ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017865

Parties:

	Complainant	Respondent
Anonymised Parties	General Operative	Construction Company

Adam Zurek; Interpreter

Complaints:

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-00023946-001	10/12/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00022954-001	31/10/2018
Complaint seeking adjudication by the Workplace Relations Commission under Minimum Notice & Terms of Employment Act	CA-00024004-001	11/12/2018

Date of Adjudication Hearing: 17/12/2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as a General Operative from 1st January 2007 to 31st December 2017. He had been absent from work due to an injury since 2nd June 2015. The Company ceased trading on 31st December 2017. He was paid an average of €481.14 per week. He has claimed statutory redundancy, accrual of holidays while out injured and minimum notice.

1)Organisation of Working Time Act 1997, CA 23946-001

Summary of Complainant’s Case:

He stated that he was paid holidays up to 2nd June 2015. He had been absent from work due to an injury since 2nd June 2015. He can accrue holiday entitlement while out sick up to 15 months. He called the company on 17th October 2018 that he was fit to return to work. He was advised by the Administrator that the business ceased trading on 31st December 2017. He has claimed 25 days holidays.

Summary of Respondent’s Case:

The Respondent advised that the business had ceased trading on 31st December 2017. He understood that the Complainant had left. He was unaware that holidays may be accrued while out sick. There are no funds available to make any payments.

Findings and Conclusions:

I find that the Organisation of Working Time Act was amended by the Workplace Relations Act Sec 86 to take into account the decision of the EUCJ ruling that provides accrual of sick pay while out sick capped at 15 months provided medical certificates were provided.

Sec 86 (1) of the Organisation of Working Time Act is amended. (c )(iii) within the leave year to which it relates (iii) where the employee (I) is due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii) and II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her exploiter, within the period of 15 months after the end of that leave year.

I note that the Complainant asserts that medical certificates were constantly sent to the Respondent. The last response received from the Respondent was on 9th May 2017, some six months before the closure of the business. Time limit: I note that the accrual of holiday entitlement during the sick leave is capped at 15 months. 15 months is from the first date of absence on 2nd June 2015 to 1st September 2016. I note that this complaint was presented to the Commission on 31st October 2018. Therefore, I find that this complaint is well outside the time limit allowed. The period that may be investigated is 1st May 2018 to 31st October 2018 only.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that this complaint was presented to the Commission outside the permissible time limit.

I have decided that I do not have jurisdiction to hear this case.

I have decided that this complaint is not well founded.

2)Redundancy Payments Act 1967 CA 23946-002

Summary of Complainant’s Case:

The Complainant went out sick following an injury at work on 2nd June 2015. He did not return to work. He contacted the Respondent 17th October 2018 to advise that he was fit to return to work. He was advised by the Administrator that the business had ceased trading on 31st December 2017. He is claiming redundancy payment.

Summary of Respondent’s Case:

The Respondent advised that the business had ceased trading on 31st December 2017. He understood that the Complainant had left. He has no funds to make any payment.

Findings and Conclusions:

I note that the business ceased trading on 31st December 2017.

I note that the Complainant was still ‘on the books’ as no termination had taken place.

I find that the Complainant was still an employee at the date of cessation.

I find that no redundancy was paid.

I find that the Complainant is entitled to statutory redundancy.

I find that the start date is 1st January 2007, the termination date 31st December 2017, the gross per week is €481.14.

I find that any award under the Redundancy Payments Act is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have decided that the Complainant is entitled to statutory redundancy.

I order the Respondent to pay statutory redundancy in accordance with the Redundancy Payments Act.

This is to be done within six weeks of the date below.

3)Minimum Notice & Terms of Employment Act 1967 CA 24004-001

Summary of Complainant’s Case:

The Complainant was employed from 1st January 2007 to 31st December 2017. He injured himself at work on 2nd June 2015 and did not return to work. The business ceased trading on 31st December 2017, but he did not become aware of this until 17th October 2018. He did not receive minimum notice. He is claiming four week’s pay in notice.

Summary of Respondent’s Case:

The Respondent advised that the business had ceased trading on 31st December 2017. He understood that the Complainant had left the employment. He has no funds to make any payment.

Findings and Conclusions:

I note that the business ceased trading on 31st December 2017.

I note that the Complainant went out sick on 2nd June 2015 and did not return to work.

I note that the Complainant was still ‘on the books’ as no termination had taken place.

I find that the Complainant was still an employee at the date of cessation.

I find that the employment ended on 31st December 2017.

Time limit:

I note that the employment ended on 31st December 2017.

I note that this complaint was presented to the Commission on 31st October 2018.

Therefore, I find that this complaint is well outside the time limit allowed. The period that may be investigated under this Act is 1st May 2018 to 31st October 2018 only.

I find that I do not have jurisdiction to hear this complaint as the claim is out of time.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that the complaint is not well founded and so it fails.

Dated: 22/07/19

Workplace Relations Commission Adjudication Officer: Eugene Hanly Key Words: