ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026171
Parties:
| Complainant | Respondent |
Anonymised Parties | Complainant | Respondent/Franchise Operator |
Representatives | Self | None |
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-00033259-001 | 19/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033259-002 | 19/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00033259-003 | 19/12/2019 |
Date of Adjudication Hearing: 28/02/2020
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 27 of the Organisation of Working Time Act,1997,Section 6 Payment of Wages Act,1991 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The complaints are concerned with non-payment of statutory entitlements on termination of employment in October 2019. |
Summary of Complainant’s Case:
The complainant gave a commencement date of 30 August 2015. Her employment was terminated by a named respondent on October 19th, 2019,when the complainant was called to a meeting to be informed that her employment was being terminated with immediate effect. She recalls the respondent saying that she did not know anything about payment of holiday pay or other entitlements. On October 21st, 2019,the complainant sent a letter to the respondent at the business address. In that letter she set out her claim for redundancy, notice and holiday pay. The Respondent did not reply. On November 27th2019, the local Citizens Information Centre wrote to the employer on behalf of the complainant, referring to the earlier correspondence and advising the Respondent that it is possible to make a claim to the Department of Social Protection and the Insolvency Fund for the statutory payments. The Respondent did not reply. Details of the complaints were as set out in the letter of October 21st, 2019: Statutory Redundancy Payment: €2394.56 Minimum Notice Payment: €598.64 Holiday Pay on termination:€598.64 These figures were based on average wages of €299.32 for a 25-hour week |
Summary of Respondent’s Case:
The Respondent did not attend the hearing and did not engage with the correspondence issued by the Workplace Relations Commission. While liquidation or insolvency were mentioned to the complainant on October 19th when the employment was closed down, there was no evidence of such proceedings available for the hearing of the complaints. |
Findings and Conclusions:
The complainant presented oral evidence of the termination of her employment and written evidence of efforts she made to obtain her statutory entitlements through correspondence with the Respondent. Based on the available evidence, the complaints are upheld in the decisions set out below. Where there is a difference between the amounts set out in the decisions below versus the amounts claimed, is in the weekly rate of pay used to calculate the value of the amounts due to the complainant. From the payslip of October 6th, 2019 presented at the hearing, the rate of pay was €9.85 per hour. The number of hours worked in that week was 18. The complainant submitted an amount of 25 hours per week as her hours of work and, while she stated this was the average figure, she provided no evidence at the hearing to support this claim. The cumulative figure shown on the payslip for the year 2019 to that date is €9385.15. That figure divided by 40 weeks gives an average of €234.63 per week or 24 hours worked per week. The figure of €234.63 is the figure used in the decisions below to calculate the value of the statutory entitlements due to the Complainant. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.
Section 27 of the Organisation of Working Time Act,1997 as amended requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.
Section 6 of the Payment of Wages Act,1991, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.
Redundancy Payments Act 1967-2012 The appeal of the complainant against the decision of the respondent not to pay the complainant statutory redundancy on termination of her employment on October 19th, 2019 is allowed. The calculation of redundancy pay to the complainant is as follows: Date of Commencement of Employment: 30/08/2015 Date of Termination of Employment:19/10/2019 Number of weeks redundancy due- 9.28 weeks x €234.63 gross pay =€2177.37 is due to the complainant in statutory redundancy pay subject to the complainant having been in insurable employment with the respondent. Organisation of Working Time Act,1997 as revised, The complaint that the respondent failed to pay the complainant her outstanding statutory entitlement to holiday pay on termination of her employment is well-founded. The Respondent is to pay the Complainant €469.26 in holiday pay Payment of Wages Act,1991. The complaint that the Respondent withheld the statutory entitlement to two weeks pay in lieu notice due to the complainant on termination of her employment on October 19th, 2019 in contravention of Section 5 of the Payment of Wages Act,1991 is well-founded. The Respondent is to pay the Complainant €469.26 in pay in lieu of notice. |
Dated: 17/08/2020
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Non-payment of statutory entitlements on closure of business |