ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027133

Parties:

	Complainant	Respondent
Parties	Bartosz Ochenduszko	Aydiner Trading Limited

Representatives

Self Represented

Not present

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00034742-001	19/02/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00034742-002	19/02/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00034742-003	19/02/2020

Date of Adjudication Hearing: 14/04/2021

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 – 2014 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 Complainant was employed as a Barber from November 2nd 2012 to December 12th 2019 when the business suddenly closed and never reopened. The Complainant had outstanding holiday pay due, did not receive any notice of the closure of the business and did not receive any redundancy pay. The Respondent did not attend the Hearing;

Summary of Complainant’s Case:

The Complainant was employed as a Barber from November 2nd 2012 to December 12th 2019 when the business suddenly closed. He received a text at 10.30pm on the Chat Group Whats App from the Owner that the shop was closing until further notice and to leave the keys of the shop in the premises in the next few days and the Property owner would be changing the locks in a week.

The Complainant tried to make contact by phone and email with the Owner and his wife but received no reply. The Complainant contacted the business Accountant but was told he had no authority to deal with any claims. He understood the owner to have left the country.

The Complainant earned 412 Euros per week gross.

The Complainant is was not paid 6 days holidays due.

The Complainant did not receive any notice of the termination of his employment.

The Complainant did not receive any redundancy pay due to the closure of the business.

Summary of Respondent’s Case:

A Complaint was received by the Director General of the Workplace Relations Commission by the Complainant on February 19th 2020 alleging that his employer contravened the provisions of the Organisation of Working Time 1977, the Minimum Notice and Terms of Employment Act 1973 and the Redundancy Payments Acts 1967-2020 in relation to him. The said Complaints was referred to me for investigation. A Hearing for that purpose was held on April 14th 2021. There was no appearance by or on behalf of the Respondent at the Hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place (Remote Hearing) at which the Hearing to investigate the Complaints would be held and were not present at the Hearing.

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.

CA–00034742-001 Minimum Notice

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the relevant 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—

(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,

(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.

.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 contravened the Act. The Complainant did not receive his statutory minimum notice and is entitled to four weeks notice pay amounting to 1,648 Euros.

CA–00034742-002 Annual Leave

Section 19 of the Organisation of Working Time Act 1997 states the following;

“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.”

The Complainant was entitled to 6 days annual leave when his employment ended which was unpaid and I find the Complaint well founded and award the Complainant 494.40 Euros.

CA-00034742-003 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. (a) applies to the Complainant.

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,

Section 39 of the Redundancy Payments Acts 1967 – 2020 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. Based on the uncontested evidence of the Complainant I allow the Complainants appeal and I award him statutory redundancy on the following basis; Section 4.(1) of the Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.” Therefore, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, and subject to being confirmed by the appropriate Government Agency, the Complainant is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis;

Date of Commencement; November 2nd 2012

Date of Reckonable Service for Redundancy Payment Ceasing on: December 21st 2019

Gross Weekly Wage: 412 Euros

The Complainants period of “Reckonable Service” is defined by Schedule 3 of the Act and does not include any period of absence from work due to lay off by the employer.

I allow the Complaints Appeal.

Dated: 27th July 2021

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Redundancy