ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025032
Parties:
| Complainant | Respondent |
Anonymised Parties | A Maintenance Engineer/Mechanical technician | A Plastics Manufacturing Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00029973-001 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00029973-002 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029973-003 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029973-004 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-005 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-006 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-007 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-008 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-009 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-010 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-011 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-012 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-013 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00029973-014 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00029973-015 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00029973-016 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029973-017 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029973-018 | 24/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029973-019 | 24/07/2019 |
Date of Adjudication Hearing: 30/01/2020
Workplace Relations Commission Adjudication Officer: Orla Jones
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 45A of the Industrial Relations Act 1946 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 complainant was employed by the respondent from 9th of May 2017 to the 17th of July 2019. He submitted a number of complaints on the 24th of July 2019. The cognisable period for these complaints dates from 25th of January 2019 to 24th of July 2019. |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00029973-001 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant submits that he was employed by the respondent from the 9th of May 2017 to the 17th of July 2019, he was discriminated against and harassed on the ground of race, he was victimised by the respondent, He was made redundant on the 3rd of July 2019. |
Summary of Respondent’s Case:
The respondent submits that There was no discrimination or harassment whatsoever, The respondent denies that it has discriminated against the complainant on the grounds of race or at all, the respondent helped the complainant obtain his Visa and work permit and employed him up to his termination date, The conditions of his employment were no less favourable than any other employee, there was an error in relation to his pay which was rectified, The respondent has no details of a claim that the respondent was harassing the complainant and absolutely deny that there was any harassment, There was no victimisation. |
Findings and Conclusions:
The issue for decision by me is, whether or not, the respondent discriminated against and/or harassed the complainant on the ground of race in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015. I must also make a decision on whether the respondent victimised the complainant contrary to Section 74 (2) of the Act. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing. Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2) (h) of the Acts defines the discriminatory ground of race as follows – “as between any two persons ….. that they are of different race, colour, nationality or ethnic or national origins… “ Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he is Indian. Harassment and Sexual Harassment Section 14A of the Act provides: “14A.-(1) For the purposes of this Act, where – (a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment by a person who is – (i) employed at that place or by the same employer, (ii) the victim’s employer, or (iii) a client, customer, or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or (b) without prejudice to the generality of paragraph (a) – (i) such harassment has occurred, and (ii) either – (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or (II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.” Victimisation Section 74(2) of the Employment Equality Act, 1998 states as follows: (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to — (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the claimant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court and stated as follows: - “The mere fact that the Claimant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Claimant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The complainant advised the hearing that he was treated differently on grounds of race by the respondent when his application for renewal of his work permit was refused by the Department of Jobs (DJEI). The complainant submits that the work permit was refused due to mistakes and omissions made by the respondent in the application for renewal for his work permit and associated documentation. The respondent advised the hearing that it had made an administrative error when applying for the renewal of the complainants work permit but stated that it sought to rectify this once it was brought to their attention by replying to the DJEI and appealing the refusal of the complainant s work permit stating that it would increase the complainants rate of pay and apply the increase retrospectively in order to bring the complainants pay within the acceptable limits for the work permit. Documentary evidence was submitted in support of this including a letter to the complainant dated May 2019 and a change in rate of pay notice indicating the change in the complainants rate of pay and dated 8th of March 2019 was submitted in support of this. The response to the DBEI was also submitted in evidence. The respondent advised the hearing that it had gone to a lot of trouble to secure the complainants initial employment with them and had helped him to secure a visa and work permit in order that he could work for them, the respondent states that it has a diverse work force and that it has never discriminated against the complainant or any other staff member. The complainant asserts that his working day was reduced from 8 hours per day to 6 hours per day at that stage and that this amounts to discrimination the respondent state that this had happened and that the complainant during this period continued to be paid the same salary amount and thus there was no less favourable treatment. The complainant advised the hearing that he was notified of his redundancy on the 3rd of July 2019, he asserts that this redundancy was due to his race. The respondent advised the hearing that as a result of business performance a decision was taken to restructure and outsource certain areas of the business impacting a number of roles including the complainants role. The respondent stated that it was necessary to make the complainants role redundant and that the complainant was notified of this on 3rd of July 2019 and was provided with two weeks’ paid notice of same. The respondent advised the hearing, the complainant’s role was one of a number of roles, eight in total which were made redundant and that there were legitimate grounds for these redundancies. The respondent provided details of the redundancies to the hearing. The respondent advised the hearing that the complainant was paid his redundancy payment as well as two weeks’ pay in lieu of notice. The complainant at the hearing alleged to have been subjected to bullying and harassment by a colleague Mr. S who he states was also his manager. The complainant stated that Mr. S had criticised his work performance and told him that he was causing trouble with colleagues. The respondent at the hearing stated that this had never been raised with them by the complainant and stated that he complainant had never raised a grievance or complaint in respect of this assertion under its grievance procedure. The respondent also stated that a manager is entitled to provide legitimate and reasonable criticism of an individual’s conduct, work performance and attendance and that this does not amount to bullying and or harassment. The respondent reiterated that the complainant has never submitted a grievance in relation to this assertion of bullying and harassment. The complainant at the hearing cited the non-renewal of his work permit by the DJEI and the respondent dismissal of him from his employment by reason of redundancy in support of his claims of discrimination, harassment and victimisation. Having considered the totality of the evidence adduced in relation to these matters I am satisfied that the complainant was not discriminated against and or harassed on the grounds of race. The complainant at the hearing also failed to establish that he was subjected to any adverse treatment as a reaction to his having committed a protected act as defined under Section 74(2) and on that basis, I find that the complainant was not victimised within the meaning of the Acts. In all of the circumstances of the within complaints, I find that the complainant was not discriminated against or harassed on the grounds of race in relation to the issues raised. I am also satisfied that there was no victimisation of the complainant within the meaning of the e Acts. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the complainant was not discriminated against or harassed on the grounds of race in relation to the issues raised. I am also satisfied that there was no victimisation of the complainant within the meaning of the Acts. |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00029973-002 | 24/07/2019 |
Findings and Conclusions:
This claim was withdrawn at the hearing. |
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.
This claim was withdrawn at the hearing and accordingly I declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029973-003 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant submits that His employer has not paid him or has paid me less than the amount due (Payment of wages act 1991.) He was not paid a Sunday premium. |
Summary of Respondent’s Case:
The complainant was paid all amounts owing and properly payable to him. |
Findings and Conclusions:
The complainant has submitted a claim under section 6 of the Payment of Wages Act, 1991. The cognisable period of this claim is from 25th of January 2019 to 24th of July 2019. Section 5(6) of the Payment of Wages Act, 1991 – 2015 provides as follows – “Where – (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with the Act), or (b) none of the wages that are properly payable to the employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”. In a High Court case Dunnes Stores (Cornelscourt) v Lacey & O’Brien (2005) Finnegan P. stated that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant. The complainant in the present case has taken a claim under the Payment of Wages Act 1991 but does not specify the amount of the unlawful deduction and does not specify the date on which this amount was payable. In considering this claim I am mindful of the decision reached in Able Security Ltd v Hardijs Langsteins DWT1319 where it was held: The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent to know what it is they are being accused of. The complainant in his claim form and at the hearing of this matter failed to particularise this complaint stating only that he was paid a Sunday premium for working on a Sunday. The complainants contract is silent on the issue of Sunday Premium but states that overtime is payable where overtime is worked. The respondent advised the hearing that the complainant was a salaried worker and was not hourly paid and therefore any extra time he worked was given as Time in Lieu. The respondent advised the hearing that due to the nature of the complainant’s role and as outlined in his contract of employment, the complainant was required to be flexible in duties and time and in accordance with the organisation of working time act 1997. The respondent added that the complainant was paid his full weekly salary even when he did not work his full contracted hours. The respondent at the hearing of the claim stated that any and all outstanding payments due to the complainant were made in the form of a payment of the sum of €10,284 was made on 18th of July 2019 comprising of €6 746 in wages owed (due to the earlier outlined administrative error whereby the complainant was paid the incorrect salary) and €3,538 in respect of holidays owed as well as a redundancy payment of €3228. The respondent told the hearing that this was paid to the complainant on 18th of July 2019. The complainant agreed that such payment was made but stated that he did not know what the breakdown was in respect of this payment. The respondent stated that it had provided an explanation of this payment to the complainants solicitor on 23rd of July 2019. The complainant was unable to provide any details of the amount of the payment which he claims was unlawfully deducted from him. In addition, the complainant at the hearing failed to establish and entitlement to Sunday Premium pay within the cognisable period. Accordingly, I am satisfied from the totality of the evidence adduced and having regard to the precedent case law cited that there was no unlawful deduction made from the complainants wages within the meaning of Section 5 of the Act and accordingly I declare 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 declare that this complaint is not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029973-004 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant submits that His employer has not paid him or has paid him than the amount due (Payment of wages act 1991.) He was not paid overtime for additional hours worked. |
Summary of Respondent’s Case:
The complainant was paid all amounts owing and properly payable to him. |
Findings and Conclusions:
The complainant has submitted a claim under section 6 of the Payment of Wages Act, 1991. The cognisable period of this claim is from 25th of January 2019 to 24th of July 2019. Section 5(6) of the Payment of Wages Act, 1991 – 2015 provides as follows – “Where – (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with the Act), or (b) none of the wages that are properly payable to the employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”. In a High Court case Dunnes Stores (Cornelscourt) v Lacey & O’Brien (2005) Finnegan P. stated that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant. The complainant in the present case has taken a claim under the Payment of Wages Act 1991 but does not specify the amount of the unlawful deduction and does not specify the date on which this amount was payable. In considering this claim I am mindful of the decision reached in Able Security Ltd v Hardijs Langsteins DWT1319 where it was held: The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent to know what it is they are being accused of. The complainant in his claim form and at the hearing of this matter failed to particularise this complaint stating only that he was not given compensation for working overtime. I considering this claim I note that employers have no statutory obligation to pay employees for work completed in overtime. However, many employers pay employees higher rates of pay for overtime. The complainant in his complaint form had stated that the date of the deduction was the 3rd of July 2019. It was confirmed at the hearing that this was the date of his redundancy. The complainant was unable to provide details of the amount of the alleged unlawful deduction. The complainant stated that it related to overtime for which he was not paid. When asked to provide detail in respect of the amount of overtime to which he was entitled, and which was properly payable on the 3rd of July 2019 the complainant stated that he had not worked any overtime during that week. The respondent advised the hearing that the complainant was a salaried worker and was not hourly paid and therefore any extra time he worked was given as Time in Lieu. The respondent advised the hearing that due to the nature of the complainant’s role and as outlined in his contract of employment, the complainant was required to be flexible in duties and time and in accordance with the organisation of working time act 1997. The complainant submits that he was not paid overtime for Saturdays and Sundays worked and that he worked out of hours on numerous occasions but was not compensated for such times and that his contract states that he is entitled to be paid overtime over and above the normal working hours. The contract is silent on the amount to be paid for overtime. The respondent at the hearing conceded that the complainants contract states that overtime is payable where overtime is worked but argued that this is a mistake and should not be included in the contract, as the complainant was a salaried worker and was not hourly paid and therefore any extra time he worked was given as Time in Lieu. The respondent also stated that the complainant was still paid the same salarry even when he worked less than his contracted hours. The respondent at the hearing of the claim stated that any and all outstanding payments due to the complainant were made in the form of a payment of the sum of €10,284 which was made on 18th of July 2019 comprising of €6 746 in wages owed (due to the earlier outlined administrative error whereby the complainant was paid the incorrect salary) and €3,538 in respect of holidays owed as well as a redundancy payment of €3,228. The respondent told the hearing that this was paid to the complainant on 18th of July 2019. The complainant agreed that such payment was made but stated that he did not know what the breakdown was in respect of this payment. The respondent advised the hearing that it had provided an explanation of this payment to the complainants solicitor on 23rd of July 2019. The complainant was unable to provide any details of the amount of the payment which he claims was unlawfully deducted from him in respect of his assertion that he was owed overtime payments for additional hours worked and accordingly I declare that this claim 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 this claim is not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-005 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant has submitted that He was required to work more than the maximum number of hours per week, His average working week was 44 hours sometimes going up to 50 or more. |
Summary of Respondent’s Case:
The respondent submits that The complainants hours were set out in his contract of employment, and his normal working week was 39 hours, The complainant did work extra hours on occasion as needed as he was a Maintenance technician and so he was called in when there was an emergency involving a machine breaking down. |
Findings and Conclusions:
Section 15 of the Act sets out that the maximum number of hours that an employee should work in an average working week is 48 hours. This working week average should be calculated over a four-month period. There are however some exceptions to this average period. Averaging may be balanced out over a 4, 6- or 12-month period depending on the circumstances. The 48-hour net maximum working week can be averaged according to the following rules: •for employees generally - 4 months •for employees where work is subject to seasonality, a foreseeable surge in activity, or where employees are directly involved in ensuring continuity of service or production - 6 months The complainant submits s that his average working week was 44 hours sometimes going up to 50 or more and stated that there were very few weeks where he worked a basic 39 hours. The respondent advised the hearing that the complainant did work extra hours at times as needed as he was a Maintenance technician and so he was called in when there was an emergency involving a machine breaking down. The respondent provided timesheets with records of the complainants hours during the cognisable period which showed that the complainant did not work more than an average of 48 hours per week over the relevant period. In addition, the respondent told the hearing that due to the nature of the complainant’s role, there were times when the complainant worked more hours in some weeks in order to ensure that machines were operating to allow production to continue. The complainant advised the hearing that these time sheets/clock records presented by the respondent were not an accurate reflection of the hours worked by him due to the fact that during the respondents move to new premises in Navan the clock was not working initially and staff were told to keep track of their hours and check their clock records to ensure that the hours worked were reflected in their clock records. The complainant at the hearing stated that the printouts provided by the respondent did not contain all of the hours worked by him during that period having regard to the fact that the clock was not working at times. The respondent stated that staff had been asked to advise them where their worked hours were not accurately reflected due to the issue with the clock when moving to Navan. The respondent advised the hearing that the complainants hours of work were set out in his contract as 39 hours per week but that the contract also contained a flexibility clause which provided that the complainant could be asked to work additional hours at short notice where the need arose in order to keep machines operating. The respondent stated that the complainants role as maintenance technician meant that he had to be called in if there was an emergency for example if a machine broke down. The respondent stated that these are situations in which the respondent was unable to provide notice as this was an event they had to react to and could not foresee it. The respondent stated that the complainant is correct in stating that he was called into work outside of his normal hours during a time when the business was relocating from Leixlip to Navan. The respondent stated that the complainant at the time was provided with accommodation in a hotel and or Bed and breakfast, paid for by the respondent in order to facilitate his being able to get to work at short notice and without having to incur the cost of travel. Receipts and booking confirmations were presented in this regard. The respondent stated that the complainant was also collected and dropped home on these occasions. The complainant did not deny that he was provided with such accommodation. The complainant agreed that the extra hours related to situations where the respondent was under pressure due to an unforeseen event for example where a machine had broken down and he had to be called upon to fix the machine and get it back up and running. The complainant agreed that he was the only person who could fix the machine as no one else had the skills. The respondent advised the hearing that the complainant did not work more than an average of 48 hours per week in the reference period and provided copies of the complainants time sheets in this regard. The complainant submitted post hearing documentation in support of his assertion that the time sheets furnished by the Company were not accurate. The post hearing documentation submitted by the complainant does indicate some discrepancies in respect of additional hours worked on days which were not recorded in the printouts submitted. The documentation provided by the complainant related to June 2019 and relate to records of additional hours worked on some occasions during that month which were not recorded in the respondents clock records. Having said that however and following an extensive examination of all timesheet documentation provided, I am satisfied that the records provided do not support a claim that the complainant worked in excess of an average of 48 hours per week during the cognisable period of the complaint. Accordingly, I declare this claim to be 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 declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-006 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant has submitted that He did not receive his paid holiday annual leave entitlements |
Summary of Respondent’s Case:
The respondent submits that The complainant was paid his outstanding annual leave entitlement of 24 days on 18th of July 2019. |
Findings and Conclusions:
The Applicable Law Section 19(1) of the Organisation of Working Time Act, 1997 provides as follows: 19.(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): The cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was referred to the WRC i.e. from 24th of January 2019 to 23rd of July 2019. The complainant was made redundant on the 4th of July 2019. Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. The six-month period referenced in the complaint encompasses the leave year 2018/2019 and 2019/2020, i.e. from 1 April 2018 to end March 2019 and 1 April 2019 to end March 2020. The complainant has submitted a claim in respect of paid Holiday/Annual Leave entitlements. The respondent advised the hearing that the complainant was paid for all outstanding annual leave. The respondent advised the hearing that the complainant following the termination of his employment was paid for 24 days annual leave which related to untaken holidays in respect of 2017, 2018 and 2019. The complainant stated that he did not receive his full paid holiday annual leave entitlements. The respondent advised the hearing that the complainants was paid his outstanding annual leave entitlement of 24 days on 18th of July 2019 to the amount of €3,077. The respondent stated that this was paid to the complainant and acknowledged by his solicitor at the time. The respondent provided a breakdown as to how the number was arrived at. The respondent provided details of leave accrued and taken as well as time in lieu. The complainant at the hearing stated that he never took holidays and so all of his annual leave entitlement was due to him. The complainant then added that he only took days off if he had an appointment or an emergency. The complainant stated that he had been sick for a week on one occasion and his manager had given him a holiday request form to sign in respect of the week off. The respondent confirmed that they do not pay for sick leave but stated that the complainant did receive pay while he was out sick. The complainant confirmed that he had received payment for the sick week. The respondent provided a breakdown of days off taken by the complainant in respect of holidays and time in lieu. The complainant at the hearing acknowledged that a payment of €3,077 was paid to him on 18th of July 2019 in respect of untaken annual leave. Having carefully considered the documentation submitted and evidence adduced in relation to this matter I conclude based on the balance of probabilities that the Complainant was afforded his full statutory entitlement to annual leave during the cognisable period. Accordingly, I find that the Respondent did not contravene the provisions of Section 19 of the Act and 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 declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-007 | 24/07/2019 |
Findings and Conclusions:
This claim was withdrawn at the hearing. Accordingly, I declare this claim to be 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.
This claim was withdrawn at the hearing. Accordingly, I declare this claim to be not well founded |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-008 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant has submitted that He did not receive his public holiday entitlements |
Summary of Respondent’s Case:
The respondent submits that The complainant worked 2 out of five bank holidays and they were added as time in lieu |
Findings and Conclusions:
Public Holiday entitlements Section 21(1) of the Organisation of Working Time Act, 1997 provides as follows: 21.(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay: Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom. The complainant has submitted a claim in respect of Public holiday entitlements. The cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was referred to the WRC i.e. from 24th of January 2019 to 23rd of July 2019. The complainant was made redundant on the 4th of July 2019. The respondent advised the hearing that there had been 5 bank holidays during the relevant period and that the complainant had not worked for three of these bank holidays but had worked for the other two for which he had been paid and had also received time in lieu. The complainant stated that he had worked three bank holidays and raised a dispute in respect of the 17th of March 2019 for which he submits that he did not receive time in lieu or pay. The respondent stated that the complainant did not work on the Bank holiday which actually fell on the 18th of March but that he was still paid for that day. The complainant conceded that he had not realised that he bank holiday was on the 18th of March instead of the 17th. The complainant submits that he worked on the 6th of May 2019 and the 3rd of June 2019 both of which were bank holidays. The clock in sheets submitted support this assertion. The respondent advised the hearing that the complainant was paid for working on those days and stated that he would also have received time in lieu for both bank holidays. The complainant at the hearing disputed that he received time in lieu for the bank holidays worked. The respondent in its evidence did not specify when or on what dates the complainant was granted time in lieu for these two bank holidays. Having examined the documentation provided and the totality of the evidence adduced and given that the complainant has shown that he worked the two bank holidays in question I am satisfied based on the balance of probabilities that this claim is well founded. I award the complainant €300 in this regard. |
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.
I declare this claim to be well founded and I award the complainant €300 in this regard. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-009 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant has submitted that He was not notified of his start and finishing times. |
Summary of Respondent’s Case:
The respondent submits that The complainants hours of work were set out in his contract which also contained a flexibility clause to provide for on call emergency situations. |
Findings and Conclusions:
Start and Finish times 17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week. (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week. (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer. (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times. (5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment. The complainant stated that he was often asked to work late or to come in during hours outside of those specified in his contract. The complainant when asked whether or not he received notice in advance of the requirement to work these extra hours initially said yes that his manager would notify him but later he stated that no he was not notified. The respondent advised the hearing that the complainants hours of work were set out in his contract which also contained a flexibility clause which provided that the complainant could be asked to work additional hours at short notice where the need arose in order to keep machines operating. The respondent stated that the complainants role as maintenance technician meant that he had to be called in if there was an emergency for example if a machine broke down. The respondent stated that these are situations in which the respondent was unable to provide notice as this was an event they had to react to and could not foresee it. The respondent stated that the complainant is correct in stating that he was called into work outside of his normal hours during a time when the business was relocating from Leixlip to Navan. The respondent stated that the complainant at the time was provided with accommodation in a hotel and or Bed and breakfast, paid for by the respondent in order to facilitate his being able to get to work at short notice and without having to incur the cost of travel. The respondent stated that the complainant was also collected and dropped home on these occasions. The complainant did not deny that he was provided with such accommodation. The complainant agreed that the extra hours related to situations where the respondent was under pressure where a machine had broken down and he had to be called upon to fix the machines. The complainant agreed that he was the only person who could fix the machine as no one else had the skills. The respondent advised the hearing that the complainant was a salaried employee and stated that he received his full salary even when he worked less hours than those specified in his contract and stated that the was granted time in lieu where he worked additional hours. The respondent advised the hearing that the complainant hours were 8 to 5 with a half day on friday but that his shift was changed in to 4 to 12 for the period from mid-June 2019 to 3rd of July. The respondent stated that complainant was notified of this change to a later shift the complainant did not dispute that he was notified of this. Having considered this matter and having regard to the totality of the evidence adduced I am satisfied based on the balance of probabilities that this claim 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.
Having considered this matter and having regard to the totality of the evidence adduced I am satisfied based on the balance of probabilities that this claim is not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-010 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant has submitted that I am not notified in advance of any additional hours (Organisation of working time act 1997) |
Summary of Respondent’s Case:
The respondent submits that Due to the nature of the role that the complainant performed there was at times, a requirement for the complainant to be flexible with his hours, this was in order to keep machines operating at an optimal level or to deal with emergency breakdowns and also to allow continuation of production. The complainant as outlined above received time in lieu and flexibility on his hours for this additional time. This clause is outlined in the contract and the complainant understood it was a feature of the role. The complainants hours of work were set out in his contract which also contained a flexibility clause to provide for on call emergency situations. |
Findings and Conclusions:
Notification of Additional hours 17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week. (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week. (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer. (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times. (5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment. The complainant stated that he was often asked to work late and do extra hours. The complainant when asked whether or not he received notice in advance of the requirement to work these extra hours initially said yes that ho manager would notify him but later he stated that no he was not notified. The respondent advised the hearing that the complainants hours of work were set out in his contract which also contained a flexibility clause which provided that the complainant could be asked to work additional hours at short notice where the need arose. The respondent stated that the complainants role as maintenance technician meant that he had to be called in if there was an emergency for example if a machine broke down for which the respondent was unable to provide notice as this was an event they had to react to and could not foresee it. Due to the nature of the role that the complainant performed there was at times, a requirement for the complainant to be flexible with his hours, this was in order to keep machines operating at an optimal level or to deal with emergency breakdowns and also to allow continuation of production. The complainant as outlined above received time in lieu and flexibility on his hours for this additional time. This clause is outlined in the contract and the complainant understood it was a feature of the role. The respondent advised the hearing that these are situations in which the respondent was unable to provide notice as this was an event they had to react to and could not foresee it. The respondent stated that the complainant is correct in stating that he was called into work outside of his normal hours during a time when the business was relocating from Leixlip to Navan. The respondent stated that h complainant at the time was provided with accommodation in a hotel and or Bed and breakfast in order to facilitate his being able to get to work at short notice and without having to incur the cost of travel. The respondent stated that the complainant was also collected and dropped home on these occasions. The complainant did not deny that he was provided with such accommodation. The complainant agreed that the extra hours related to situations where the respondent was under pressure where a machine had broken down. The complainant agreed that he was the only person who could fix the machine as no one else had the skills. Having considered this matter and having regard to the totality of the evidence adduced I am satisfied based on the balance of probabilities that this claim 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 declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-011 | 24/07/2019 |
Findings and Conclusions:
The complainant stated that he was not compensated for annual leave entitlements on leaving. The matter of compensation for annual leave entitlements was dealt with in claim no. CA-00029973-006 and so this is a duplicate claim. Accordingly I declare this claim to be 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.
This is a duplicate claim and accordingly I declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-012 | 24/07/2019 |
Findings and Conclusions:
The complainant stated that he was not compensated for loss of his public holiday entitlements upon leaving This was dealt with at claim no. CA-00029973-008 and so this is a duplicate claim. Accordingly, I declare this claim to be 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.
This was dealt with at claim no. CA-00029973-008 and so this is a duplicate claim. Accordingly, I declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029973-013 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant has submitted that He worked excessive night hours |
Summary of Respondent’s Case:
The respondent submits that The complainants hours of work were set out in his contract which also contained a flexibility clause to provide for on call emergency situations. The complainant during the period from mid-June 2019 to 3rd of July 2019 did work a 4pm to 12.30 am shift cycle. |
Findings and Conclusions:
16.—(1) In this section— “night time” means the period between midnight and 7 a.m. on the following day; “night work” means work carried out during night time; “night worker” means an employee— (a) who normally works at least 3 hours of his or her daily working time during night time, and (b) the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent. of the total number of hours worked by him or her during that year. (2) Without prejudice to section 15, an employer shall not permit a night worker, in each period of 24 hours, to work— (a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours, (b) in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed— (i) 2 months, or (ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court under section 24. (3) In subsection (2) “special category night worker” means a night worker as respects whom an assessment carried out by his or her employer, pursuant to a requirement of regulations under section 28(1) of the Safety, Health and Welfare at Work Act, 1989 , in relation to the risks attaching to the work that the night worker is employed to do indicates that that work involves special hazards or a heavy physical or mental strain. (4) The days or months comprising a reference period shall, subject to subsection (5), be consecutive days or months. (5) A reference period shall not include— (a) any rest period granted to the employee concerned under section 13(2) (save so much of it as exceeds 24 hours), (b) any rest periods granted to the employee concerned under section 13(3) (save so much of each of those periods as exceeds 24 hours), (c) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee), (d) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or (e) any sick leave taken by the employee concerned. The complainant advised the hearing that he was asked to go on night shift on moving to Navan and was asked to work from 4pm to 12.30 am. The respondent did not dispute this and stated that it was a shift pattern assigned on occasion. The respondent stated that the complainant on the 10th June was moved to the afternoon shift, which is from 4pm to 12am. The respondent stated that the complainant had worked this shift from Monday to Friday for a period of three weeks prior to his redundancy. Prior to this, the complainant had worked under the 8am to 5pm shift. Having considered this matter and having regard to the totality of the evidence adduced I am satisfied based on the balance of probabilities that there was no breach of Section 16 and accordingly I declare this claim to be 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 declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00029973-014 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant has submitted that He was not notified of a change to his terms of employment |
Summary of Respondent’s Case:
The respondent submits that The respondent did not fail to notify the complainant of a change to his contract. |
Findings and Conclusions:
This claim was submitted under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012. At the hearing the complainant asserted that this claim related to an allegation that the complainant was not notified of a change to his terms of employment. However, the complainant at the hearing could not say where a term of his contract had been changed without notice. Accordingly, I declare this claim to be 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 declare this claim to be not well founded |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00029973-015 | 24/07/2019 |
Findings and Conclusions:
The complainant at the hearing stated that this was not relevant and withdrew the claim. |
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.
This claim was withdrawn at the hearing and accordingly I declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00029973-016 | 24/07/2019 |
Findings and Conclusions:
The complainant at the hearing stated that this was not relevant and withdrew the claim. |
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.
This claim was withdrawn at the hearing and accordingly I declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029973-017 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant has submitted that He should have received one months’ notice in accordance with his contract but only received 2 weeks’ notice. |
Summary of Respondent’s Case:
The respondent submits that The complainant received statutory notice of two weeks for which he was not required to work but was paid. |
Findings and Conclusions:
4.—(1) 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 thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, (c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks. (3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous. (4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section. (5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have effect as if that contract provided for a period of notice in accordance with this section. (6) The Minister may by order amend or revoke an order under this section including this subsection The complainant advised the hearing that he should have received one month’s notice in accordance with his contract but only received 2 weeks’ notice. The respondent conceded that the complainants contract did state that he was entitled to 1 months notice but stated that he received his statutory entitlement of 2 weeks’ notice for which he was not required to work but received payment in lieu. Under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 Employees are entitled to a minimum of 2 weeks' written notice of redundancy. This notice period goes up depending on the period of service. The complainant in the present case was employed from 2017 to 2019 and so was entitled to two weeks’ notice or pay in lieu of notice which both parties agree he did receive. Accordingly based on the totality of the evidence adduced I declare this claim to be 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 declare this claim to be not well founded |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029973-018 | 24/07/2019 |
Summary of Complainant’s Case:
The complainant has submitted that He did not receive all of his rights and entitlements during the period of notice. |
Summary of Respondent’s Case:
The respondent submits that The complainant received statutory notice of two weeks for which he was not required to work but was paid. The statutory minimum period of notice for redundancy is 2 weeks and the complainant received payment in lieu of working the notice period. The complainant was offered HR support throughout the notice period to help him look for another role however the complainant did not take up this offer. |
Findings and Conclusions:
Rights of Employee During Period of Notice. 5.—(1) The provisions of the Second Schedule to this Act shall have effect in relation to the liability of an employer during the period of notice required by this Act to be given— (a) by an employer to terminate the contract of employment of an employee who has been in his continuous service for thirteen weeks or more, and (b) by an employee who has been in such continuous service to terminate his contract of employment with that employer. (2) This section shall not apply in any case where an employee gives notice to terminate his contract of employment in response to a notice of lay-off or short-time given by his employer. (3) Any provision in a contract which purports to exclude or limit the obligation imposed on an employer by this section shall be void. SECOND SCHEDULE 1. Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given. Employments for which there are normal working hours 2.(a) (i) An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer. (ii) In this subparagraph “normal working hours” in the case of an employee who is normally expected to work overtime, include the hours during which such overtime is usually worked. (b) In any case where an employee's pay is not wholly calculated by reference to time, the pay which his employer is bound to pay him under subparagraph (a) shall be calculated by reference to the average rate of pay earned by the employee in respect of any time worked during the thirteen weeks next preceding the giving of notice. The complainant advised the hearing that he should have received one month’s notice in accordance with his contract but stated that he only received 2 weeks’ notice. The respondent conceded that the complainants contract did state that he was entitled to 1 months’ notice but stated that he received his statutory entitlement of 2 weeks’ notice for which he was not required to work but received payment in lieu. The complainant in the present case was employed from 2017 to 2019 and so was entitled to two weeks’ notice or pay in lieu of notice which both parties agree he did receive. The complainant told the hearing that he should have received his Redundancy letter on the 3rd of July 2019 and that he should also have received a reference at this time, but he stated that he did not receive his redundancy letter until he went to a solicitor on 12th of July following which the respondent provided the redundancy letter. The respondent outlined that the complainant had been asked to attend a meeting with Managing Director Mr G and Mr. A on the morning of the 3rd of July. This meeting was scheduled for 9 o clock initially and then for 11 o clock. The respondent stated that the complainant did not show up for this meeting, the complainant told the hearing that he was tired having worked late the previous night and agreed that he did not attend the scheduled meeting. The complainant stated that he then went to the respondent premises at 4 pm that day but he stated that Mr. G and Mr. A were not there. The respondent stated that the complainant was initially told to come back the next morning but when he insisted on having a meeting Ms. K met with him and outlined the position re his redundancy. It is clear from the evidence adduced in relation to this meeting that Ms. K made every effort to explain and clarify the situation regarding the redundancy despite the fact that this was an unscheduled meeting as the complainant had not shown up for the scheduled meeting earlier that morning. At this meeting Ms. K explained that she did not have the relevant documentation as Mr. G who had been due to meet with the complainant earlier that day had the documentation. Ms K stated that she had later posted documentation to the complainant. The respondent also confirmed that the complainant was given his statutory redundancy plus two weeks’ pay in lieu of notice and was not required to work his notice period. Accordingly based on the totality of the evidence adduced and based on the balance of probabilities I am satisfied that the respondent did not breach Section 5 and the provisions contained in the second schedule and accordingly I declare this claim to be 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 declare this claim to be not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029973-019 | 24/07/2019 |
Findings and Conclusions:
This claim was withdrawn at the hearing. |
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.
This claim was withdrawn at the hearing. Accordingly, I declare this claim to be not well founded. |
Dated: 17/08/2020
Workplace Relations Commission Adjudication Officer: Orla Jones
Key Words:
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