ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001241
Parties:
| Worker | Employer |
Anonymised Parties | A Bar Tender | A Public House |
Representatives | Self-Represent | Dennehy O'Gorman Sheehan Accountants |
Dispute(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00001241 | 04/04/2023 |
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Date of Hearing: 31/08/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings
Background:
The Worker submitted a dispute on 4/4/2023 that he was not paid redundancy when the business closed but advised the Hearing he had since received his statutory redundancy from the Social Fund. The Respondent Representative attended as the Accountant for the business. |
Summary of Workers Case:
The Worker was employed as a Bar Tender from 11/5/1998 to 26/7/2021. The Workers employment was terminated when his employer transferred the lease of the building to another person/entity. He was not paid statutory redundancy. The Worker advised he has since received the statutory redundancy from the Social Fund. |
Summary of Employer’s Case:
The complaint that "No redundancy given" is erroneous as the Worker received his redundancy claim in full from the Department of Social Protection as the company was not in a financial position to pay any redundancy at the time due to the Covid-19 Pandemic. lt is our understanding that any complaints regarding redundancy must be made with 6 months of the redundancy date or 12 months in some extenuating circumstances, which the complainant himself states was 26/07/2021. While this complaint was received on the 04/0412023. more than 20 months later. The company is no longer trading, has no assets and currently has a liability to the Department of Social Protection amounting to €39,336. On the basis that the claim is unfounded, I would expect that adjudication is not warranted. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
The Employer Representative queried of the time limit of 6 or 12 months applies to the within dispute. The Worker stated he was advised it did not apply.
Decision on Jurisdiction
The 1990 Industrial Relations Act defines a trade dispute as follows; “trade dispute” means any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person”. This broad definition allows for the inclusion of this dispute as a dispute for adjudication by the WRC.
It is important to note the difference between complaints and disputes. Complaints generally relate to legislation affecting employment or personal rights. Disputes relates to industrial relations trade disputes and certain Acts specified in Section 41.7 of the Act i.e. Carers Leave Act, National Minimum Wage Act 200and Parental Leave Act 1998. In general, complaints can be submitted within six months of the contravention and within twelve months if reasonable cause exists for the delay. There is a timeframe limit for complaints under the Redundancy Payments Acts however this dispute was not referred under that Act.
Dealing with the preliminary issue first regarding if the dispute is statue barred. Section 3 of the 1969 Industrial Relations Act which relates to the referral of disputes to Rights Commissioners (now Adjudicators) the following are the relevant sections.
“(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.
(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—
(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and
(ii) notify the Court of the recommendation.
(b) A rights commissioner shall not investigate a trade dispute—
(i) if the Court has made a recommendation in relation to the dispute, or
(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.
(9) (a) A party to a dispute in relation to which a rights commissioner has made a recommendation may appeal to the Court against the recommendation and the parties to the dispute shall be bound by the decision of the Court on the appeal.”
The dispute was submitted solely under the Industrial Relations Act 1969 and subsequent amendments of that Act. Some disputes referred under Section 41 of the 2015 Workplace Relations Act 2015 have a time limit of six months and 12 months maximum (for reasonable cause) however the Industrial Relations Act 1969 was not amended by this Act to include a time limit on trade disputes.
In conclusion, there is no timeframe set out in the 1969 Act for the submission of disputes under the Industrial Relations Acts so therefore the dispute is not statute barred under that Act.
The Worker informed the Hearing that he had now received his statutory redundancy payment and the dispute was no longer valid. He did introduce another issue regarding notice pay two days before the Hearing and was informed this would have to be the subject of a different Hearing as the proper notice of the dispute had not been registered with the WRC and properly communicated to the Employer. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I note the dispute has been resolved to the satisfaction of both parties. |
Dated: 11th September 2023
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Redundancy |