ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00030650

Parties:

	Complainant	Respondent
Parties	Denise Delaney	Harrington Bookmakers Limited

Representatives

none

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00039918-001	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00039918-002	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00039918-003 WITHDRAWN	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00039918-004	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00039918-005	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00039918-006	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00039918-008 WITHDRAWN	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00039918-009 WITHDRAWN	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00039918-010 WITHDRAWN	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00039918-011	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00039918-012 WITHDRAWN	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00039918-013	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00039918-014 WITHDRAWN	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000	CA-00039918-015 WITHDRAWN	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000	CA-00039918-016 WITHDRAWN	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000	CA-00039918-017 WITHDRAWN	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00039918-018	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00039918-019 WITHDRAWN	18/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00039918-020 WITHDRAWN	18/09/2020

Date of Adjudication Hearing: 12/05/2021

Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll

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 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 complaints. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant was self-represented. The Respondent did not attend at the hearing. I am reasonably satisfied that the Respondent was informed of the time and date of hearing. Complaints CA—0039918-003, – 008, - 009, -010, -012, -014, -015, -016, -017, -019, -020 were withdrawn by the Complainant. The Complainant gave sworn evidence on her Complaint under the Redundancy Payments Act 1967.

Background:

The Complainant commenced employment as a cashier/manager of the Respondent’s bookmakers’ shop on the 6 April 1997. She submits that she was made redundant on 21 October 2019 when the shop where she was employed closed suddenly. The Complainant submits that she regularly worked up to 60 hours per week. Her gross pay was €828, net €694.

Summary of Complainant’s Case:

CA-00039918-013 – Redundancy Payment

The Complainant submits that the Bookmakers Shop where she worked suddenly closed down on 21 October 2019. She had received a phone call from the Respondent on informing her of the closure. She had been in contact with the Respondent and had been assured that the redundancy payment would be made. However, no payment was received. She is seeking payment of the statutory redundancy sum.

CA-00039918-001 – Sunday Premium

The Complainant submits that she never received compensation for working on a Sunday under the Organisation of Working Time Act 19997

CA-00039918-002 – Payment of Wages.

The Complainant submits that her contractual hourly sum was €13.50. However, a number of years ago the Respondent reduced this payment to €13 an hour purportedly due to trading difficulties. The Complainant cannot recall the date upon which this reduction in pay commenced. The Complainant does accept that she did not object to the reduction in pay at the time. The Complainant submits that the Respondent paid her less than the amount due under the Payment of Wages Act 1991.

CA-00039918-004 – Annual Leave.

The Complainant submits that she did not receive her paid holiday entitlement upon cessation of her employment under the Organisation of Working Time Act 1997.

CA-00039918-006 – Public Holidays.

The Complainant submits that she was not compensated for the loss of her Public Holiday entitlement on termination of her employment under the Organisation of Working Time Act 1997.

CA-00039918-011 – Terms of Employment.

The Complainant submits that she was not notified in writing of a change in her terms of Employment, when her pay was reduced, contrary to the Terms of Employment (Information) Act 1994.

CA-00039918-018 – Minimum Notice.

The Complainant submits she did not receive her statutory minimum period of notice on the termination of her employment, or payment in lieu thereof, contrary to the Minimum Notice and Terms of Employment Act, 1973.

Summary of Respondent’s Case:

The Respondent did not attend the hearing

Findings and Conclusions:

CA-00039918-013 – Redundancy Payment

The general right to redundancy payment of the Redundancy Payments Act, 1967, as amended, (the Act) provides as follows at section 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, 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 24 of the Act sets out the time limits for submitting a claim as follows:

“-Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39…”

I am satisfied, based on the sworn evidence of the Complainant, that the Respondent ceased to carry on the business at the place where the Complainant was employed. The Complainant also gave evidence that she worked overtime, and without a break, such that her average weekly pay was consistently over the €600 cap per week under the Redundancy Payments Act 1967. The Complainant submitted the complaint within the time limit provided for in section 24 of the Act.

Having considered all the uncontested, sworn evidence in this complaint I find that the Respondent ceased to carry on the business in the place where the employee was so employed, as alluded to in section 7(2)(a) of the Act. I conclude that the Complainant was dismissed by reason of redundancy and is entitled to a redundancy payment.

Preliminary Issue: Time limits in Complaints CA-0039918-001, CA-0039918-002, CA-0039918-004, CA-0039918-005, CA-0039918-006, CA-0039918-011, CA-0039918-018.

Section 41 (1) of the Workplace Relations Act, 2015 provides:

(1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

Subsections (6) and (8) further provide the regulation on time limits for submission of claims and whether a time limit can be extended for a further six months:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates…

…(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 38/2003) as follows;

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

On the issue of a complainant pleading that she did not know what the time limits were, I refer to the Labour Court Determination in Globe Technical Services Limited v Kristin Miller UD1824. In that case the complainant argued her lack of knowledge on time limits for submitting a claim was based on the fact she was not a resident in this jurisdiction and was therefore unfamiliar with the processes. The Court stated:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

The Complaints in in this this instance come under the Organisation of Working Time Act 1997, Payment of Wages Act 1991, the Terms of Employment (Information) Act 1994 and the Minimum Notice and Terms of Employment Act 1973. All of these acts are listed at Schedule 5 of the Workplace Relations Act 2015 (the Act) therefore the provisions on time limits come under section 41 of the Act. The Complainant submits that she is seeking extension of the time limit under section 41(8) of the Act due to reasonable cause.

The Workplace Relations Commission received the aforementioned complaints on 18 September 2020. The Complainant’s contract of employment was terminated on 21 October 2019, which is approximately eleven months from the date of termination. The Complainant submitted that she was seeking an extension on the basis that she believed the Covid 19 lockdown had put a stay on all claims to the WRC. She also believed that the Respondent would pay her outstanding monies due in the six months after the termination of her employment. The Complainant accepted that she had not appreciated that there was a six months’ time limit for submitting the aforementioned complaints.

I cannot accept that the belief by the Complainant that lockdown restrictions due to Covid 19 put a stay on time limits for complaints amounted to a reasonable cause. The Complainant’s employment was terminated on 21 October 2019. The six-month period for submitting complaints ended on 21 April 2020. The national lockdown came into effect on 24 March 2020. The Complainant could give no plausible reason as to why the complaints were not submitted before then. Furthermore, I must consider that the complaints were submitted on 18 September 2020 which is five months after the expiry of the original six months’ time limit.

The Complainant also cited a lack of knowledge of time limits. The circumstances leading to the lack of knowledge -unfamiliarity with the law, as in Globe Technical Services because the complainant was not a resident of the country, or being misinformed as in this instance, cannot be considered as underlying facts that caused the delay.

Having considered the evidence put forward by the Complainant in applying for an extension of time, I conclude that the reasons put forward does not offer a reasonable cause for the delay. I have concluded that there was no reasonable cause for the complainant submitting Complaints CA-0039918-001, CA-0039918-002, CA-0039918-004, CA-0039918-005, CA-0039918-006, CA-0039918-011, CA-0039918-018 outside the legal time limit. I decide therefore, that I have no jurisdiction to adjudicate on these complaints.

Decision:

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.

CA-00039918-013:

I find that the Complainant was dismissed by reason of redundancy and is entitled to a statutory redundancy sum based on the following criteria:

Date of commencement of employment: 06/04/1997

Date of termination of employment: 21/10/2019

Gross weekly Pay: €600.00

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 complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.