ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00029794
Parties:
| Complainant | Respondent |
Parties | Nora Doherty | Maine Bistro Ltd t/a G Counter |
Representatives | David Higgins Berwick Solicitors |
|
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00039844-001 | 15/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00039844-002 | 15/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039844-003 | 15/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039844-004 | 15/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039844-005 | 15/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039844-006 | 15/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00039844-007 | 15/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00039844-008 | 15/09/2020 |
Date of Adjudication Hearing: 03/03/2022
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation. Evidence in this case was taken on affirmation.
The parties were also notified of these changes by the WRC in the letter confirming details of the hearing. The remote hearing was scheduled for 03/03/2022. The complainant and her legal representative attended. There was no appearance by or on behalf of the respondent.
I am satisfied that the respondent was issued with a letter by e mail on 26/01/20022 advising him of the date and time of the hearing. Having reviewed the file I note that the respondent was previously in contact with the WRC and the e mail address did not change. In order to exercise a significant amount of caution the WRC Concierge rang the respondent but there was no contact. Two E mails sent were also not responded to.
I allowed a period of time to elapse before bringing the hearing to a close and there was no further communication received from or on behalf of the respondent to indicate that there were technical or other difficulties.
Background:
The complainant commenced employment with the respondent as a Pastry Chef on 17/01/2013. The respondent closed on a temporary basis on 14th March 2020 due to the COVID-19 pandemic. The complainant was advised by the General Manager, Mr K, on 22nd June 2020 that she was being made redundant. The complainant was paid €1,092 gross [€933 nett) per fortnight and worked a 39 hour week. She has not received any of her entitlements since her employment ceased. |
Summary of Complainant’s Case:
The complainant was advised by the respondent’s General Manager, Mr K, by telephone on 22nd June 2020 that she was being made redundant. After numerous attempts she eventually had a meeting with Mr K on 17th July 2020 to discuss her situation and to obtain clarification. Mr K had no explanation or answers to any of the complainant’s questions. The complainant made further attempts to contact the respondent b e mail in order to ascertain when her outstanding holiday pay and redundancy would be paid. The respondent has failed and/or refused to meaningfully engage with the complainant and has not received any payment and so has not been afforded fair procedures. The complainant provided the hearing with evidence of a text message from her manager Mr C which she received on 3rd February 2020 and in which he confirmed that she was due a total of 213 holiday hours and a further 54 hours as time in lieu. The complainant’s legal representative wrote to the respondent but did not received any reply. The complainant did not receive any minimum notice pay and given her length of service she is entitled to four weeks pay. As the respondent has ceased to carry on the business for which the complainant is employed she is entitled to a redundancy payment. In her direct evidence the complainant confirmed details of her employment with the respondent and her pay. She confirmed on affirmation that Mr K informed her on 22nd June 2020 that she was being made redundant. She has not received any redundancy payment, payment in lieu of notice, holiday pay or payment for in lieu. The complainant confirmed that details of her outstanding leave and time in lieu were given to her by her manager Mr C on 3rd February 2020. The complainant confirmed that she had no prior notice of her redundancy and was not consulted or involved in any discussions in relation to this. There were no alternatives offered and no opportunity to look at ways of minimising the risk of redundancy. There was no appeal process. |
Summary of Respondent’s Case:
The respondent or a representative on his behalf did not attend the hearing. The respondent was provided with notice of the remote hearing on 26th January 2022. The respondent did not reply to the request for confirmation of who would attend on their behalf. |
Findings and Conclusions:
The complainant submitted a number of complaints as follows: CA-0003984401: Complaint seeking adjudication by the WRC under section 39 of the Redundancy Payments Act, 1967Complaint seeking adjudication by the WRC under section 6 of the Payment of Wages Act, 1991. It was submitted on behalf of the complainant that her manager, Mr C, confirmed the hours due to the complaint. These were 54 hours and the monetary value of this, based on the complainant’s gross pay of €14 per hour is €754.
Section 1 of the Payment of Wages Act, 1991 defines wages as: “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including – (a) Any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to this employment, whether payable under his contract of employment or otherwise,” Deductions made by an employer from the wages of an employee are set out in Section 5 of the Act as follows: “5 (1) “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless – (a) The deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) In the case of a deduction, the employee has given his prior consent in writing to it.” Having carefully considered the evidence in the within case I am satisfied that the non-payment of €754 to the complainant’s represents a deduction from her wages. CA-0003984402: Complaint seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1997. The complainant confirmed that her manger, M C, that she was due 213 hours of holiday pay. The evidence of the text message from Mr C confirms this. Based on the uncontested evidence I am satisfied that the complainant is due payment for 213 hours and based on an hourly rate of €14 this is a total €2,982. CA-0003984403: Complaint seeking adjudication by the WRC under section 12 of the Minimum Notice and Terms of Employment Act, 1973. The complainant commenced employment with the respondent on 17/01/2013. At the time her employment ceased the complainant had in excess of seven years continuous employment with the respondent. Section 4(1) of the Act provides that the minimum notice to be given by an employer when an employee has been in his/her continuous service for five years or more, but less than ten years is four weeks. I am satisfied that the complainant is due €2,135 which is equal four weeks’ pay (gross) in lieu of notice. CA-0003984404: Complaint seeking adjudication by the WRC under section 12 of the Minimum Notice and Terms of Employment Act, 1973. It was confirmed at the hearing that this was a duplicate complaint and was withdrawn. CA-0003984405: Complaint seeking adjudication by the WRC under section 12 of the Minimum Notice and Terms of Employment Act, 1973. It was confirmed at the hearing that this was a duplicate complaint and was withdrawn. CA-0003984406: Complaint seeking adjudication by the WRC under section 8 of the Unfair Dismissals Act, 1977. At the burden of proof in relation to dismissal rests with the respondent and as the respondent did not attend the hearing this complaint was withdrawn. CA-0003984407: Complaint seeking adjudication by the WRC under section 39 of the Redundancy Payments Act, 1967. It was submitted on behalf of the complainant that Section 7(2) (a) of the Redundancy Payments Act, 1967 states: “For the purposes of this subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if 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 for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed”. It was submitted on behalf of the complainant that the respondent has ceased to carry on the business for the purpose for which the complainant was employed, a pastry chef, and that the respondent has closed the restaurant permanently. The complainant in evidence confirmed that she has recently observed that the premises remains closed. The issue to be decided is whether or not the complainant is entitled to a statutory redundancy payment in accordance with Section 19 of the Redundancy Payments Act, 1967. I accept the complainant’s evidence that she was informed by Mr C on 22/06/2020 that she was being made redundant. I also accept her evidence that she managed to arrange a meeting with Mr C on 17/07/2020 and that he did not provide any further clarification to her and she was not provided with any information on the process of redundancy. I find that the complaint is well founded, and the complainant is entitled to a statutory redundancy payment in line with the Redundancy Payments Acts in respect of her service as follows: Date of commencement: 17/01/2013 Date of Termination: 22/06/2020 Gross weekly pay: €533.75
The award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
CA-0003984408: Complaint seeking adjudication by the WRC under section 39 of the Redundancy Payments Act, 1967. It was submitted on behalf of the complainant that the respondent has not provided the complainant with any evidence or proof that they were unable to pay redundancy. I note that the respondent did not attend the hearing or provide any evidence in relation to this matter. Based on the uncontested evidence I find that his complaint is well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)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.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-0003984401: I find that this complaint is well founded and the respondent is ordered to pay the complainant the sum of €754. CA-0003984402: Based on the uncontested evidence I find this complaint is well founded and the respondent is ordered to pay the complainant the sum of €2,982. CA-0003984403: I find that this complaint is well-founded. I award the complainant the sum of €2,135 which is equal four weeks’ pay (gross) . CA-0003984406: At the burden of proof in relation to dismissal rests with the respondent and as the respondent did not attend the hearing this complaint was withdrawn CA-0003984407: I find that the complaint is well founded, and the complainant is entitled to a statutory redundancy payment in line with the Redundancy Payments Acts in respect of her service as follows: Date of commencement: 17/01/2013 Date of Termination: 22/06/2020 Gross weekly pay: €533.75
The award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
CA-0003984408: Based on the uncontested evidence I find that his complaint is well founded. |
Dated: 10/03/2022
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Redundancy. Non attendance |