ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00051764

Parties:

	Complainant	Respondent
Parties	Attracta Price	Life Time Care Ltd

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006	CA-00062316-001	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00062316-002	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00062316-003	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00062316-004	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00062316-005	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00062316-006	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00062316-007	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062316-008	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062316-009	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062316-010	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062316-011	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00062316-012	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00062316-013	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062316-014	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062316-015	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062316-016	13/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062316-017	13/03/2024

Date of Adjudication Hearing: 18/11/2024

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014, Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. Where submissions were received, they were exchanged. The complainant gave evidence under affirmation. The respondent did not attend the hearing.

Background:

The complainant submits that she was unfairly dismissed, that she did not receive redundancy payment, that she is owed pay annual leave and also her minimum notice and compensation for not receiving her annual leave. The respondent did not attend.

Summary of Complainant’s Case: CA-00062316-001

The complainant withdrew this complaint.

Summary of Complainant’s Case: CA-00062316-002

The complainant withdrew this complaint.

Summary of Complainant’s Case: CA-00062316-003

The complainant withdrew this complaint.

Summary of Complainant’s Case: CA-00062316-004

The complainant gave evidence that she started on 19/07/2019 and her employment ended on 05/10/2023. She said she worked 8 hours mostly Monday till Friday and her rate was €13.50 per hour and that her gross weekly was mostly €108. She had no difficulties at work but the last 6-8 months of employment things were not going as well as sometimes expenses were short and Mr X the owner said it would be sorted. On 02/10/2023 the complainant said that her supervisor Ms A phoned her and said that Revenue had come in and the company was now gone. Ms A told her that clients had to be phoned or the complainant could go out to the clients to tell them personally. Ms A said that if the complainant called to clients there would be no pay and that they were not allowed to take the files from the respondent. The complainant said that clients were upset and that she stayed the week as she said that they could not leave the clients without someone. The complainant secured work with another provider and is working there since and is on higher rate of pay and started there on 08/10/2023.

The complainant said that she was unfairly dismissed without any notice and it came as a shock.

Summary of Respondent’s Case: CA-00062316-004

The respondent did not attend the hearing.

Findings and Conclusions: CA-00062316-004

The Act provides under

3(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…

The complainant’s evidence was that the business closed down. As the dismissal of the employee was owing to the redundancy of the employee, I find that the dismissal was not unfair and I dismiss the complaint.

Summary of Complainant’s Case: CA-00062316-005

The complainant’s evidence was that she never received redundancy payment from the respondent.

Summary of Respondent’s Case: CA-00062316-005

The respondent did not attend the hearing.

Findings and Conclusions: CA-00062316-005

Section 7 provides for General right to redundancy payment.

7.—(1) 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, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), 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 the business for the purposes 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…

Taking into consideration all the submissions and evidence, I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following:

Date of Commencement: 19/07/2019

Date of Termination: 05/10/2023

Gross Weekly Pay: €108

This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.

Summary of Complainant’s Case: CA-00062316-006

The complainant withdrew this complaint.

Summary of Complainant’s Case: CA-00062316-007

The complainant withdrew this complaint.

Summary of Complainant’s Case: CA-00062316-008

The complainant said that she never received minimum notice from the respondent.

Summary of Respondent’s Case: CA-00062316-008

The respondent did not attend the hearing.

Findings and Conclusions: CA-00062316-008

Minimum period of notice.

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—….

…(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,

The complainant was in continuous service for a period of over two years and less than five and I find the Act was contravened and the complaint well founded and award the complainant €216.

Summary of Complainant’s Case: CA-00062316-009

The complainant withdrew this complaint.

Summary of Complainant’s Case: CA-00062316-010

The complainant withdrew this complaint.

Summary of Complainant’s Case: CA-00062316-011

The complainant withdrew this complaint.

Summary of Complainant’s Case: CA-00062316-012

The complainant said she is owed monies for working 6 hours the week of 08/10/2023, 8 hours week 01/10/2023 and 7 hours week 24/10/23. The amount owing was €81 plus €108 plus €94.50. She was also owed expenses of approximately €100 and the total amount owed is €383.50 comprising of €283.50 for monies properly payable and €100 for expenses.

Summary of Respondent’s Case: CA-00062316-012

The respondent did not attend.

Findings and Conclusions: CA-00062316-012

Section (6) provides that where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

For a breach of the Act to occur, the wages must be properly payable within the cognisable period and I note that the complaint was submitted on 13/03/2024.

In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217) the Employment Appeals Tribunal held that,

“if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”.

The complainant’s undisputed evidence was that during the cognisable period she is owed monies for work she did and that she is also owed monies for expenses incurred that she would normally receive. I find that the complaint is well founded and that the monies properly payable are €383.50 gross comprising of €283.50 for wages and €100 for expenses.

Summary of Complainant’s Case: CA-00062316-013

The complainant withdrew this complaint.

Summary of Complainant’s Case: CA-00062316-014

The complainant said that she took annual leave during 2023 but is owed for 8 days annual leave and the amount owing is €169.

Summary of Respondent’s Case: CA-00062316-014

The respondent did not attend the hearing.

Findings and Conclusions: CA-00062316-014

Section 19 outlines Entitlement to Annual Leave

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The complainant’s undisputed evidence was that she is owed 8 days annual leave and I find that the complaint is well founded and award the complainant €169.

Summary of Complainant’s Case: CA-00062316-015

The complainant withdrew this complaint.

Summary of Complainant’s Case: CA-00062316-016

The complainant said that she took annual leave during 2023 but is owed for 8 days annual leave and owing to the failure of the respondent to pay her annual leave when her employment ended, she is entitled to compensation for the failures of the respondent to pay her annual leave.

Summary of Respondent’s Case: CA-00062316-016

The respondent did not attend the hearing.

Findings and Conclusions: CA-00062316-016

The complainant submitted her employment ended without notice and that she was advised that the respondent had to shut down. The respondent did not attend and I am satisfied that the respondent is on notice. The complainant submitted that she is entitled to compensation for the failure of the respondent to pay her due annual leave entitlement upon cessation of employment.

In DWT2421 Excel Roofing Systems Limited V Mr Christian Porter the Labour Court outlined that:

Where a contravention of the Act occurs the Labour Court having regard to the CJEU in C-14/83 Von Colson and Karmann v Land Nordrhein-Westfahlen [1986] C.M.L.R 430 must make an award that is just and equitable having regard to all of the circumstances.”

It was further set out by the Labour Court in that said case that the Respondent knowingly did not-comply with the law by failing to pay the Complainant remaining leave entitlement when that complainant’s employment ended. Taking note that the respondent in this instant case did not pay the complainant annual leave on cessation of employment, I find the complaint is well founded and I award a payment of €200 by way of compensation.

Summary of Complainant’s Case: CA-00062316-017

The complainant withdrew this complaint.

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.

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.

CA-00062316-004

I find that the dismissal was not unfair and I dismiss the complaint.

CA-00062316-005

I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and is allowed and award the complainant a redundancy lump sum based on the following:

Date of Commencement: 19/07/2019

Date of Termination: 05/10/2023

Gross Weekly Pay: €108

This award is subject to the complainant having been in employment which is insurable for all purposes under the Social Welfare Consolidation Acts.

CA-00062316-008

I find the Act was contravened and the complaint well founded and award the complainant €216.

CA-00062316-012

I find that the complaint is well founded and that the monies properly payable are €383.50 gross comprising of €283.50 for wages and €100 for expenses.

CA-00062316-014

I find that the complaint is well founded and award the complainant €169.

CA-00062316-016

I find the complaint is well founded and I award a payment of €200 by way of compensation.

Dated: 18-12-24

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Annual leave, redundancy, compensation, payment of wages, unfair dismissal, monies properly payable.