Complainant

Respondent

Anonymised Parties

A Fishmonger

A Fish Retailer/Wholesaler

Representatives

Gerardine Costello Gerardine Costello & Associates Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019594-001

05/06/2018

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

CA-00019594-002

05/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019594-003

05/06/2018

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

CA-00019594-005

05/06/2018

The Complainant commenced employment with the Respondent, a retail/wholesale fish merchant, on 1 March 2011, in the role of a fishmonger. The Complainant’s employment terminated on 30 March 2018, when the company closed.

The Complainant submitted the following claims to the Workplace Relations Commission on 5 June 2018:

1)      Claim under Section 7 of the Terms of Employment (Information) Act, 1994 – CA-00019594-001

2)      Claim under Section 39 of the Redundancy Payment Act 1967 – CA-00019594-002

3)      Claim under Section 27 of the Organisation of Working Time Act, 1997 - CA-00019594-003

4)      Claim under Section 39 of the Redundancy Payment Act 1967 – CA-00019594-005

Background:

The Complainant submitted that, for the entirety of his seven years employment, he managed a retail shop on behalf of the Respondent. The Complainant submitted evidence, primarily in the format of text messages between him and the Respondent, which detailed the challenges he experienced in their working relationship. In particular, this evidence clearly highlights ongoing issues regarding payment of wages and other entitlements, particular in the period leading up to the closure of the Respondent’s shop, in March 2018.

The Complainant also submitted this evidence in support of the following specific claims:

1)      CA-00019594-001

The Complainant submitted that he never received Terms of Employment, despite having been employed since 2011.

2)      CA-00019594-002

The Complainant stated that the Respondent’s company closed on 30 March 2018. He further submitted that he did not receive any redundancy payment and no redundancy was offered to him.

Consequently, the Complainant is claiming his statutory entitlement to redundancy in the amount of €8,105.20

3)      CA-00019594-003

The Complainant had submitted that he did not receive any holiday pay for 2018. He further submitted that the total outstanding payments due to him in this regard amounts to €1,500.

4)      CA-00019594-005

The Complainant confirmed at the Oral Hearing that the complaint under this reference is a duplication of that already submitted under CA-00019594-002.

The Respondent did not attend the Oral Hearing, having been duly notified of same. In addition, no other response was received from the Respondent in reply to the Complainant’s claims.

The evidence presented by the Complainant at the Hearing clearly chronicles the significant challenges he experienced with the Respondent in relation to payment of wages and other matters pertaining to his employment.

The Complainant also submitted evidence to demonstrate how the difficulties increased in the months leading up to the closure of the premises, which was advised to him, via text message, from the Respondent on 3 April 2018.

Having carefully considered all the evidence presented by the Complainant and in the absence of any response from the Respondent, I am satisfied that the Complainant’s claims in relation to his employment are well-founded.

With regard to the specific elements of the Complainant’s complaints, I find as follows:

1)      CA-00019594-00:

Section 3 of the Terms of Employment (Information) Act, 1994, provides as follows:

3.— (1) “An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”

Having carefully considered all the evidence presented by the Complainant, I am satisfied that he has not been issued with a Contract Employment at any time during his employment with the Respondent. Consequently, I find the Complainant’s claim in this regard is well-founded.

2)      CA-00019594-002

Section 7 (2) of the Redundancy Payment Act, 1967, states as follow:

“For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if 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 purpose 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, or 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.”

Having carefully considered the evidence presented by the Complainant and in the absence of any evidence to the contrary from the Respondent, I am satisfied that, in the context of the above section from the Act, the Complainant’s dismissal from the Respondent's employment represents dismissal by reason of redundancy.

Consequently, I find that the Complainant's claim for redundancy is well founded.

3)      CA-00019594-003

Based on the evidence as presented by the Complainant in relation to his claim under this reference and in the absence of any evidence to the contrary from the Respondent, I find that the Complainant’s claim in this regard is well-founded.

Consequently, I award the Complainant the sum of €1,500, as calculated by him to represent the amount of monies outstanding under this element of his complaint.

4)      CA-00019594-005

On the basis that his claim under the above quoted reference was a duplication of that submitted under CA-00019594-002, the Complainant withdrew this complaint at the Hearing. Consequently, no decision will issue in relation to this reference.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find as follows:

1)      CA-00019594-001

I find that the Complainant’s claim under this complaint reference was well-founded. Therefore, in line with Section 7(2) of the Terms of Employment (Information) Act, 1994, I award the Complainant the sum of €1,000.00 as representing just and equitable compensation for the Respondent’s breach of the 1994 Act.

2)      CA-00019594-002

I find that the Complainant was dismissed by reason of redundancy and, therefore, his claim for a lump sum redundancy payment has succeeded. The Complainant was a full-time employee.

Date of Commencement:        01/03/2011

Date of Termination:                30/03/2018

Gross Weekly Pay:                    €548.76

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

3)      CA-00019594-003

I find that the Complainant’s claim under this complaint reference was well-founded and, as a consequence, award him the amount of €1,500, as calculated by him, with respect to outstanding holiday pay. This award of is subject to the normal statutory deductions in relation to pay.

4)      CA-00019594-005

As this complaint was withdrawn at the Hearing, no finding issues.

Redundancy Payments

Organisation of Working Time

Terms of Employment (Information)

Holiday Pay