Complainant

Respondent

Parties

Paul  Morrissey

Earthworks Profiling Limited

Representatives

Victoria Stephens SIPTU Trade Union

 Not present

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00056721-001

17/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056721-002

17/05/2023

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

CA-00056721-003

17/05/2023

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

CA-00056721-004

17/05/2023

The Complainant submitted four complaints regarding redundancy, unfair dismissal, minimum notice and no terms of employment. He was employed as a Construction worker and his employment commenced on May 5th 2007 was terminated on November 28th 2022 with a termination date of December 19th 2022.

By claim form CA-00056721-001 the Complainant made the following claim: (a) Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994 as a result of the Complainant having worked, without any break in service, with the Respondent Company since the May 5th 2007, on a permanent basis without ever receiving a statement in writing of terms of employment.

By claim form CA-00056721-002 the Complainant made the following claim: Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977, as a result of the Complainant having only been advised on the 28 November 2022 that he would no longer have employment after the 19 December 2022, right before Christmas. The Complainant, having worked with the Respondent Company since May 5th 2007, expected more communication with his employer and there the Company was experiencing difficulties, consultation with the workers may have aided in those circumstances in the creation of alternative ways to respond the any difficulties being experiences. 

By claim form CA-00056721-003  the Complainant made the following claim: Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967. The Complainant, having worked for the Respondent for over 15 years was statutorily owed a minimum of eight weeks of notice of termination rather than 3 weeks. There had no discussion how to make the work viable, nor did the Complainant know that he was statutorily entitled to any payment until he spoke with a colleague and my trade union representative. The Company have not to date responded or acknowledged the RP9 form which was forwarded to them on 4th January 2023 by his then SIPTU Trade Union Representative. 

By claim form CA-00056721-004 the Complainant made the following claim: Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973. The Complainant, having received a letter dated the 28 November 2022 to advise him that his last day of employment with the Respondent was the 19 December 2022 due to financial difficulties and difficulty in getting insurance was no justification for only receiving three weeks’ notice period of termination and nothing for the other 5 weeks due and owing, at a very minimum with no consideration of it being the week before Christmas. 

The Complainant’s contract of employment was terminated, via letter dated Monday, 28 November 2022, three weeks’ notice period (until the 19 December 2022) of the cessation the Complainants employment with the Respondent.  

Despite the fact that the Respondent has alleged to have gone bankrupt, the Company remains holding a ‘Normal’ Status of Company Trading, with 17 employees registered and has not filed bankruptcy or insolvency proceedings. 

The Complainant Representative requested that the Adjudicator consider the Complainant’s circumstances and the fact that the Respondent and Complainant had worked together on a continuous basis, without any break in service for over 15 years.

The Complainant Representative submitted that the conduct of the Respondent, as outlined above, is characterised by a level of unreasonableness, manifested in their actions throughout, which must be held unfair.

The Complainant Representative submitted that the Complainant’s claim is such that it warrants to be upheld and that, in all the facts as supplied, that the maximum award in compensation provided for under the Acts is appropriate. . 

The Complaint under the Unfair Dismissals Act, 1977 was withdrawn at the Hearing.

A Complaint was received by the Director General of the Workplace Relations Commission by the Complainant on May 17th 2023 alleging that his former employer contravened the provisions of the Workplace Relations Act 2015, the Unfair Dismissals Act 1977 and the Redundancy Payments Act 1967 in relation to him. The said complaints were referred to me for investigation. A Hearing for that purpose was held on November 2nd 2023. There was no appearance by or on behalf of the Respondent at the Hearing. I am satisfied that the said Respondent was informed in writing of the date, time and method at which the Hearing to investigate the complaint would be held and were not present at the Hearing.

The complaints for Minimum Notice, Redundancy and Terms of Employment are well founded. The complaint under the Unfair Dismissals Act was withdrawn. The details of each complaint and reasons for the decisions are set out in the Decisions section below.

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.

Terms of Employment CA-00056721-001

The Complainant submitted complaints that the Respondent breached either Section 3,4,5 or 6 of the Act. The Complainant commenced employment in April 2007 and the Respondent was required to supply a written statement under Section 3 within 2 months of his commencement date. The normal legal maximum period for submitting a complaint is one year after the June 2007. The complaint was submitted in May 2023 and I deem the complaint to be a continuing breach and therefore is within my jurisdiction to issue a Decision. I award the Complainant four weeks pay (the maximum allowed) for the long term nature of this breach of the Act. I award the Complainant 2520 Euros. No breach of Sections 4, 5 and 6 were identified.

Minimum Notice CA-00056721-004

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period 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  

(2e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Having considered the Complainant’s submission, I find that the Respondent contravened Section 4.2e of the Minimum Notice and Terms of Employment Act 1973 . The Complainant did not receive his full statutory minimum notice and is entitled to an additional 5 weeks’ notice pay amounting to 3150 Euros. I award the Complainant 3150 Euros under the Minimum Notice and Terms of Employment Information Act 1973.

Redundancy CA-00056721-003

Section 39 of the Redundancy Payments Acts 1967 – 2020 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. 

This is a complaint under the Redundancy Payments Act, 1967, to the effect that the complainant was made redundant and did not receive a redundancy payment.

Based on the uncontested evidence of the Complainant I find he was made redundant under Section 7 2 c and I allow the Complainants appeal and I award him statutory redundancy on the following basis Section 4.(1) of the Act states “Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.” Therefore, subject to the Complainant being in employment which was insurable for this purpose under the Social Welfare Acts, and subject to being confirmed by the appropriate Government Agency, the Complainant is entitled to a redundancy payment of two weeks per year (or part thereof) plus a week on the following basis;

Date of Commencement; April 16th 2007

Date of Reckonable Service for Redundancy Payment Ceasing on: December 18th 2022

Gross Weekly Wage: 630 Euros

The Complainants period of “Reckonable Service” is defined by Schedule 3 of the Act and does not include any period of absence from work due to lay off by the employer.

I allow the Complaints Appeal.

Unfair Dismissal CA-0005672-002

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. The complaint under the Unfair Dismissal Act was withdrawn at the Hearing.

Redundancy