ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027802

Parties:

	Complainant	Respondent
Anonymised Parties	Painter	Painting Contractor

Representatives

Olga Shevchenko Immigrant Advice Bureau

did not attend

Complaints:

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-00035588-001	06/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00035588-002	06/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00035588-003	06/04/2020

Date of Adjudication Hearing: 19/01/2021

Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 39 of the Redundancy Payments Acts 1967 - 2014 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 complaint. This hearing was conducted remotely. The Respondent did not login, but I am satisfied that he was informed of the date and time of the hearing. Complaint CA-00035588-001 and -002 were adjudicated upon as one complaint i.e. the alleged non-payment of a statutory redundancy sum.

Background:

The Complainant commenced work with the Respondent on 1st January 2014 and was employed as painter. His employment was terminated on 27th February 2020. His salary was €350.00; net €319.97. He is claiming that he never received his statutory redundancy entitlement nor his statutory minimum notice.

Summary of Complainant’s Case:

The Complainant gave evidence that he was continually employed as a painter from 1st January 2014 with the Respondent. He was the only, official employee with the Respondent. In January 2020 he worked after the Christmas break until the 27th February 2020 when he was informed by the Respondent that there was no more work available for him. The Complainant sent an email to the Respondent asking for him to complete the forms for the Department of Social Protection and asked him also to pay the Redundancy. However, the Respondent did not reply nor did the Respondent return numerous phone calls. The Complainant asserts that that the Respondent continues to trade.

Summary of Respondent’s Case:

The Respondent did not login to the hearing.

Findings and Conclusions:

CA-00035588-001 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.

The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states as follows:

7(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,

Having considered the complainant’s verbal submission, it is clear that his employment ended by reason of redundancy in line with the provisions of Section 7(2) of the Act. Accordingly, I find that the complaint is well founded.

CA–0035588-003 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.

Furthermore section 12 covers the decision of the Adjudication Officer as follows:

(1) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute as to the entitlements of an employer under section 6 may include such directions as the adjudication officer considers appropriate.

Having considered the Complainant’s verbal submission, I find that the Respondent clearly contravened the Act. The Complainant did not receive his statutory minimum notice.

Decision:

CA-0003558-001: 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 under that Act.

The Complainant is entitled to a redundancy sum as follows.

Date of commencement of employment: 01/01/2014

Date of termination of employment: 27/02/2020

Gross weekly Pay: €350.00

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

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

CA-0003558-003 Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment 1973:

I find that the Respondent contravened the Act. The Complainant was employed for more than 5 years but for less than 10 years. I therefore conclude that section 4(c) of the Act applies and I direct the Respondent to pay the Complainant the compensatory sum of €1400, representing 4 weeks salary.

Dated: 2nd February 2021

Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll

Key Words:

Redundancy Payments Act, Minimum Notice.