ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00024138

Parties:

Complaint(s):

Date of Adjudication Hearing: 16/12/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 13 of the Industrial Relations Acts 1969,following the referral of the complaints and disputes to me by the Director General, I inquired into the complaints and disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and disputes.

Background:

The Complainant was employed as a Project Worker with the Respondent who provided community care services. The complaint refers to a series of alleged breaches to the Complainant’s employment rights since July 2018 and up to his termination of employment in June 2019.

The Respondent submitted that it has been experiencing financial difficulty due to late receipt of funding for the provision of services and the company had appointed a liquidator.

Summary of Complainant’s Case:

CA-00030701-001 Complaint under section 27 of the Organisation of Working Time Act, 1997- Sunday Premium           

The Complainant submitted that his roster included on average two Sundays a month for 10 hours each Sunday but he did not receive a Sunday premium for this work. His hourly rate was €15 per hour and he did not receive a premium of the times he was on Sunday roster.

CA-00030701-002 Complaint under section 6 of the Payment of Wages Act, 1991     

This complaint referred to the non-payment of wages for annual leave. This complaint is dealt with under complaint CA-00030701-006 below.

CA-00030701-003 Complaint under section 6 of the Payment of Wages Act, 1991     

The Complainant submitted that he did not receive his payment in lieu of notice.

The Complainant maintained as he was not being paid in a timely manner for his work since July 2018 and he had not been paid for working in April 2019. He therefore decided not to attend work on 2nd May 2019 until he was paid. Despite commitments given by the Respondent the Complainant submitted that he did not get paid for his April work until 15th and 16th May 2019. On 16th May 2019 a staff meeting was called for 17th May 2019, but as the Complainant was on annual leave he did not see the notice and did not attend the staff meeting. The Complainant was therefore removed from his roster. The Complainant submitted that when he became aware of this he sought to meet with the Respondent and a meeting was set up for 27th May 2019. He was advised at that he could have his job back but could not start until June 2019 as the roster was already set up. The Complainant then received a roster from 6th June 2019, but on 4th June 2019 he received notification from the Revenue Commissioners that his employment had ceased with effect from 30th April 2019. He was told there was a mistake about this. The Complainant also advised that on 6th June 2019 when he was rostered to start work again, he could not attend due to a prior engagement and a manager had been rostered instead of him. He noted the manager was rostered in his place for the remainder of the month so he attempted to contact the Director to resolve this matter so he could return to work. However, as the Director was ill no meeting took place. The Complainant maintained that his last day at work was circa 28th April 2019, and his job was terminated sometime after that without notice.

He attempted to call the Respondent on 9th June 2019 with no response and he continued to email the Respondent up to 22nd June 2019 but got no response. The Complainant maintained he had attempted to make contact with the Respondent between 60 to 70 times to no effect. On occasion when his calls were answered he would have been told that the Director would call him back, but he never got the return call.

The Complainant was therefore seeking his payment in lieu of notice.

CA-00030701-004 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlement          

The Complainant acknowledged that since submitting his complaint he has received all his annual leave entitlements except for his entitlements on his cessation of employment, which is dealt in complaint CA-00030701-006 below.  

CA-00030701-005 Complaint under section 27 of the Organisation of Working Time Act, 1997 Zero Hours

This complaint relates to an alleged breach of Section 18 of the Organisation of Working Time Act, 1997 referring to zero hours contracts. The Complainant maintained that from 17th May 2019 he was not rostered for work until 6th June 2019. He was therefore seeking his entitlements for not being provided work over this period despite being available.

CA-00030701-006 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlement on Leaving    

The Complainant submitted that on cessation of his employment he did not receive the annual leave owing to him- from April to June 2019.

CA-00030701-007 Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlements       

The Complainant submitted that he did not receive his public holiday entitlement for the June 2019 Bank holiday.

CA-00030701-008 Complaint under Section 45A of the Industrial Relations Act, 1946- ERO Annual Leave             

This complaint was withdrawn at the hearing as it is dealt with earlier.

CA-00030701-009 Complaint under Section 45A of the Industrial Relations Act, 1946- ERO Public Holiday Entitlements  

This This complaint was withdrawn at the hearing as it is dealt with earlier.

CA-00030701-010 Complaint under section 7 of the Terms of Employment (Information) Act, 1994- Notification of Change 

The Complainant submitted that his rosters were changed and cancelled without notice, and this was a change to his working conditions, and he was not notified in writing of these changes.

CA-00030701-012 Complaint under section 13 of the Industrial Relations Act, 1969- Disciplinary Sanctions

As no disciplinary sanctions were imposed this complaint was withdrawn

CA-00030701-013 Complaint under section 13 of the Industrial Relations Act, 1969- Bullying and Harassment

This complaint was withdrawn.

CA-00030701-014Complaint under Section 39 of the Redundancy Payments Act, 1967- Redundancy Payments

The Complainant submitted that he last worked for the Respondent in April 2019. Following a dispute for non -payment of wages he was again rostered for work on 6th June 2019 but was unavailable for work that day. He was then replaced on the roster by another person and despite numerous attempts to be rostered he was not required to attend work despite being available. The Complainant understands his job was made redundant for economic reasons and he is seeking his redundancy payment with effect from the end of June 2019.   

CA-00030701-015 Complaint under Section 39 of the Redundancy Payments Act, 1967- Redundancy, Employers Inability to pay

The Complainant expressed concerns that the Respondent would not pay redundancy and requested a statement of affairs to be provided should he be required to claim from the Employers’ Insolvency Fund.

CA-00030701-016 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

This complaint refers to the non-payment of notice period and has been dealt with under Complaint CA-00030701-003.

CA-00030701-017Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973           

This complaint refers to the non-payment of notice period and has been dealt with under Complaint CA-00030701-003.

CA-00030701-018 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

This complaint refers to the non-payment of notice period and has been dealt with under Complaint CA-00030701-003.            

Summary of Respondent’s Case:

CA-00030701-001 Complaint under section 27 of the Organisation of Working Time Act, 1997- Sunday Premium           

The Respondent acknowledged the rate of Pay was €15 per hour, however he was not in a position to confirm the working hours, or that the contract of employment included a Sunday premium as part of the rate of pay.

CA-00030701-002 Complaint under section 6 of the Payment of Wages Act, 1991     

This complaint is dealt with under CA-00030701-006 below.

CA-00030701-003 Complaint under section 6 of the Payment of Wages Act, 1991     

This complaint referred to a non-payment of wages in lieu of notice. The Respondent submitted that he experienced chronic late payments from a main funder for the service where the situation had worsened in May 2019 as he had not received the funding from February 2019 he was unable to pay the wages.

The Complainant maintained that due to the non-payment of wages there had been a withdrawal of labour and nobody turned up for work on 3rd May 2019. The Respondent did receive a payment form the funder in May 2019 and paid the Complainant what he was owed over 15th and 16th May 2019.   There was a staff meeting on 17th May 2019 to discuss the issues and the Respondent had attempted to contact the Complainant but the Complainant did not turn up for the briefing. The Respondent also submitted that it heard the Complainant had taken up alternative employment in May 2019. Following a discussion with the Complainant, the Respondent also advised management to roster the Complainant for work but when the Complainant was offered work he was sick, but this was denied by the Complainant.

The Respondent submitted that over the period the Managing Director had been ill and had attended hospital six times. The Respondent maintained this was the reason he was not in a position to return the Complainant’s calls. Notwithstanding the Respondent advised it was experiencing funding difficulties and the Managing Director tried to save the company, but by July 2019 it became more difficult and it was decided to put the company into liquidation.

Whilst the Respondent acknowledged there were difficulties in paying the Complainant it maintained it did not dismiss the Complainant, but the Complainant sought alternative employment and when he was rostered for work in June 2019 he was not available.

CA-00030701-004 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlement          

This matter is dealt in complaint CA-00030701-006 below.

CA-00030701-005 Complaint under section 27 of the Organisation of Working Time Act, 1997

This Respondent submitted that the Complainant was not available for work as he had taken alternative employment or was sick when rostered. It is noted the Complainant rejected that he was sick and not available for work.

CA-00030701-006 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlement on Leaving    

The Respondent acknowledged the Complainant was not paid for his annual leave from April to June 2019.

CA-00030701-007 Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlements       

No direct response was made to this complaint.

CA-00030701-008 Complaint under Section 45A of the Industrial Relations Act, 1946- ERO Annual Leave             

This complaint was withdrawn.

CA-00030701-009 Complaint under Section 45A of the Industrial Relations Act, 1946- ERO Public Holiday Entitlements  

This complaint was withdrawn.

CA-00030701-010 Complaint under section 7 of the Terms of Employment (Information) Act, 1994- Notification of Change

The Respondent denied there was any change in the Complainant’s terms and conditions of employment. It was asserted that the Complainant had withdrawn his labour in May 2019 due to non-payment of wages and that when he was subsequently rostered, he was not available to attend work. The work and conditions of employment were not changed.

CA-00030701-012 Complaint under section 13 of the Industrial Relations Act, 1969- Disciplinary Sanctions

This complaint was withdrawn

CA-00030701-013 Complaint under section 13 of the Industrial Relations Act, 1969- Bullying and Harassment

This complaint was withdrawn

CA-00030701-014Complaint under Section 39 of the Redundancy Payments Act, 1967- Redundancy Payments

The Respondent acknowledged that there was a walkout by staff in May 2019 due to the non-payment of wages and the Complainant was eventually paid in May 2019. The Respondent maintained there was a staff meeting called for 17th May 2019 but that the Complainant did not attend and as a result he was not rostered for the remainder of the month. Following a dispute as to whether the Complainant had taken up employment elsewhere the Respondent confirmed that the Complainant was rostered for work in June 2019, but as he was not available for work on 6th June 2019 he was taken off the roster. The Respondent advised that during this time, and since 2018, the business was experiencing cash flow issues where its main funder was late in making payments. This impacted on the ability of the business to pay its wages. The Respondent also advised that he was unwell during this period and had attended hospital on six occasions and he was not in a position respond to the Complainant. In light of the difficult economic status of the business the Respondent decided to liquidate the company and began that process in July 2019. Whilst contending the Complainant had found work elsewhere and was therefore not available for work, the Respondent acknowledged the Complainant had not received any redundancy payments and indicated the matter was being dealt with by a liquidator.

CA-00030701-015 Complaint under Section 39 of the Redundancy Payments Act, 1967- Redundancy, Employers Inability to pay

The Respondent was not in a position to confirm the financial status of the business indicating a liquidator had been appointed to the company and that matters were being dealt with by the liquidator.

CA-00030701-016 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

This complaint was dealt with under CA-00030701-003.

CA-00030701-017Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973           

This complaint was dealt with under CA-00030701-003.

CA-00030701-018 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

This complaint was dealt with under CA-00030701-003.

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.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]

CA-00030701-001 Complaint under section 27 of the Organisation of Working Time Act, 1997- Sunday Premium           

Section 14 of the Organisation of Working Time Act, 1997 states An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs.

As the Complainant was not in receipt of such compensation, I find the Complainant is well founded and require the Respondent to pay the Complainant compensation of €3 per hour for a Sunday premium for each hour worked for the six months prior to the Complaint being submitted. I therefore award the Complainant compensation totalling €360 for his Sunday premium.

CA-00030701-002 Complaint under section 6 of the Payment of Wages Act, 1991

This complaint was dealt with under CA-00030701-006 below.

CA-00030701-003 Complaint under section 6 of the Payment of Wages Act, 1991     

This complaint refers to a non-payment of wages in lieu notice on the termination of employment.

Section 5(1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless the is required or authorised to be made by virtue of any statute or any instrument made under statute; the deduction is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract …or the employee has given his prior consent in writing to it.

Section 4(b) of the Minimum Notice & Terms of Employment Act, 1973 requires that an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of two years or more, but less than five years, two weeks notice.

The case within has been unfortunate for all the parties. The Complainant had been experiencing difficulties in getting paid and in May 2019 decided not to turn up to work until he got his wages for April 2019. In May 2019 the Complainant also took up alternative employment to supplement his income and he missed a notification on 16th May 2019 for a staff meeting and so he did not turn up for the staff meeting held on 17th May 2019. He was therefore not rostered for further work in May 2019. Following discussions with the Respondent he agreed to return to work in June 2019, but before attending work he received notification from the Revenue Commissioners that his job had been terminated.   The Respondent submitted this was in error and he had agreed to roster the Complainant for work. The Complainant did not turn up for his rostered work on 6th June 2019 and when he tried to return to work he noted he had been replaced on the roster by a manager. However, in trying to address this matter the Complainant experienced difficulty in making contact with the Respondent and as a consequence the matter was not resolved, and the Complainant was not rostered for work again despite efforts throughout June to have the matter resolved with the Respondent. In July 2019 the Respondent decided to liquidate the company.

On that basis, in light of the difficulties the Complainant was experiencing with the Respondent it was reasonable for him to believe he had been dismissed without notice in June 2019, particularly as he had received correspondence from the Revenue Commissioners regarding a termination of his employment. I therefore find the Complainant’s employment was terminated by the Respondent a the end of June 2019 by not rostering the Complainant for duty from then.

Under the Minimum Notice & Terms of Employment Act, 1973 the Complainant was entitled to two weeks’ notice, and contrary to Section 5 of the Payment of Wages Act 1991 the Respondent failed to make this payment.

As I have found the complaint is well founded as respects the deductions from the Complainant’s wages, I direct the Respondent to pay the Complainant compensation of €1,600 after the making of any lawful deduction.

CA-00030701-004 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlement          

This matter is dealt in complaint CA-00030701-006 below.

CA-00030701-005 Complaint under section 27 of the Organisation of Working Time Act, 1997-Zero Hours Working

This complaint relates to an alleged breach of Section 18 of the Organisation of Working Time Act, 1997 referring to zero hours contracts. Section 18 of the Act applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—a certain number of hours (“the contract hours”); or as and when the employer requires him or her to do so; or both a certain number of hours and otherwise as and when the employer requires him or her to do so, and the said requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to the said week.

As the Complainant was not on a zero hours contract and worked in average over a 40 hour week Section 18 of the Act does not apply and therefore the complaint fails.

CA-00030701-006 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlement on Leaving    

Section 23 of the Organisation of Working Time Act, 1997 states that where an employee ceases to be employed, and 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 she would have received had he or she been granted that annual leave.

I therefore find that the Complainant is entitled to his annual leave calculated for the period 1st April 2019 to 4th June 2019. As I have found the Complainant did not receive 4 days annual leave entitlements, I require the Respondent to pay the Complainant arrears of €577 after the making of any lawful deduction.

CA-00030701-007 Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlements       

I find the Complainant was entitled to a public holiday entitlement for 3rd June 2019. As this complaint is well founded I direct the Respondent to pay the Complainant compensation for an additional days pay amounting to €160 after the making of any lawful deduction.

CA-00030701-008 Complaint under Section 45A of the Industrial Relations Act, 1946- ERO Annual Leave             

This Complaint was withdrawn.

CA-00030701-009 Complaint under Section 45A of the Industrial Relations Act, 1946- ERO Public Holiday Entitlements  

This complaint was withdrawn.

CA-00030701-010 Complaint under section 7 of the Terms of Employment (Information) Act, 1994- Notification of Change 

Section 5(1) of the Terms of Employment (Information) Act, 1994 Act requires that whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3…,the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than 1 month after the change takes effect,

Based on the evidence provided I am satisfied that the Respondent had not in fact made any changes under section 3 of the Act. I therefore do not uphold this complaint.

CA-00030701-012 Complaint under section 13 of the Industrial Relations Act, 1969- Disciplinary Sanctions

This complaint was withdrawn.

CA-00030701-013 Complaint under section 13 of the Industrial Relations Act, 1969- Bullying and Harassment

This complaint was withdrawn.

CA-00030701-014Complaint under Section 39 of the Redundancy Payments Act, 1967- Redundancy Payments

Section 7(1) of the Redundancy Payments Act, 1967 provides that an employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—(a) he has been employed for the requisite period, and(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.

Having heard the evidence I find that the Complainant was employed by the Respondent up to the end of June 2019 and that his employment was terminated due to the economic circiumstances of the Company. Despite the contentions of the Respondent the Complainant was available for work but was taken off the roster by the Respondent. I therefore find this complaint under the Redundancy Payments Acts 1967 to 2007 succeeds and award the complainant a redundancy lump sum based on the following:

Date of Commencement:           15th November 2015

Date of Termination:                     28th June 2019

Gross Weekly Pay:                         €800

This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.  

CA-00030701-015 Complaint under Section 39 of the Redundancy Payments Act, 1967- Redundancy, Employers Inability to pay

The Complainant expressed his concerns that he would not receive redundancy payment.   No evidence was provided to support a complaint of insolvency. The Respondent indicated a liquidator was appointed to the Company.

At this time I have no jurisdiction to consider this complaint and deem it not well-founded.

CA-00030701-016 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

This complaint was dealt with under CA-00030701-003 above.

CA-00030701-017Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973           

This complaint was dealt with under CA-00030701-003 above.

CA-00030701-018 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

This complaint was dealt with under CA-00030701-003 above.

Dated:   28th April 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney