ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017745
Parties:
| Complainant | Respondent |
Anonymised Parties | A Waitress | A Public House |
Representatives | Siobhan McLaughlin Citizens Information Centre | Michael Boyd, Boyd HR |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00022871-001 | 26/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00022871-002 | 26/10/2018 |
Date of Adjudication Hearing: 01/04/2019
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014following 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).
Background:
The Complainant worked as a waitress in a public house. The Public house ran into financial difficulties and closed down in November 2017 without giving notice to the Complainant. |
Summary of Complainant’s Case:
The Complainant commenced work for the Respondent on 1 November 2015 She was made redundant on 3 November 2017 without notice. Her rate of pay was €204.44 per week. The redundancy complaint is within time, however the complaint for minimum notice is outside the 6 month statutory time period. The Complainant applied to extend time to 12 months on the basis of reasonable cause. The basis for the extension application is the Complainant was given to understand that the Respondent would pay the Complainant directly but after 6 months had passed and the payments were not forthcoming, she then instituted her complaint to the WRC. The Respondent accepts that this is the case, but due to a failure to discharge debts arising from the company closing, it is not in a position to pay to the Complainant what they owe her. |
Summary of Respondent’s Case:
The Respondent consents to the name of the Respondent being amended to reflect the name of the employer rather than the trading name that was cited on the complaint form. In relation to the fact that the minimum notice complaint is outside the 6 month time limit, the Respondent concedes that this occurred due to them allowing the Complainant believe that they would discharge what they owed to her without the need for her to apply to the WRC, which did not materialise. The Respondent accepts the complaints as valid but is not in a position to be able to discharge their debts or what is owing to the Complainant. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 amended the title of the proceedings to amend the name of the Respondent to the employer’s name and not merely the trading name. I did so under section 39 of the Organisation of Working Time Act 1997 with the consent of the Respondent. Complaint; CA-00022872: Minimum Notice. The Complainant is applying for 6 weeks minimum notice as her employment was terminated on 3 November 2017 without any prior notice being given. This complaint is out of time, in that it was brought 11 months after the date of the breach. I extend time for the Complainant to bring her minimum notice complaint to 12 months from the 3 November 2017, in which case her complaint, brought on 26 October 2018, is within time. I accept that due to assurances given to her by the Respondent she understood that the payments would be made within time, but ultimately, they were not. In these circumstances and also where the Respondent accepts that the Complainant had reasonable cause to believe the money would be paid and time was allowed to run beyond 6 months from the date of the termination of employment I am satisfied that reasonable cause has been shown. For this reason, I find that the complaint for minimum notice is within time. I find this complaint to be well founded and award the Complainant six weeks gross pay. Award: €1226.64 Complaint: CA-00022871: Redundancy I am satisfied that a redundancy situation existed and that this complaint is well founded. The Complainant is entitled to a redundancy payment based on having insurable employment (under the Social Welfare Acts) for the duration of her employment and based on the following facts: Commencement date: 1 November 2005 End of Employment: 3 November 2017 Gross weekly pay: €204.4 |
Dated: 4th June 2019
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Redundancy |