Act

Complaint Reference No.

Date of Receipt

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

CA-00018598-001

19/04/2018

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

CA-00018598-002

19/04/2018

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

CA-00018598-004

19/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018598-006

19/04/2018

The Complainant commenced his employment with the Respondent on 29th June 1967. His employment was terminated on 11th February 2018.

There was no appearance by or on behalf of the Respondent. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing. Having been satisfied of this, I waited some time to accommodate a late arrival. The Respondent did not engage with the WRC at any stage prior to the hearing, he did not apply for a postponement and did not indicate any difficulties attending the hearing. In the circumstances, I find that the Respondent’s non-attendance without any acceptable explanation to be unreasonable.

The Complainant submits that he was employed in the Respondent’s bar for almost 51 years. He was paid €363.00 gross per week. The Complainant submits that on 2nd February 2018 he was informed by the Respondent that he was to be made redundant the following week on the 11th February 2018 due to a downturn of business. On the notice date the Complainant was promised that he would receive his redundancy payment on his finish date but he did not receive it. The Complainant submits that he and his colleagues wrote to the Respondent on 28th March 2018 seeking their redundancy payment, annual leave, public holidays and wages but they have not received a response. The Complainant submits that he and his colleagues again wrote to the Respondent and to his accountancy firm but there has been no resolution of the matters.

There was no attendance by or on behalf of the Respondent.

Based on the uncontested evidence of the Complainant, I find that the Complainant was employed on a continuous basis with the Respondent from 29th June, 1967 until 11th February, 2018 when his employment was terminated by reason of redundancy following the closure of the Respondent’s business.

Based on the uncontested evidence of the Complainant I find that the Complainant is entitled to a statutory redundancy lump sum under the Redundancy Payment Acts based on the following criteria: 

-          Date of commencement: 29th June, 1967

-          Date of termination: 11th February, 2018

-          Gross weekly wage: €363.00

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

The Complainant submits that he was told on 2nd February that the business was to close on the 11th February 2018. The Complainant claims that he worked for a week but did not receive the balance of his notice or payment in lieu of notice.

There was no attendance by or on behalf of the Respondent.

Totality of the Complainant’s service is almost 51 years. Section 4(1) of the Minimum Notice & Terms of Employment Act, 1973 stipulates that “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”.

The uncontested evidence before me confirms that the Respondent made the Complainant redundant and did so without adhering to its obligations under the Minimum Notice and Terms of Employment Act, 1973 which under Section 4(2)(e) requires eight weeks’ notice if the employee has been in the continuous service of his employer for fifteen years or more. The Complainant confirmed that he was paid one week’s notice.

In accordance with Section 4(2)(e) of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant was entitled to eight weeks’ notice as he had over 15 years’ service at the time of his dismissal. I direct that the Respondent pay the Complainant compensation of €2,541 amounting to seven weeks pay within 42 days of the date of this decision, subject to any lawful deductions.

The Complainant submits that he has never been paid for annual leave and public holidays.

There was no attendance by or on behalf of the Respondent.

The Complainant submits that he never received his annual leave since 2011. He also claims that he was not compensated for working on public holidays. I note that the Complainant, in his WRC referral form outlined the matter of annual leave matter. However, I also note that in the submission of the Complainant dated 15th August 2018 the Complainant also clearly states that he “…was never paid for Public Holidays since 2011…” and further requests “…compensation for the failure of the employer to pay Annual Leave and Public holidays payments since 2011…” I am therefore satisfied that the Respondent was on notice that the Complainant’s claim is in respect of both annual leave and public holidays entitlements.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 19th April 2018 and therefore the cognisable period that may be investigated is 20th October 2017 to the date of termination. I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from the 1st April 2017 to the 11th February 2018, some 10 months and 11 days.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), 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.”

In respect of public holidays, I clarified that I could only examine the public holidays falling during the Complainant’s employment and within the preceding 6 months from the date of the submission of complaint. Therefore, the cognisable period to investigate is from the 20th October 2017 to 11th February 2018. I find that there were four public holidays within the period of my investigation, 30th October, 25th December, 26th December 2017 and 1st January 2018. The Complainant stated at the hearing that he ordinarily worked on public holidays from approximately 6pm to approximately 1am. However, I note that the bar would normally be closed on the 25th December.

Section 21 of the Organisation of Working Time Act, 1997 provides that: (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely

I have decided that the Respondent has breached Sections 19 and 21 of the Organisation of Working Time Act, 1997. I direct the Respondent to pay the Complainant € 1,252.35 for the economic loss in respect of the annual leave (approximately 3.45 weeks of annual leave accrued for the period 1st April 2017 – 11th February 2018).

I also direct the Respondent to pay the Complainant €290.40 in respect of Public Holiday entitlements. In addition, I direct the Respondent to pay the Complainant an additional €1,500 in compensation for breaches of his rights under this Act.

I require these monies to be paid within 42 days of the date of this Decision.

The Complainant claims that he did not receive his notice or payment in lieu of notice.

There was no attendance by or on behalf of the Respondent.

In view of my decision in relation to the complaint under the Minimum Notice & Terms of employment Act, 1973 (CA-00018598-002) I dismiss this complaint.

In view of my decision in relation to the complaint under the Minimum Notice & Terms of Employment Act, 1973 (CA-00018598-002) I dismiss this complaint.

Redundancy-minimum notice-annual leave-public holidays