ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference: ADJ-00023607

Parties:

Complaints & Dispute:

Date of Adjudication Hearing: 05/12/2019

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The aforesaid dispute under Section 13 of the Industrial Relations Act 1969 and complaints under Section 7 of the Terms of Employment (Information) Act 1994, Section 6 of the Payment of Wages Act 1991 and Section 27 of the Organisation of Working Time Act 1997 were received by the Workplace Relations Commission (hereinafter ‘WRC’) on 10th June 2019. In accordance with Section 41(4) of the Workplace Relations Act 2015, the Director General referred these complaints to me for adjudication and they were initially scheduled for hearing on 25th November 2019. When there was no appearance on behalf of the Respondent and it came to my attention that the letter notifying him of the hearing details had been sent to the premises which had closed down, I could not be reasonably satisfied that he had been properly notified and accordingly adjourned the hearing. The Respondent’s registered business address was confirmed and by letter dated 16th November 2019, the Parties were notified of the rescheduled hearing. It also came to my attention that these complaints had been closed by the Administrative Section when the Complainant had not reverted to answer queries relating to his complaint form. I was satisfied that this arose from language difficulties and further that his complaints were adequately detailed within the form and reinstated them. I also consider a typographical amendment to the Respondent’s name to be purely administrative given that he was properly notified at his registered business address. I proceeded to hearing on 5th December 2019 and gave the Parties an opportunity to be heard and to present any relevant evidence. The Complainant was assisted by an interpreter. There was no appearance on behalf of the Respondent. Before commencing, I confirmed that he had not made any application for an adjournment, indicated any difficulty attending or otherwise engaged with the WRC.

I further noted that the Complainant had previously received a Recommendation from the WRC, Record No. ADJ-00020936 – CA-00027587-001, dated 13th September 2019 against the same Respondent and in respect of the same subject-matter giving rise to these complaints. It recommended payment of compensation of €900 in respect of the Complainant not being furnished with a written statement containing the particulars of his employment, €700 for the non-payment of wages, €750 for the non-payment of annual leave and €360 (rounded up) for the non-payment of public holiday pay. The Complainant confirmed that none of the aforesaid sums of compensation had been discharged by the Respondent to date. As a recommendation under Section 13 of the Industrial Relations Act 1969 is non-justiciable, for the purposes of enforcement and/or payment out from the Social Insurance Fund, I proceeded to hear and adjudicate upon these complaints. I also heard the Complainant’s dispute that he had been unfairly dismissed by the Respondent with less than 12 months service. The Parties’ respective positions are summarised hereunder followed by my findings & conclusions and decision. All the evidence presented and relevant statutory provisions have been fully reconsidered herein independently to the prior Recommendation.

Background:

The Complainant had been employed by the Respondent as a Chef in a Restaurant from 5th November 2018 until 25th March 2019 when the premises closed down suddenly. He worked a 42 hour week in respect of which he was paid €450 net weekly. He sought compensation in respect of his unfair dismissal with less than 12 months service, the failure by the Respondent to provide him a written statement containing the particulars of his employment and non-payment of his outstanding wages (including pay in lieu of minimum notice), annual leave and public holiday pay. The Respondent did not appear at either of the scheduled hearings or engage with the WRC in any way.

CA-00029104-001 - Unfair Dismissal with less than 12 months service under Section 13 of the Industrial Relations Act 1969

Summary of Complainant’s Case:

The Complainant confirmed that in circumstances where he had less than the 12 months requisite continuous service required under the Unfair Dismissal Acts 1977-2015, he had referred this matter as a dispute under Section 13 of the Industrial Relations Act 1969. He further confirmed that he had been employed by the Respondent as a Chef in a Restaurant from 5th November 2018 until 25th March 2019. He worked a 42 hour week in respect of which he was paid €450 net weekly. He was never furnished with a written statement containing the particulars of his employment or payslips.

The Complainant contends that when he went to work on 25th March 2019, he was informed that the business was closing and that all of the staff were going on holidays. He was not given any warning or notice of this closure by the Respondent. There had been no difficulties with his employment. The Restaurant has remained closed and he has received no communication from the Respondent other than a text message from the Respondent’s wife confirming that he would be paid any outstanding sums due. However, when he attended at a Takeaway operated by the same Respondent, he was ushered away without any payment. He confirmed that his outstanding pay and other statutory entitlements were never discharged (addressed hereunder under separate complaints). He was left without employment for a number of weeks before finding alternative employment. He seeks an award of compensation in respect of the termination of his employment.

Summary of Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent.

Findings and Conclusions:

The Complainant contends that his employment with the Respondent was terminated without any notice on 25th March 2019. He seeks an award under Section 13 of the Industrial Relations Act 1969 in circumstances where he does not have the requisite 12 months continuous service required to refer a complaint under the Unfair Dismissals Acts 1977-2015. It is well established with numerous examples, that the WRC and Labour Court have seen fit to recommend awards of compensation in respect of unfair dismissals with less than 12 months service in a wide range of circumstances.

Regardless of the reasons for termination of an employee’s employment, common law, statute and case-law all require an employer to adhere to basic fair procedures. In the instant dispute, I found the Complainant to be an impressive witness and his account of the circumstances giving rise to the termination of his employment to be wholly credible. In the absence of any appearance or engagement with the WRC, the Respondent has not proffered any evidence in rebuttal of same. I am therefore satisfied on the balance of probabilities that the Complainant’s employment was terminated without any notice and further that the Respondent showed a total disregard towards him by failing to give him any notice or contacting him to explain the position. I also accept his evidence that this left him in a difficult position without employment for a number of weeks.

Recommendation:

Section 13 of the Industrial Relations Acts 1969 requires that I make a recommendation in relation to the dispute. Based upon the aforesaid reasoning, I recommend the payment of compensation in the sum of €900 by the Respondent to the Complainant within 42 days of the date hereof. This compensation is equivalent to two weeks wages and is compensation for the period out of work.

CA-00029104-002 – No Written Statement of Particulars of Employment under Section 3 of the Terms of Employment (Information) Act 1994

Summary of Complainant’s Case:

The Complainant gave evidence confirming that he had never received a contract or written statement containing the particulars of his employment from the Respondent within the requisite two-month period applicable at the material time or at any stage during or after his employment. The Complainant sought compensation under the Terms of Employment (Information) Act 1994.

Summary of Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent.

Findings and Conclusions:

For the purposes of determining this complaint, it is necessary to consider the evidence adduced in light of the relevant statutory provisions. Relevant to this complaint at the material time, Section 3 of the Terms of Employment (Information) Act 1994 provides: “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 (listed thereunder) of the terms of the employee’s employment.” Again I found the Complainant to be an impressive witness and his evidence in this respect to be credible. In the absence of any appearance or engagement with the WRC, the Respondent has not proffered any evidence in rebuttal of same. I am therefore satisfied on the balance of probabilities that the Respondent acted in contravention of Section 3 of the Terms of Employment (Information) Act 1994 by failing to provide the Complainant with a statement in writing containing the particulars of his employment or contract that sufficed.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 if successful. I find this complaint to be well-founded for the reasons set out aforesaid. Once a complaint has been declared well-founded, Section 7(2)(b) and (c) provides for the giving of directions regarding the particulars to be contained in a written statement, and Section 7(2)(d) Section 7(2)(d) provides for an award in respect of a contravention of: “compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under Section 17 of the Unfair Dismissals Act 1977.” Having regard to all of the circumstances, I deem it just and equitable to direct the Respondent to pay the Complainant compensation in the sum of €900, equivalent to two weeks remuneration. I note that an award of €900 was also recommended in respect of the same subject-matter under ADJ-00020936 and therefore direct that this award is payable less any sum under ADJ-00020936 discharged to date.

CA-00029104-004 – Non Payment of Outstanding Wages and Pay in lieu of Minimum Notice under the Payment of Wages Act 1991

Summary of Complainant’s Case:

The Complainant gave evidence confirming that as at the date of the termination of his employment, he was owed €700 in wages which was never discharged by the Respondent. Furthermore, he would also have been due one week’s wages of €450 in lieu of minimum notice, having in excess of thirteen weeks continuous service under the Section 4 of the Minimum Notice & Terms of Employment Act 1973. The total sum due and owing is therefore €1150. The Complainant confirmed that when he attended at a Takeaway operated by the same Respondent, he was ushered away without any payment. He sought compensation under the Payment of Wages Act 1991.

Summary of Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions. Section 1 of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as including: “…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,…” I am therefore satisfied that the outstanding wages and pay in lieu of minimum notice claimed fall within the definition of ‘wages’ for the purposes of referring a complaint to the WRC under Section 6 of the Act. In relation to the shortfalls alleged, Section 5(1) of the Payment of Wages Act 1991 provides: “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.” As set out aforesaid, I found the Complainant to be an impressive witness and his evidence that the Respondent has not made any effort to discharge his outstanding pay to be credible. I further accept that both sums became due and owing within the six month period prior to referral of this complaint as required under Section 41(6) of the Workplace Relations Act 2015. In the absence of any appearance or engagement with the WRC, the Respondent has not proffered any evidence in rebuttal of same. I am therefore satisfied on the balance of probabilities that the Respondent acted in contravention of Section 5 of the Payment of Wages Act 1991 by failing to discharge the Complainant’s outstanding wages of €700 and €450 in lieu of minimum notice.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act if successful. I find this complaint to be well-founded for the reasons set out aforesaid. Once a complaint has been declared well-founded, Section 6 of the Payment of Wages Act 1991 provides that an Adjudication Officer may direct an employer to pay an employee compensation of such amount (if any) as considered reasonable in the circumstances not exceeding: “(a) the net amount of the wages (after the making of any lawful deduction therefrom) that- (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, where paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.” As the sum of €1150 due and owing in the instant case exceeds the net wages payable to the Complainant in the week preceding the deduction, I consider it reasonable in all the circumstances to direct the Respondent to pay the Complainant compensation in the sum of €1200 (subject to any lawful deductions). In this respect I am factoring in the inconvenience to the Complainant of having to refer this to the WRC. I note that an award of €700 was recommended in respect of the same subject-matter under ADJ-00020936 and therefore direct that this award is payable less any sum under ADJ-00020936 discharged to date.

CA-00029104-005 – Non Payment of Pay in lieu of Annual Leave and unpaid Public Holiday pay under the Organisation of Working Time Act 1997

Summary of Complainant’s Case:

The Complainant confirmed that as at the date of the termination of his employment, he was also owed pay in lieu of his annual leave entitlement and outstanding public holiday pay which was never discharged by the Respondent. In relation to the claim for annual leave payment, he confirmed that he was entitled to 70 hours based upon his hours worked between 5th November 2018 and 25th March 2019 which equated to €750. In relation to his claim for public holiday pay, he confirmed that the business was closed on Mondays and that he had never been paid in lieu of or was given a paid day off in respect of the four public holidays that fell within the period of his employment and six month period prior to the referral of this complaint, being four days’ pay at €90 per day equating to €360. When he had attended at a Takeaway operated by the same Respondent, he was ushered away without payment. He sought compensation under the Organisation of Working Time Act 1997.

Summary of Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions. Section 19 of the Organisation of Working Time Act 1997 sets out the relevant provisions and methods of calculations in relation to annual leave. Section 23 of the Act provides that outstanding annual leave becomes payable upon the cessation of employment. Section 21 of the Organisation of Working Time Act 1997 sets out the relevant provisions and methods of calculation in relation to public holiday pay. As already outlined, I found the Complainant to be an impressive witness and his evidence that the Respondent has not made any effort to discharge these monies to be credible. I accept that his calculations of outstanding pay in lieu of annual leave and public holiday pay of €750 and €360 respectively, totalling €1110, are correct. I further accept that both sums became due and owing within the six month period prior to referral of this complaint as required under Section 41(6) of the Workplace Relations Act 2015. In the absence of any appearance or engagement with the WRC, the Respondent has not proffered any evidence in rebuttal of same. I am therefore satisfied on the balance of probabilities that the Respondent acted in contravention of the relevant provisions of the Organisation of Working Time Act 1997 by failing to discharge the Complainant’s outstanding pay in lieu of annual leave and public holiday pay.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find this complaint to be well-founded for the reasons set out aforesaid. Once a complaint has been declared well-founded, Section 27(3) of the Organisation of Working Time Act 1997 provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.” I consider it just and equitable having regard to all of the circumstances to direct the Respondent to pay the Complainant compensation in the sum of €1500 for these breaches (€1110 in monetary loss and €390 in compensation). This is in keeping with the Von Colson principles. I note that a total award of €1110 was recommended in respect of the same subject-matter under ADJ-00020936 and therefore direct that this award is payable less any sum under ADJ-00020936 discharged to date.

Overall Award:

Overall the Respondent is ordered to pay a total of €4500 in compensation to the Complainant, comprising of €900 in relation to his dispute under Section 13 of the Industrial Relations Act 1969, €900 in respect of his complaint under Section 7 of the Terms of Employment (Information) Act 1994, €1200 in respect of his complaints of outstanding pay and pay in lieu of minimum notice under Section 6 of the Payment of Wages Act 1991 and €1500 in respect of outstanding annual leave entitlement and public holiday pay under Section 27 of the Organisation of Working Time Act 1997.

Dated:   27th August 2020

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Unfair Dismissal with less than 12 months service - Section 13 of Industrial Relations Act 1969 – no written statement containing particulars of employment - Sections 3 & 7 of the Terms of Employment (Information) Act 1994 – non-payment of wages & pay in lieu of minimum notice - Sections 5 & 6 of the Payment of Wages Act 1991 – outstanding annual leave entitlement & public holiday pay - Sections 19, 21, 23 & 27 of the Organisation of Working Time Act 1997