ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028032

Parties:

	Complainant	Respondent
Anonymised Parties	An office administrator	A security and facilities company

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00035997-001	05/05/2020

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, 2015 following 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 complaint pursuant to the provisions of Section 12 of the Minimum Notice and Terms of Employment Act, 1973

Background:

The complainant was employed by the respondent as office administrator from 25/11/2019 until 24/04/2020. She was laid off on 27/03/2020. She was advised on 21/04/2020 that she would be taken off the payroll due to the uncertainty in relation to the company’s position. She was informed that the business had reduced by 90% and that there was no guarantee she would have work in the company after lock-down. She was requested to return a company phone. She was also refused a payment of one week’s pay in lieu of notice. She was paid €560.00 gross per week.

Summary of Complainant’s Case:

The complainant is seeking the payment of one week’s pay in lieu of notice. She commenced employment on25/11/2019 as the office administrator with the respondent. Her role involved managing the office, payroll duties, some accounts work such as invoicing and statements as well as responding to e mails, phone calls, and sorting employee files. Although she never worked in a similar role she never received the training she was promised. She learned very quickly and there were no complaints about her performance. She last worked on 27/03/2020 as the Covid-19 pandemic had a significant effect on the business. The respondent asked her if she wanted to apply for the €350 payment and he wold pay the rest. There was no mention of being laid off. Over the next few weeks there was a lot of uncertainty in relation to what was going on. She was eventually told that she was being laid off due to the Covid-19 situation and was advised by the respondent to apply for the Covid-19 unemployment payment. She was not allowed to go to the office to print off papers and payslips which were needed to apply for this payment. She contacted the respondent on 21/04/2020 to apply for payment of public holidays. She received a reply which stated that due to the impact of Covid-19 on the business she would be taken off the payroll and that there was no guarantee about any future work with the respondent. She was asked to provide her address to organise the return of a mobile phone. She did not respond to this request as she was seeking legal advice. A further e mail form the respondent informed her that if she did not return the mobile phone the respondent would then seek assistance from the Garda to do so.

She was refused payment of a week’s pay in lieu of notice and is claiming a total of €560 gross.

Summary of Respondent’s Case:

The respondent operates a security company and provides security services to client companies. The complainant was employed as the office administrator 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:

This is a complaint pursuant to the provisions of Section 12 of the Minimum Notice and Terms of Employment Act, 1973

The complaint in this case is that the complainant did not receive a week’s 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: 25/11/2019

Date of lay off: 27/03/2020 [4 months and 02 days]

Date of termination of employment: 21/04/2020 [04 months and 27 days]

Based on the calculations above the complainant is entitled to one week’s 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 €560 to the complainant . This payment should be made within 42 days of the date of this decision.

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.

Dated: 26th July 2021