ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035963
Parties:
| Complainant | Respondent |
Parties | Lech Baran | Bidvest Noonan (ROI) Ltd |
Representatives | Self-represented | Ibec |
Complaints:
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-00044818-001 | 28/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00044818-002 | 28/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012 | CA-00044818-003 | 28/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00044818-004 | 28/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00044818-005 | 28/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00044818-006 | 28/06/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00044818-007 | 28/06/2021 |
Date of Adjudication Hearing: 02/02/2023
Workplace Relations Commission Adjudication Officer: Kara Turner
Procedure:
In accordance with section 41 of the Workplace Relations Act 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 complaints.
The parties attended the Workplace Relations Commission for scheduled hearings of these complaints on 6 October 2022 and 8 December 2022 however, due to issues in relation to the attendance of an interpreter, the hearing could not proceed on those dates and was adjourned. I wish to acknowledge the goodwill and perseverance of the parties while the appropriate hearing arrangements were put in place.
The parties were informed that the hearing was being held in public and that my decision would be published with the names of the parties. The parties confirmed their understanding and the hearing proceeded on 2 February 2023 on this basis.
The complainant, the complainant’s wife, and a witness on behalf of the respondent gave sworn evidence. An interpreter took the interpreter’s oath. The respondent made a written submission and the complainant submitted documents in support of his case in advance of the hearing.
Background:
The complainant was employed as a cleaner with the respondent. He was involved in a road traffic accident in 2015 which resulted in him being unfit for work for a lengthy period. The complainant resigned from employment in February 2021. These complaints relate to annual leave, public holiday and other entitlements arising from the complainant’s employment with the respondent. |
Summary of Complainant’s Case:
Summary of complainant’s affirmed evidence The complainant worked as a cleaning operative with the respondent. In 2015, he was involved in a road traffic accident which left him unfit for work. The complainant’s wife notified the complainant’s manager straight away as the complainant had the keys to one of the premises where he was working at the time. The complainant was in hospital for 11 days. He sent the respondent correspondence from the hospital and his first medical certificate on 9 December 2015. The last medical certificate he submitted was on 15 February 2019. The certificate submitted on 15 February 2019 was in respect of a 3-month period to 1 May 2019. On 29 April 2019, the complainant emailed the respondent advising he was fit to work from 7 May 2019. He said that he would like to work 10 hours per week because of his health. The complainant did not receive a response to this communication. He sent another message on 9 May 2019 which also went unanswered. His wife tried to contact the respondent by telephone. The complainant was given a contact number for a different area manager. The complainant contacted the area manager a couple of times who ultimately said that she had no hours for him. The complainant wanted to return to work for health and financial reasons. The complainant stopped contacting the respondent when he got financial assistance from social welfare. The complainant sent an email to the respondent on 10 February 2021 looking for his P45 and asking about his annual leave and public holiday entitlements. The complainant received an email in response advising that the complainant had not been active on its system since 1 January 2020 and that his leave date had been notified to Revenue. The complainant queried why he had not been informed of this and queried again his annual leave and public holiday entitlements from his sick leave. The complainant did not receive a response. The complainant emailed the respondent again on 19 April 2021 asking about the respondent’s failure to respond to him on his outstanding annual leave and public holidays. He advised that he was going to get legal assistance. The complainant then received a response from HR looking for information from the complainant including where he had worked and concerning his sick leave absence. The complainant was surprised that the respondent did not seem to know anything. On 30 April 2021 he received an email from the respondent accepting his resignation and informing him of 16.8 hours accrued annual leave and 6 public holidays. The complainant did not agree with the respondent’s calculation, and he informed them of this by email. He did not receive a response. He then advised the respondent that he was taking a case to the Workplace Relations Commission. The complainant explained that the reason why he did not agree with the amount offered by the respondent was because he had been working with another company and he therefore had a point of comparison. He would otherwise have probably agreed with the respondent’s calculations. The complainant explained that any delay was because the respondent did not contact him. The complainant expected the respondent to contact him upon receipt of his fit to work certificate. The complainant completed the WRC complaint form and marked seven complaints with assistance from his wife who he said has better English and assisted him with looking at his rights. In response to questions from the respondent’s representative about his work with another company, the complainant said that he worked 2 hours early in the morning with another company while he was working with the respondent. He said that he did not work anywhere after his accident in November 2015. When asked about why he looked for 10 hours per week with the respondent initially, the complainant said it was as a result of his health and that if everything went well he would probably have looked for more hours. The complainant said he wasn’t concerned about his work with the other company, he was more concerned about his employment with the respondent because he was working full-time with it. When asked about having a full-time contract with the respondent but working somewhere else, the complainant said he wasn’t happy doing this but that he had found the extra work because he didn’t have full time hours with the respondent at the beginning. The complainant said he sent his sick certs from 2015 to 2019 to the respondent. When asked about to whom he had submitted the certs, the complainant said his wife submitted them on his behalf. The complainant confirmed it was his wife that looked for the 10 hours for him when he was certified as fit to return to work. The complainant was asked about the assistance he received from social welfare. He advised that it was invalidity pension. The complainant confirmed the respondent’s schedule of medical certificates submitted by the complainant. The complainant didn’t think that he had submitted any medical certificates after May 2019. The complainant confirmed that his wife had sent the email to the respondent on 10 February 2021. I asked the complainant about his normal hours of work with the respondent, and he outlined his daily hours as being 8/9 hours per day, Monday to Friday. On commencement of employment, he had worked 4 hours per day. His working hours were increased at his request and on his manager’s instruction to take over another employee’s hours on that employee ceasing work. Summary of Marlena Baran’s affirmed evidence This witness is the complainant’s wife. Everything sent to the respondent was written by this witness, in consultation with the complainant. She has better English than the complainant and all communications between the complainant and respondent were in English. The medical certificates were initially submitted to a client support email address for the respondent until the respondent advised that a different people and payroll email address should be used. The complainant’s fit to return to work medical certificate was sent to the latter email address on 29 April 2019 before the complainant’s sick leave ended. The witness contacted the respondent’s head office in May 2019 on behalf of the complainant when they didn’t get any replies to emails. Head office gave her the contact details for the respondent’s area manager. It was in August/September 2019 that the complainant got support from social welfare in the form of invalidity pension. Under cross-examination, the witness confirmed that she sent the email of 10 February 2021 on the complainant’s behalf, and she agreed that it referred to the complainant as being on sick leave since 2015. The witness also confirmed that no medical certificates were submitted after May 2019 and that no medical certificate was submitted to say that the complainant could only work 10 hours. The witness said that the 10 hours was just their choice. The witness said that the respondent’s area manager had replied to the complainant’s emails and said that she might have some hours for the complainant. When asked about the complainant’s other work with a third-party company, the witness said that this was work he was doing when he also worked with the respondent and that his last day at work with the third-party company was the same day as the road accident. Concluding comments The respondent did not contact the complainant after he sent in his fit to return to work letter and it was because of this that the complainant wasn’t able to use the annual leave he had accrued whilst on sick leave. The complainant submitted medical certification in respect of his entire absence from work. The complainant thought that he had done things right in terms of his employment and did not know why the respondent was unable to find the 10 hours work for him which he was seeking while he was on disability allowance before he subsequently moved on to an invalidity payment.
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Summary of Respondent’s Case:
The respondent noted the numerous complaints referred by the complainant against the respondent.
The complainant’s employment transferred to the respondent in 2010 and no written contract had issued by the respondent to the complainant as, in accordance with the Protection of Employees (Transfer of Undertakings) Regulations 2003, his terms and conditions of employment did not change on the transfer.
The first medical certificate received from the complainant was on 1 February 2016. Thereafter, until May 2019, the complainant’s absence from employment was in part covered by medical certification.
The complainant wanted to return to work in May 2019 on a unilateral change to his weekly working hours terms and conditions, namely a reduction to 10 hours work per week, without submitting any medical evidence to support his request. The respondent was unable to support this request and acknowledged that it was unfortunate there was no follow-up with the complainant during 2020 and 2021. When the complainant submitted his resignation in 2021, the respondent calculated his annual leave entitlements based on the complainant’s absence from May 2019 onwards not having been medically certified. It asked the complainant for his bank account details so that they could pay an amount in respect of 16.8 hours annual leave entitlement and 6 public holidays from the first 6 months of his certified sick leave. The respondent did not receive bank details from the complainant.
The respondent’s position in closing was that there was no medical evidence that the complainant could only work 10 hours per week in 2019 when he stopped submitting medical certificates. The respondent referred to the complainant’s submission that the complainant was receiving disability benefit and then invalidity pension, and an email in 2021 which the respondent submitted confirms the position that the complainant was on sick leave or unfit for work throughout the period from 2019.
The respondent noted that there had been no payment to the complainant of the entitlement the respondent calculated due to him in respect of annual leave and public holidays but that this was because of the complainant’s failure to provide updated bank details. The respondent referred to the legislation governing the accrual of annual leave entitlement during sick leave and how it is capped by a 15-month carry over period. It submitted that the complainant ceased submitting medical certificates in May 2019 and it was from that time that he ceased accruing annual leave in accordance with the legislation. The respondent further submitted that it at no point had it prevented the complainant from taking any accrued annual leave.
Summary of Ms Dania Goher’s evidence on oath
The witness commenced employment with the respondent as a HR advisor in June 2019. Her role involved advising managers on absenteeism, absence management and annual leave. The witness first heard of the complainant in early 2021 when his query around sick leave accrual was sent to her for review. Due to the duration of the absence, she did not have full access to details and that is why she emailed the complainant looking for information. The witness found it difficult to find out details concerning the complainant as one of the complainant’s managers no longer worked for the respondent and the other manager was unable to provide information. The witness discussed this further with her line manager. She is not aware of what happened vis-à-vis the complainant after May 2021.
In response to questions from, and on behalf of, the complainant, the witness advised that when an employee is inactive on the payroll system for a period they are marked ‘parked’; this does not mean that they are not employed. The witness advised that an email of 16 February 2021 which stated that the complainant’s leave date was communicated to Revenue did not come from her and she was not in a position to explain same.
In response to my questions about how the 16.8 hour annual leave entitlement was calculated, the witness explained that it had applied the legislative leave year and the 15-month window thereafter for taking leave accrued during sick leave. As the complainant had not taken leave during the 15-month period, the accrued leave was no longer valid. The witness further confirmed to me that the entitlement to annual leave ceased to accrue to the complainant after 7 May 2019 because no medical certificates were submitted after that date. When I asked about the previous leave years and whether consideration had been given to them in the calculation of the complainant’s annual leave entitlement, the witness said that she was not in a position of decision-making and had followed instructions about what was due and owing to the complainant. The witness confirmed the appropriate email addresses to which employees should send medical certificates. She was unable to advise how an employee would know where to send medical certificates or how the ticket system worked for payroll and personnel.
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Findings and Conclusions:
The complainant was employed by the respondent as a cleaning operative when, following a road traffic accident, he commenced a period of long-term absence from work in November 2015. I have reviewed the documentary evidence submitted by the complainant concerning the medical certificates he submitted to the respondent. In this regard, I note that no issue was taken by the respondent, either at the time or at the hearing, with the manner in which the complainant was submitting his medical certificates to the respondent. On my review, I find that the complainant submitted medical certificates to the respondent in respect of his absence from 2 December 2015 to 7 May 2019, save for a one-month period between August and September 2016. The complainant advised the respondent by email of 29 April 2019 that he had been certified fit to return to work from 7 May 2019 and attached a medical certificate to that effect. In the same email, he queried his annual leave and public holidays and asked for the contact details of the new area manager so that he could organise working hours. He did not receive a response to this email. I note and accept the evidence of the complainant regarding his efforts in April and May 2019 to contact the respondent to arrange his return to work. Notwithstanding a manager with the respondent advising the complainant that she would be back in touch with him in relation to his annual leave and public holiday entitlement and a return to work, the complainant did not hear back from the respondent on any of these matters. The complainant emailed the respondent on 10 February 2021 asking for his P45 and queried again his annual leave and public holiday entitlement. The response that issued from the respondent advised the complainant was no longer in the respondent’s system. There followed an exchange of communications between the complainant and respondent, the essence of which concerned clarification on the date of termination of the complainant’s employment with the respondent and the complainant’s annual leave and public holiday entitlements. The respondent in an email to the complainant on 30 April 2021 confirmed acknowledgement and acceptance of the complainant’s resignation dated 10 February 2021 and calculated an outstanding annual leave and public holiday entitlement. The complainant did not agree with the respondent’s calculation of entitlements, and in consequence, these claims were referred to the Workplace Relations Commission. Based on the evidence before me, I find that the complainant’s employment with the respondent terminated on 10 February 2021. I do so having particular regard to a letter from the respondent dated 26 June 2019 which confirmed the complainant’s employment status with the respondent as ongoing, the evidence of the respondent’s HR advisor that not being active on the system did not mean a cessation of employment, the respondent being unable to explain why the complainant’s request to return to work part-time in May 2019 was not addressed and the respondent’s acknowledgment and acceptance of the complainant’s resignation on 10 February 2021. Whilst various complaints were referred by the complainant to the Workplace Relations Commission, having given the complainant the opportunity to fully present his complaints, I am satisfied that his complaints concern annual leave entitlement, public holiday entitlement and terms of employment. The respondent’s calculation of 16.8 hours of annual leave entitlement due to the complainant was in respect of leave accrued during the 5-week medically certified period from 1 April 2019 to 7 May 2019, calculated by reference to 8% of the complainant’s average weekly hours of work. Based on the evidence before me, I find that the complainant’s average weekly hours of work were 42 hours per week and that he was paid €9.75 gross per hour.
CA-00044818-001 (Payment of Wages Act 1991) The complainant confirmed that this complaint concerned the complainant’s public holiday and annual leave entitlements. My jurisdiction pursuant to the Payment of Wages Act 1991 (the “1991 Act”) is in relation to complaints of a contravention of section 5 of the 1991 Act. The relevant time limits for referral of such complaints are set out in sections 41(6) and 41(8) of the Workplace Relations Act 2015 which provide: - “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
(7) …
(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”
This complaint was received by the Workplace Relations Commission on 28 June 2021. On 30 April 2021, the respondent requested the complainant confirm his bank account details so that it could process a payment in respect of annual leave and 6 public holidays which it calculated was due to the complainant. The payment was not processed by the respondent as the complainant did not provide his bank account details. I find that the complaint is in part well-founded as regards a non-payment of wages properly payable to the complainant on the cessation of his employment on 10 February 2021, namely in respect of the public holidays the respondent subsequently calculated were due to the complainant. I direct the respondent to pay to the complainant compensation in the sum of €491.40. CA-00044818-002 (Organisation of Working Time Act 1997) This is a complaint pursuant to section 27 of the Organisation of Working Time Act (the “1997 Act”) concerning annual leave entitlements the complainant claims accrued to him during his employment with the respondent. Annual leave entitlement Section 19 of the 1997 sets out 3 different ways for calculating annual leave entitlement. Each of them is based on an employee having worked hours in the leave year. The statutory entitlement of an employee who works at least 1,365 hours is to four working weeks of paid annual leave in a leave year. A leave year for the purpose of the 1997 Act is the period from 1 April to 31 March. In relation to taking annual leave, section 20 of the 1997 Act provides as follows:- “(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject— (a) to the employer taking into account— (i) the need for the employee to reconcile work and any family responsibilities, (ii) the opportunities for rest and recreation available to the employee, (b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and (c) to the leave being granted— (i) within the leave year to which it relates, (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or (iii) where the employee— (I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.”
Entitlement to cesser pay Section 23 of the 1997 Acts sets out an employee’s entitlement to cesser pay in compensation for annual leave not taken as follows:- “(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.“
The complainant is seeking payment on the cessation of his employment of the untaken annual leave accrued during his certified sick leave absence. The complainant’s employment with the respondent terminated on 10 February 2021 and this complaint was referred to the Workplace Relations Commission on 28 June 2021. The complaint has been presented within the 6-month timeframe provided in section 41(6) of the Workplace Relations Act 2015. The complainant requested information about his annual leave entitlements when he submitted his fit to return to work cert in May 2019. The respondent did not reply to the complainant’s communications in May 2019 regarding his annual leave entitlements. I am satisfied that at that point in May 2019, when the complainant was medically certified as fit to return to work, the complainant had an accrued leave entitlement based on section 20(1)(c)(iii) of the 1997 Act, in respect of the 2017/18 and 2018/19 leave years. The respondent’s position is that the complainant’s annual leave entitlements stopped accruing when he stopped submitting medical certificates in May 2019 and that much of the leave accrued to the complainant whilst on certified sick leave had expired at the time of the complainant’s resignation. I am satisfied that the reason for much of the leave having expired was because the respondent failed to respond to the complainant’s queries regarding his annual leave entitlement and failed to progress with the complainant his return to work in May 2019. I note also in this regard the respondent’s acknowledgement that it was unfortunate there was no follow-up with the complainant during 2020 and 2021. It is my view that by the respondent’s actions, and inaction, the complainant did not have the opportunity to benefit from the leave accrued from the 2017/18 and 2018/19 leave years on being certified fit to return to work in May 2019. Section 23 of the 1997 Act sets out the entitlement to cesser pay of annual leave accrued but not taken in respect of the “relevant period”. The “relevant period” is defined by reference to 3 different scenarios which limit the complainant’s allowance in lieu where the employment relationship is terminated. By reference to sections 23(1)(a) and 23(1)(b)(iii), I find that the complainant was entitled, on his resignation from employment on 10 February 2021, to compensation for the loss of annual leave in respect of the leave years 2020/21 and 2019/20. The complainant did not receive compensation for the loss of annual leave on his resignation from employment and accordingly I find the complaint is well-founded. I award the following by way of redress: €163.80 (being the monetary value of the complainant’s accrued but untaken annual leave of 16.8 hours from the 2019/20 leave year and there having been no hours worked by the complainant in the 2020/21 leave year) and €3,000.00 in compensation which I consider to be just and equitable having regard to all of the circumstances, as outlined above.
CA-00044818-003 (Mobile Staff in Civil Aviation Regulations) This complaint was withdrawn by the complainant at the outset of the hearing. CA-00044818-004 (Organisation of Working Time Act 1997) This is a complaint pursuant to section 27 of the Organisation of Working Time Act (the “1997 Act”) concerning public holiday entitlements the complainant claims accrued to him during his employment with the respondent. The entitlement in respect of public holidays is set out in section 21(1) of the 1997 Act. It is subject to section 21(5) which provides as follows:- “(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.” The cognisable period is set out in section 41(6) of the Workplace Relations Act 2015 which provides:- “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”
As referenced previously, the 6-month period may be extended by a further 6 months where the failure to present the complaint within the initial 6 months of the date of contravention was due to reasonable cause.
The complainant was absent from work within the meaning of section 21(5) of the 1997 Act during the cognisable period for this complaint. Accordingly, do not find the complaint of a contravention of section 21 of the 1997 Act to be well-founded.
CA-00044818-005 (Industrial Relations Act 1946) The subject matter of this complaint of a contravention of an Employment Regulation Order concerns the complainant’s annual leave entitlements. I have addressed the complainant’s annual leave entitlements under CA-00044818-002. Accordingly, I find this complaint is not well-founded. CA-00044818-006 (Industrial Relations Act 1946) The subject matter of this complaint of a contravention of an Employment Regulation Order concerns the complainant’s public holiday entitlements. I have addressed the complainant’s public holiday entitlements under CA-00044818-004. Accordingly, I find this complaint is not well-founded. CA-00044818-007 (Terms of Employment (Information) Act 1994) The complainant referred a complaint pursuant to section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 5 of the Terms of Employment (Information) Act 1994 (the “1994 Act”). Section 5 of the 1994 Act provides:- “(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) 1 month after the change takes effect, or (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.
(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute [other than a registered employment agreement or employment regulation order] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.”
The complainant’s employment transferred to the respondent in 2010 pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The respondent submitted that due diligence was done prior to the transfer of undertaking and that the transfer did not result in any changes to the complainant’s terms and conditions of employment. The complainant submitted that he did not recall receiving a statement of terms of employment. The respondent was not able to locate a contract or statement of terms for the complainant.
Based on the evidence before me, I find that the respondent did not issue the complainant a written statement regarding amended terms of employment in accordance with the 1994 Act when the complainant’s employment transferred to it, notwithstanding a material change that had taken place as a consequence of the transfer, namely the change in the identity of the complainant’s employer. Accordingly, I find that the complaint is well-founded and award the complainant redress of compensation in the sum of €1,638.00, which I consider to be just and equitable in the circumstances.
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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.
CA-00044818-001 (Payment of Wages Act 1991) I find that this complaint is in part well-founded, and I direct the respondent pay to the complainant compensation of €491.40. CA-00044818-002 (Organisation of Working Time Act 1997) I find that the complaint is well-founded. I award redress of €3,163.80, which is made up of €163.80 in cesser pay and €3,000.00 in compensation which does not constitute arrears of pay. CA-00044818-003 (Mobile Staff in Civil Aviation Regulations) This complaint was withdrawn by the complainant at the outset of the hearing. Accordingly, I find that this complaint is not well-founded. CA-00044818-004 (Organisation of Working Time Act 1997) For the reasons outlined above, I find that this complaint is not well-founded.
CA-00044818-005 (Industrial Relations Act 1946) For the reasons outlined above, I find that this complaint is not well-founded. CA-00044818-006 (Industrial Relations Act 1946) For the reasons outlined above, I find that this complaint is not well-founded. CA-00044818-007 (Terms of Employment (Information) Act 1994) I find that the complaint is well-founded and award the complainant redress of compensation of €1,638.00, which I consider to be just and equitable in the circumstances.
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Dated: 18/04/2023
Workplace Relations Commission Adjudication Officer: Kara Turner
Key Words:
Multiple complaints – Annual leave – Public holidays – Terms of employment ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035963 Parties:
Complaints:
Date of Adjudication Hearing: 02/02/2023 Workplace Relations Commission Adjudication Officer: Kara Turner Procedure:In accordance with section 41 of the Workplace Relations Act 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 complaints.
The parties attended the Workplace Relations Commission for scheduled hearings of these complaints on 6 October 2022 and 8 December 2022 however, due to issues in relation to the attendance of an interpreter, the hearing could not proceed on those dates and was adjourned. I wish to acknowledge the goodwill and perseverance of the parties while the appropriate hearing arrangements were put in place.
The parties were informed that the hearing was being held in public and that my decision would be published with the names of the parties. The parties confirmed their understanding and the hearing proceeded on 2 February 2023 on this basis.
The complainant, the complainant’s wife, and a witness on behalf of the respondent gave sworn evidence. An interpreter took the interpreter’s oath. The respondent made a written submission and the complainant submitted documents in support of his case in advance of the hearing.
Background:
Summary of Complainant’s Case:
Summary of Respondent’s Case:
Findings and Conclusions:
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.
Dated: 18/04/2023 Workplace Relations Commission Adjudication Officer: Kara Turner Key Words:
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