ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012207

	Complainant	Respondent
Anonymised Parties	A Supervisor/Machine Operator	A Packaging Company

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00015993-001	25/11/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00015993-002	25/11/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00015993-003	25/11/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00016666-001	06/01/2018

Date of Adjudication Hearing: 08/03/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure: In accordance with Section 41 of the Workplace Relations Act, 2015 ; Section 8 of the Unfair Dismissals Acts, 1977 - 2015,Section 11 of the Minimum Notice & Terms of Employment Act, 1973; Section 27 of the Organisation of Working Time Act, 1997 and Section 77 of the Employment Equality Act, 1998 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

1: Summary of Complainant’s Case:


Act	Complaint/Dispute Reference No.	Summary of Complaint.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00015993-001	Unfair Dismissal - Respondent breached all Statutory rules regarding Redundancy.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00015993-002	Did not receive Minimum notice.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00015993-003	No outstanding Annual Leave received on termination
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00016666-001	An equal pay claim with a named Comparator. Discrimination on the grounds of Race.

2: Summary of Respondent’s Case:

Did not attend the hearing. Various item of Respondent correspondence sent to the Complainant submitted by the Complainant in evidence.

3: Findings and Conclusions:

3:1 CA-00015993-001

Unfair Dismissal - Respondent breached all Statutory rules regarding Redundancy.

The claim here is based on the non-payment of Redundancy. It is not a proper Unfair Dismissal complaint.

This claim is proper to the Redundancy Payments Act,1967.

The Unfair Dismissals Act,1977 claim as formulated must be dismissed.

3:2 CA-00015993-002

Minimum Notice & Terms of Employment Act, 1973 -Did not receive Minimum notice.

On the basis of uncontested evidence from the Complainant and copy correspondence from the Respondent (letter of the 17/07/2017) it appears that Notice was not paid.

Accordingly, I award four weeks’ notice pay to the Complainant. The Complainant having been in Respondent employment for over five years.

The Complainant stated on the claim form that his hourly rate was €11.42. The number of hours worked per week was extremely variable and was in fact contested in the Respondent correspondence.

As regards calculating the amount of notice pay due the Second Schedule to the Act – Section 2(b) and Section 3 give guidance by reference to the “average rate of pay in the preceding 13 weeks”.

In the absence of pay records and the non-appearance of the Respondent I could not perform this calculation.

Accordingly, as a reasonable alternative, I have decided to apply the P45 figure of 27 weeks’ insurable employment / by the 2017 gross wage (€ 14, 483) to give a weekly figure of €536.41

€536.41 x 4 = €2,145.64 as the amount of the notice pay due.

3:3 CA-00015993-003 The Organisation of Working Time Act, 1997

No outstanding Annual Leave received on termination. This issue was disposed of in ADJ -00009996. It is accordingly Res Judicata and must be dismissed in this Adjudication.

3:4 CA-00016666-001 Employment Equality Act, 1998 claim -Equal Pay and Discrimination on Grounds of Race.

The Complainant named a fellow Irish national employee as his Comparator. The Comparator was Mr.DF. The difference in hourly rate was €13.27 - €11.42 a difference of €1.85 per hour.

In correspondence dated the 8th August 2017 the Respondent accepted that there was a difference in the rate of pay. The Respondent stated that they were unable to pay any additional payments due to the Redundancy situation in the Company.

Form ES1 submitted by the complainant on the 8th March 2017 was acknowledged by the Respondent but never formally replied to in any detail save the letter of the 8th August 2017 referred to above.

In considering redress, I must proceed cautiously – the claim is supported by minimal evidence save the few details provided by the Complainant. The views of the Respondent, save for an admission that there was difference in the rates pay, are unknown. Any possible suggestions of Objective Reasons for the difference are speculative only. It is unclear if the Respondent continues to trade. The numerous legal precedents regarding the Burden of Proof in Equality cases and the need for a prima facie case to be made must be considered carefully.

However, the level of proof is generally accepted to be that of establishing an inference and in this regard in the absence of any obvious objective proof as to why the difference in pay arose an inference of discrimination appears reasonable.

Accordingly, having considered the available evidence and the oral presentation of the Complainant and following Section 82 of the Employment Equality Act, 1998 I award a compensation for Discrimination on the Race Grounds of an amount of €1.85 by 39 hours per week (€1.85 X 39 = € 72.15) by 14 weeks = € 1,010.

4: Decision:

Section 41 of the Workplace Relations Act 2015; Section 8 of the Unfair Dismissals Acts, 1977 – 2015;Section 11 of the Minimum Notice & Terms of Employment Act, 1973; Section 27 of the Organisation of Working Time Act, 1997 and Section 77 of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Act	Complaint/Dispute Reference No.	Summary Decision /Refer to Section 3 above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00015993-001	Unfair Dismissal Claim dismissed
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00015993-002 Did not receive Minimum notice.	Four weeks’ notice pay awarded. €2145.64 awarded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00015993-003 No outstanding Annual Leave received on termination	Disposed of in ADJ 9996. Res Judicata rule applies in this case.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00016666-001 Discrimination on the grounds of Race.	Discrimination found to have occurred. A Compensation award of €1,010 is made.
Taxation of all awards to be considered on the advice of the Revenue Commissioners

Dated: 04/09/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee