ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031870
Parties:
| Complainant | Respondent |
Parties | Florin Ciuta | The Crane Gang Limited |
Representatives | Orla Canavan Solr. Hatstone Solrs. | none |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00042337-001 | 05/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00042337-002 | 05/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00042337-003 | 05/02/2021 |
Date of Adjudication Hearing: 16/07/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.
I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. Redundancy payment is tax free.
A complainant must be able to show a minimum two years (104 weeks) of service in the employment.
Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).
In the event that an Employer refuses to engage with an employee in this way it is open for the employee to bring an appropriate complaint before the Workplace Relations Commission.
The Employee must have made a claim for a redundancy payment from an employer by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where reasonable cause has given rise to the failure to apply, and the Adjudication Officer so finds (double check).
In addition to the claim for Redundancy, and in accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act that is contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I (an Adjudication Officer so appointed) have been asked to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred a complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pays to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 8th of January 2019 was submitted within the time allowed i.e., within six months of the date on which the wage fell due (September 14th, 2018 herein)
2 years to 5 years = 2 weeks’ notice
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up by an appointed member of the WRC administrative staff. I am satisfied that both parties were notified in advance. I am satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. In this regard I have explained that emergency legislation is pending which will empower Adjudicators to administer said oath. The parties were happy to proceed in the absence of said oath/affirmation. |
Summary of Complainant’s Case:
The Complainant was made Redundant overnight and was never paid his Statutory Redundancy. In addition, the Complainant was paid less than his Statutory entitlement under Minimum Notice legislation. The Complainant was represented by a Solicitor and I was provided with a full submission in advance of the hearing. The Complainant was represented at the hearing and I was provided with a helpful submission. |
Summary of Respondent’s Case:
The Respondent failed to present at this remote hearing. I am satisfied that the Director of the Company had been contacted both by a representative of the WRC as well as the Solicitor on record for the Complainant. I am in no doubt that the said Director was aware of the hearing and opted not to attend or reply as had been his pattern since making the Complainant Redundant |
Findings and Conclusions:
I have carefully listened to the evidence adduced by the Complainant herein. The Complainant is a crane driver who started working with the Respondent company in 2018. In October 2020 the Complainant was made Redundant. This decision was unexpected, and the Complainant was told by the Director of the Company that the Company was going bust. It is not clear if the company ever went bust, as it still has an active webpage. The Complainant took all reasonable steps to get his Redundancy payment from his Employer. None of his correspondence or communications were replied to. In addition, the Complainant was not paid for the two-week Notice period he was entitled to after his two years of service with the company. I understand that he was paid for four of the ten days. His Notice period should have ended on the 2nd of November. His rightful remuneration was therefore deducted. |
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.
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00042337-001 This Complaint was withdrawn in advance of the hearing.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00042337-002 This complaint is well-founded and I direct that the Respondent pay to the Complainant the sum of €1.520.00 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00042337-003 I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: 23rd May 2018 The employment ended: 2nd November 2020 Gross weekly wage: €945.00
The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. A ceiling of €600.00 also applies.
|
Dated: 21-07-2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
|