Complainant

Respondent

Parties

Iago  Fassbender

Just Wing It Limited DBA Wing it

Representatives

  Self

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040438-001

15/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040438-002

15/10/2020

The complainant commenced employment on or about 18th December 2019 and states that his employment ended on the 9th May 2020. He worked about 25 hours per week.

The complaint was lodged with the Workplace Relations Commission on the 15th of October 2020, within the 6 month time period to lodge the complaint.

The complainant submitted payslips for the following pay dates:

The complainant states that the business has ceased trading and that his employment has ceased. He states that his payslips demonstrate the hours he has worked; that he has received no holiday pay. He has not received notice as required under the relevant statute.

The complainant states that he is owed €273.33 in outstanding holiday pay and also claims that his employment has come to an end and that he is also due 1 week’s notice.

A hearing was arranged for the 13th of October 2021 to hear the evidence in this case and the respondent failed to attend.

The complaints were referred to me for investigation. A hearing for that purpose was held on the 13th of October 2021. There was no appearance by the respondent at the hearing. I am satisfied that the complainant was notified of the date and time of the remote hearing having regard to the provisions as set out in the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI. No. 359/2020.

CA-00040438-01

Statutory Leave

The hourly rate is €10.50.

Total hours worked 337 hours x .08=26.97 hours=€283.18 [calculated based on 8% of the hours worked]

Public Holidays

Section 21 of the Organisation Working Time Act 1997 as amended as detailed at Schedule 3 of the Act provides for entitlement to Public Holidays for the first 13 weeks of layoff. Layoff occurred on or about the 14th of March 2020 and the employment ceased on the 9th of May 2021.

Before becoming entitled to benefit in respect of a Public Holiday; a part-time employee must have worked for the employer for at least 40 hours in the five weeks preceding the Holiday.  Based on a start date of the 18th of December 2019 the complainant’s Public Holiday entitlement is:

·        Saint Patrick’s Day

·        Easter Monday ( 13th of April)

·        First Monday in May

Based on 1/5th of weekly pay for each public holiday and a working week of 26 hours per week at an hourly rate of €10.50= 3 public holidays=€163.80.

CA-00040438-02

An employee must have 13 weeks continuous service at the date of cessation of employment to be eligible for statutory notice, which the complainant has based on his employment commencing on the 18th of December 2019.

1 week=26 hours x €10.50=€273

On the date when the employment ended on the 9th of May 2021 the employee had been on lay off for at least 4 weeks. However, during this time Emergency measures applied that suspended section 12 of the Redundancy Payments Act 1967-2014.

The Minimum Notice and Terms of Employment Act 1973 provides that:

Computable Service

8. Any week in which an employee is not normally expected to work for at least eighteen hours or more will not count in computing a period of service.

9. If an employee is absent from his employment by reason of service in the Reserve Defence Force, such period of absence shall count as a period of service.

10. If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of—

( a) a lay-off,

( b) sickness or injury, or

( c) by agreement with his employer,

such period shall count as a period of service.

Based on the payslip evidence the employee has been in continuous service for at least 13 weeks.

In Regan Employment Law [2nd edition Bloomsbury] Layoff is definedat section 19. 110:

An employee is deemed to have been laid off where his or her employment ceases because the employer is unable to provide him or her with work, it is reasonable for the employer to believe that the cessation is temporary and the employer gives notice to that effect to the employee prior to cessation. An employee is deemed to be on short-time where his or her hours of work or remuneration are less than half of their normal weekly amount by reason of a diminution in the work provided for the employee by the employer. As in the case of lay-offs, it must be reasonable in the circumstances for the employer to believe that the diminution will be temporary and he must give notice to that effect to the employee prior to the reduction.

The employee states that his employment ceased on the 9th of May 2020. There is no evidence that the employee was made redundant; although, it is highly probable that this is what occurred. At the date of hearing  and lodging the claim with the WRC in October 2020; it is the case that the lay-off was not short term and in fact it is highly probable that the employment contract had ended on or about the 9th May 2020. In those circumstances I find that the employee is entitled to 1 week’s notice.

CA-00040438-01

Section 6 of the Payment of Wages Act provides that:

that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

( a ) the net amount of the wages (after the making of any lawful deduction therefrom) that —

The complaint is well founded in respect of the non-payment of holiday and public holiday pay; I direct that the employer pay the employee €446.98  that I have determined is reasonable in the circumstances, less any lawful deductions.

CA-00040438-02

Under the Minimum Notice and Terms of Employment Act 1973 the complainant is entitled to 1 week’s 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,

Pursuant to Section 6 of the Payment of Wages Act the complaint is well founded and I determine that the employer has contravened section 4 of the Minimum Notice and Terms of Employment Act 1973 as amended, by failing to give 1 week’s notice and I direct the employer to pay the complainant €273  that I have determined is reasonable in the circumstances ,less any lawful deductions.

Layoff-Notice-Holiday entitlement-Payment of Wages