ADJUDICATION OFFICER DECISION
Correction Order Issued Pursuant to Section 39 of the Organisation of Working Time Act, 1997.
This order corrects the original Decision issued on 26 July 2021 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00030884
Parties:
| Complainant | Respondent |
Parties | Chris Murphy | Eoin Power, t/a Pinnacle Steel Engineering |
| Complainant | Respondent |
Anonymised Parties |
Representatives | Self | Eoin Power, Owner |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00039539-002 | 02/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00039539-003 | 02/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00039539-004 | 02/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039539-006 | 02/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039539-007 | 02/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039539-008 | 02/09/2020 |
Date of Adjudication Hearing: 20/04/2021
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
Background:
The complainant was employed as a Workshop Foreman with the respondent, a steel engineering company. Employment commenced in September 2016. The respondent ceased work in March 2020 when the lock-down commenced and laid off the six employees. The respondent has not operated since that date. The complainant alleges that he was informed that he should seek employment elsewhere as the respondent had no work for him. The complainant lodged his complaints with the WRC on 2 September 2020. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI NO. 359/2020 which designates the WRC as a body empowered to hold remote hearings. |
Summary of Complainant’s Case:
The complainant was put on temporary lay-off in March 2020 and was not recalled for work. After several attempts to contact the owner the complainant was informed that there was no work for him and that he should look elsewhere for work. The complainant is owed money for time worked and for holidays. |
Summary of Respondent’s Case:
The respondent provides products for the construction industry and when the lock-down commenced the workshop had to close. The employees were placed on temporary lay-off as it was not possible to forecast how long the closure would last. The respondent has been unable to operate since that date due to the situation in the construction industry. |
Findings and Conclusions:
The respondent operates a steel engineering business providing products to the construction industry. In March 2020 the business was impacted by the lock-down caused by the Covid-19 pandemic. The respondent employed 6 employees and the owner informed them on 29 March that they were being placed on temporary lay-off. No documentation was issued in this regard. The complainant stated that after a number of weeks he attempted to contact the owner by text, WhatsApp and phone in order to clarify his employment position and the issue of outstanding wages but to no avail. On 22 May the complainant sent an email to the owner listing the attempted contacts between them and asking for information in respect of a return to work. The complainant noted that he was aware that some work colleagues had returned to work. A telephone conversation took place between the parties on 24 May and according to the complainant the owner advised that there would be no work available for anybody for the next 2 to 3 weeks and that the complainant should enquire from other employers about employment. On 11 June the complainant again wrote by email to the owner seeking an update as regards a return to work. The complainant also requested payment with regard to outstanding wages, holidays and the 3 public holidays that had occurred since the closure. The complainant again made the point that he believed other members of staff appeared to have been brought back to work. The complainant also had a query about personal work gear which was on the respondent’s premises and which he wished to collect. The complainant requested a response to these matters. The complainant sent a further email to the respondent on 14 June on the basis that he had not received a reply to his previous email. The complainant reiterated the points that he had made previously. The complainant ended the email as follows: “please note that due to the fact that you have told me to find employment elsewhere, I take it that you have effectively laid me off. If this is not the case or if you dispute any of the facts above please reply via email by close of business Monday 15th June 2020 if not I will take this as a given.” There followed an exchange of text messages over the next few days in which the respondent initially stated that he would try and sort out the money due to the complainant but again nothing came of this. On 13 July the complainant again wrote to the respondent by email stating that the matter would now be referred to the WRC as the respondent had failed to resolve the issues. The complainant again stated his belief that other staff had been taken back for some work by the respondent. The complainant submitted his complaints to the WRC on 2 September 2020. The complainant said that he had commenced new employment on 6 July 2020 on similar terms to those that he had with the respondent. The complainant further stated that he had enquired about his situation with Revenue and was informed that he had been taken off the respondent’s books on 27 March. The respondent’s position as given in evidence by the owner was that when the first lock-down occurred he laid-off the 5 employees as the company’s products were related to the construction industry. He did not know how long the lay-off would last. At the time of the lock-down the respondent was in a vulnerable financial situation. Over the period in question there was no work coming in to the respondent. The owner further stated that he had not had communication with other employees and that only the complainant was querying matters. The owner did accept that the complainant was dismissed. No documentation was produced by the respondent in respect of the matters which were the subject of the complaints. Complaint No. CA-00039539-002: This is a complaint under the Payment of Wages Act, 1991, to the effect that the complainant was paid less than the amount due to him. This complaint relates to the claim by the respondent that as he was paid a week in arrears he was due payment for the week worked prior to the closure. This payment was due on 3 April 2020 but no payment was received by the complainant. As pointed out above there is a lack of documentation with regard to these matters. The complainant stated that payslips were only supplied if specifically requested by the employee. I note that the records of emails and text messages supplied by the complainant do contain requests for payment of this money and that the reply of the respondent was to the effect that the money would be paid when the respondent got paid by customers. Section 5(6) of the Act states: Where – (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable o an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error in computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. Based on the evidence before me I find that the complainant was due payment for the back week on 3 April 2020 and did not receive that payment then or since. Consequently, I find that the complaint is well founded and that the complainant is due payment in this regard. Complaint No. CA-00039539-003: This is a complaint under the Payment of Wages Act to the effect that the complainant did not receive the appropriate payment in lieu of notice of termination of his employment. I note that the complainant has also lodged complaints in regard to this matter under the Minimum Notice and Terms of Employment Act, 1973, and I will deal with the issue under that heading. Complaint No. CA-00039539-004: This is a complaint under the Organisation of Working Time Act, 1997, in which the complainant alleges that he did not receive his paid holiday / annual leave entitlement and that he was not paid for three public holidays that occurred whilst on lay-off. The complaint was lodged on 2 September 2020 and the holiday year that ended on 31 March 2020 is within the cognisable period. There was a lack of documentation with regard to this complaint at the hearing and both parties submitted their basic calculations in regard to annual leave subsequent to the hearing. Section 19(1) of the Organisation of Working Time Act, 1997, states: 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): Based on what information is available to me I find that the complainant is due 10 days’ annual leave. The complainant is also due payment for the three public holidays that occurred whilst on lay-off, i.e. Easter Monday, May and June public Holidays.
Complaint No. CA-00039539-006: This is a complaint under the Unfair Dismissals Act, 1977, in which the complainant claims that he was unfairly dismissed by the respondent. At the outset of the hearing the respondent accepted that the complainant had been dismissed. There is no doubt that the Covid 19 pandemic and the measures taken to combat it resulted in many businesses being faced with serious challenges. This does not mean, however, that there is any reduction in the requirement to apply proper and fair procedures in respect of decisions affecting employees and their contracts. In the case before me the reason put forward by the respondent for the dismissal of the complainant was that the business effectively closed in late March 2020. Section 6(4) of the Unfair Dismissals Act, 1977, states: Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one of the following: (c) the redundancy of the employee… Section 7(2) of the Redundancy Payments Act, 1967, states: 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… There is an onus therefore on the respondent to prove that such a situation occurred. In this case there was no tangible evidence put before the hearing as regards the financial situation facing the company. More importantly, there was no formal redundancy process initiated by the respondent, no consultation with the complainant and no payment made to him in respect of this purported redundancy as required under the Redundancy Payments Act. In these circumstances I cannot accept that a genuine redundancy situation existed and therefore find that the complainant was dismissed. Section 6(7) of the Unfair Dismissals Act states that an adjudication officer, in determining if a dismissal is unfair, may have regard “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.” I find that, having regard to all the evidence, the dismissal of the complainant was an unfair dismissal in accordance with the provisions of that Act. I note that the complainant attempted to clarify his employment status through emails and text messages and in this respect I find that the final date given by the complainant for receipt of such clarification, 15 June 2020, is effectively the date of termination. Complaint No. CA-00039539-007: This is a complaint under the Minimum Notice and Terms of Employment Act, 1973, to the effect that the complainant received no notice prior to his dismissal. Section 4 of the Act states: (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…
It is clear from the evidence and submissions before me that the complainant was not given any notice of termination of his employment by the respondent. I have already determined that the complainant was unfairly dismissed and consequently I find that this complaint is well founded. Complaint No. CA-00039539-008: This complainant under the Minimum Notice and Terms of Employment Act, 1973, is in fact a duplicate of the previous complaint. |
Decision:
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.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint No. CA-00039539-002: In accordance with my findings set out above, I find this complaint under the Payment of Wages Act, 1991, to be well founded. I note that the claimant states that he worked for four days in the week prior to lock-down and I therefore order the respondent to pay to the complainant the sum of €480.00 as compensation in this regard. Complaint No. CA-00039539-003: The issue of failure to receive a minimum notice payment will be dealt with under Complaint No. CA-00039539-007 which is a parallel complaint under the Minimum Notice and Terms of Employment Act, 1973. Complaint No. CA-00039539-004: This is a complaint under the Organisation of Working Time Act, 1997. For the reasons set out above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €1.200.00 in respect of annual leave entitlement and the sum of €360.00 in respect of Public Holiday entitlement making a total of €1,560.00 in respect of this complaint Complaint No. CA-00039539-006: For the reasons set out above I find this complaint under the Unfair Dismissal Acts, 1977 – 2015, to be well founded and that the complainant was unfairly dismissed. I note that the complainant commenced employment with a new employer on 6 July 2020 and that the terms of his employment are similar to those that he had with the respondent. I therefore decide that the respondent should pay to the complainant the sum of €2,400.00 as compensation in this regard. Complaint No. CA-00039539-007: As set out above I find this complaint under the Minimum Notice and Terms of Employment Act, 1973, to be well founded. I note that the complainant’s employment commenced in September 2016 and accordingly I order the respondent to pay to the complainant the sum of €1,200.00 which equates to two weeks’ gross wages. Complaint No. CA-00039539-008: As noted, this complaint is in fact a duplicate of the previous complaint. For the sake of clarity, the total of the compensation due to the complainant under the above complaints is €5,640.00 |
Dated: 26th July 2021
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Key Words:
|
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030884
Parties:
| Complainant | Respondent |
Parties | Chris Murphy | Pinnacle Steel Engineering |
Representatives | Self | Eoin Power, Owner |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00039539-002 | 02/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00039539-003 | 02/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00039539-004 | 02/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039539-006 | 02/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039539-007 | 02/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039539-008 | 02/09/2020 |
Date of Adjudication Hearing: 20/04/2021
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
Background:
The complainant was employed as a Workshop Foreman with the respondent, a steel engineering company. Employment commenced in September 2016. The respondent ceased work in March 2020 when the lock-down commenced and laid off the six employees. The respondent has not operated since that date. The complainant alleges that he was informed that he should seek employment elsewhere as the respondent had no work for him. The complainant lodged his complaints with the WRC on 2 September 2020. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI NO. 359/2020 which designates the WRC as a body empowered to hold remote hearings. |
Summary of Complainant’s Case:
The complainant was put on temporary lay-off in March 2020 and was not recalled for work. After several attempts to contact the owner the complainant was informed that there was no work for him and that he should look elsewhere for work. The complainant is owed money for time worked and for holidays. |
Summary of Respondent’s Case:
The respondent provides products for the construction industry and when the lock-down commenced the workshop had to close. The employees were placed on temporary lay-off as it was not possible to forecast how long the closure would last. The respondent has been unable to operate since that date due to the situation in the construction industry. |
Findings and Conclusions:
The respondent operates a steel engineering business providing products to the construction industry. In March 2020 the business was impacted by the lock-down caused by the Covid-19 pandemic. The respondent employed 6 employees and the owner informed them on 29 March that they were being placed on temporary lay-off. No documentation was issued in this regard. The complainant stated that after a number of weeks he attempted to contact the owner by text, WhatsApp and phone in order to clarify his employment position and the issue of outstanding wages but to no avail. On 22 May the complainant sent an email to the owner listing the attempted contacts between them and asking for information in respect of a return to work. The complainant noted that he was aware that some work colleagues had returned to work. A telephone conversation took place between the parties on 24 May and according to the complainant the owner advised that there would be no work available for anybody for the next 2 to 3 weeks and that the complainant should enquire from other employers about employment. On 11 June the complainant again wrote by email to the owner seeking an update as regards a return to work. The complainant also requested payment with regard to outstanding wages, holidays and the 3 public holidays that had occurred since the closure. The complainant again made the point that he believed other members of staff appeared to have been brought back to work. The complainant also had a query about personal work gear which was on the respondent’s premises and which he wished to collect. The complainant requested a response to these matters. The complainant sent a further email to the respondent on 14 June on the basis that he had not received a reply to his previous email. The complainant reiterated the points that he had made previously. The complainant ended the email as follows: “please note that due to the fact that you have told me to find employment elsewhere, I take it that you have effectively laid me off. If this is not the case or if you dispute any of the facts above please reply via email by close of business Monday 15th June 2020 if not I will take this as a given.” There followed an exchange of text messages over the next few days in which the respondent initially stated that he would try and sort out the money due to the complainant but again nothing came of this. On 13 July the complainant again wrote to the respondent by email stating that the matter would now be referred to the WRC as the respondent had failed to resolve the issues. The complainant again stated his belief that other staff had been taken back for some work by the respondent. The complainant submitted his complaints to the WRC on 2 September 2020. The complainant said that he had commenced new employment on 6 July 2020 on similar terms to those that he had with the respondent. The complainant further stated that he had enquired about his situation with Revenue and was informed that he had been taken off the respondent’s books on 27 March. The respondent’s position as given in evidence by the owner was that when the first lock-down occurred he laid-off the 5 employees as the company’s products were related to the construction industry. He did not know how long the lay-off would last. At the time of the lock-down the respondent was in a vulnerable financial situation. Over the period in question there was no work coming in to the respondent. The owner further stated that he had not had communication with other employees and that only the complainant was querying matters. The owner did accept that the complainant was dismissed. No documentation was produced by the respondent in respect of the matters which were the subject of the complaints. Complaint No. CA-00039539-002: This is a complaint under the Payment of Wages Act, 1991, to the effect that the complainant was paid less than the amount due to him. This complaint relates to the claim by the respondent that as he was paid a week in arrears he was due payment for the week worked prior to the closure. This payment was due on 3 April 2020 but no payment was received by the complainant. As pointed out above there is a lack of documentation with regard to these matters. The complainant stated that payslips were only supplied if specifically requested by the employee. I note that the records of emails and text messages supplied by the complainant do contain requests for payment of this money and that the reply of the respondent was to the effect that the money would be paid when the respondent got paid by customers. Section 5(6) of the Act states: Where – (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable o an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error in computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. Based on the evidence before me I find that the complainant was due payment for the back week on 3 April 2020 and did not receive that payment then or since. Consequently, I find that the complaint is well founded and that the complainant is due payment in this regard. Complaint No. CA-00039539-003: This is a complaint under the Payment of Wages Act to the effect that the complainant did not receive the appropriate payment in lieu of notice of termination of his employment. I note that the complainant has also lodged complaints in regard to this matter under the Minimum Notice and Terms of Employment Act, 1973, and I will deal with the issue under that heading. Complaint No. CA-00039539-004: This is a complaint under the Organisation of Working Time Act, 1997, in which the complainant alleges that he did not receive his paid holiday / annual leave entitlement and that he was not paid for three public holidays that occurred whilst on lay-off. The complaint was lodged on 2 September 2020 and the holiday year that ended on 31 March 2020 is within the cognisable period. There was a lack of documentation with regard to this complaint at the hearing and both parties submitted their basic calculations in regard to annual leave subsequent to the hearing. Section 19(1) of the Organisation of Working Time Act, 1997, states: 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): Based on what information is available to me I find that the complainant is due 10 days’ annual leave. The complainant is also due payment for the three public holidays that occurred whilst on lay-off, i.e. Easter Monday, May and June public Holidays.
Complaint No. CA-00039539-006: This is a complaint under the Unfair Dismissals Act, 1977, in which the complainant claims that he was unfairly dismissed by the respondent. At the outset of the hearing the respondent accepted that the complainant had been dismissed. There is no doubt that the Covid 19 pandemic and the measures taken to combat it resulted in many businesses being faced with serious challenges. This does not mean, however, that there is any reduction in the requirement to apply proper and fair procedures in respect of decisions affecting employees and their contracts. In the case before me the reason put forward by the respondent for the dismissal of the complainant was that the business effectively closed in late March 2020. Section 6(4) of the Unfair Dismissals Act, 1977, states: Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one of the following: (c) the redundancy of the employee… Section 7(2) of the Redundancy Payments Act, 1967, states: 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… There is an onus therefore on the respondent to prove that such a situation occurred. In this case there was no tangible evidence put before the hearing as regards the financial situation facing the company. More importantly, there was no formal redundancy process initiated by the respondent, no consultation with the complainant and no payment made to him in respect of this purported redundancy as required under the Redundancy Payments Act. In these circumstances I cannot accept that a genuine redundancy situation existed and therefore find that the complainant was dismissed. Section 6(7) of the Unfair Dismissals Act states that an adjudication officer, in determining if a dismissal is unfair, may have regard “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.” I find that, having regard to all the evidence, the dismissal of the complainant was an unfair dismissal in accordance with the provisions of that Act. I note that the complainant attempted to clarify his employment status through emails and text messages and in this respect I find that the final date given by the complainant for receipt of such clarification, 15 June 2020, is effectively the date of termination. Complaint No. CA-00039539-007: This is a complaint under the Minimum Notice and Terms of Employment Act, 1973, to the effect that the complainant received no notice prior to his dismissal. Section 4 of the Act states: (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…
It is clear from the evidence and submissions before me that the complainant was not given any notice of termination of his employment by the respondent. I have already determined that the complainant was unfairly dismissed and consequently I find that this complaint is well founded. Complaint No. CA-00039539-008: This complainant under the Minimum Notice and Terms of Employment Act, 1973, is in fact a duplicate of the previous complaint. |
Decision:
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.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint No. CA-00039539-002: In accordance with my findings set out above, I find this complaint under the Payment of Wages Act, 1991, to be well founded. I note that the claimant states that he worked for four days in the week prior to lock-down and I therefore order the respondent to pay to the complainant the sum of €480.00 as compensation in this regard. Complaint No. CA-00039539-003: The issue of failure to receive a minimum notice payment will be dealt with under Complaint No. CA-00039539-007 which is a parallel complaint under the Minimum Notice and Terms of Employment Act, 1973. Complaint No. CA-00039539-004: This is a complaint under the Organisation of Working Time Act, 1997. For the reasons set out above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €1.200.00 in respect of annual leave entitlement and the sum of €360.00 in respect of Public Holiday entitlement making a total of €1,560.00 in respect of this complaint Complaint No. CA-00039539-006: For the reasons set out above I find this complaint under the Unfair Dismissal Acts, 1977 – 2015, to be well founded and that the complainant was unfairly dismissed. I note that the complainant commenced employment with a new employer on 6 July 2020 and that the terms of his employment are similar to those that he had with the respondent. I therefore decide that the respondent should pay to the complainant the sum of €2,400.00 as compensation in this regard. Complaint No. CA-00039539-007: As set out above I find this complaint under the Minimum Notice and Terms of Employment Act, 1973, to be well founded. I note that the complainant’s employment commenced in September 2016 and accordingly I order the respondent to pay to the complainant the sum of €1,200.00 which equates to two weeks’ gross wages. Complaint No. CA-00039539-008: As noted, this complaint is in fact a duplicate of the previous complaint. For the sake of clarity, the total of the compensation due to the complainant under the above complaints is €5,640.00 |
Dated: 26th July 2021
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Key Words:
|