Complainant

Respondent

Anonymised Parties

An Apprentice Cabinet Maker

A Cabinet Maker

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00029377-001

01/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029377-002

01/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00029377-003

01/07/2019

The Complainant was employed by the Respondent as an Apprentice Cabinet Maker on 2 November, 2017. The Complainant claims that he was entitled to a statutory redundancy payment when his employment was terminated on 5 June, 2019 by reason of redundancy. The Respondent disputes the claim and contends that the Complainant’s employment was terminated on 9 November, 2018 and therefore, he did not have the requisite service to qualify for a statutory redundancy payment.

The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by the Respondent. The Respondent disputes this claim.

The Complainant also claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Sections 19 and 23 of the Organisation of Working Time Act 1997. The Respondent disputes this claim.

CA-00029377-001 – Complaint under the Redundancy Payments Acts

The Complainant stated that he commenced employment with the Respondent as an Apprentice Cabinet Maker on 2 November, 2017. The Complainant contends that he commenced his Phase 2 college block release on 22 October, 2018 and was due to return to work with the Respondent on 11 March, 2019. The Complainant stated that he had sustained a knee injury around that period of time and the Respondent had requested him to have it dealt with before returning to work. The Complainant stated that he required surgery on his knee which took place on 12 April, 2019 and that he was absent from work on sick leave for a period of eight weeks thereafter.

The Complainant stated that he was due to return to work on 10 June, 2019 after completing rehabilitation on his knee and received a call from the Respondent on 5 June, 2019 to attend the workshop. The Complainant stated that he reported to the workshop and was informed by the Respondent that his employment was being terminated as there was no longer any work for him.

The Complainant disputes the Respondent’s contention that his employment was terminated on 9 November, 2018 shortly after he had commenced his Phase 2 college block release. The Complainant contends that he continued to work for the Respondent at weekends during November/December 2018 and that his employment was not terminated until 5 June, 2019 by reason of redundancy. The Complainant claims that he is entitled to a statutory redundancy payment in respect of his period of employment with the Respondent.

CA-00029377-002 – Complaint under the Minimum Notice & Terms of Employment Act 1973

The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by the Respondent on 5 June, 2019.

CA-00029377-003 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Complainant claims that he only received two weeks paid annual leave during the calendar year 2018 and that he did not receive any paid annual leave during the calendar year 2019 (i.e. during the period from 1 January, 2019 until his employment was terminated on 5 June, 2019).

CA-00029377-001 – Complaint under the Redundancy Payments Acts

The Respondent stated that the Complainant commenced employment with him on 2 November, 2017 as an Apprentice Cabinet Maker. The Respondent stated that the Complainant commenced his Phase 2 college block release on 22 October, 2018 but that it was necessary to terminate his employment by reason of redundancy on 9 November, 2018 as there wasn’t any further work for him.

The Respondent stated that he prepared a letter for the Complainant to inform him that his employment was being terminated with effect from 9 November, 2018. The Respondent stated that he also informed the relevant Education and Training Board at that juncture that the Complainant’s employment was being terminated by reason of redundancy.

The Respondent submits that the Complainant was not entitled to a statutory redundancy payment as he did not have the requisite service of 104 weeks continuous employment to qualify for such a payment.

CA-00029377-002 – Complaint under the Minimum Notice & Terms of Employment Act 1973

The Respondent stated that the Complainant finished work on 19 October, 2018 and was due to commence the Phase 2 of his college block release on 22 October, 2018. The Respondent stated that he informed the Complainant on 5 November, 2018 that his employment was being terminated with effect from 9 November, 2018 as there wasn’t any further work available when he was due to return in March, 2019. The Respondent submits that it was not possible for him to give the Complainant any further notice of the termination of his employment.

CA-00029377-003 – Complaint under the Organisation of Working Time Act 1997

The Respondent stated that the Complainant received his full annual leave entitlements for the calendar year 2017 and that he was paid for two weeks annual leave in July, 2018. The Respondent accepted that the Complainant may have been “owed a few days holiday pay up to August, 2018”. The Respondent disputes the Complainant’s claim that he had an outstanding entitlement to annual leave during the calendar year 2019 on the basis that his employment had been terminated on 9 November, 2018.

CA-00029377-001 – Complaint under the Redundancy Payments Acts

The Relevant Law

Section 7 of the Redundancy Payment Act 1967 provides:

“(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [ for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

(4) Notwithstanding any other provision of this Act, where an employee who has been serving a period of apprenticeship training with an employer under an apprenticeship agreement is dismissed within one month after the end of that period, that employee shall not, by reason of that dismissal, be entitled to redundancy payment.”

It was not in dispute between the parties that the Complainant was employed by the Respondent as an Apprentice Cabinet Maker on 2 January, 2017 and that his employment was terminated by reason of redundancy prior to the completion of his apprenticeship. However, the actual date of termination of the Complainant’s employment was very much in dispute between the parties. The Complainant, on the one hand contends that his employment was terminated on 5 June, 2019 whereas the Respondent, on the other, contends that the Complainant’s employment was terminated on 9 November, 2018. Therefore, this is the key issue that I am required to resolve in order to determine if the Complainant had the requisite service of 104 weeks continuous service to qualify for a statutory redundancy payment.

Having regard to the totality of the evidence adduced, I have found the Complainant’s evidence on this matter to be more compelling and I accept that his employment was terminated by reason of redundancy on 5 June, 2019 prior to the completion of his apprenticeship. In coming to this conclusion, I note that the Complainant submitted documentary evidence which corroborates his oral evidence on this point including:

·         A letter from the Respondent dated 5 June, 2019 which stated that: “Due to a downturn in work and other increased costs I can no longer employ [the Complainant] as and from 5/6/2019”.

·         Documentary evidence from the Office of the Revenue Commissioners which indicates that his employment with the Respondent ceased on 5 June, 2019.

·         Screenshots of telephone messages between the Complainant and the Respondent which indicate that there was work available for him during November/December 2018.

Accordingly, I find that the Respondent terminated the Complainant’s employment by reason of redundancy on 5 June, 2019 and that consequently the Complainant is entitled to receive a statutory redundancy payment in accordance with the provisions of the Act.

CA-00029377-002 – Complaint under the Minimum Notice & Terms of Employment Act 1973

The Complainant claims that he did not receive his statutory notice entitlements contrary to Section 4(2) of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by the Respondent on 5 June, 2019.

Having regard to the totality of the evidence adduced, I find that the Complainant had in excess of 2 years’ service with the respondent at the material time his employment was terminated on 5 June, 2018. Therefore, the Complainant had accrued a statutory entitlement to two weeks’ notice in accordance of the provisions of Section 4(2)(b) of the Act on the termination of his employment. I find that the Complainant was not afforded his statutory notice entitlement or payment in lieu thereof prior to the termination of his employment with the respondent.

Accordingly, I find that the complainant is entitled to compensation in respect of two weeks’ notice in accordance with the aforementioned provisions of the Act.

CA-00029377-003 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Complainant claims that he only received two weeks paid annual leave during the calendar year 2018 and that he did not receive any paid annual leave during the calendar year 2019 (i.e. during the period from 1 January, 2019 until his employment was terminated on 5 June, 2019).

The Complainant referred his complaint to the Workplace Relations Commission on 1 July, 2019. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 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 presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 2 January, 2019 to 1 July, 2019.

Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. Therefore, in accordance with the provisions of Section 23(1)(b)(ii) and (iii) of the Act I am satisfied that any outstanding annual leave accrued during the annual leave years 2018/2019 (i.e. 1 April, 2018 to 31 March, 2019) and 2019/2020 (i.e. 1 April, 2019 to 31 March, 2020) is covered by this complaint.

In relation to the annual leave year 2018/19, I note that the Complainant contends that he was paid two weeks annual leave in July, 2018 and that he did not receive his outstanding entitlements during the material period in question (i.e. from 1 April, 2018 to 31 March, 2019).

Section 25(4) of the Act provides, in effect, that where an employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before an Adjudication Officer, the onus of proving compliance with that provision lies with the employer. In the instant case, I am satisfied that the Respondent has failed to adduce any records to show that the Act was complied with in respect of the Complainant’s annual leave entitlements during this period of employment and thus carries the burden of rebutting the evidence given by the claimant.

In the circumstances, I find that the Respondent has not adduced clear evidence that the Complainant, either received, or was paid in respect of his outstanding annual leave entitlements accrued during the material period in question. Having regard to the evidence adduced by the parties, I find that the Complainant had an outstanding entitlement to two weeks’ annual leave accrued during the annual leave year 2018/2019 i.e. during the period from 1 April, 2018 to 31 March, 2019 on the cessation of his employment.

In relation to the annual leave year 2019/20, the Complainant contends that he did not take any annual leave during the material period in question i.e. from 1 April, 2019 until his employment was terminated on 5 June, 2019. The Complainant claims that the Respondent failed to pay him in respect of the annual leave accrued during this period on the termination of his employment. TI am satisfied that the Respondent did not adduce any evidence to contradict the Complainant’s contention on this matter.

Having regard to the evidence adduced, I am satisfied that the Complainant was absent from work on certified sick leave during the period from 1 April, 2019 until his employment was terminated by reason of redundancy on 5 June, 2019 as a result of having sustained a knee injury.

Section 23(1)(a) of the Act provides:

“23.— (1) (a) Where —

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

This means that on termination of employment, payment in lieu of untaken accrued annual leave will apply to leave which was untaken as a result of certified illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the leave year during which the statutory leave entitlement accrued.

Having regard to the foregoing, I find that the Complainant is entitled to cesser pay in respect of annual leave accrued while on sick leave during the period from 1 April, 2019 to 5 June, 2019. The Complainant normally worked 40 hours per week and was paid a gross weekly wage of €300.00. Accordingly, I find the Complainant had accrued the following entitlement of 8% of 376 hours worked during this period = 30.08 hours x €7.50 per hour = €225.60).

CA-00029377-001 – Complaint under the Redundancy Payments Acts

Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find that the complaint under the Redundancy Payments Acts 1967 – 2014 is well-founded and that the Complainant is entitled to a statutory redundancy payment based on the following criteria:

Date of Commencement: 2 January, 2017

Date of Termination: 5 June, 2019

Gross Weekly Pay: €300.00

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00029377-002 – Complaint under the Minimum Notice & Terms of Employment Act 1973

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint is well founded and in accordance with the provisions of Section 12(1) of the Minimum Notice and Terms of Employment Act, 1973, I order the Respondent to pay to the Complainant the sum of €600.00 being the equivalent of 2 week’s pay as compensation for the breach of Section 4(2) of the Act.

CA-00029377-003 – Complaint under the Organisation of Working Time Act 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with the provisions of Section 27 of the Act, I declare that the complaint is well founded, and that the Respondent has contravened the Complainant’s annual leave entitlements contrary to Section 23 of the Act. I order the Respondent to pay the Complainant:

-          €600.00, subject to any lawful deductions, cesser pay in respect of annual leave entitlements accrued during the annual leave year 2018/19, and

-          €225.60, subject to any lawful deductions, cesser pay in respect of annual leave entitlements accrued during the annual leave year 2019/20, and

-          €100.00 in compensation for the contravention of Section 23 of the Organisation of Working Time Act 1997.

Redundancy Payments Acts 1967 – 2014 – Statutory Redundancy Payment – Requisite Service – Minimum Notice & Terms of Employment Act 1973 – Notice Period – Organisation of Working Time Act 1997 – Section 19 – Annual Leave – Section 23 – Cesser Pay