ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040766
Parties:
| Complainant | Respondent |
Parties | Gavin O'Toole | G & G Ross Stonecrushers |
Representatives | Doran O'Toole & Co. Solicitors | N/A |
Complaints:
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-00052069-001 | 03/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00052069-002 | 03/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00052069-003 | 03/08/2022 |
Date of Adjudication Hearing: 02/02/2023
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 39 of the Redundancy Payments Acts 1967 – 2014, 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 matter was heard by way of remote hearing on 2 February 2023, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission (“the WRC”) as a body empowered to hold remote hearings.
The Complainant attended the Hearing in person. Mr. Doran O’Toole, his solicitor; Ms. Olivia Croasdell, his solicitor’s Legal Executive; and Mr Oscar Lyons BL, his barrister also attended.
The Respondent did not attend.
The Hearing was held in public. The Complainant provided oral evidence under affirmation. The legal perils of committing perjury were explained. Upon my request, supplemental documentary evidence was submitted by the Complainant to the WRC post-Hearing – all of which was forwarded to the Respondent.
Additional Complaints:
At the outset of the Hearing, I noted that that the Complaint Form narrative outlined that the Complainant “worked with [the Respondent] since 12th January 2015, and never received a contract of employment”. As such, I explained that there appeared to be two additional complaints pursuant to the Terms of Employment (Information) Act 1994 (the “TE(I)A”) before me. The additional complaints concerned an (1) alleged failure to provide the Complainant with a statement of core terms in writing and (2) an alleged failure to provide the Complainant with a statement in writing on his terms of employment. I referred to County Louth Vocational Educational Committee v. The Equality Tribunal [2016] IESC 40, which upheld the flexibility of WRC procedures. I also referred to the judgment of Charleton J. in Galway-Mayo Institute of Technology v. Employment Appeals Tribunal [2007] IEHC 210 which provides that there should not be excessive formalism in civil procedure. I invited submissions on this point. I have ruled that these specific complaints can be added to this adjudication file. These two additional complaints have been allocated the reference numbers CA-00052069-002 and CA-00052069-003.
Background:
On 12 January 2015, the Complainant commenced employment with the Respondent until his dismissal on 8 April 2022. The Complainant did not receive a statement of his core terms in writing or a statement in writing on his terms of employment. On 1 March 2022, the Complainant received his notice verbally and worked until 8 April 2022. The Complainant did not receive any redundancy payment. On 3 August 2022, the Complainant submitted a complaint to the Director General of the WRC, alleging that the Respondent contravened the Redundancy Payments Act 1967, as revised and the Terms of Employment (Information) Act 1994, as revised.
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Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent as a Loading Shovel Driver / Driver on 12 January 2015 until his dismissal on 8 April 2022. The Respondent is involved in the business of stone crushing. During this time, the Complainant worked in three different locations – Arklow, Enniscorthy and Cappagh. The Complainant received €17 per hour. He worked between 60 and 66 hours per week, earning on average €1,053 per week. The Complainant outlined that he never received a contract of employment, a staff handbook, or any documentation concerning the terms and conditions of his employment whatsoever.
The Complainant explained that he had initially obtained the position following a recommendation by his father, who worked as a contractor for Roadstone. The Complainant then spoke to the foreman, who gave him the job. The owner of the Respondent, Mr. Graham Ross, was his boss. He came to the quarry on a couple of occasions. The Complainant outlined that the Respondent lost a lucrative contract with Roadstone which seemed to have been integral to its business. The Complainant outlined that the foreman gave him verbal notice on 1 March 2022. In mid-March 2022, Mr. Ross spoke to the Complainant and another employee and told them that they would receive a redundancy payment. The Complainant’s employment came to an end on 8 April 2022. Between 1 March 2022 and 8 April 2022, the Complainant “folded up” the machines and prepared for their movement from the quarry. On 12 April 2022, the Respondent wrote to the Complainant and confirmed that his employment ceased on 8 April 2022 and that a payslip would issue in due course. Mr. Ross subsequently sent the Complainant a website link to access. Mr. Ross informed the Complainant that when he accessed the link, he would be able to apply for a redundancy payment. However, the Complainant outlined that the link did not work and brought the Complainant to a blank webpage. In April 2022, the Complainant spoke to Mr. Ross on the telephone and was told that he should wait and see how another employee fared in obtaining his redundancy payment. The Complainant outlined that he received no redundancy payment whatsoever. The Complainant subsequently contacted his solicitors and submitted his complaint to the WRC on 3 August 2022. The Complainant outlined that as far as he is aware, the Respondent no longer operates in the Republic of Ireland, but has its own quarry in Northern Ireland. |
Summary of Respondent’s Case:
The Respondent did not attend the Hearing as scheduled. In a letter from the WRC dated 5 January 2023, the Respondent was informed of the date, time and venue of the Hearing. The letter also set out the procedure regarding postponement requests. When the Respondent did not attend the Hearing on 2 February 2023, a grace period was allowed to enable the Respondent to attend or contact the WRC. The WRC then attempted to contact the Respondent using two different telephone numbers but there was no response. Having reviewed the file, I note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered by or on behalf of the Respondent. |
Findings and Conclusions:
CA-00052069-001: Complaint under the Redundancy Payments Act 1967, as revised: The Law: The Complainant seeks a statutory lump sum payment under Section 39 of the Redundancy Payments Acts, 1967 – 2014 (the “RPA”). In order to qualify for a statutory redundancy payment, an employee must: (1) have at least 2 years’ continuous service; (2) be in employment which is insurable under the Social Welfare Acts; (3) be over the age of 16; (4) have been made redundant as a result of a genuine redundancy situation and/or if on lay-off or short-time, have complied with any statutory notice requirements; and (5) not have received a lump sum payment. Periods of lay-off are excluded from reckonable service. 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 lay-offs caused by Covid 19 restrictions from 13 March 2020 to 31 January 2022. It is noted the Complainant was in receipt of Pandemic Unemployment Payment during the period from 27 March 2020 to 18 February 2021. Section 7 of the RPA sets out five specific circumstances in which an employee may be entitled to a redundancy payment, including: “(a) the fact his employer has ceased or intends to cease to carry on the business for the purpose of which the employee was employed by him, or has ceased or 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 the place where he was so employed have ceased or diminished or are expected to cease or diminish …” Application: As the Respondent ceased operations in the Republic of Ireland, the Complainant’s job has become redundant. As the Complainant has completed more than two years of service; is over the age of 16; was made redundant as a result of a genuine redundancy situation; and did not receive any lump sum payment, I am satisfied that he is entitled to a redundancy payment pursuant to the RPA. I find the claim for redundancy payment to be well founded. The Complainant is entitled to a redundancy payment based on the following facts established in evidence: Commencement date: 12/01/2015 End of employment: 08/04/2022 Period of Covid 19 related lay-off: from 27/03/2020 – 18/02/2021 Gross average weekly pay: €1,053 Any award made under the RPA is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 – 1966. The calculation of gross weekly pay is subject to a ceiling of €600. The calculation of the lump sum is a matter for the relevant Department. CA-00052069-002 and CA-00052069-003: Complaints under The Terms of Employment (Information) Act 1994, as revised: The Law: The Terms of Employment (Information) Act 1994 (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1A) of the TE(I)A obligates an employer to provide employees with certain essential information, or core terms, in writing within five days of commencing employment. Section 3(1) of the TE(I)A further obligates an employer to provide employees with information concerning other aspects of an employee’s terms and conditions of employment in writing within two months of commencing employment. This provision has recently been amended to indicate one month. Section 7 of the TE(I)A provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded. In Beechfield Private Homecare Limited v. Ms Megan Hayes Kelly, TED 1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decisionmaker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”. Application: The Complainant was employed by the Respondent from 12 January 2015 until 8 April 2022. The Complainant submitted that he was not provided with a contract of employment, a staff handbook, or any documentation concerning the terms and conditions of his employment whatsoever. Consequently, the Respondent breached both section 3(1A) and section 3(1) of the TE(I)A and the two corresponding complaints are well founded. Pursuant to section 7 of the TE(I)A, an award of two weeks’ remuneration for each breach, is just and equitable in the circumstances: 2*(€1,053) = €2,106. |
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 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-00052069-001: Complaint under the Redundancy Payments Act 1967, as revised: I decide that this complaint is well founded. I decide that the Complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Act 1967, as revised, based on the following criteria: Commencement date: 12/01/2015 End of employment: 08/04/2022 Period of Covid 19 related lay-off: from 27/03/2020 – 18/02/2021 Gross weekly pay: €1,053 This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period. CA-00052069-002: Complaint under The Terms of Employment (Information) Act 1994, as revised: I decide that this complaint is well founded. I award the Complainant €2,106, which is two weeks’ remuneration for the breach of the Terms of Employment (Information) Act 1994, as revised. CA-00052069-003: Complaint under The Terms of Employment (Information) Act 1994, as revised: I decide that this complaint is well founded. I award the Complainant €2,106, which is two weeks’ remuneration for the breach of the Terms of Employment (Information) Act 1994, as revised. |
Dated: 16/03/2023
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Redundancy Payments Act 1967, Terms of Employment (Information) Act 1994, Non-attendance. |