ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044053

Parties:

	Complainant	Respondent
Parties	Alin Cirgea	QIQ Enterprises Limited

Representatives

Caroline Doyle BL instructed by Ferrys Solicitors

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054502-001	16/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054502-002	16/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054502-003	16/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054502-004	16/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054627-001	23/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054627-002	23/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054627-003	23/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054627-004	23/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00054627-005	23/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00054627-006	23/01/2023

Date of Adjudication Hearing: 02/08/2023

Workplace Relations Commission Adjudication Officer: Seamus Clinton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 - 2022 and 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 any evidence relevant to the complaints. The hearing was held on the above date in the Workplace Relations Commission (WRC) Hearing Rooms in Carlow and was attended by the complainant and his representative along with an interpreter. The respondent did not attend the hearing. The complainant gave evidence under oath.

The complainant’s representative confirmed that complaints CA-00054502-001 to CA-00054502-004 & CA-00054627-002 were duplications.

The complainant’s representative confirmed that on behalf of the complainant, she was withdrawing the Unfair Dismissals complaint referenced as CA-00054627-005

A comprehensive submission was made to the WRC in advance of the hearing which was copied to the respondent.

Background:

The complainant worked as a driver and manager for the respondent from 25th January 2020 to 17th January 2023. In or around December 2022 and January 2023, he became aware that his job was in jeopardy due to a decline in trade and the possible closing or selling of the business. He sought a redundancy payment and did not receive a response from the respondent.

He was never issued with a contract of employment, and he was not paid for accrued annual leave and public holidays when his employment was terminated on 17th January 2023.

Summary of Complainant’s Case:

The complainant’s representative summarised the complaints as per the submission and then put the complainant into evidence.

Summary of Complainant’s Evidence

The complainant outlined his work history for the respondent and that he commenced on 25th January 2020. He had a permanent role and worked 40 hours per week. He was paid in accordance with the minimum wage and his last pay slip showed he was paid a gross weekly wage of €452. He confirmed the evidence presented through bank statements that he was paid by the respondent. From June 2021 onwards he received payslips up to the end of his employment in January 2023.

In or around December 2022 and January 2023, he became aware that his job was in jeopardy due to a decline in trade and the possible closing or selling of the business. He sought a redundancy payment and did not receive a response from the respondent. He confirmed in evidence that he received a text message from the respondent that he was no longer an employee on 17th January 2023.

He gave evidence that he took two weeks annual leave in August 2022, and he was not paid for these two weeks.

He did not receive any additional pay for the five public holidays that he worked over the previous 12 months.

Closing Submission

The complainant’s representative summarised the complaints and alleged that the breaches of the legislation were serious particularly due to his limited English and his vulnerability to exploitation. She relied on Gerry Kelly Enterprises Limited v. Andris Reinfelds, DWT 0214, and Singh v. Singh DWT 10162 as relevant authorities where the Labour Court factored in the exploitation of complainants where statutory breaches occurred.

Summary of Respondent’s Case:

The respondent did not make a submission and did not attend the hearing. I am satisfied that the respondent was on notice of the scheduled hearing.

Findings and Conclusions:

CA-00054627-006- Complaint under the Redundancy Payments Act 1967

The complainant confirmed in evidence that he commenced work with the respondent on 25th January 2020. On 17th January 2023, he received a text message from the respondent stating that he was no longer an employee. He sought a redundancy payment in or around this time and his solicitor also sought same on 27th February 2023.

I allow the complainant’s appeal and find that he is entitled to a statutory redundancy lump sum payment under the Redundancy Payments Acts 1967-2014 based on the following criteria:

-Date of commencement of employment 25th January 2020

-Date of termination 17th January 2023

-Gross weekly wage €452

CA-00054627-001- Complaint under Terms of Employment (Information) Act, 1994

The complainant gave evidence that he had not received a contract of employment over the course of his employment. Since May 1994 there has been a requirement that an employer give to the employee a statement of their terms of employment. Since 2019, employers are also required to provide a 5-day statement. The absence of a signed and dated statement means there is a subsisting breach of the Act up until the employment ended.

As redress under the Act is to be proportionate, dissuasive, and effective, I must factor in that the complainant was a vulnerable worker due to his limited understanding of the English language. Consequently, the lack of clarity on his employment terms was a severe disadvantage during and at the end of his employment. I award redress of the maximum allowed which is 4-weeks’ pay.

In accordance with Section 7 of the Act, I declare that the complaint is well founded, and order the respondent pay to the complainant €1808. This is redress of compensation arising from a breach of the Act and is not remuneration.

CA-00054627-003- Complaint under Organisation of Working Time Act, 1997

The complainant gave evidence that he was not paid for annual leave which he had accrued. He took two weeks holidays during August 2022 and his pay slips confirm that he was not paid over this period. During the leave year up to the end of his employment, the complainant had accrued three weeks leave. The monetary value of the leave is therefore €1356.

Under section 27 (3) of the Act, where a complaint is well founded, I can also make an award of compensation that is just and equitable having regard to all the circumstances. As the evidence on the payslips of August 2022 demonstrate that there was no payment for the two weeks annual leave, this is a serious statutory breach which would have a profound effect on the complainant availing of leave. In a similar case of Gerry Kelly Enterprises Limited v. Andris Reinfelds, DWT 0214 the Labour Court awarded €1,000 back in 2002. Along with the payment for accrued leave, I award additional compensation of €2,000.

I find that the complaint is well founded, and the respondent should pay to the complainant €1356 for accrued annual leave. I also award additional compensation of €2,000 to be paid by the respondent to the complainant for a breach of a statutory right that is not remuneration or arrears of remuneration.

CA-00054627-004- Complaint under Organisation of Working Time Act, 1997

The complainant worked on five public holidays over the previous 12-months prior to making the complaint. In Singh v. Singh DWT 10162, the Labour Court extended the cognisable period on the basis that the contraventions complained of were continuing up to the date of termination.

I find that the complaint is well founded.

On redress, due to the lack of an employment contract as to the liability of the employer for public holidays worked or not worked, I decide that the appropriate redress is the payment of 1-days’ pay for each of the 5 public holidays.

I find the complaint of non-payment of accrued public holidays well founded and the respondent should pay to the complainant 5-day’s pay which is €452.

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.

Section 39 of the Redundancy Payments Acts 1967 – 2022 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

CA-00054627-006- Complaint under the Redundancy Payments Act 1967

I allow the complainant’s appeal and find that he is entitled to a statutory redundancy lump sum payment under the Redundancy Payments Acts 1967-2022 based on the following criteria: