Complainant

Respondent

Parties

Malcolm  Keogh

Peak Construction Limited

Representatives

  N/A

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035974-001

01/05/2020

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

CA-00035974-002

01/05/2020

On 17 September 2012, the Complainant commenced employment as a Foreman, with the Respondent. He was laid off on 7 February 2020. On or around 14 March 2020, the Complainant was informed that he was being made redundant. The Respondent is involved in the construction business. The Complainant worked approximately 39 hours per week, earning €858 per week.

The Complainant submitted that on 17 September 2012, he commenced employment as a Foreman, with the Respondent. He was laid off on 7 February 2020. The Complainant outlined that he always worked a week in hand, so while he received his last wage on 14 February 2020, his last day of work was 7 February 2020.

The Complainant submitted that he was laid off from 7 February 2020 until 9 March 2020 – a period of four weeks. On 9 March 2020, when the four weeks had elapsed, he contacted the Respondent for an update. On or around 14 March 2020, the Complainant was informed that he was being made redundant. In May 2020, the Complainant received a statutory redundancy lump sum payment.  

On 8 April 2020, the Complainant notified the Respondent that he had not received his notice pay or his accrued holiday pay. On 1 May 2020, the Complainant submitted his Complaint Form to the WRC.

During the Hearing, the Complainant submitted that he had worked for over seven years for the Respondent. He said that he had received no notice and that he was entitled to his notice pay.

The Complainant further submitted that he did not have a contract of employment or any employment documentation outlining his annual leave entitlements. The Complainant submitted that the Respondent’s usual practice was to follow the calendar year for the purposes of calculating annual leave. The Complainant submitted that his annual leave was accounted for until 31 December 2019. However, he submitted that he was entitled to payment for the annual leave that had accrued between 1 January 2020 and 7 February 2020.

The Complainant submitted that he was upset by how he had been treated by the Respondent.

The Respondent did not attend the Hearing as scheduled.

In a letter from the WRC to the Respondent dated 20 January 2023, the Respondent was informed of the date, time and venue of the Hearing. In a letter to the WRC dated 7 February 2023, the Respondent informed the WRC that the Respondent is “undergoing the process of appointing a receiver”. On 28 February 2023 (the day of the Hearing), the Respondent telephoned the WRC to indicate that there would be no representation by or on behalf of the Respondent at the Hearing. In the circumstances, no evidence has been submitted by or on behalf of the Respondent.

CA-00035974-001: Complaint under the Minimum Notice and Terms of Employment Act 1973:

The Law:

Notice entitlements are set out under section 4 of the Minimum Notice and Terms of Employment Act 1973, as amended (the “MNTEA”), as follows:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

[…]

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks.”

Award:

Section 12(1) of the MNTEA provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention”.

Conclusion:

The Complainant was employed by the Respondent for over seven years. Pursuant to section 4(2)(c) of the MNTEA, the Complainant was entitled to four weeks’ notice. The Complainant submitted that he was not given a minimum period of notice as required under the MNTEA. His evidence was uncontested.

Section 12(1) of the MNTEA states that the employer can be directed to pay an employee compensation for any loss sustained, following a breach of section 4(2). In the circumstances, I direct the Respondent to pay the Complainant four weeks’ remuneration by way of compensation. This amounts to €3,432 (4*€858).

CA-00035974-002: Complaint under the Organisation of Working Time Act 1997:

The Law:

Pursuant to section 19(1) of the Organisation of Working Time Act 1997, as amended, (the “OWTA”), an employee is entitled to the following paid annual leave:

“(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).

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

In Waterford City Council v. Mr. Stephen O’Donoghue, DWT0963, the Labour Court held:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Award:

Section 27 of the OWTA empowers an adjudication officer to do one or more of the following:

“(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

Conclusion:

The Complainant submitted his Complaint Form to the WRC on 1 May 2020. Section 2 of the OWTA provides that the “leave year” is any year beginning on 1 April. In this matter, the relevant leave year runs from 1 April 2019 until 31 March 2020. In accordance with the six-month time limit prescribed under section 41(6) of the Workplace Relations Act 2015, I can consider a complaint from 2 November 2019. 

The Complainant submitted that he did not receive payment for the annual leave accrued between 1 January 2020 and 7 February 2020. His evidence was uncontested. At that time, the Complainant had accrued just over one twelfth of his annual entitlement of 20 days’ holidays, equivalent to 1.67 days. I find therefore, that he is entitled to 2 days’ remuneration by way of compensation, which is just and equitable in the circumstances.  This amounts to €343.20 (2*(€858/5)).

CA-00035974-001: Complaint under the Minimum Notice and Terms of Employment Act 1973:

The complaint is well founded. I direct the Respondent to pay the Complainant four weeks’ remuneration by way of compensation. This amounts to €3,432 (4*€858).

CA-00035974-002: Complaint underthe Organisation of Working Time Act 1997:

The complaint is well founded. I require the Respondent to pay the Complainant 2 days’ remuneration, which is just and equitable in the circumstances.  This amounts to €343.20 (2*(€858/5)).

Minimum Notice and Terms of Employment Act 1973, Organisation of Working Time Act 1997, Annual leave.