ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031050
Parties:
| Complainant | Respondent |
Parties | Caitlyn Cronin | Nicola Wren T/A Hunny Bunnys Hair and Beauty Salon |
Representatives | Appeared in Person | No Appearance by or on behalf of the Respondent |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00039835-001 | 10/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00039835-002 | 10/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00039835-003 | 10/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00039835-004 | 10/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00039835-005 | 10/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 | CA-00039835-006 | 10/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039835-007 | 10/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039835-008 | 10/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039835-009 | 10/09/2020 |
Date of Adjudication Hearing: 13 May 2021 and 12 October 2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 , Section 7 of the Terms of Employment( Information ) Act, 1994 , Regulation 6 of the European Communities ( Protection of Employment)Regulations, 2000, Section 12 of the Minimum Notice and Terms of Employment Act, 1973 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.
Background:
This matter was heard by way of Remote Hearings pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. The Respondent did not attend the initial day of hearing in May,2021 , nor did she advance any explanation for her non appearance . All official WRC documentation of notification had been returned. As the hearing in this case post-dated Zalewski v Adjudication Officer and WRC [2021] IESC 24 and considering the revised guidelines issued on the procedural aspects of WRC hearings now held in public, I canvassed the present party on her views on progressing with the case. The Complainant agreed to advance her case. She pointed out that she had made two Respondent addresses available to the WRC and was disappointed by the nonattendance. The Complainant asked for some accommodation for a personal condition shared at hearing. I facilitated this and was pleased to see that the complainant brought her sister to the hearing in support.
No member of the Public sought to join the hearings. The Complainant agreed to furnish details of her pay slip, P60 /PRSI record post hearing. These details were received apart from the pay slips. The Complainant later clarified that multiple requests for pay slips during her employment had gone unheard. These documents raised some issues which required further clarification and I invited the parties back to a resumed hearing to clarify matters. It now appeared to me that the Legal entity referred to as the Employer /Respondent in this case was one party in a Partnership. this was reflected in the Complainants amended tax certificate issued by Revenue on 20 June 2020. There was no appearance by or on behalf of the Respondent at the resumed hearing. I did not receive any written submission and notification of hearing documentation was returned. I have allocated the five-day waiting period to allow for any follow up response from the Respondent. Nothing followed. I have now moved to decision in the case.
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Summary of Complainant’s Case:
On 10 September 2020, the Complainant submitted a broad range of complaints arising from her employment as a Beautician at the Respondent Business which centred on the dates of May 2017 to the time of her submitted dismissal due to redundancy on 16 June 2020. She stated that her gross pay was €10 per hour in respect of a 40-hour week. She later clarified that she had worked a hybrid of part time and full-time hours as she had taken time off to have her baby in 2019. During this time, she received the statutory maternity benefit. The Complainant presented as a Lay Litigant and was supported by her sister at hearing. She explained that she had significant difficulty in compiling her complaint and asked for some understanding and accommodation. I explained that I would take an oral account of her case and submit relevance oral clarifications as they arose. On the complaint form, the Complainant outlined that she had worked with the respondent Hair and Beauty Business for 3 years before the Salon closed due to the national pandemic in March 2020. The Salon was due to open on 20 June 2020. She submitted that she had been called to a meeting in the salon on 16 th June 2020 by the Owner, who informed the staff present that the Salon had been closed by the HSE. She enquired about holiday pay and redundancy at that point. The Owner told her that she was not entitled to receive these as the Business had closed due to Covid 19. She was aware that the Business re-opened under new ownership shortly afterwards. The Complainant confirmed that one member of the staff had made the transition to the new business but had since left. The Complainant outlined that the Respondent Business was adjacent to the Respondents husbands Barber Business. The Complainant took advice which anchored her current claims. Complainant evidence: (by affirmation)
The Complainant outlined that she had commenced on work experience at the business in April 2017 over a two-week period. She was in the process of completion of her Beautician training. She had a clear recall of commencing direct employment at the Respondent Business on 15 May 2017 at 6 am to accommodate Communions. She stated that she worked part time for two weeks and there after was full time 9 am to 6 pm, Tuesday to Saturday. She was referred to as the Manager. There were two hairdressers, a hairdresser on work experience and a part time beautician on the staff. She returned to work part time after her maternity leave in August 2019. The Owner experienced some personal difficulties and the Complainant supported her. both families were close and holidayed together. The Complainant stated that she had not been placed on lay off on the closure of the salon in March 2020. The Salon just shut down and there was no further work. She had received €450 .00 per week in respect of full-time work and €200 for part time attendance. On 19 June 2020, just before the Salon was set to re-open, the Owner called her to attend a meeting at 8 pm in the Salon. The Complainant said she was informed that the HSE had prevented the re-opening of the salon due to the small scale. The Complainant was dubious on this declaration as she submitted it was one of the largest salons in their particular area. The Complainant had been in receipt of the covid payment and sought redundancy at that point. She was refused. The Business did not re-open. Some weeks later, she was blocked from the owner’s social media page and phone. The Complainant was aware that the premises re-opened shortly afterwards under new management, retaining one member of staff. The Complainant has not worked from March 2020. The Complainant sought written confirmation that the Salon was closed for the DSP purposes and the Respondent provided this document. The Complainant clarified that she was seeking a redundancy lump sum payment, cesser holiday pay, payment in lieu of notice and compensation in respect of not being provided with a statement of terms of employment. She re-affirmed that she had not been placed on formal notification of closure and had been denied any opportunity to resolve these issues directly with her employer. She eventually secured a written notification of cessation of employment from the Respondent and presented this to the DSP from whom she has received supportive benefits. The Complainant undertook a period of paid work in March 2021 over a two-week period. She confirmed that there were no breaks in her service. In response to questions from the Adjudicator, the Complainant confirmed the sequencing of covid payments received until the salon formally closed. She confirmed that the Respondent had written one letter to DSP which confirmed this closure.
CA-00039835-001 National Minimum Wage Act, 2000 The Complainant an unspecified complaint under this Legislation. She submitted that she had received a payment less than that she was entitled under the National Minimum Wage Act 2000 on March 20. She did not submit details of seeking a statement where she requested an average hourly rate of pat for a pay reference period in accordance with Section 23 of the Act. The Complainant clarified that it was not her intention to make a complaint under this Legislation at the resumed hearing. CA-00039835-002 Terms of Employment (Information) Act, 1994 The Complainant submitted that she had not received a statement in writing on the terms of her employment. CA-00039835-003 Redundancy Payments Act, 1967 The Complainant is claiming a lump sum payment in Redundancy. She outlined the circumstances on the cessation of her employment on June 16, 2020. The covid payment was replaced by Job Seekers benefit. The Complainant submitted that she had been denied this payment unjustly by her former employer and advocated strongly that this should be paid on her full-term rate of €450.00 per week gross. CA-00039835-004 Redundancy Payments Act, 1967 Duplicate claim CA-00039835-005 Redundancy Payments Act, 1967 Duplicate claim CA-00039835-006 Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 The Complainant clarified that she did not intend to submit a claim in accordance with this Legislation. CA-0003985-007 Minimum Notice and Terms of Employment Act, 1973 The Complainant outlined that she had not received her statutory minimum notice on the termination of employment. She sought two weeks payment in lieu of notice. CA-0003985-008 Minimum Notice and Terms of Employment Act, 1973 Duplicate claim CA-0003985-009 Minimum Notice and Terms of Employment Act, 1973 Duplicate claim CA-0003985-010 Organisation of Working Time Act, 1997 The Complainant pointed to her complaint form where she had placed the employer on notice of her claim for unpaid annual leave in the narrative. “I asked about holiday pay and redundancy pay and was told that I wasn’t entitled to it because the business closed over covid, so I rang the tax office and WRC (advisory), and I was told different “ She submitted that she had not received her annual leave which fell during her Maternity Leave or for the first quarter of 2020 prior to the Salon closing temporarily in March 2020 and permanently in June 2020. The Complainant claimed compensation for lack of cesser payment in respect of annual leave |
Summary of Respondent’s Case:
CA-00039835-001 National Minimum Wage Act, 2000 No Appearance by or on behalf of the Respondent at hearing. CA-00039835-002 Terms of Employment (Information) Act, 1994 No Appearance by or on behalf of the Respondent at hearing.
CA-00039835-003 Redundancy Payments Act, 1967 No Appearance by or on behalf of the Respondent at hearing.
CA-00039835-004 Redundancy Payments Act, 1967 No Appearance by or on behalf of the Respondent at hearing.
CA-00039835-005 Redundancy Payments Act, 1967 No Appearance by or on behalf of the Respondent at hearing.
CA-00039835-006 Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 No Appearance by or on behalf of the Respondent at hearing.
CA-0003985-007 Minimum Notice and Terms of Employment Act, 1973 No Appearance by or on behalf of the Respondent at hearing.
CA-0003985-008 Minimum Notice and Terms of Employment Act, 1973 No Appearance by or on behalf of the Respondent at hearing.
CA-0003985-009 Minimum Notice and Terms of Employment Act, 1973 No Appearance by or on behalf of the Respondent at hearing. CA-0003985-010 Organisation of Working Time Act, 1997 No Appearance by or on behalf of the Respondent at hearing.
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Findings and Conclusions:
I have been requested to make decisions in the complaints submitted by the Complainant on 10 September 2020. These complaints were notified to the Respondent, who chose not to respond to the claims. The WRC had made repeated efforts to invite the Respondent to attend a hearing and furnish a defence to the claims as is her right. All notifications of forthcoming hearing were issued by registered post and returned on two occasions stating “Not called for “ The Business contact address used was the same premises occupied by the Respondent during the complainant’s employment. I am satisfied that the Respondent is fully on notice of these claims and has decided to adopt an avoidant approach by neither engaging nor attending on the claim. These claims emanate from statute and deserve the respect of attendance at hearing. My careful consideration of the documentation submitted by the complainant post first day of hearing named the respondent conjointly with her husband as the Complainants employer. I wrote to the Complainant post the initial hearing in May seeking clarification on the legal entity of employer. I am assured from the complainant’s evidence, which was uncontested, that she was employed by Ms Nicola Wren, as the other named party, while listed on Revenue website, did not have any operational responsibility at the Business. He ran an adjacent Barber Business. The Complainant outlined that she understood that the respondent business had been sold. I was not able to verify this important detail. As each entity in a Business Partnership formation carries individual liability. I accept that Nicola Wren is the employer in this case and have completed the decision with her as the recognised employer and respondent in the case. CA-00039835-001 National Minimum Wage Act, 2000 I accept that the complainant was mistaken in her completion of this aspect of her complaint form. She did not wish to withdraw the claim. I have found that the complainant was mistaken in her claim and the claim is not well founded. CA-00039835-002 Terms of Employment (Information) Act, 1994 I have considered the complainants uncontested evidence on both days of hearing. I am satisfied that she was not provided with a written statement of the terms of her employment within the first 2 months of employment. Written statement of terms of employment. 3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment,
This amounted to a significant contravention of section 3 of the Act. There is a special significance attached to this omission in my opinion as if the statement had been in existence, it would have helped the parties to navigate the conclusion of employment more efficiently. I find the claim is well founded. CA-00039835-003 Redundancy Payments Act, 1967 The Complainant gave uncontested evidence of working continuously from May 17, 2017, to 16 June 2020. A period of protective Maternity leave was incorporated into this period. I found her evidence on the circumstances of her commencement in the role to be compelling. I was also struck by the evidence of the cessation of employment. I accept that she was denied a redundancy payment on the cessation of employment. I have considered the circumstances of that refusal and find that the refusal or denial of entitlement may have been misconstrued by the Respondent. I would have liked to have met with her to tease this out, however, that was not to be. A redundancy lump sum payment is addressed in Section 7 of the Redundancy Payments Act, 1967 General right to redundancy payment. 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, 1952 to 1966, 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. The Complainant in this case was placed on Covid related Lay off in March 2020, from when she received the Covid Payment until her termination of employment in June 2020, from when she claimed DSP supports. The rules on claiming redundancy from temporary layoff were suspended temporarily during the covid 19 emergency period by the passage of Section 29 of the Emergency Measures in the Public Interest (Covid 19) Act, 2020. This climate prevailed until September 30, 2021.
Lay-off and short-time. 11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and— (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off. (2) Where — (a) for any week an employee’ s remuneration is less than one-half of his normal weekly remuneration, or his hours of work are reduced to less than one-half of his normal weekly hours, (b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do. (c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work, the employee shall, for the purposes of this Part, be taken to be kept on short time for that week. Right to redundancy payment by reason of lay-off or short-time. 12. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless — (a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and (b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time. (2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) ( a ) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week ’ s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given. Operation of section 12 - emergency period 12A. (1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19. (2) Before the expiration of the emergency period, the Government may, at the request of the Minister made — (a) after consultation with the Minister for Health, (b) with the consent of the Minister for Public Expenditure and Reform, and (c) having had regard to the matters referred to in subsection (3), by order specify a date that is later than the expiration date of the emergency period specified in the definition of ‘emergency period’ or the last order made under this subsection, as the case may be, and the emergency period shall be read as extending to and including the date so specified. However, I accept from the complainants uncontested evidence, that the Respondent closed the business in June 2020. This is a separate and distinct scenario than was envisaged by the Legislature. The claim for redundancy following lay off as initiated by the complainant was placed on hold but this did not have reciprocal effect for the Respondent. The Government was aiming to preserve jobs in the “special period “. I could not establish just what selection criteria was applied to cover the transfer of one staff member to the new business. I have found that the Respondent Hair and Beauty business ceased to trade from a Lay Off situation on June 16, 2020. I have found that the Respondent avoided her responsibilities in relation to this redundancy situation. I have found that the Complainant was made redundant on that day in accordance with section 7(2)(a) of the Redundancy Payments Acts 1967. I have found her claim for a lump sum redundancy payment to be well founded. CA-00039835-004 Redundancy Payments Act, 1967 As this is a duplicate claim , I find the claim is not well founded . CA-00039835-005 Redundancy Payments Act, 1967 As this is a duplicate claim, I find the claim is not well founded.
CA-00039835-006 Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 I accept that the complainant was mistaken in her completion of this aspect of her complaint form. She did not wish to withdraw the claim. I have found that the complainant was mistaken in her claim and the claim is not well founded.
CA-0003985-007 Minimum Notice and Terms of Employment Act, 1973 The Complainant has claimed statutory minimum notice, which was denied to her on cessation of employment. Section 4 of the Act places an obligation on the Respondent to incorporate these provisions. Minimum period of notice. 4.— (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, I have considered the complainants uncontested evidence and accept that she did not receive payment of notice on cessation of employment. I find that the claim for minimum notice is well founded.
CA-0003985-008 Minimum Notice and Terms of Employment Act, 1973 As this is a duplicate claim, I find the claim is not well founded.
CA-0003985-009 Minimum Notice and Terms of Employment Act, 1973 As this is a duplicate claim, I find the claim is not well founded. CA-0003985-010 Organisation of Working Time Act, 1997 I am satisfied that the complainant incorporated a complaint for cesser pay in accordance with section 23 of the Organisation of Working Time Act, 1997 in the narrative of her complaint. The complaint form is not a statutory form and the justice of the case dictates that the complainant be heard on this complaint. I have not found that the respondent is prejudiced by this approach as I accept from the complainants own uncontested evidence that she asked for cesser pay at the group meeting on 16 June 2020 and was denied. Compensation on cesser of employment. 23.— (1) (a) Where — (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. (b) In this subsection — ‘Relevant period’ means — (i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year, (ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year — (I) the current leave year, and (II) the leave year immediately preceding the current leave year, (iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the leave year immediately preceding the current leave year, or (iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the 2 leave years immediately preceding the current leave year. I find that the complainant was wrongly denied cesser pay on the conclusion of her employment on June 16, 2020. This amounts to a contravention of section 23 of the Act.
I find her claim is well founded. |
Decision:
CA-00039835-001 National Minimum Wage Act, 2000 I have found the claim is not well founded. CA-00039835-002 Terms of Employment (Information) Act, 1994 Section 7 of the Terms of Employment (Information) Act requires me to make a decision in accordance with section 3 of that Act. I have found the claim well founded. I find that the complainant worked a mixture of full time and part time hours. I have averaged her salary as €360.00 weekly. I have found that the complainant experienced a continuous breach of section 3 of the Act, and I award the maximum compensation of 4 weeks’ pay. I order the Respondent to pay the Complainant €1440 in compensation in respect of this contravention. CA-00039835-003 Redundancy Payments Act, 1967 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.
I have found the claim for redundancy to be well founded. I award a lump sum redundancy payment based on the following Start date 15 May 2017
Finish date 16 June 2020 Breaks in service none reported Gross weekly pay €450 .00, Full time prior to Maternity Leave. The award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
CA-00039835-004 Redundancy Payments Act, 1967 This claim Is not well founded
CA-00039835-005 Redundancy Payments Act, 1967 This claim Is not well founded
CA-00039835-006 Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 This claim Is not well founded
CA-0003985-007 Minimum Notice and Terms of Employment Act, 1973 I have found that claim well founded. In accordance with my jurisdiction under section 12of the Act, I order the Respondent to pay the complainant €720 for the breach of section 4 of the Act. CA-0003985-008 Minimum Notice and Terms of Employment Act, 1973 This claim Is not well founded
CA-0003985-009 Minimum Notice and Terms of Employment Act, 1973 This claim Is not well founded CA-0003985-010 Organisation of Working Time Act, 1997 I have found the claim well founded. In accordance with section 27 of the Act, I order the Respondent to pay the complainant €1,500 in just and equitable compensation for the breach of Section 23 of the Act on cesser pay.
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Dated: 03/11/2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
National Minimum Wage, Terms of Employment, Redundancy, Minimum Notice, Cesser Pay |