Complainant

Respondent

Anonymised Parties

Salon Manager

Dog Grooming Salon

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-00031005-001

19/09/2019

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

CA-00031005-002

19/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031005-003

19/09/2019

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

CA-00031005-004

19/09/2019

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

CA-00031006-001

19/09/2019

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

CA-00031006-002

19/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031006-003

19/09/2019

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

CA-00031006-004

19/09/2019

The Respondent worked as a Manager of a dog grooming salon with the Respondent from 3rd April 2017 to the date of termination on 17th April 2019. The Complainant worked a 40-hour week and was paid €12 per hour. The Complainant is seeking redundancy payment, payment for minimum notice and her outstanding holiday entitlement. She is also seeking compensation for not receiving her terms of employment as per legislation.

The Complainant submits that on 17th April 2019 she received an email from the Respondent informing her that “due to a downturn in business there is no work available at (the Respondent’s business). With this I am now issuing you notice of same. I would like to take this opportunity to wish you the very best in the future and thank you for your work.” The Complainant’s employment ended that day, without notice. She further submits that the Respondent promised to pay her redundancy entitlements soon.

The Complainant submits that her union representative contacted the Respondent on several occasions requesting that the Complainant’s entitlements would be issued to her without delay. Telephone calls were made to the Respondent. During these conversations with the union representative, the Respondent agreed to pay promised to pay the Complainant her entitlements. However, no payment was forthcoming, and the complaints were submitted to the Workplace Relations Commission (WRC). After the submission of the claim, a sum of €2038.00 was lodged in the Complainant’s bank account. There is no record as to the identity of the depositor of this sum.

Redundancy:

The Complainant submits she was dismissed by reason of Redundancy, as per the notification received from the Respondent. The Complainant had over two years continuous employment she therefore contends she is entitled to statutory redundancy payment. According to the Redundancy Calculator on the Welfare.ie website, the Complainant asserts she is entitled to €2,377.44 as per the redundancy calculations.

Minimum Notice:

The Complainant submits she did not receive her minimum notice and therefore is entitled to payment in lieu of notice as per the legislation. She refers to the Minimum Notice and Terms of Employment Act, 1973 Section 4 in the following way: (1) An employer shall, in order to terminate the contract of employment of an employee who has been in 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. And Section 4 – (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be- (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. The Complainant submits that according to Section 12 (1)(a) the Adjudicator should award the employee compensation for any loss sustained by her by reason of the default of the Respondent.

Terms of Employment:

The Complainant submits she did not receive a Contract of Employment despite asking for it on many occasions. The Complainant cites the Terms of Employment (Information) Act, 1994, Section 3 – (1) which states: An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s s employment, that is to say. The Complainant contends that the Respondent has breached this section of the legislation.

On this basis, the Complainant is seeking compensation for this breach, as per Section 7 (2) of the Act where it states: A recommendation from a Rights Commissioner under subsection (1) shall do one or more of the following:

Declare that the complaint was, or as the case maybe, was not well founded,

(d)order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment………      

Annual Leave:

The Complainant submits she did not receive her outstanding annual leave entitlements on termination of her employment. She contends that according to the Organisation of Working Time Act 1997, Part III Sections 19 to 23 that an employee should be paid annual leave and public holiday entitlements, and/or Compensation on cessation of Employment.  

The Complainant submits that the circumstances in which compensation under subsection (3)(c) should be awarded, in addition to outstanding holiday entitlements, were considered by the Labour Court in Kennedy’s Café Bar Ltd v A Worker DWT 26/2000 and Cementation Skanska v Carroll DWT 38/2003. She asserts that the Labour Court said that, given the requirements of Article 7 of the Working Time Directive, an award of compensation for loss of annual leave “need not be limited to the value of the lost holidays”. The court recognised that, where the right to annual leave is infringed, the redress provided, “should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. She contends that the Respondent made a conscious and deliberate breach of the Complainant’s rights under this legislation and she should be awarded compensation accordingly.

The Respondent did not attend the hearing.

Redundancy:

This is a complaint under the Redundancy Payments Act, 1967, to the effect that the complainant was made redundant and did not receive a redundancy payment.

Section 7(2) of the Act states:

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 that the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise…

Based on the uncontested evidence before me I find that the Complainant’s role was made redundant in line with the Act and I accordingly state that her claim is well founded. The Complainant was a full-time employee. I award the Complainant her statutory redundancy entitlement with the sum to be calculated as follows:

Date of Commencement:        03/04/2017

Date of Termination:                17/04/2019

Gross weekly Pay:                   €468.00

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

Minimum Notice:

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

(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 the 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 was employed for more than 2 years but less than 5 years. I therefore conclude that section 4(b) applies and I therefore uphold the complaint and award the equivalent sum of     two weeks wages which is €936.

Terms of Employment:

The Terms of Employment (Information) Act, 1994 require that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment.

Furthermore, redress in the Act is described as follows at Section 7(2):

A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3 , 4 , 5 , 6 or 6C shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6or 6C, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under change section 3 , 4 , 5 , or 6 , and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

(e) in relation to a complaint of a contravention under section 6C , and without prejudice to any order made under paragraph (d) , order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977.

The Complainant submits that she never received a statement of her terms and conditions from the Respondent during the period she was employed. In this case the only redress sought by the Complainant is an award of compensation. Such an award can only arise where the complaints made are well founded. Moreover, it should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. The Respondent was not present to submit evidence in rebuttal of the complaint. Therefore. Based on the uncontested evidence presented to me I award the complainant the sum of €468, which is the equivalent of 1 week’s pay.

Annual Leave:

The Organisation of Working Time Act 1997 deals with entitlement to annual leave at Sections 19 and 20:

(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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater…

27. Complaints to adjudication officer:

(1) In this section “relevant provision” means—

(a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26,

[(aa) any of the following regulations of the Activities of Doctors in Training Regulations namely, regulations 5 to 10,]

(b) the provision referred to in section 6(1) of regulations, a collective agreement, registered employment agreement or employment regulation order referred to in that section, or

(c) paragraph 9 of the Fifth Schedule.

(2) [ … ]

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

Based on the uncontested evidence of the Complainant I have decided that the Complainant did not receive her entitlement to annual leave in 2019, which the Complainant submits is 4 days’ pay. I find that her complaint is well founded. Given the circumstances of this case, and the fact that she had received her leave prior to 2019, the appropriate compensation is based solely on a loss of 4 days pay. I award the Complainant the sum of €374.

CA-000315005-001 Redundancy:

I find that the complaint is well founded, and I award the Complainant her statutory redundancy entitlement with the sum to be calculated as follows:

Date of Commencement:        03/04/2017

Date of Termination:                17/04/2019

Gross weekly Pay:                   €468.00

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

CA-000315005-002 Minimum Notice:

I find that the Complaint is well founded, and I award the Complainant the equivalent sum of two weeks wages which is €936.

CA-000315005-003 Terms of Employment:

I find that the complaint is well founded, and I award the Complainant €468

CA-000315005-004 Annual Leave:

I find that the complaint is well founded, and I award the Complainant €374.

Redundancy, Minimum Notice, Annual Leave, Terms of Employment.