Pay:

The complainant submits that due to her lengthy absence on sick leave, she remains entitled to payment in lieu of annual leave for 2016 as follows:

She worked 19 hours per week on average. This would have been 988 hours per year. 8% of this figure amount to an annual leave entitlement of 79 hours.

The respective hours for 2017 are 19 hours per week by 12 weeks = 288 hours. 8% of this amount to an annual leave entitlement of 18 hours.

The complainant was paid €10 per hour.

As noted above, the respondent did not engage with Commission in respect of the within complaints.

Based on the uncontroverted evidence of the complainant, who I experienced as a reliable witness, and the documentary evidence she was able to adduce, I am satisfied that all three complaints raised by her are well founded.

I am also satisfied, based on the available evidence, that the within respondent was the complainant’s employer.

The complainant’s complaints under the Minimum Notice and Terms of Employment Act and the Organisation of Working Time Act are out of time pursuant to the relevant statutory provisions in these Acts. However, based on the uncontroverted evidence of the complainant and her representatives, I am accepting their evidence of their fruitless efforts to engage with the within respondent as reasonable cause for extending time. I am therefore granting an extension of time for CA-00017756-002 and CA-00017756-003 pursuant to S. 41(8) of the Workplace Relations Act, 2015, to 12 months. This brings the complaints in time.  No such issues arise with respect to CA-00017756-001.

CA-00017756-001: I find that under the Redundancy Payments Acts 1967-2012 and based on the complainant having insurable employment for the duration of her employment, the complainant is entitled to a redundancy lump sum from the respondent based on the following:

Date of commencement:   2 May 2012

Date of termination:   2 April 2017

Gross weekly pay: €193.90

CA-00017756-002: I find that under the Minimum Notice and Terms of Employment Acts 1973 to 2005, the complainant is entitled to two weeks’ pay in lieu of notice from the respondent. The sum the complainant is entitled to is €387.80, based on an average weekly pay of €193.90, subject to lawful deductions.

CA-00017756-003: I find that pursuant to S. 23 of the Organisation of Working Time Act, as amended, the complainant is entitled to payment of €970, this being 97 hours at €10 per hour, from the respondent in lieu of untaken annual leave on cessation of employment. Again, this is subject to lawful deductions.

I order the respondent to pay the above sums to the complainant.

Redundancy Payments Acts 1967 to 2012 – Minimum Notice and Terms of Employment Acts 1973 to 2005 – Organisation of Working Time Act 1997 – redundancy lump sum – pay in lieu of notice – pay in lieu of annual leave on cessation of employment – time limits – reasonable cause – identity of employer.