ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014478

Complaint(s):

Date of Adjudication Hearing: 16/07/2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure & Background:

In accordance with Section 41 of the Workplace Relations Act 2015 and/or Section 39 of the Redundancy Payments Acts 1967-2014, following the referral of the aforesaid complaints to me by the Director General of the Workplace Relations Commission (hereinafter ‘WRC’), I inquired into the complaints and gave the Parties an opportunity to be heard and to present any relevant evidence. The Complainant referred these complaints to the WRC on 3rd May 2018 in circumstances where the Respondent had ceased trading suddenly and had terminated his employment without discharging his statutory entitlements to redundancy (Section 39 of the Redundancy Payments Act 1967), minimum notice (Section 11 of the Minimum Notice & Terms of Employment Act 1973) and annual leave (Section 27 of the Organisation of Working Time Act 1997). All of these complaints were made within the requisite time-limits. The Complainant sought awards of compensation against the Respondent for the purposes of applying to recover same from the Social Insurance Fund operated by the Department of Social Protection. The complaints were adjusted on consent to reflect those made within the body of the complaint form. I proceeded to hearing on 16th July 2018. The Complainant represented himself and consented to having his complaints heard along with five other Complainants and former colleagues with identical complaints against the same Respondent. There was no appearance on behalf of the Respondent. Before proceeding, I confirmed that the Respondent had not made any application for an adjournment, indicated any difficulty attending or otherwise engaged with the WRC. I further satisfied myself that the Respondent had been properly notified of the date, venue and time for the hearing at its current registered address and noted that correspondence sent by the WRC to the Respondent at that address had been returned to the WRC marked ‘gone away’. I also confirmed that the CRO had not been updated with the details of an official liquidator. All evidence presented including additional supporting documentation received after the hearing, along with the relevant statutory provisions have been taken into consideration.

CA-00018932-001 – Non-payment of Statutory Redundancy

Summary of Complainant’s Case:

The Complainant gave direct evidence confirming that he had been employed by the Respondent, a Mechanical Engineering Company from 20th October 2014 until 30th November 2017 as a Technician. He was based at one of the two sites operated in Ireland by the Respondent. At the time of termination of his employment, his remuneration was €770 gross per week (equating to €40,000 per annum) and he was paid monthly. He furnished a contract of employment and payslip confirming same. On 30th November 2017, the Complainant received a letter confirming: “It is with regret that, due to a shortfall in project work, the company now has to notify you that you are being laid off in accordance with your contract, with effect from close of business on the 30 November 2017. May we assure you that the company is doing everything possible to secure more projects and will notify you as soon as you are required to recommence work. As you may be entitled to benefits, this letter should be taken to your Social Welfare Office as proof of you’re being laid off.” He was also furnished with a completed RP9 Form – ‘Notification to Employee of Temporary Lay Off’ which stated the reason of lay-off to be “cash flow due to non-payment by client”. Although there had been delays with wages, the Complainant and his colleagues had not received any notice of these difficulties. After the Notification to Employee of Temporary Lay Off, the Complainant was not afforded any further work with the Respondent. On 22nd December 2017, the Managing Director called a meeting of the employees on that site and informed them that the Respondent was ceasing trading with immediate effect owing to financial difficulties and they were being made redundant. He reassured them that they would receive their outstanding statutory entitlements.

By email dated 2nd January 2018, the Complainant received a letter dated 24th December 2017 from the Managing Director apologising for the closure and confirming that he was being made redundant along with all the other employees. It stated: “There will be a meeting held around the 12th January 2018 to explain the next steps, this date will be confirmed”. It further stated that: “…where applicable, statutory redundancies and holiday pay will be maintained and paid to you in due course. If necessary, please take this letter and the attached P45 to your local employment office should you wish to sign on.” A screenshot of a P45 was included but was illegible and a clear copy was not provided until early January 2018. The Complainant emailed the Office Administrator on a number of occasions seeking an update on the redundancy situation and contact details for the liquidators. He received an apologetic email dated 23rd January 2018 from the Administrator, confirming that the Respondent was entering a liquidation process but that the timescale was unclear as the Managing Director was off work sick and further stating: “I have been asked to assure you that your statutory rights for holiday and redundancy pay remains intact and more details on this process will follow in the coming weeks. I understand that this is a difficult time and I can only ask that you bear with us for a little longer.” Thereafter the Managing Director appeared to go to ground and the proposed meeting of 12th January 2018 did not go ahead. The Complainant did not hear anything further from the Respondent or receive any payment in respect of his statutory entitlements. Numerous efforts by the Complainant and his colleagues to contact the Company Director proved unsuccessful. The sudden termination of his employment was particularly difficult and stressful owing to the fact that it fell within the Christmas period. He sought a decision confirming his statutory entitlements.

Summary of Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. The Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.

Findings & Conclusions:

The relevant legislation provides that in order to qualify for a statutory redundancy payment, an employee must (1) have at least two years’ continuous service, (2) be in employment which is insurable under the Social Welfare Acts, (3) be over the age of 16 and (4) have been made redundant as a result of a genuine redundancy situation.Based upon the Complainant’s unrefuted evidence as confirmed with supporting documentation, I am satisfied that he meets all the criteria and was made redundant on 30th November 2017 when the Respondent placed him on temporary lay-off and thereafter did not offer him any additional work before ceasing to trade on 22nd December 2017. I am further satisfied that the Respondent has not paid the Complainant his statutory redundancy.

Decision:

Section 39 of the Redundancy Payments Act 1967 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under that Section if successful. Based upon the aforesaid, I find that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967-2014 in accordance with the following particulars:

Gross Weekly Pay: €770

Date of Commencement of Employment: 20th October 2014

Date of Termination of Employment: 30th November 2017

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts for the relevant period, being a matter for the Department of Social Protection.

CA-00018932-002 – No Notice or Payment in Lieu of Minimum Notice

Summary of Complainant’s Case:

In relation to this complaint, the Complainant confirmed that subsequent to having had his employment terminated suddenly as outlined above, he had not received any notice or pay in lieu of his minimum notice entitlement. He was entitled to two weeks’ notice for having between two and five years’ service under Section 4 of the Minimum Notice & Terms of Employment Act 1973.

Summary of Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. The Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions. Section 4(1) of the Minimum Notice & Terms of Employment Act 1973 provides: “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 provisions of subsection (2) of this section.” Section 4(2) sets out the periods of minimum notice to be given by an employer to terminate the contract of employment of an employee based upon years of service. Relevant to the Complainant’s service, Section 4(2) provides: “(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,”.  Based upon the Complainant’s unrefuted evidence as corroborated with relevant documentation, I am satisfied that the Respondent failed to give the Complainant two weeks’ notice of the termination of his employment or payment in lieu.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint and if successful, in accordance with the relevant redress provisions under Schedule 6 of that Act and Section 12(1) of the Minimum Notice & Terms of Employment Act 1973 which provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.” Having found this complaint to be well-founded, I direct the Respondent to pay the Complainant €1540 in compensation (comprising of two weeks’ pay), being the loss sustained by reason of the contravention.

CA-00018932-003 – Outstanding Annual Leave or Payment in Lieu

Summary of Complainant’s Case:

The Complainant gave evidence confirming that at the time of the sudden termination of his employment as outlined above, he was entitled to 14 days’ annual leave and had not received payment in lieu of same, contrary to Section 19 of the Organisation of Working Time Act 1997.

Summary of Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. The Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions. In relation to annual leave, Section 19 of the Organisation of Working Time Act 1997 sets out the relevant provisions. Relevant to this complaint, Section 19(1) provides that: “… an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to- (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.” The Complainant’s contract further provided for 21 days’ annual leave. Section 23 provides that payment in lieu of outstanding annual leave becomes payable upon the cessation of employment. Based upon the Complainant’s unrefuted evidence as corroborated with relevant documentation, I am satisfied that he was entitled to 14 days’ annual leave at the time of the termination of his employment and the Respondent failed to make payment in lieu of same.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint and if successful, in accordance with Schedule 6 and Section 27(3) of the Organisation of Working Time Act 1997 which provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) 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.” Having found this complaint to be well-founded, I require the Respondent to pay the Complainant €2656 (comprising of €2156 in lieu of 14 days’ annual leave and €500 for breach of the Act) as being just and equitable having regard to all the circumstances.

Dated:   6th November 2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Termination of Employment - Statutory Redundancy - Minimum Notice - Annual Leave