ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026247
Parties:
| Complainant | Respondent |
Anonymised Parties | A Company Director | A Construction Company |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00033450-001 | 31/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00033450-002 | 31/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033452-001 | 31/12/2019 |
Date of Adjudication Hearing: 14/08/2020
Workplace Relations Commission Adjudication Officer: Pat Brady
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 complaint.
Background:
The complainant commenced employment on the 1st of August 2015 and the employment terminated at the beginning of July 2019.
He complains that he was not paid notice due under the Minimum Notice and Terms of Employment Act and that he has an entitlement to two weeks’ notice. He was paid €568.75 per week and he says he is due €1137.50.
He also complains that he did not receive annual leave at any time during his employment. Complaint CA-00033450-001 under the Unfair Dismissals Act was withdrawn at the hearing as the termination had been the subject of a previous decision (ADJ 23299). |
Summary of Complainant’s Case:
His complaint that he was not paid notice due under the Minimum Notice and Terms of Employment act in respect of his which totalled 3.92 years giving him an entitlement to two weeks’ notice.
He was paid €568.75 per week and he says he is due €1137.50.
Regarding the annual leave complaint, he says that he did not receive annual leave at any time in the course of his employment between 2015 and 2019; a total of 196 weeks.
He claims an entitlement of 75.4 days or 15 weeks at the weekly rate of €567.75. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
I am satisfied that the respondent was on notice of the hearing and engaged with the WRC even in the days immediately leading up to the hearing.
No explanation was received for the failure to attend and therefore, the hearing proceeded.
In relation to the complaint on Minimum Notice I accept the complainant’s evidence in this case and again note that the respondent, despite being given the opportunity to do so, did not attend the hearing to offer alternative evidence.
In respect of the complaint regarding annual leave the complaint was made on December 31, 2019. The first question to be decided is the cognisable period for determining the leave due.
The cognisable period covered by the claim is the six-month period before this back to July 1st, 2019. The complainant stated July 7th, 2019 as the date of termination of his employment.
Hence, any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leave on the cessation of his employment accrued within that period.
Accordingly, in respect of the annual leave complaint he is initially only entitled to claim an annual leave benefit in respect of that one week between the commencement of the cognisable period and the termination of his employment.
However, he also retained an entitlement to payment for the ‘carry over’ of annual leave not taken in the immediately preceding annual leave year. Beyond that, and in so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of annual leave taken in the earlier years it is statute-barred and, to that extent, it is not cognisable in adjudication.
The entitlement for the annual leave benefit in the year his employment ended is five hours, or €71.00. He is also entitled to an award in respect of the previous year of the full amount of his statutory entitlement of twenty days in the amount of €2275.00
For the reasons set out above complaints CA-00033450-002 and CA-00033452-001 are well-founded.
In summary, I award the complainant two weeks’ pay in lieu of notice in the amount of €1137.50 (CA-00033450-002).
I award him €2346.00, being the approximate equivalent of five hours pay, or 8% of the annual leave arising in the eligible week, and four weeks for the previous annual leave year. (CA-00033452-001)
He confirmed the course of the hearing that he did not work on public holidays and no claim arises in that regard. |
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.
Both complaints CA-00033450-002 and CA-00033452-001 are well founded and I make my awards as follows; €1137.50 in respect of the former and €2346.00 in respect of the latter for the reasons set out above. As noted above complaint CA-00033450-001 under the Unfair Dismissals Act, 1977 was withdrawn. |
Dated: 17-08-22
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Annual Leave, cognisable period, Notice |