Complainant

Respondent

Anonymised Parties

Plumber

Heating and Plumbing Company

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-00023621-001

29/11/2018

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

CA-00023621-002

29/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00023621-003

29/11/2018

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

CA-00023621-004

29/11/2018

The complainant commenced employment as a plumber with the respondent in October 2000. The position was on a full-time basis for 9 years and then became part-time as a result of the recession. The complainant’s last day of work for the respondent was 16 February 2018. There is a dispute between the parties as regards the grounds for the termination of employment.

The complainant did not receive his annual leave entitlement.

The complainant did not terminate his employment and did not receive any payment in lieu of notice.

There was no contract or statement of terms of employment issued to the complainant.

The complainant was advised by the employer that there was no work for him in February 2018 but that there would be work in the future. Despite contacting the respondent on a regular basis over the following period the complainant received no further work. A P45 form was issued in October 2018 which listed the date of cessation of employment as 16 February 2018.

The complainant did not seek any annual leave entitlement.

The respondent did not terminate the complainant’s employment and consequently the issue of notice payment does not arise.

The respondent accepts that there was no contract or statement of terms of employment issued to the complainant.

The complainant was not made redundant but left his employment without notice. The complainant requested his P45 form.

The complaints are out of time as they were presented in excess of the 6-month period provided in the legislation for lodging such complaints.

There is a direct conflict of evidence between the parties in relation to the matter at the heart of these complaints. According to the complainant, he had been working on a week-on, week-off arrangement for some time. According to the respondent in February 2018 the complainant was working an average of two days per week. The complainant stated that he finished a particular job in mid- February 2018 and was told by the Director that there was no further work for him then. He was paid for that work on 18 February. About a week later the Director collected a company van that had been used by the complainant to go to jobs. The complainant said that he contacted the respondent regarding work during the following months but there was still no work. The complainant stated that he then sought advice from the Citizens Advice Bureau and again contacted the Director. The complainant denied that at any stage had he said to anyone that he was not going to work for the respondent. The complainant stated that on 4 October 2018 he received his P45 form which had a date of cessation of 16 February 2018.   The complainant further stated that he had never received a contract nor had he got annual leave entitlement.

The Director of the respondent said in evidence that he had never told the complainant that there was no work but had offered the complainant jobs and he had refused to take these jobs. The Director stated that he had been informed that the complainant was working for himself at this time. There had been one particular contract that the complainant had advised the Director that he would do but the complainant had subsequently backed out and the respondent had to engage an outside contractor to assist on that job. The Director said that he had work for the complainant and that he had not hired anyone else because he could not get anyone for the position. The complainant had sought his P45 form and had contacted the respondent’s accountant in this regard. The complainant had also mentioned a redundancy payment and had verbally requested payment of same if the payment came from the State.  Eventually the Director instructed his accountant to issue the P45 form which had the complainant’s last day of employment as the cessation date of his employment. The director stated that he had not sought any advice as to how to deal with the situation of the complainant not turning up for work. The Director accepted that no contract had been issued to the complainant.  The Director also stated that the complainant could have taken holidays and that he would have been paid for them.  

As is clear from the above there is a fundamental difference between the parties in their respective accounts of what occurred from February 2018 onwards. The resolution of this conflict of views is not assisted by the complete lack of both documentary evidence or corroboratory evidence from other witnesses. Having heard evidence from both the complainant and the director of the respondent company I find the evidence of the complainant to be more credible as it appeared to me to be more consistent in its content.

I find difficulty in establishing a date of termination of the complainant’s employment. The date of termination on the P45 form cannot be taken as proof of the actual date of termination. This form is a Revenue form which, according to the evidence, was prepared by the respondent’s accountant and the date recorded was the last day that the complainant attended work. In accepting the complainant’s evidence, I find that, on the balance of probabilities, the complainant was laid off by the respondent in February 2018 due to lack of work but was not dismissed on that date. The evidence of the complainant was that he continued to contact the respondent about work during March and April but was told that there was still no work.

Taking all of the above into consideration I cannot find in favour of the submission on behalf of the respondent that the claims are out of time based on a termination of employment date of 16 February 2018. In considering the complaints I will deal with the issue of redundancy first.

Complaint No. CA-00023621-004:

This is a complaint under the Redundancy Payments Act, 1967, to the effect that the complainant was made redundant and did not receive a redundancy payment.

Section 7(2) of the Act states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

(a)    the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)    the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c)     the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring that the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise…

If, as suggested by the respondent, the complainant refused to return to work when there was work available for him, I would expect that there would be some tangible evidence of a pro-active response from the respondent to address the situation of an employee going absent without leave. There is no such evidence. There is evidence of a significant reduction over a period of time in the working hours of the complainant. I therefore find that the termination of employment of the complainant was by reason of redundancy due to the provisions of Section 7(2) of the Act.

As regards the termination date and in the absence of any other evidence I have to regard the date that the complainant received his P45 form, 4 October 2018, as being the date when the complainant was notified of his termination.

Complaint No. CA-00023621-001:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive his annual leave entitlement. The complaint was presented to the WRC on 29 November 2018.   The leave year for the purposes of the legislation commences on 1 April of each year.

Section 19(1) of the Act states:

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 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):

The respondent’s position that it was entirely up to the complainant to seek to take his annual leave entitlement. This is incorrect as there is an onus on employers to be pro-active in ensuring that employees receive their entitlement in this regard. It is also clear that no records were kept by the respondent. In the case before me, however, the complainant has not worked any hours in the relevant leave year. Therefore, he does not have an entitlement to annual leave.

Complaint No. CA-00023621-002:

This is a complaint under the Payment of Wages Act, 1991, to the effect that the complainant did not receive the appropriate payment in lieu of termination of employment. The complainant had in excess of 15 years’ service with the respondent and therefore was entitled to a minimum notice of eight weeks. The definition of wages in the Act includes the following:

Any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

I therefore find that the complainant is entitled to 8 weeks’ pay. I note that the complainant has stated his weekly pay as €200.00 and in the absence of any other evidence that figure is the basis of the relevant calculation.

Complaint No. CA-00023621-003:

This is a complaint under the Terms of Employment (Information) Act, 1994, to the effect that the complainant did not receive a statement in writing of his terms of employment.   This is admitted by the respondent in their submission. I therefore find this complaint to be well founded.

Complaint No. CA-00023621-001:

For the reasons set out above I find that the complainant has not got an entitlement to annual leave and that therefore the complaint is not well founded.

Complaint N0. CA-00023621-002:

For the reasons set out above I find this complaint in regard to minimum notice to be well founded and I order the respondent to pay to the complainant the sum of €1,600.00 in this regard.

Complaint No. CA-00023621-003:

For the reasons set out above I find this complaint regarding the failure to provide a statement of terms of employment to be well founded and I order the respondent to pay to the complainant the sum of €750.00 in this regard.

Complaint No. CA-00023621-004:

For the reasons set out above I find this complaint under the Redundancy Payments Acts, 1967 – 2012, to be well founded. The complainant is therefore entitled to a redundancy payment based on the following criteria:

Date of Commencement:       1 October 2000

Date of Termination:             4 October 2018

Gross Weekly Pay:                 €200.00

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