Complainant

Respondent

Anonymised Parties

A Plumber

A Hotel Company

Representatives

 SIPTU

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-00016887-001

17/01/2018

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

CA-00016887-002

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00016887-003

17/01/2018

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

CA-00016887-004

17/01/2018

The respondent is a hotel company and on December 1st 2016 it came under new ownership. The complainant was recruited by the previous owners on December 8th 2014 on a fixed-term contract for three months; however, his contract was extended a number of times before the new owners took over. He worked as a plumber on the company’s re-fitting team. On May 17th 2017, the new owners issued him with a final fixed-term contract with an end date of October 31st 2017, when his employment was terminated. His complaint is that, unlike his colleagues on permanent contracts, he was not paid a redundancy lump sum. He also claims that, at the termination of his employment, he did not get his full entitlement to holidays and minimum notice.

When he was employed by the respondent, the complainant’s hourly rate of pay was €15.00 and he worked 39 hours a week.

In the booklet submitted at the hearing, the complainant submitted a copy of his final payslip showing that, on November 9th 2017, he was paid for 117 hours’ in lieu of holiday not taken before his employment was terminated. In the correspondence received from the respondent on March 20th, this was said to be equivalent to 14.63 days.   As he was employed by the respondent for 10 months, in accordance with the minimum legal entitlement to 20 days per year, he was entitled to 16.67 days up to his last day of employment.   He therefore claims that he has been left short of 2.04 days of holiday pay.  

In their booklet, the respondent submitted a schedule of the holidays taken and paid in lieu in 2017.   Copies of payslips show that in his fortnightly pay on January 19th, he was paid for two days’ holidays. In the correspondence sent to me on March 20th, the HR Manager said that this was an error and related to December 29th and 30th 2016 and should not have been taken out of the 2017 leave year entitlement.

The respondent’s records also show that on August 31st 2017, the complainant took one day’s holiday.  

On this basis, the complainant took one day’s holiday and was paid in lieu of 14.63 days, a total of 15.63 days out of an entitlement to 16.67 days, a shortfall of one day.   In her correspondence of March 20th 2018, the HR Manager said that she would correct this discrepancy.

Having examined the information presented at the hearing and the correspondence sent to me afterwards, I find that the complainant was left short of one day’s pay in respect of holidays not taken before the termination of his employment in 2017.   I am happy to note that the company has agreed to resolve this matter.

No decision is required in respect of this complaint as the respondent has agreed to pay the complainant the shortfall of one day’s pay in lieu of holidays not taken in 2017.

For the complainant, Mr Dorda argued that, as an employee on a fixed-term contract which lasted for more than two years, the complainant was entitled to be made redundant at the termination of his employment. He made this claim on the basis that, the reason for the termination of the complainant’s employment falls within the definition of redundancy set out in the Redundancy Payments Act 1967.

The respondent’s case is that the complainant was employed on a series of fixed-term contracts to carry out refurbishment of their hotels and that it was always the case that his employment would be terminated when the re-fitting was completed. Their position is that the complainant’s employment was terminated on October 31st 2017 on the expiry of his fourth fixed-term contract. The representatives for the respondent said that it was understood by both parties that his employment would come to an end when the work on the hotels was finished.   The refurbishment project was completed in October 2017, with the result that the complainant’s employment was terminated at the end of that month.

The Relevant Law

Where a fixed-term contract is terminated, the employee can be made redundant if the termination falls into the classification of redundancy set out in section 7 of the Redundancy Payments Act 1967 – 2014 (“the Act”). In summary, redundancy is defined as circumstances where:

(a) The business has closed or the place where the business was carried out has changed;

(b) There is a requirement for fewer employees in the business or at the place where the business was carried out;

(c) The employer has decided that the work that that was done by the employee could be done by fewer or no employees;

(d) The job will be done in future by a person who is more qualified or trained than the employee;

(e) The job will be done by a person who is also capable of other work that the employee is not qualified or trained to do.

It is clear from what was stated at the hearing, that the complainant’s job was redundant because, due to the completion of the refurbishment project, there was a requirement for less employees.

Findings

The complainant was recruited in the first instance to work on the re-fitting of the respondent’s hotels, a project which was completed on October 31st 2017.   As a result, there was a requirement for fewer employees, as provided for in section 7 of the Act. On that date, the complainant had completed more than two years of service and he is therefore eligible for a statutory redundancy payment.

Conclusion

The complainant is eligible for a redundancy payment because he met the service qualification of two years under the Redundancy Act in circumstances where his employer needed less employees. The fact that he was engaged on a series of fixed-term contracts with a definitive end date does not invalidate this entitlement.

As I have concluded that this complaint is well-founded, I have decided that, subject to the complainant’s PRSI status, the respondent is to pay him a redundancy lump sum calculated on the same basis as that which applied to eligible permanent employees.

On behalf of the complainant, Mr Dorda argued that the Protection of Employees (Fixed-term Work) Act 2003 provides for the principle of no less favourable treatment between fixed-term and permanent employees of the same employer. As they have made it clear that the reason the complainant was not given a redundancy payment was because of his status as a fixed-term employee, it is apparent that he would have been entitled to redundancy if he had been a permanent employee.

The respondent’s case is that the complainant’s employment was terminated on the expiry of his fixed-term contract. They argue that because he signed his fixed-term contract, and specifically, because he signed the contract issued on May 17th 2017 which provides for an end date of October 31st 2017, he accepted that his contract would come to an end on that date.

The Relevant Law

As an employee on a fixed-term contract, the complainant’s employment was governed by the provisions of the Protection of Employees (Fixed-term Work) Act 2003. Section 6(1) of the Act provides that,

“Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.”

Subsection (2) provides that a fixed-term employee may be treated in a less favourable manner compared to a permanent employee if that treatment can be justified on objective grounds.

Subsection (5) provides that a fixed-term employee who works less than 20% of the hours of a comparable permanent employee, may be excluded from the pension scheme that applies to the permanent employee.

Section 5(1)(a) of the Act sets out a definition of a “comparable permanent employee:”

“For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—

(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees…”

Section 5(2) sets out the conditions that are referred to in 5(1)(a) above:

“(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.”

The effect of this legislation is, that a fixed-term worker, in respect of their conditions of employment, must not be treated less favourably than a permanent employee, unless there are objective reasons for doing so. Having considered this matter, I find that there can be no argument for treating the complainant differently to a permanent member of staff doing similar work.

Findings

The entitlement to a redundancy lump sum, and the method of calculation of the lump sum, must apply to fixed-term workers in the same manner as it applies to permanent employees.   Apart from his status as a fixed-term worker, no objective grounds were put forward by the respondent for not paying a redundancy lump sum to the complainant.

Conclusion

In accordance with section 6 of the Protection of Employees (Fixed-term Work) Act 2003, the complainant cannot be treated less favourably compared to a permanent employee in respect of his conditions of employment. Subject to certain criteria, the entitlement to a redundancy payment is a condition of employment and a legal entitlement for employees with 104 weeks of service with their employers. As I have concluded in the previous section, the complainant is entitled to a redundancy payment in the same manner as this entitlement applies to permanent employees.

I have concluded that the complainant’s rights as a fixed-term employee as set out in section 6 of the Protection of Employees (Fixed-term Work) Act 2003 have been breached by the respondent. In accordance with section 14(2)(d) of the Act, I decide that the respondent is to pay the complainant compensation of €1,170, equivalent to two weeks’ pay.

In respect of minimum notice, the complainant said that, unlike other employees, he did not receive three weeks’ notice of the termination of his employment. At the hearing, he said that when his colleagues were all informed that they were being made redundant, he thought that maybe his employer “still needs me.” He then informed his boss that he appeared to be the only person who didn’t receive a letter.

In the booklet of papers submitted at the hearing, the complainant included a copy of an e mail he sent to the Group General Manger on Sunday, October 22nd. He explained that, unlike his colleagues, he didn’t receive a letter notifying him of the termination of his employment.   He also said that he moved house in July and that he had informed the company of this fact in August when he had to complete an incident report form. He didn’t receive a response to his e mail until a month later, on November 22nd, when the Group General Manager sent him a copy of the letter of October 11th, by e mail and by post.

In accordance with the Minimum Notice and Terms of Employment Act 1973, as an employee with more than two years’ service, the complainant was entitled to two weeks’ notice.

For the respondent, the HR Manager said that a letter was posted to the complainant on October 11th 2017, notifying him of the termination of his employment on October 31st. If he had received this letter, he would have got notice of one day less than three weeks. The HR Manager said that she was not aware that the complainant had moved house and that he had not informed anyone in the HR Department that he had moved.   The General Manager said that the complainant was aware that his employment was coming to an end, as the team working on the re-fitting project were finishing up and the affected employees had all been notified to this effect. The respondent’s position is that they had taken care to issue proper notice.

In the correspondence sent to me after the hearing, the respondent said that the General Manager did not get the e mail sent by the complainant on October 22nd, and the first indication that there was a problem came in a mail to the HR Manager on November 18th. The HR Manager passed this e mail to the General Manager and the correspondence shows that he then sent the complainant a copy of the letter of October 11th, notifying him of the termination of his employment.

The respondent wrote to the complainant on October 11th 2017 at his last known address to give him notice of the termination of his employment. The complainant said that he moved house in July. He said that in August, he completed an incident report form, on which he put down his new address. A copy of the incident report form was submitted in evidence. In my view, this is not an appropriate notification of a change of address, as there is no guarantee that the person dealing with the incident report form could be aware of the complainant’s old address.   There was no guarantee either that the incident report form was handled by the HR Department. The fact is that the complainant did not properly notify his employer that he changed his address.

On October 22nd, one week before his employment was due to end, the complainant sent an e mail to the Group General Manager saying, “I have not received your letter regarding the termination of my work….This happened because the letter was sent to my old address and no one currently lives there.” Although the General Manager said that he didn’t receive this e mail, it demonstrates that the complainant was aware that a letter was sent to him on October 11th to notify him of the termination of his employment. He didn’t receive the letter because he didn’t inform his employer that he had changed his address.

On November 21st 2017, in response to a mail that the complainant sent on November 18th, the General Manager sent the complainant a copy of the letter that was sent to him at his old address on October 11th.

Having considered this matter, I am satisfied that the respondent sent a proper notification to the complainant to let him know that his employment would be terminated on October 31st 2017. I am also satisfied that the complainant knew that this letter was sent to him and that, at least two weeks before his last day at work, and probably for longer, he knew that his employment was coming to an end. I find that no disadvantage resulted for the complainant as a result of his notice of termination being sent to his old address.

I have decided that this complaint under the Minimum Notice and Terms of Employment Act 1973 is not upheld.

Holidays, minimum notice, fixed-term employee, redundancy