ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024571
Parties:
| Complainant | Respondent |
Anonymised Parties | Construction Worker | A Constructor |
Representatives | CW Ashe & Co. Solicitors | No Appearance by or on behalf of the Respondent |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00030957-001 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00030957-002 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00030957-003 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00030957-004 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984. | CA-00030957-005 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984. | CA-00030957-006 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00030957-007 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00030957-008 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00030957-009 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 | CA-00030957-010 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 | CA-00030957-011 | 17/09/2019 |
Date of Adjudication Hearing: 09/01/2020
Workplace Relations Commission Adjudication Officer: Patricia Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 , Section 39 of the Redundancy Payments Acts 1967 – 2014, Section 9 of the Protection of Employees ( Employers Insolvency) Act, 1984 and Regulation 6 of the EC ( Protection of Employment ) Regulations , 2000 following the referral of the complaints 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 Claims tabled in this case surround the circumstances of an expected termination of employment in July 2019. The Complainant was represented by his Solicitor and there was no appearance by or on behalf of the Respondent. Notification of hearing to the Respondent was returned. In the validation of the claim, the complainant was asked to clarify his intentions regarding the 11 claims. Some clarification was received. On the Day of Hearing, the Complainants Solicitor was asked to confirm whether the complainant was intent on pursuing all 11 claims and she responded in the affirmative. I will address this further in the body of my decision. |
Summary of Complainant’s Case:
The Complainant outlined that he had worked as a Construction Worker on a full-time basis from 27 May 2016 to 21 June 2019. His gross pay was €752.92 weekly. He was one of two employees. On the way to a job, on 21 June 2019, he was asked to divert his journey, when he heard from the Respondent that he had gone bankrupt and work was finished. The Respondent told him that he would be paid and assisted in claiming Redundancy Payment, but he did not honour this undertaking. The Complainant made an application for a Redundancy Payment on line. The Complainant was asked to submit documents which linked him to this employment and he forwarded copies of Revenue Certs, confirmation of a redundancy application, a screenshot from the respondent dated 5 July 2019.He submitted two pay slips from 2018 and 2019. At this point the complainant representative clarified that ADJ 00030957-010 -011 did not fit her client’s circumstances. CA -00030957-001 Redundancy Lump Sum The Complainant submitted that he had been denied a Lump Sum redundancy payment on the unexpected termination of his employment on 21 June 2019. All efforts made to secure this payment had failed. CA -00030957-002 Correct Redundancy Payment The Complainant submitted that he had been denied a Lump Sum redundancy payment on the unexpected termination of his employment on 21 June 2019. All efforts made to secure this payment had failed. He had not received payment. CA -00030957-003 Proof of Inability to Pay Redundancy The Complainant submitted that he had been denied a Lump Sum redundancy payment on the unexpected termination of his employment on 21 June 2019. All efforts made to secure this payment had failed. The Respondent had informed him that he was bankrupt but did not demonstrate his inability to pay this award. CA -00030957-004 Decision of Deciding Officer DSP The Complainants Representative confirmed that the Deciding Officer had not issued a decision in this case. There was no request to withdraw this claim. CA -00030957-005 Insolvency Payment Scheme The Complainants representative confirmed that the Minister had not been requested to decide in this claim. There was no request to withdraw the claim. CA -00030957-006 Insolvency Payment Scheme The Complainants representative confirmed that the Minister had not been requested to decide in this claim. There was no request to withdraw the claim. CA -00030957-007 Minimum Notice The Complainant submitted that he had been denied payment in lieu of notice and sought compensation. CA -00030957-008 Rights during Notice Period The Complainant submitted that he had been denied his rights during the period of notice. He stated that he had not received holiday pay. CA -00030957-009 Notice from employee The Complainants representative confirmed that this claim was not properly before the WRC. CA -00030957-010 EC Regulations (Protection of Employees) The Complainants representative was unable to particularise this claim at hearing and was permitted time to clarify. She submitted that the claim “does not fit with my client’s circumstances”. CA -00030957-011 Regulations (Protection of Employees) The Complainants representative was unable to particularise this claim at hearing and was permitted time to clarify. She submitted that the claim “does not fit with my client’s circumstances”. |
Summary of Respondent’s Case:
CA -00030957-001 Redundancy Lump Sum CA -00030957-002 Correct Redundancy Payment CA -00030957-003 Proof of Inability to Pay Redundancy CA -00030957-004 Decision of Deciding Officer DSP CA -00030957-005 Insolvency Payment Scheme CA -00030957-006 Insolvency Payment Scheme CA -00030957-007 Minimum Notice CA -00030957-008 Rights during Notice Period CA -00030957-009 Notice rom employee CA -00030957-010 EC Regulations (Protection of Employees) CA -00030957-011 Regulations (Protection of Employees) There was no appearance by or on behalf of the Respondent to address any of the 11 claims tabled. The Respondent did not file a defence to the claim or offer any reason for his non-appearance at hearing. |
Findings and Conclusions:
I have considered the claims submitted in this case. It is regrettable that the claims were not framed according to the pieces of legislation which were relevant to the complainant. I did explain to the Complainant representative that I found the scatter gun approach to framing these complaints to be challenging. I am satisfied, based on the address submitted by the complainant, that the Respondent was on notice of this set of claims. I permitted some time at the commencement of hearing to allow for his late arrival. He did not attend. I have endeavoured to apply the law to the facts off the case as presented. I requested and received additional documentation to assist in my Inquiry as the complainant was unable to submit a contract of employment at hearing. CA -00030957-001 Redundancy Lump Sum Based on the complainant’s evidence at hearing, I am satisfied that the complainant is entitled to receive a Lump Payment in Redundancy. He was dismissed by reason of redundancy in accordance with Section 7(2) of the Act . His claim is well founded . CA -00030957-002 Correct Redundancy Payment As I have found in the Complainants favour in CA -00030957-001 and have granted a full lump sum payment . I find this to be a duplicate claim . The claim is not well founded . CA -00030957-003 Proof of Inability to Pay Redundancy I have seen a screenshot dated July 5, 2019 which confirms that the Respondent recorded not having funds to pay wages and redundancy . As I have awarded a full redundancy payment in CA -00030957-001. I find this to be a duplicate claim.This may be a matter is this decision is presented to the Insolvency fund . CA -00030957-004 Decision of Deciding Officer DSP The Insolvency Payments Scheme operates under the Protection of Employees (Employers Insolvency) Act 1984. It is administered by the Redundancy Division of Dept of Social Protection. The scheme is relevant in cases of liquidation, receivership, employer’s death or declared bankruptcy. The Complainant has neither sought or received a decision from a Deciding Officer under this legislation. This claim is not well founded CA -00030957-005 Insolvency Payment Scheme The Insolvency Payments Scheme operates under the Protection of Employees (Employers Insolvency) Act 1984. It is administered by the Redundancy Division of Dept of Social Protection. The scheme is relevant in cases of liquidation, receivership, employer’s death or declared bankruptcy. The Complainant has neither sought nor received a decision from the Minister under this legislation. This claim is not well founded CA -00030957-006 Insolvency Payment Scheme The Insolvency Payments Scheme operates under the Protection of Employees (Employers Insolvency) Act 1984. It is administered by the Redundancy Division of Dept of Social Protection. The scheme is relevant in cases of liquidation, receivership, employer’s death or declared bankruptcy. The Complainant has neither sought nor received a decision from the Minister under this legislation. This claim is not well founded CA -00030957-007 Minimum Notice Section 4 of the Minimum Notice and Terms off Employment Act , 1973 requires an employer to terminate a contarct with notice , providing the employee has continuous services of over 13 weeks . I am satisfied that the complainant was denied his notice pay and I find his claim to be well founded . CA -00030957-008 Rights during Notice Period CA -00030957-009 Notice from employee This claim is not well founded CA -00030957-010 EC Regulations (Protection of Employees) This claim is not well founded CA -00030957-011 Regulations (Protection of Employees) This claim is not well founded |
Decision:Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act. CA -00030957-001 Redundancy Lump Sum Date of Commencement: 27 May 2016 Date of Termination: 21 June 2019 Breaks in Service: None, outside Injury benefit x 2weeks. Gross Weekly Pay: €593.00 (as evidenced on pay slip 2019) This award is made subject to the complainant having been in insurable employment under the Social welfare Acts during the relevant period. CA -00030957-002 Correct Redundancy Payment This claim is not well founded CA -00030957-003 Proof of Inability to Pay Redundancy This claim is not well founded Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. CA -00030957-004 Decision of Deciding Officer DSP This claim is not well founded CA -00030957-005 Insolvency Payment Scheme This claim is not well founded CA -00030957-006 Insolvency Payment Scheme This claim is not well founded CA -00030957-007 Minimum Notice I have found the claim to be well founded. I order the Respondent to pay the complainant €1186.00 in compensation (2 weeks’ pay) in respect of the contravention of Section 4(2) of the Act. CA -00030957-008 Rights during Notice Period I have found that the respondent acted in breach of Section 5 of the Act by not permitting him holiday pay over the two weeks of notice. The case was not assisted by the absence of a contract of employment. I order the Respondent to pay the complainant €200 .00 in compensation. CA -00030957-009 Notice from employee This claim is not well founded CA -00030957-010 EC Regulations (Protection of Employees) The Complainant Representative has clarified that this claim does not fit her client. The claim Is not well founded. CA -00030957-011 EC Regulations (Protection of Emp [loves) The Complainant Representative has clarified that this claim does not fit her client. The claim Is not well founded.
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Dated: 24th August 2020
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Redundancy and Minimum Notice |