Complainant

Respondent

Parties

Bhimraj  Sumroo

Moport Ltd Koh Restaurant

Representatives

Orla O'Leary , DLA Piper Ireland LLp

  Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051758-001

19/07/2022

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

CA-00052321-001  DUPLICATE COMPLAINT

19/08/2022

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

CA-00055000-001

11/02/2023

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

CA-00055000-002    DUPLICATE COMPLAINT

11/02/2023

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

CA-00055000-003

11/02/2023

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

CA-00055000-004

11/02/2023

The complainant commenced employment as a kitchen supervisor with the respondent on 29/03/2008. He was paid €13.50 per hour and his average gross salary was €580.76 per week.  On 14/06/2022 the complainant’s employment was terminated without notice. 

At the outset of the hearing the claim forms were reviewed, and it was confirmed that complaints with reference numbers CA-00052321-001 and CA-00055000-002 were duplicated complaints.

The respondent did not attend the hearing and registered letters sent to the respondent were returned to the WRC.

The complainant worked for the respondent as a Kitchen Supervisor from 29/03/2008 until his employment was terminated without notice on 14/06/2022.  The complainant worked for the respondent for just over fourteen years and was laid off due to the COVID-19 pandemic from 16/03/2020 to 30/06/2021.  The complainant worked 39 hours per week, but it could change from week to week.  The complainant was paid €13.50 per hour and at the date of termination his average weekly pay was €580.76 gross.  There was no additional pay for working on a Sunday or public holidays.

On 14/06/2022 the complainant was contacted while on a day off by the respondent’s General Manager and advised that the restaurant was “closing immediately” because “the owner of the restaurant failed to pay the bills”.   Following this telephone call the complainant received a letter from the “Owner/Director” of the restaurant which confirmed that the restaurant was closing with effect from 14/06/2022 and that “Your employment therefore will be terminated with immediate effect”.  The letter then confirmed that “Unfortunately the company is not in a position to offer redundancies to any employee.  We realise this closing will cause hardships and we wish you well in securing positions in employment elsewhere”.

It was submitted on behalf of the complainant that he understands that the respondent has not reopened but the complainant is not aware that the respondent is in liquidation or receivership.  The complainant’s representative submitted that the status of the respondent on the Companies Registration Office Website is listed as “normal”.

The complainant has submitted a number of complaints:

CA-00055000-004:  It was submitted on behalf of the complainant that in accordance with Section 4 of the Minimum Notice & Terms of Employment Act, 1973 he is entitled to 6 weeks’ notice of termination of employment.  The respondent has failed to provide the statutory notice or payment in lieu, and this was acknowledged in the letter received by the complainant.  It was submitted on behalf of the complainant that he is due the sum of €3,484.55 gross.

CA-00055000-01:  It was submitted on behalf of the complainant that as of the date of termination he was due approximately 40 days annual leave.  This was confirmed to him by the respondent’s HR advisor on 05/01/2020 that he was due 51.39 days and as he took some annual leave since that confirmation was received, he took some annual leave, and he is due 40 days.  Based on his hourly rate of pay the complainant submits that he is due €4,650.

CA-00055000-003:  It was submitted that the respondent was in breach of Section 14 of the Organisation of Working Time Act, 1997 by failing to compensate the complainant for working on a Sunday.  The Act required that “an employee, who is required to work on a Sunday … shall be compensated by his or her employer …”.  The complainant’s contract of employment made specific reference to the requirement to work on a Sunday but there was no contractual clause in relation to compensation for working on a Sunday.  The complainant submits that Sunday working was an integral part of his regular weekly schedule during the 14 years of his employment with the respondent.  The complainant provided pay slips as evidence that he was paid a flat hourly rate regardless of the day of the week and the complainant confirmed that he was not given additional time off as a result of working on a Sunday.  It was submitted on behalf of the complainant that decision in ADJ-00037816, Krysztof Cender v Onsite Facilities Management Limited provided a helpful standard for dealing with such claims.  In that case the Adjudication Officer awarded that complainant compensation equivalent to six months wages after he worked for that respondent for a period of 13.5 years without payment for Sunday working.

CA-00051758-001:  It was submitted on behalf of the complainant that the circumstances of his dismissal amount to a redundancy in accordance with Section 7 of the Redundancy Payments Act, 1967.  In these circumstances the complainant submits that he is entitled to a statutory redundancy payment which is calculated in accordance with the terms of the Redundancy Payments Act.

It was submitted on behalf of the complainant that the respondent in this case acted in total disregard for any of the complainant’s statutory entitlements and in addition the respondent failed to comply with its own statutory requirements.  As already noted, the status of the respondent on the Companies Registration Office Website is listed as “normal”. 

The actions of the respondent in this case fall significantly short of what a reasonable employer would have done.  There was no notification of the likelihood of redundancies or closure of the restaurant.

The respondent or a representative on its behalf did not attend the hearing.  The registered post sent to the respondent was returned and noted as “gone away”.

The complainant submitted his complaint form to the Workplace Relations Commission (WRC) on 19/08/2022 and a further form was received by the WRC on 11/02/2023.  The complainant’s representative made an application to have this form accepted given the prevailing circumstances in relation to how the complainant’s employment was terminated and the difficulty in obtaining records.  This application was granted by the Adjudication Officer.

There are four complaints to be adjudicated by the WRC in this case.

CA-00051758-001:  This complaint is seeking adjudication by the WRC under Section 39 of the Redundancy Payments Act, 1967.

Section 7(2) of the Redundancy Payments Acts outlines five different scenarios where “an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to…”

(a)   The fact that his employer has ceased or intends to cease, to carry on for business of which the employee was employed by him, or has ceased to intends to cease, to carry on that business in the place where the employee was so employed or... 

(b)   The fact that the requirements of that business for employees to carry out work of a particular kind in a place where he was so employed have ceased or diminished or are expected to cease of diminish, or… 

(c)    The fact that his employer has decided to carry on the business with fewer or no employees whether by requiring the work for which the employee has been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or … 

(d)   The fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or… 

(e)    The fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained. 

It was submitted on behalf of the complainant that there is clear and unequivocal evidence that the respondent has ceased to carry on the business for which the complainant was employed.  The letter from the respondent to the complainant confirms that fact.

The Redundancy Payment Act 1967 Section 7(1) given a general right to redundancy:

 “An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided –

(a)   He has been employed for the requisite period, and

(b)   He was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966 immediately before the date of the termination of his employment which was so insurable in the period of two years ending on that date.”

I have carefully considered and reviewed the documents, submission and evidence provided at the hearing.  As the respondent closed the restaurant on 14/06/2022 the complainant’s contract was ended on that date. I find that the date of dismissal is 14/06/2022 and that this was a dismissal in accordance with section 9(1)(a) and (b) of the Act. 

The complainant is entitlement to a redundancy lump sum payment is to be calculated according to the following criteria:

Employment start date:  29/03/2008

Employment end date:  14/06/2022

Period of COVID-19 Lay off: 16/03/2020 to 30/06/2021

Gross weekly remuneration:  €580.76

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00055000-01:  This is a complaint seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1997.  It was submitted on behalf of the complainant that as of the date of termination he was due approximately 40 days annual leave.  The complainant has provided evidence from the respondent’s HR advisor which confirmed that he was due 51.39 days as of 05/01/2020 and taking account the leave taken since that date the balance due is 40 days. 

Working time and other related matters such as annual leave entitlements are regulated by the Organisation of Working Time Act, 1997, which implements in Ireland the requirements of the Directive 2003/88EC of the European Union (the Working Time Directive).

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(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):

This Act (20 (1)) also deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   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 one 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 within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Section 23 of the Act outlines the compensation to be given when an employee ceases to be employed:

23. (1) Where –

a)     an employee ceases to be employed, and

b)     the whole or any portion of the annual lave in respect of the current leave year or, in the case the cesser of employment occurs during the first half of that year, in respect of that year, the previous leave or both those years, 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.

The first question to be addressed is whether the complainant can include all his  untaken annual leave for the years 2018, 2019,  and 2021 in the calculation of cesser pay due when his employment on 13/06/2022. The case of Royal Liver Assurance v Macken[2020] 4 IR 427 held that “under Section 27(4) of the 1997 As, the complaints are out of time and the Rights Commissioner had no jurisdiction to entertain any complaint relating to the contravention of the applicant’s annual leave obligations and obligations in respect of public holidays oved to the respondents arising during the leave year 1999-2000”.   In that case the High Court held that the latest date of contravention to grant leave is the last day of the leave year in question.  Where the employee is not granted their annual leave entitlement within the leave year the employer is obliged to consult with the employee in order obtain their consent for the balance of any leave due to be taken within six months of the leave year in question. 

In the context of that decision the period to submit a complaint in relating to the granting of annual leave is six months from the end of the leave year.

However, I must also consider that there is a significant amount of Court of Justice of the European Union (the CJEU) jurisprudence in relation to the taking of annual leave and the impact of this is well set out in ADJ-00019188.  The CJEU jurisprudence has established that the right to annual leave is derived from a General Principle of European Law and the Charter of Fundamental Rights of the European Union.    Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“Annual Leave 1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is ended.”    This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

The CJEU has made important decisions in relation to the carry-over of annual leave.  In one particular case, KHS AG v Winfried Schulte C-214/10 recognises that “a provision of national law setting out a carry-over period for annual leave not taken by the end of the reference period aims, as a rule, to give a worker who has been prevented from taking his annual leave an additional opportunity to benefit from that right at the end of the reference period or of a carry-over period.  However, the Court attached to that finding of principle the condition that a worker who has lost his right to paid annual leave must have actually had to the opportunity to exercise the right conferred on him by that directive.”  In that case the worker was unable to work due a serious health issue between the years 2002 and 2008.  In another case, King v The Sash Window Workshop Ltd, C-214/16, the UK Court of Appeal had concluded that the maximum carry-over period of 18 months, but the CJEU did not agree with the imposition of such a limitation.

The implication of these and other judgements is that the loss of annual leave is not automatic and can only ensue in circumstances where the employer can demonstrate that the worker was put in a position to take the leave so as to exercise his/her right to take that leave.

In this instant case the complainant was entitled to annual leave.  The right to this leave is a fundamental right following the Directive and Charter.  Given the significant jurisprudence in the CJEU in relation this matter I must safeguard the complainant’s right to paid annual leave.  In that context the respondent’s HR advisor was aware of the complainant’s entitlement to annual leave.  In the absence of the respondent or a representative on their behalf,  there is no evidence that the complainant was provided any opportunity to take paid annual leave or that they had a process or system which would provide evidence that they had exercised due diligence in this matter.  There is no evidence that the respondent had put the complainant on notice that annual leave would be forfeited on a “use it or lose it” basis. 

I find that this complaint is well founded.  Based on the complainant’s hourly rate of €13.50 I find that the complainant is entitled to a sum of €4,650.

CA-00055000-003:  This is a complaint seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1997. 

The Law:

The Organisation of Working Time Act, 1977, in relevant part, states:

“14.-(1)An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely-

(a)   By the payment to the employee of an allowance of such amount as is reasonable having regard to all the circumstances, or

(b)   By otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c)    By granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d)   By a combination of two or more of the means referred to in the preceding paragraphs”.

The Act makes it a very clear requirement that “an employee, who is required to work on a Sunday … shall be compensated by his or her employer …”.    The complainant’s contract of employment, (updated 14/12/2021) which was submitted in evidence to the hearing, makes no reference to Sunday pay.  The section in relation to pay, (Section 19) confirms the hourly rate of pay and the pay period and that statutory deductions will be make and payment will be made to a nominated bank account.

The complainant worked for 14 years, and he received no compensation for working on a Sunday.  It is clear from the complainant’s contract of employment that he was required to work on a Sunday.  The complainant also provided the hearing with copies of his pay slips which show that there was no premium payment made for Sunday working.

It was submitted on behalf of the complainant that decision in ADJ-00037816, Krysztof Cender v Onsite Facilities Management Limited provided a helpful standard for dealing with such claims.  In that case the Adjudication Officer awarded that complainant compensation equivalent to six months wages after he worked for that respondent for a period of 13.5 years with payment for Sunday working.

I find that this complaint is well founded, and I award the complainant compensation equivalent to six months wages for the failure to pay a Sunday premium.

CA-00055000-004:  This is a complaint seeking adjudication by the WRC under section 12 of the Minimum Notice & terms of Employment Act, 1973.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

“4.— (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—

(a) if the employee has been in the continuous service of his employer for less than two years, one week, 

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks, 

(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, 

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, 

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks”.

Based on the uncontested submission on behalf of the complainant, I find that the complainant had been in continuous employment with the Respondent for over 14 years, but less than 15 years when his employment was terminated on 2 14/06/2022. Therefore, the complainant had accrued a statutory entitlement to six weeks’ notice in accordance with the provisions of Section 4(2)(d) of the Act on the termination of his employment. I find that the Complainant was not afforded his statutory notice entitlement or payment in lieu thereof prior to the termination of his employment with the respondent.  Accordingly, I find that the Complainant is entitled to compensation in respect of six weeks’ notice in accordance with the aforementioned provisions of the Act.

I also find that the respondent has failed to provide the statutory notice or payment in lieu, and this was acknowledged in the letter received by the complainant.  I find that the complaint is well founded. I have decided that the complainant is due the sum of €3,484.55 gross.

CA-00051758-001: This is a complaint seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1997.   I find that this complaint is well founded, and the complainant is entitled to a redundancy lump sum payment is to be calculated according to the following criteria:

Employment start date:  29/03/2008

Employment end date:  14/06/2022

Period of COVID-19 Lay off: 16/03/2020 to 30/06/2021

Gross weekly remuneration:  €580.76

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00055000-01:  This is a complaint seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1997.  I find that this complaint is well founded.  Based on the complainant’s hourly rate of €13.50 I find that the complainant is entitled to a sum of €4,650.

CA-00055000-003:  This is a complaint seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1997.  I find that this complaint is well founded, and I award the complainant compensation equivalent to six months wages for the failure to pay a Sunday premium.

CA-00055000-004:  This is a complaint seeking adjudication by the WRC under section 12 of the Minimum Notice & terms of Employment Act, 1973. I find that the complaint is well founded. I have decided that the complainant is due the sum of €3,484.55 gross.

Redundancy payment.  Minimum notice.  Sunday pay.  Annual leave payment.