Complainant

Respondent

Parties

Frank  Conway

Galnesia Limited

Representatives

Mairtin O'Ceidigh South Connaught Citizen Information Service

 Mark Conway

Act

Complaints Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054362-002

05/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054362-003

05/01/2023

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

CA-00054362-004

05/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973(withdrawn at hearing)

CA-00054362-005

05/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00054362-006

05/01/2023

On January 5, 2023, The Citizens Information Service lodged 5 complaints on behalf of the Complainant, a Bar Manager.

The Respondent was placed on notice of the complaint on 19 February 2023, but did not file a defense in the case.

The Parties were invited to a Remote Hearing scheduled for 13 June 2023 at 11 am.

The hearing in this case was conducted on the Remote platform in accordance with Section 31 of the Civil and Criminal law (Miscellaneous Provisions) Act, 2020.

On the day of hearing, June 13, 2023, CA-00054362-005 was withdrawn as a duplicate claim.

There were some technical issues on the remote hearing but both parties were able to participate on the day.

Both witnesses gave evidence reliant on affirmation.

The Complainant worked as a Bar Manager from 28 August 2020 to 5 October 2022. His nett pay was €480 .00 for a 40-hour week.

This employment corresponded with the Covid 19 Hospitality closures and the complainant had some periods of lay off related to Covid 19 followed by a period of illness.

The Complainants representative described the CRO details for the Trading status for the company as “normal status “.

The Complainant worked across two properties operated by the Respondent in Galway and Mayo during his tenure.

The Hare Inn, Tuam which closed on 3 January 2022

And

The Riverside Inn, Cross, Co Mayo, where the complainant was the sole member of staff closed on 27 October 2022, clarified from 27 September 2022, at hearing.

By September 17 ,2022, the Respondent informed the complainant that while the Riverside Inn was closing, replacement work would be available in Galway. The Respondent also informed him that he intended on changing direction in Pub Management. There was nothing in writing to outline either cessation or continued employment to the complainant.

The Complainant submitted that he had expected a return to work in November 2022 and made several attempts to make that happen, but there was little to no response from his former employer through to November 2022.

He was aggrieved at the different approach taken by the respondent in notifying the landlord of the cessation of business in writing, whereas he was excluded from a proper notification of cessation of his employment.

The Complainant was awarded Illness benefit back to 28 September 2022 at the rate of €208.00.

It was the complainant case that he had endeavoured to resolve these claims directly with his former employer, but he could not get him to engage on their resolution.

The Complainant exhibited a signed declaration of his employment tenure August 2020 until October 2022 signed by the respondent on 28 May 2023.

CA-00054362-002 Annual Leave:

The Complainant outlined that he received one week’s annual leave from 3 to 10 January 2022 but nothing further during 2022.

The Complainant sought cesser pay of €813.44, using €12 as the hourly divisor.

€60.48 first quarter January 1, 2022, to 27 March 2022.

€752.96 in respect of the remainder of the time worked.

CA-00054362-003 Public Holiday Entitlement

The Complainant has submitted that he did not receive payment in respect of public holidays during 2022.

He submitted that he did not receive payment for

18, 19 March, April 18, May 2, June 6 and August 1, 2022.

He sought payment for 2 public holidays which fell within the cognisable period for the claim.

He submitted that he was owed €192.00 in respect of unpaid public holidays.

CA-00054362-004 Payment In Lieu of Notice

The Complainant did not receive any payment in lieu of notice.

He is owed one weeks pay € 480.00 in respect of this claim.

CA-00054362-006 Redundancy Payment

The Complainant has claimed a lump sum payment in redundancy in respect of his cessation of work in October 2022. He clarified in evidence that he had not requested this payment from his former employer outside of submitting a RP 77 form.

The Respondent was invited to cross examine but confirmed that he had nothing to ask.

The Complainant confirmed that the business was closed due to covid 19 24 December 2020 -12 April 2021, during which time, he received the PUP payment at €9,800 in 2021.

In response to my query on whether the acknowledged breaks in service could safely be regarded as a continuous service in the context of a lump sum in redundancy payment? the Complainants representative undertook to furnish a document from the Government website in support of the claim. This was received and considered.

In conclusion, the Complainants representative restated the claims, summarised the evidence and requested a decision a favour of the complainant. He made reference to a document from the Government website in support of the redundancy claim during the period known as covid 19 Pandemic period. 

The Complainants representative reference historical problems in securing pay slips throughout the complainant’s tenure. He relied on the payments highlighted in the bank statement to catalogue earnings.

The Complainant also raised a noted discrepancies in his records of PRSI payments. I advised him to check that out with the Department of Social Protection.

The Complainant relied on CJEU case of King v Sash Window Workshop ltd and Anor [2017]

The Respondent did not take issue with the chronology of facts relied on by the complainant.

He acknowledged that he had been approached by the WRC to make an outline submission in defence of the claims but had not furnished the requested submission. He did not exhibit a contract of employment.

In evidence, he confirmed that the Business had unfortunately failed and there now appeared to be a   certain grey area surrounding the claims made by the complainant.

The backdrop of the impact of the national pandemic on the pub industry in the form of support payments had made the situation challenging for an employer.

Mr Conway had fully expected to be back trading again but was unsuccessful in that regard. He acknowledged that the complainant had sought to resolve his claims on the conclusion of the employment.  

The Respondent confirmed that 7 October 2022 and 17 October 2022 had been the last pay dates for the complainant.

CA-00054362-002 Annual Leave:

The Respondent did not exhibit records retained on annual leave. He acknowledged that payment had been made for one week’s annual leave in 2022.

CA-00054362-003 Public Holiday Entitlement

The Respondent disputed this claim and confirmed that payment of public holidays was not universal in the hospitality industry.

CA-00054362-004 Payment In Lieu of Notice

The Respondent confirmed that the complainant had been informed that the business was closing verbally.

He had not been paid a notice payment.

CA-00054362-006 Redundancy Payment

The Respondent accepted that the complainant had been made redundant on a technicality when the business closed.

He confirmed that the complainant had been paid for a short interval in the aftermath of the business closure to ensure a smooth closure.

I have been requested to reach a decision in each of these four cases. In coming to this decision, I have considered the oral and written statements submitted alongside evidence adduced.

At first glance, this seemed like a case that fell through the cracks for want of inter party communication.

Just as there are ceremonies and documents which mark the commencement of employment, such as a contract, pay slip, policies and protocols so too are their ceremonies and documents which ought to reflect a cessation of working, be it a resignation, notice of cessation of business, records under section 25 of the Organisation of Working Time Act, 1997.

In this employment, I did not have the benefit of any of those named documents, bar a number of random pay slips. I will urge the respondent to reflect on this if he takes on the mantle of employer in the future. I found the exhibition of the what’s app attributed to the pursuance of the respondent by the complainant following the business closure to be reflective of a very poorly managed exit of employment.

I fully accept that the period of time encompassed by this claim coincided in part with the overarching national pandemic which informed closure of the business from 24 December 2020 -12 April 2021. However, the business was trading during 2022 and there ought to have been a paper or digital trail for the cessation of the sole employee at the business.

CA-00054362-002 Annual Leave:

The Complainant has claimed cesser pay at the conclusion of his employment. I note that the respondent did not retain records of annual leave for submission at hearing.

From my exploration of the record of pay during 2022, I noted that there was no pay recorded for week of June 21, 2022.

My jurisdiction rests under Section 19 of the Organisation of Working Time Act, 1997

Entitlement to annual leave.

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Compensation on cesser of employment.

23.— (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.

I find that the complainant was not provided with his accrued statutory annual leave for 2022. I have taken account of the missing week from June 2022.

I find that the complainant was not provided with cesser pay by the respondent.

I find the claim is well founded.

CA-00054362-003 Public Holiday Entitlement

The Complainant has claimed €192.00 in respect of June 6 and August 1, 2022, public holidays which occurred during the cognisable period for the claim.

The Respondent has disputed the basis for the claim as he contended that public holidays are not universally awarded in the hospitality industry.

For my part, my jurisdiction rests in Section 21 of the Organisation of Working Time Act, 1997

Entitlement in respect of public holidays.

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

As the Act places an obligation on the Respondent at section 21(1) which the respondent, by his own admission has not honoured, I find the claim to be well founded.

CA-00054362-004 Payment In Lieu of Notice

Both parties acknowledge that the complainant did not receive a payment in lieu of notice.

My jurisdiction in this claim lies in section 6 of the Payment of Wages Act 1991.

The Complainant is entitled to one weeks’ notice on cessation of employment by application of Section 4 of the Minimum Notice and Terms of Employment, 1973.

From the Respondents evidence, he confirmed that the complainant was paid up to October 17, whereas the bar was closed for business from September 28, 2022.

I find that the complainant was not provided with notice on cessation of his employment as I accept the complainants own evidence that his hopes and expectations were raised that he would be working in a continuum in another pub and notice was not served.

I find that one weeks pay is properly payable as a result and failure to pay that amount constitutes a breach of section 5(1) of the Payment of Wages Act, 1991.

I find the claim is well founded.

CA-00054362-006 Redundancy Payment

The Complainant claimed a lump sum redundancy payment at the WRC on 5 January 2023. He followed this up by serving a RP 77 claim for redundancy directly ion the respondent on 23 May 2023, some 4 months later.

The Complainant in his own evidence confirmed that he received the PUP payment from December 24, 2020, to 12 April 2021. He confirmed that he was awarded retrospective sick pay to 28 September 2022 during March 2023 at the rate of €208 per week.

The Employment in this case traversed 28 August 2020 to close of business on 27 October 2022.

During this time there were a number of breaks in service.

24 December 2020-12 April 2021

1 week in June 2022

Sick leave commenced retrospectively to September 2008, awarded in March 2023 following a declaration from the Respondent.

Section 9 of the Redundancy Payments Act, 1967 provides that an employee shall be taken to be dismissed by his employer if her contract is terminated by the employer with or without notice.

Section 7 outlines a general right to a redundancy payment if an employee is dismissed, by reason of redundancy or is laid off on short time for the minimum period, if he has been employed for the requisite period and in insurable employment.

Section 7(5) determines that period to be 104 weeks continuous employment by the employer who dismissed him, laid him off or kept him on short time exclusive of pre age 16 service.

While the Complainant in this case was employed from 28 August 2020 to when the business finally closed on October 27, 2022, thus attaining 104 weeks continuous service, his service was disturbed by a period of lay off which was impacted by the amendment made to the Redundancy Payment Act by Section 12 A.

Operation of section 12 - emergency period

12A.—(1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

(2) Before the expiration of the emergency period, the Government may, at the request of the Minister made—

(a) after consultation with the Minister for Health,

(b) with the consent of the Minister for Public Expenditure and Reform, and

(c) having had regard to the matters referred to in subsection (3),

by order specify a date that is later than the expiration date of the emergency period specified in the definition of "emergency period" or the last order made under this subsection, as the case may be, and the emergency period shall be read as extending to and including the date so specified.

 This meant that time spent in receipt of the covid 19 support payment, PUP was not considered as a period of reckonable service and is instead covered by.

The COVID-19 Related Lay-Off Payment Scheme

The COVID-19 Related Lay-Off Payment Scheme is a once off, lump sum payment for employees who:

·    have been made redundant since 13 March 2020, or are made redundant before 31 January 2025

and

·    have lost the opportunity to build reckonable service due to temporary layoffs caused by the COVID-19 restrictions from 13 March 2020 to 31 January 2022

Temporary Lay-Off

An employee can apply for a redundancy payment if they have been on temporary lay-off or short-time in accordance with Section 12 of the Redundancy Payments Act for a period of:

·    four continuous weeks

·    six non-continuous weeks within a thirteen-week period

During the COVID-19 emergency period from 13 March 2020 to the 30 of September 2021 this entitlement was temporarily suspended under Section 12A of the Redundancy Payment Act that was included in Section 29 of the Emergency Measures in the Public Interest Bill 2020. Section 12A of the Redundancy Payment Act expired on 30 September 2021.( extract from Gov.ie )

This measure has been introduced through 'The Emergency Measures in the Public Interest (COVID-19) Act 2020', which amended the Redundancy Payments Act 1967.

This meant that time spent in receipt of the covid 19 support payment, PUP was not considered as a period of reckonable service.

 While I accept that the Complainant has 104 weeks continuous service, I must find that his period of lay off due to covid and PUP payment places him in the covid 19 lay off payment scheme and he cannot succeed at this claim for a lump sum payment in redundancy from the respondent.

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-00054362-002 Annual Leave:

Section 27 of the Organisation of Working Time Act, 1997 requires that I decide in this case in accordance with the provisions of Section 19 and Section 23 of the Act.

I have found the claim to be well founded. I award the complainant €1000 in compensation in respect of the breach of section 19 and 23 of the Act.

CA-00054362-003 Public Holiday Entitlement

Section 27 of the Organisation of Working Time Act, 1997 requires that I decide in this case in accordance with the provisions of Section 21 of the Act.

I have found the claim to be well founded. I award the complainant €500 in compensation in respect of the breach of section 21 of the Act.

CA-00054362-004 Payment In Lieu of Notice

Section 6 of the Payment of Wages Act requires that I make a decision in this claim in accordance with the provisions of Section 5 of the Act.

I have found the claim well founded. I award the complainant compensation of €480.00 in respect of the contravention of Section 5(1) of the Act.

CA-00054362-006 Redundancy Payment

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation in relation to the claim for a lump sum payment in redundancy.

I have found that the claim cannot succeed due to the lack of reckon ability of time in receipt of PUP payment for redundancy and the parties should explore the Government scheme referred to above.

Cessation of employment, annual leave, public holidays, minimum notice redundancy