ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018441
Parties:
| Complainant | Respondent |
Anonymised Parties | A Weekend Manager | A Department Store -now in Administration |
Representatives | Self - Represented | Did not attend / Now in UK based Administration. |
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-00023663-001 | 30/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023663-002 | 30/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00023663-003 | 30/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023663-004 | 30/11/2018 |
Date of Adjudication Hearing: 31/01/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015,Section 27 of the Organisation of Working Time Act, 1997 ( referred to below as the OWT Act ) and Section 39 of the Redundancy Payments Act, 1967 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).
At the date of the Oral Hearing the Respondent Company (who were the Corporate “parent” of the Irish entity who had first employed the Complainant) was in UK jurisdiction Administration. The Administrator acknowledged the correspondence (detailed letter of the 7th November 2018) but declined to attend the Hearing as in his view the employment relationship with the Irish entity had ended in April 2018, sometime well before the Administration process commenced in August 2018. No liability was admitted. It was accepted that the Respondent in this case was effectively the “parent” of the entity that had employed the Complainant /Adj 14987.
This claim ADJ-00018441 (being lodged against the UK parent entity) is in essence a duplicate of ADJ-00014987 and has to be seen as such. The matters of fact in dispute were Adjudicated upon in ADJ-00014987 and cannot be reopened in this case.
Accordingly, this case has already been decided and cannot be proceeded with.
The question of correctly placing Liability for any Adjudication finding arising from ADJ-00014987 has to be a matter for the Complainant in any Enforcement actions that she may choose to undertake regarding the outcome of that case.
Linked claims: This Adjudication ADJ-00018441 ( against UK based Corporate “parent” identity of the Respondent) is closely linked to ADJ-00014987 (against the Irish based entity where the Complainant was employed) and ADJ-00018678 (against a new Corporate Entity that purchased, on or about the 23rd October 2018, the Store where the Complainant worked until the 6th April 2018)
Background:
The issues in contention concern the issue of whether or not a Sunday Premium was properly paid to the Complainant, whether or not she received Holiday Pay for the period of her Minimum Notice and a Public Holiday that fell in this period. Arising from the Sunday Premium issue the Complainant feels that her pay on which her Redundancy was based is in error and accordingly her Redundancy lump sum should be recalculated. |
1: Summary of Complainant’s Case:
As was set out in detail in Adj 14987 | ||
Act | Complaint/Dispute Reference No. | Summary Complaint |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023663-001 | No Sunday Premium as specified in Section 14 of the OWT Act,1997 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023663-002 | No Holiday Pay for Period of Pay In lieu of Notice |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00023663-003 | Redundancy not based on correct rate of pay -ref 19266-001 above |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023663-004 | No Public Holiday paid for Public Holiday that fell due during the Notice Period. |
1:1 Sunday Premium - CA -00019266-001
The Complainant maintained that from the date of her first appointment in 2007 she was never given a Sunday Premium in comparison to other Managers who received same. The issue was raised on a number of occasions with Senior Store /Company Managers who all maintained, wrongly the Complainant felt, that her rate included a Sunday element.
It followed from this that her Redundancy pay was based on a wrong figure and should be recalculated.
2: Summary of Respondent’s Case:
The Respondent employer was in Administration by the time of the Oral Hearing. Correspondence was received from the Administrator declining to attend. However, there was extensive written correspondence of file, supplied by the Complainant, in relation to the Complainant’s local efforts to progress the issue at Company level. In relation to Section 14(Sunday Premium) of the OWT Act, 1997 the burden of proof lies with the Respondent employer to demonstrate compliance with the Act. The absence of the Respondent made this impossible in this case.
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3: Findings and Conclusions:
The matters at issue have already been Adjudicated upon in ADJ-00014987. As such no new Findings are possible in this duplicate case. This claim must be set aside as the legal principle of Res Judicata -prior decision- has to apply. |
4: Decision:
Section 41 of the Workplace Relations Act 2015; Section 27 of the Organisation of Working Time Act, 1997 (referred to below as the OWT Act) and Section 39 of the Redundancy Payments Act, 1967 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 /Please refer to Section Three above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023663-001 Sunday Premium | Claim is set aside. Refer to ADJ-00014987 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023663-002 Annual leave entitlement during Notice period. | Claim is set aside. Refer to ADJ-00014987 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00023663-003 re calculation of Redundancy figures. | Claim is set aside. Refer to ADJ-00014987 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023663-004 Public Holidays during Notice period. | Claim is set aside. Refer to ADJ-00014987 |
Dated: 23rd April 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee