ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028026
Parties:
| Complainant | Respondent |
Anonymised Parties | Security Supervisor | A security and facilities company |
Representatives | NONE | NONE |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00035981-001 | 01/05/2020 |
Date of Adjudication Hearing: 22/04/2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties confirmed that they understood this and were agreeable that the hearing would proceed on that basis. It was also explained to the parties that where there is a serious conflict of evidence in the complaint before an Adjudication Officer that will require an adjournment of the hearing to await the amendment to the Workplace Relations Act, 2015 to grant Adjudication Officers the power to administer the oath and to provide a punishment for the giving of false evidence. Both parties confirmed their understanding of this point.
At the outset it was clarified that this complaint was in relation to minimum notice although the WRC form had classified it as an unfair dismissal complaint. Both parties confirmed their understanding and agreement that this was a compliant pursuant to the provisions of the Minimum Notice and Terms of Employment Act, 1973
Background:
The complainant commenced employment with the respondent as a security supervisor on 02/12/2019. Due to the Covid-19 pandemic he was laid off on 13/03/2020. He received no communication from the respondent. He requested payment from the respondent for three public holidays. In April 2020 the complainant was told that he no longer had a position in the company due to a significant reduction in the business. He did not receive any notice and is seeking one week’s pay in lieu of notice. His gross pay was €650.00 per week. |
Summary of Complainant’s Case:
The complainant worked for the respondent as a security supervisor. His employment commenced on 02/12/2029 and he was paid €650.00 per week. He was laid off on 13/03/2020 due to the Covid-19 pandemic. He made a few attempts to contact the respondent for update but found it difficult to get a response. He requested payment for three public holidays in April 2020 and a few days later he received an e-mail that he would no longer have a position with the company due to a reduction of 90% in the business. He did not receive any payment in lieu of notice and as he worked for the respondent for more that 13 weeks he is seeking one week’s pay in lieu of notice. He feels that his request for payment for the public holidays is directly linked to the ending of his contract with the respondent. |
Summary of Respondent’s Case:
The respondent operates a security company and provides security services to client companies. The complainant was employed as a security supervisor and due to the major impact of Covid-19 on the business he had no option but to lay employees off pending clarification on businesses reopening and reengaging with him to provide services. In April 2020 he realised that his business was down by 90% and so he had to make decision in relation to the company. He informed the complainant that he would not have any more work for him. The respondent is clear that the complainant is not entitled to a weeks’ notice. He has based this on the legal and HR advice that is available to the him. The respondent also confirmed that it was his understanding that there was a provision in the complainant’s contract of employment that said that he was not entitled to a week’s notice. He provided a copy of this to the complainant and the WRC after the hearing. |
Findings and Conclusions:
The complaint in this case is that the complainant did not receive a weeks pay in lieu of notice. The respondent has outlined his view that there is no such entitlement. The Minimum Notice and Terms of Employment Act, 1973, is an Act that stipulates the minimum period of notice that those who have been employed for a qualified period are entitled to. The Act, Section 17, 4. 1. defines “continuity of service” as: “The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by- (a) The dismissal of the employee by his employer, or (b) The employee voluntarily leaving his employment. Section 17. 4. 3. Also notes that “a lay-off shall not amount to the termination by an employer of his employee’s service.” Section “4.-(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 section (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.” The contract of employment which was issued to the complainant by the respondent also notes that the following: “Notice of termination to be given by the employer Under 13 weeks service – nil 13 weeks but less than 2 years’ service – 2 weeks.” The following are the relevant dates for the purposes of deciding this matter. Date employment commenced: 02/12/2019 Date of lay off: 13/03/2020 [3 months and 11 days] Date of termination of employment: 21/04/2020 [20 weeks and 5 days] Based on the calculations above the complainant is entitled to one weeks payment in lieu of notice. I find that the complaint is well founded and I order the respondent to make a gross payment of one week’s wages consisting of €640 to the complainant . This payment should be made within 42 days of the date of this decision.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the complaint is well founded and I order the respondent to make a gross payment of one week’s wages consisting of €640 to the complainant . This payment should be made within 42 days of the date of this decision. |
Dated: 26th July 2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Payment in lieu of notice. Notice period. |