ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018760
Parties:
| Complainant | Respondent |
Anonymised Parties | A Welder | A Door Manufacturer |
Representatives | Brendan O'Connor |
|
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00023969-001 | 05/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997 | CA-00023969-002 | 05/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997 | CA-00023969-003 | 05/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00023969-004 | 05/12/2018 |
Date of Adjudication Hearing: 15/02/2019
Workplace Relations Commission Adjudication Officer: Marian Duffy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and following the referral of the complaints / disputes 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 by the Respondent as a welder from 3rd October 2008 until 13th April 2018. He was paid €517.04 per week. He is claiming a redundancy lump sum, pay in lieu of minimum notice, annual leave and public holidays entitlements. |
CA-00023969-004 Redundancy Payments Acts
Summary of Complainant’s Case:
The Complainant said that he was out sick from the 15th March 2017. On the 13th of April 2018 he received a text message from a work colleague to say that the company was closing. He said that he was never formally advised by the Respondent that his employment had ended and has made numerous attempts to contact the employer without success. He understands that the company has ceased trading. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing. |
Findings and Conclusions:
On the evidence of the Complainant, I am satisfied that the Respondent ceased to trade. I find therefore, that the Complainant’s was dismissed for reasons of redundancy and that he is entitled to a redundancy lump sum payment. |
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 award the Complainant a statutory redundancy payment based on reckonable service for the following period of employment: Date of Commencement 3rd October 2008 Date of Dismissal 13th April 2018 Gross Pay Weekly €€517.04 The Complainant was on sick leave from the company from 15th March 2017 to the to the 13th April 2018. 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. I order the respondent to pay the complainant his statutory entitlements as per the terms of the Redundancy Payments Acts 1967 as amended. |
CA-00023969-002 Organisation of Working Time Act
Summary of Complainant’s Case:
The Complainant is claiming that he was not paid his annual accrued holidays for the period he was out sick. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing. |
Findings and Conclusions:
Section 19 (1A) of the Organisation of Working Time Act states: “For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying on or performing the activities or duties of his or her work.” Section 20 provides: “(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject— (a) to the employer taking into account— ………. (c) to the leave being granted— (i) within the leave year to which it relates, (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or (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 employer, within the period of 15 months after the end of that leave year.” In accordance with section 41(5) of the Workplace Relations Act, 2015 and on the uncontested evidence of the complainant, I find that this complaint is well founded. |
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 4 weeks’ pay in the sum of €2,068.16 which is subject to any lawful deductions, in respect of annual leave accrued on the termination of the employment. |
CA-00023969-003 Organisation of Working Time Act.
Summary of Complainant’s Case:
The complainant claims that he is entitled to payment in respect of public holidays which arose during his sick leave absence. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing. |
Findings and Conclusions:
As the complainant was on sick leave for any relevant Public Holidays immediately before the cessation of his employment no entitlement to any payments in lieu of Public Holidays arises. I find that this complaint is not well founded. |
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 find that the complaint in relation to payment in respect of public holidays is not well founded. |
CA-00023969-001 Payment of Wages
Summary of Complainant’s Case:
The Complainant is claiming that he is entitled to be paid in lieu of notice on the termination of his employment without notice. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing. |
Findings and Conclusions:
The Payment of Wages Act provides at Section 5.—(1) “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) ….”. The non-payment of wages including payment in lieu of notice constitutes a deduction under the Act. The Complainant was not notified by the Respondent that the company was closing down. Therefore, I find that the complaint is well founded. I award the complainant compensation of €2,068.16 gross which represent 4 weeks wages for the breach of the Act. This amount is subject to any lawful deductions. |
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 find that the complaint is well founded. I award the complainant compensation €2,068.16 gross which represent 4 weeks wages. This amount is subject to any lawful deductions. |
Dated: March 25th 2019
Workplace Relations Commission Adjudication Officer: Marian Duffy
Key Words:
Redundancy Payments, Organisation of Working time Act, holiday pay, public holidays, Payment of Wages Act, notice payment. |