ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00019525

Parties:

	Complainant	Respondent
Anonymised Parties	A Colourist	A Hair Salon

Complaints:

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-00025450-001	31/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00025450-002	31/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997	CA-00025450-004	31/01/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997	CA-00025450-005	31/01/2019

Date of Adjudication Hearing: 30/04/2019

Workplace Relations Commission Adjudication Officer: Ewa Sobanska

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 complains 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 by the Respondent from 19^th November 2013 to 6^th October 2018 as a Colourist. She referred her complaints to the WRC on 31^st January 2019.
During her employment she worked 41 hours a week and was paid €454.78 gross.

Preliminary issue: Claims under the Organisation of Working Time Act, 1997

The Complainant has not included specific complaints in respect of her entitlements to annual leave and public holidays under the Act. She has addressed the matter in the statement relating to the claim under the Redundancy Payments Act, 1967.
Both parties agreed that the claim can be introduced.

In considering the introduction of a new claim I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370. In that case McGovern J. held that while it was permissible to amend a claim set out in form EE.1 this was only permissible where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.’ I note that McGovern, J. also stated in this decision that this can only be done so long as the general nature of the complaint remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent...must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.".

The WRC Complaint Form is not a statutory form. In the present case, I am satisfied that it was perfectly clear from the information included in the Complaint Form which the Complainant submitted to the WRC on 31^st January 2018 that the Complainant’s claims relate also to annual leave and public holidays entitlements. I am satisfied that this matter was brought to the Respondent’s attention at an early juncture in these proceedings and as a result the Respondent’s defence of the claims has not been prejudiced as it was fully aware of the general nature of the claims and the legislative basis underpinning the proceedings well in advance of the oral hearing.
In addition, and for the avoidance of doubt, I am also satisfied that the Respondent consented to the introduction of the claims.

I am satisfied, given all of the circumstances of the present case, that the introduction of the new claims does not fundamentally alter the nature of the claim before the hearing. Therefore, I am satisfied that I do have jurisdiction to permit the introduction of the new claims seeking entitlements under the Organisation of Working Time Act, 1997.

CA-00025450-001- Section 39 of the Redundancy Payments Act, 1967

Summary of Complainant’s Case:

The Complainant submits that she was made redundant on 6^th October 2018 and she had not received her redundancy entitlements.

Summary of Respondent’s Case:

The Respondent conceded that no redundancy entitlements were given to the Complainant.

Findings and Conclusions:

Based on the evidence before me I find that the Complainant was employed by the Respondent on a continuous basis from 19^th November 2013 to 6^th October 2018 when her employment was terminated by reason of redundancy.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

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: 19^th November, 2013

- Date of termination: 6^th October, 2018

- Gross weekly wage: €454.78

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

CA-00025450-002 - Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Summary of Complainant’s Case:

The Complainant submits that she did not receive her statutory minimum period of notice.

Summary of Respondent’s Case:

The Respondent conceded that no notice was given to the Complainant.

Findings and Conclusions:

The 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.

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.

In accordance with Section 4(2)(b) of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant was entitled to two weeks’ notice as she had over 2 years’ but less than 5 years’ service at the time of her dismissal.
I direct that the Respondent pays the Complainant compensation of €909.56 amounting to two weeks’ pay.

CA-00025450-004 – Section 27 of the Organisation of Working Time Act, 1997

Summary of Complainant’s Case:

The Complainant submits that at the time of her dismissal she was owed 9 days annual leave.

Summary of Respondent’s Case:

The Respondent conceded that at the time of termination of the Complainant’s employment she had accrued nine days of annual leave which she was not compensated for.

Findings and Conclusions:

23. Compensation on cesser of employment

(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

The Parties agreed at the hearing that the Complainant is entitled to a compensation in respect of nine annual leave days accrued.

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.

I direct the Respondent to pay the Complainant €818.60 for the economic loss in respect of the annual leave. In addition, I direct the Respondent to pay the Complainant additional €500 in compensation for breaches of her rights under this Act.

CA-00025450-005 – Section 27 of the Organisation of Working Time Act, 1997

Summary of Complainant’s Case:

The Complainant submits that she is owed her entitlements in respect of four public holidays.

Summary of Respondent’s Case:

The Respondent conceded that at the time of termination of the Complainant’s employment she had accrued an entitlement to a benefit in respect of four public holidays which she was not compensated for.

Findings and Conclusions:

The Parties agreed at the hearing that the Complainant accrued an entitlement to four public holidays she was not compensated for.

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.

I direct the Respondent to pay the Complainant €363.82 for the economic loss in respect of the public holidays. In addition, I direct the Respondent to pay the Complainant additional €250 in compensation for breaches of her rights under this Act.

Dated: 24^th June 2019

Workplace Relations Commission Adjudication Officer: Ewa Sobanska

Key Words:

Redundancy- public holidays- annual leave- minimum notice