ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028262
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Public House |
Representatives | Siobhan McCormack North Connacht and Ulster Citizens Information Centre | Cormac Mohan Fitzwilliam Corporate Insolvency |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00035151-005 | 10/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00035151-007 | 10/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00035151-009 | 10/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00035151-010 | 10/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00035151-011 | 10/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00035151-012 | 10/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035151-014 | 10/03/2020 |
Date of Adjudication Hearing: 27.6.2022; 19.12.2022; 14.11.23
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014following 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.
Background:
The complaints being pursued by the Complainant are:
CA-00035151-007 – Minimum Notice CA-00035151-009 – Redundancy CA-00035151-010 – Public Holidays (OWTA) CA-00035151-011 – Premium payment for Sunday Hours (OWTA) CA-00035151-012 – Annual Leave (OWTA) CA-00035151-014 – No written terms of contract of employment
CA-00035151-005 is withdrawn
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Summary of Complainant’s Case:
Under affirmation the Complainant gave the following evidence:
Her employment with the Respondent commenced on 10 December 2017 Her employment ended without notice on 19 January 2020. CA-00035151-007 – Minimum Notice The Complainant claims that she was entitled to 2 weeks of minimum notice. She claims that she neither received notice nor a payment in lieu. She claims the amount of €729.32
CA-00035151-009 – Redundancy
The Complainant claims that her employment ended when the Respondent business ceased trading and later went into liquidation. The Complainant claims statutory redundancy based on her service and a gross weekly wage of €364.66
CA-00035151-010 – Public Holidays (OWTA) The Complainant claims that at the end of her employment the Complainant was entitled but was not paid for 5 public holidays at a daily rate of € 98. She claims the amount of € 490
CA-00035151-011 – Premium payment for Sunday Hours (OWTA) The Complainant claims that by the end of her employment she worked 192 Sunday hours and was not paid a premium for working on Sundays. She claims a premium uplift of 25 % on her Sundays wages (of €1081). She claims the amount of €470.40
CA-00035151-012 – Annual Leave (OWTA) The Complainant claims that at the end of her employment she was entitled to annual leave of 68.68 hours at an hourly rate of €9.80 per hour, which she did not receive and was not paid in lieu. She claims the sum of € 673.06
CA-00035151-014 – No written terms of contract of employment The Complainant claims that she was not provided with her terms of employment in writing within two months of commencing employment on 28 September 2018. She claims the amount of 4 weeks compensation. |
Summary of Respondent’s Case:
The Respondent is in liquidation and the Liquidator does not contest the evidence of the Complainant. |
Findings and Conclusions:
I am satisfied on the evidence of the Complainant, which, having been investigated by the Liquidator, is not in dispute, that each and every complaint as set out below is well founded.
CA-00035151-005 is withdrawn
CA-00035151-007– Minimum Notice The claim of 2 weeks gross wages in lieu of minimum notice (€729.32) is well founded.
CA-00035151-009 – Redundancy The Respondent business ceased trading. Based on the uncontested evidence of the Complainant, I am satisfied that a redundancy situation existed and that as of the date of the Adjudication hearing that the Complainant had not been paid a redundancy payment. I find that the Complainant is entitled to a redundancy payment based on having had insurable employment (under the Social Welfare Acts) for the duration of his employment and based on the following facts: Commencement date: 10 December 2017 End of Employment: 19 January 2020 Gross weekly pay: € 364.66
CA-00035151-010– Public Holidays The claim of unpaid public holidays of € 490 is well founded CA-00035151-011– Reasonable Compensation for Sunday Hours The claim of a premium uplift of 25 % on her Sundays wages (of €1081) which amounts to €470.40 is well founded
CA-00035151-012- Annual Leave under (OWTA) The claim of unpaid annual leave of € 673.06 is well founded CA-00035151-014– No written terms of contract of employment Applying the WRC Adjudication decision of Denise Ryan Smart School Accounting Ltd t/a Smart School Accounting (Adj 30153) which held that where an employee has not received a written contract in respect of a job that she has been appointed to, that the contravention of section 3 of the Terms of Employment (Information ) Act 1994 remains a subsisting and continuing event from two months after the commencement of the employment for as long as the employment relationship lasts I accept that even though the breach occurred in January 2018 the complaint is within time. I accept that the Complainant did not receive a written contract within two months of the commencement of her employment (which was the law then) This complaint is well founded. I award the Complainant two weeks wages, €729.32
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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-00035151-007– Minimum Notice This complaint is well founded. I award the Complainant €729.32
CA-00035151-009 – Redundancy The Complainant is entitled to a redundancy payment based on having had insurable employment (under the Social Welfare Acts) for the duration of his employment and based on the following facts: Commencement date: 10 December 2017 End of Employment: 19 January 2020 Gross weekly pay: € 364.66
CA-00035151-010– Public Holidays This complaint is well founded. I award the Complainant € 490 CA-00035151-011– Reasonable Compensation for Sunday Hours This complaint is well founded. I award the Complainant €470.40
CA-00035151-012- Annual Leave under (OWTA) This complaint is well founded. I award the Complainant € 673.06 CA-00035151-014– No written terms of contract of employment This complaint is well founded. I award the Complainant €729.32
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Dated: 29th November 2023
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
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