ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011710
Parties:
| Complainant | Respondent |
Anonymised Parties | Supervisor | Manufacturer of plastic goods |
Representatives | Self-represented | Did not attend |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00015548-001 | 02/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00015997-001 | 26/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00015997-002 | 26/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00015997-003 | 26/11/2017 |
Date of Adjudication Hearing: 12/02/2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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:
The complainant worked as a supervisor from 1/11/2009 with Company A which transferred its assets and all of its employees to the respondent on 11 October 2016 and worked thereafter with the respondent up until his dismissal on the11/8/2017. The respondent produces plastic wrapping.He works a 60-hour week, 8 am – 8pm 5 days a week. He works every second week on night shifts. He is paid €13.50 per hour.He was not paid the correct amount in respect of his annual leave entitlements. He was not paid his statutory notice. He was unfairly dismissed on the 5 July 2017. He presented his complaints to the WRC on 2/11/2017 and on the 26 11 /17. |
Summary of Complainant’s Case:
CA-00015548-001. The complainant works with the respondent as a supervisor. The complainant has no contract of employment. He has an entitlement to payment for 20 days annual leave. He advises that he has not received his annual leave entitlement since 2013. He is claiming a payment of €1126. This equals the difference of a holiday payment based on the 60 hours which he states he worked per week and not the incorrect calculation of holiday pay based on a 40-hour working week. He is seeking payment for incorrect holiday pay back to November 2015. He refers to another complaint, ADJ number 00009998 lodged with the WRC dealing with the issue of holiday pay. CA-00015997-001 He is seeking payment in respect of bank holiday entitlements. CA-00015997-002. He is claiming that he was unfairly dismissed on the 11/8/2107. The respondent’s supervisor sent a text message to the complainant on the 5 July stating that he had no materials and no work for the complainant for a couple of days. He received a letter on the 17 July stating that the respondent did not know when and if there might be work. This was a letter addressed to all staff as a financial provider had withheld funding from the respondent. The complainant received a text message on 21 July to state that here might be two nights work per week. He worked on 21 and 22 July. On 3 August the respondent advised the complainant that there would be work available but on reduced hours and earnings. The respondent called the staff to a meeting a meeting on the 3 August. The respondent advised his employees that redundancy was required. Eight employees including the complainant self-selected for redundancy. The respondent agreed that the complainant could take voluntary redundancy. The complainant submitted copies of correspondence denoting that redundancy was agreed between him and the respondent. The complainant submitted the requisite redundancy form to the employer. On 9 August the respondent asked him to change his working hours on the RP 50 from 60 to 40 hours. The respondent completed the forms on the 11 august 2017 He has received no redundancy payment. The respondent company continued to exist after July 2017.The company retained 15 employees and made 8 redundant. They had no procedure for selection. He believes that was unfairly dismissed: the employer did not advise him of his right to be represented at the meeting at which redundancy was discussed. The respondent company continued to exist after July 2017.The company retained 15 employees and made 8 redundant. They had no procedure for selection. The respondent advised the complainant that he could not pay redundancy and to apply to the statutory fund The complainant took up another position on the 6 November, working 2 days a week and earning a gross wage of €148 per week.
CA-00015997-003. The last payment received by the complainant was in early July and that was for the last 2 weeks in June. Based on his service which is in excess of 7 years, he is entitled to payment of 4 weeks’ notice.
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Summary of Respondent’s Case:
CA-00015548-001 The respondent though duly notified did not attend the hearing, nor submit evidence or a reason for his absence. CA-00015997-001 The respondent though duly notified did not attend the hearing, nor submit evidence or a reason for his absence. CA-00015997-002 The respondent though duly notified did not attend the hearing, nor submit evidence or a reason for his absence. CA-00015997-003 The respondent though duly notified did not attend the hearing, nor submit evidence or a reason for his absence.
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Findings and Conclusions:
CA-00015548-001 An Adjudication decision, reference ADJ 00009998, has issued in respect of his complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00015997-001 An Adjudication decision, reference ADJ 00009998, has issued in respect of his complaint under section 27 of the Organisation of Working Time Act, 1997. . CA-00015997-002 The complainant contends that he was unfairly dismissed. The complainant’s own uncontested evidence is that staff were invited to self-select for redundancy. Eight employees including himself did so. He applied and filled out the requisite forms. The respondent agreed to this request for redundancy. The complainant submitted letter dated 8 August 2017 from the respondent advising him of inability to pay the redundancy sum but advising the complainant to apply for statutory redundancy. The complainant’s own evidence is that the respondent completed the RP 50 form. The complainant also submitted a letter dated 11 August from the respondent stating that the complainant had accepted and taken redundancy. I do not find that the remedy for non- payment of redundancy monies for which the complainant applied lies in the Unfair Dismissals Act, 1997 CA-00015997-003 Based on the uncontested evidence of the complainant who states that he received no payment in lieu of notice and in accordance with the requirements of section 4(2)(c) of the Minimum Notice and Terms of Employment Act, 1973, I find that his complaint is well founded. His P45 for the period 1 January- 22 July, the date of cessation on the P45, reveals a gross income of €19,700 or €679 gross per week (50 x €13.50 per hour). Hence his entitlement is €2716. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00015997-002. I do not uphold this complaint. CA-00015997-003. I find that the complaint is well founded. I decide that the respondent should pay the sum of €2,716 which is equal to 4 weeks wages to the complainant subject to all lawful deductions. |
Dated: 4 October 2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Non-payment of redundancy monies. Non– payment of notice |