ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027242
Parties:
| Complainant | Respondent |
Parties | Martin Finan | C and L Plex Ltd. |
Representatives | Martin Finan | No appearance |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00034699-001 | 17/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00034699-002 | 17/02/2020 |
Date of Adjudication Hearing: 22/04/2021
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of theRedundancy Payments Acts 1967following 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:
This complaint is concerned with a failure to pay redundancy terms to the Complainant on cessation of the business of the Respondent and also payment of outstanding pay in lieu of notices. Details of the complaint are set out in the summary of the Complainant’s position. Notices for a virtual hearing were issued to the parties on 09.03.2021. While the Complainant attended for the hearing there was no appearance by or on behalf of the Respondent. The Respondent had engaged with the WRC January 7th, 2021 when he sought and was granted a postponement of the then scheduled hearing. I am satisfied that every reasonable effort was made by the WRC to notify the Respondent of the complaint and also the hearing scheduled for April 2021. The hearing proceeded on this basis to hear the evidence of the Complainant.
In accordance with section 39.17 of the Redundancy Payments Act 1967, an oath of affirmation was administered to the Complainant prior to his giving evidence at the hearing. Prior to and at the hearing the Complainant was informed that the hearing was in public and that the decision would be published.
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Summary of Complainant’s Case:
Date of commencement of employment: 07/09/2015. Date of notice of termination of employment: 01/08/2019. Date of cessation of employment: 05/08/2019. Average rate of pay: €11.05 x 38 hours = €419.90.
Redundancy Payments Act 1967
The Complainant served an RP77 notice on the respondent on 05/09/2019. There was no response. The Complainant wrote to the Respondent on 11/10/2019 and 27/11/2019 regarding the outstanding payments claimed.
At one point he was informed by the Respondent that he hoped to have the matters settled by Christmas of 2019, which did not occur.
Other employees presented complaints to the WRC and were successful in those appeals against non-payment of statutory entitlements.
Minimum Notice and Terms of Employment Act 1973
The Complainant stated that he received notice of termination of employment on 01/08/2019 to expire on 05/08/2019 and was paid in respect of this period. The complaint is in respect of an entitlement to the balance of two weeks’ pay in lieu of notice as his employment was in excess of two years and less than five years duration.
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Summary of Respondent’s Case:
The Respondent did not attend and therefore provided no evidence against the appeal or the complaint for pay in lieu of notice. At no point did the Respondent provide correspondence to the Complainant in which he rejected the validity of his complaints under the Redundancy Payments or Minimum Notice and Terms of Employments Acts.
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Findings and Conclusions:
Redundancy Payments Act 1967-2014 The applicable parts of Section 7(1) and (2) of the Redundancy Payments Act (1967-2015) state: (1) An employee, if he is dismissed by his employer by reason of redundancy …shall, subject to this Act, be entitled to the payment of moneys which shall be known… as redundancy payment provided- (a) he has been employed for the requisite period ,and (b) he was an employed contributor in an employment which was insurable….
(2) For the purposes of subsection (1) an employee who is dismissed shall be taken to have been 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 in the place where the employee was so employed, or…’ Based on the evidence of the Complainant in the absence of any evidence to contradict his claim, I am satisfied that his employer, the Respondent, ceased business on the date notified to the Complainant and that the Complainant was therefore dismissed by reason of redundancy. Furthermore, I am satisfied that the Complainant was in insurable employment for the requisite period of in excess of two years. The appeal is upheld on this basis. Minimum Notice and Terms of Employment Act 1973 Based on his service of in excess of two years and less than five years service in this employment, the Complainant was entitled to two weeks’ notice or pay in lieu of any unpaid notice. As he received one weeks paid notice, there is a valid claim for the balance of weeks pay in lieu of notice.
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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 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-00034699-01 Minimum Notice and Terms of Employment Act 1973 The complaint is well founded. The Complainant is to be paid €419.90 pay in lieu of notice. CA-00034699-02 Redundancy Payments Act 1969 The appeal against a failure to pay statutory redundancy is allowed. Calculation of statutory redundancy pay to be on the following basis: Date of commencement of employment: 07/09/2015. Date of notice of termination of employment: 01/08/2019. Date of cessation of employment: 05/08/2019. Average rate of pay: €11.05 x 38 hours = €419.90.
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Dated: 27-05-2021
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
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