ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049154
Parties:
| Complainant | Respondent |
Parties | Oonagh McPolin | The Parnell GAA Club Company Limited by Guarantee |
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Representatives |
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Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00060012-001 | 13/11/2023 |
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-00060012-002 | 13/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00060012-003 | 13/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00060012-004 | 13/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00060012-005 | 13/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00060012-006 | 13/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00060012-007 | 13/11/2023 |
Date of Adjudication Hearing: 11/03/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
The Complainant comes before the Adjudication Services on foot of a Workplace Relations Complaint Form which issued on the 13th of November 2023. The Employment herein ended as of the 15th of May 2022. There is an eighteen-month gap between the end of the employment and the issuing of a complaint. In the circumstances many of the complaints fall outside of the time limitations imposed by the various employment rights statutes under which the Complainant sought redress. There is no provision which allows complaints outside of a twelve-month period to be heard.
Other complaints were incorrectly made and have no relevance to the complainant’s employment. These were withdrawn by the complainant.
In the end, only one complaint was proceeded with:
Pursuant to Section 39 of the Redundancy Payment Act of 1967 (as amended) it is directed that the manner of hearing prescribed in Section 41 of the Workplace Relations Act of 2015 shall apply to any question, dispute, complaint or appeal referred to the Director General under the Redundancy Payments Acts of 1967 – 2014.
I have accordingly been directed by the Director General of the Adjudication services, to hear the within complaint under the Redundancy Payments Act, 1967 and I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence as was made available to me. I have taken account of the evidence tendered in the course of the hearing.
Under the Redundancy Payments Acts, an eligible employee who is found to be redundant is entitled to a statutory redundancy payment for every year (or partial year) of service (per Section 7 of the Redundancy Payment Act of 1967). The Acts provide for a payment of two weeks gross pay for each year of service. A further bonus week is added to this. An eligible employee is one with 104 weeks of continuous employment with an employer and whose position has ceased to exist. The calculation of Gross weekly pay is subject to a ceiling of €600.00. Gross pay is the current normal weekly pay including average regular overtime and benefits-in-kind and before tax and PRSI deductions. A Redundancy payment is generally tax free.
A complainant must be able to show a minimum two years (104 weeks) of service in the employment.
Responsibility to pay Statutory Redundancy rests with the Employer. Where an employer can prove to the satisfaction of the Department of Employment Affairs and Social Protection that it is unable to pay Statutory Redundancy to an eligible applicant, the Department will make payments directly to that employee and may seek to recover as against the Employer independently. Such claims must be submitted on form RP50 which may be signed by both employer and employee (to be accompanied with a Statement of Affairs).
In the event that an Employer refuses to engage with an employee in this way, it is open to the employee to bring an appropriate complaint before the Workplace Relations Commission as set out in Section 38(15) of the 1967 Act.
The Employee must have made a claim for a redundancy payment by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)).
The RP9 procedure is relevant in the context of this claim:
An Employee may be laid off or put on short time in response to a change in circumstances which needs to be temporarily addressed by the Employer. An Employer can lay a person off for a temporary period and must give notice and reasons justifying this step. The Employer can also put the Employee on short time (which is defined as a regime where an employee’s hours of work are reduced to less than half of what is normal).
Part A of Form RP9 is usually served by the Employer on the Employee as notice of temporary short time or lay off.
If an employee has been on short time (less than half wages), or has been laid off for four or more consecutive weeks, or for a period of six or more weeks within a period of thirteen consecutive weeks, the employee can give Notice in writing of the intention to claim redundancy on the expiry of that thirteen-week period (this is exercised usually under part B of the RP9 Form). This may also be sought not later than four weeks after the cessation of the lay off or short time. The Employee must give the employer the notice required or specified in the Contract of Employment or if none exists then must give at least one week’s Notice of intention to claim Redundancy. In such circumstances the Complainant is entitled to Statutory Redundancy but loses the right to Statutory Notice.
There can be no doubt that the Employer has a right to Counter this application but Part C of the RP9 very clearly states that any such counter notice must be in writing and must be given within seven days of service of the employees notice. Also, the Counter Notice should indicate that there will be a commencement of full-time work within the next four weeks of the date of service of the Complainant’s Notice.
A person on lay off may apply for jobseeker’s allowance. The person on short time may be entitled to short time work support for those days he or she is laid off.
Section12 A of the Redundancy Payments Acts 1967 was inserted by the Emergency Measures in the Public Interest (Covid-19) Act 2020. This temporarily suspended Section 12 of the 1967 Act in respect of an employee who has been laid off or kept on short time due to the effects of measures required to be taken by his or her employer in order to comply with government policy in respect of Covid 19. Such an employee is not entitled to give notice of his/her intention to claim redundancy during the lay off period. This applied up from March 2020 to September 2021.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 13th of November 2023. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and which recognises that there is always the potential for a serious and direct conflict in the evidence between the parties to a complaint before the Adjudication service or on Appeal, I have administered an Affirmation. It is noted that the giving of false statements or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. In addition to hearing the oral evidence, the Complainant relied on the submission outlined in the Workplace Relations Complaint Form. The Complainant has made several complaints against her Employer including complaints around the non-payment of wages and Annual leave entitlements. The Complainant has also sought a Statutory Redundancy payment. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. This was particularly necessary in circumstances where nobody attended on behalf of the Respondent. |
Summary of Respondent’s Case:
The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 7th of February 2024 - and sent to the Registered Office address as provided by the Complainant in the workplace relations complaint form. The Respondent’s attitude to the complaints presented to the Adjudication service, remains unknown. |
Findings and Conclusions:
I have carefully listened to the Complainant’s evidence herein. The Complainant had been engaged by the Respondent Sports Complex as a Gym Instructor. The employment commenced on the 15th of September 2016 and by the time the Covid Pandemic hit in 2020, the Complainant had been working with the Respondent for up to 40 hours per week. In March 2020 the entire sports complex was closed down in response to the Covid Pandemic. The Complainant and all her colleagues were put on to the covid payments. This was a period of Lay-Off. Section 12 A of the Redundancy Payments Acts 1967 was inserted by the Emergency Measures in the Public Interest (Covid-19) Act 2020. This temporarily suspended Section 12 of the 1967 Act in respect of an employee who has been laid off or kept on short time due to the effects of measures required to be taken by his or her employer in order to comply with government policy in respect of Covid 19. Such an employee was not entitled to give notice of his/her intention to claim redundancy during the lay off period. This applied up from March 2020 to September 2021. However, as the pandemic eased off the Complainant was met with a wall of silence from her previous employer. Nobody from the sports club reached out the Complainant. The Complainant said nobody contacted any of her colleagues, with whom the Complainant had kept in touch. I understand that the club has long since re-opened but the Complainant was never invited back nor was she ever paid any outstanding monies which might have been due to her such as holiday pay. The Complainant ultimately terminated her own employment by engaging in the RP9 process outlined above. The Complainant sent an RP9 form to her Employer’s Registered office at the Club house. This happened in May of 2022. No response was ever made. The Employee must have made a claim for a redundancy payment by notice and in writing before the expiration of 52 weeks form the date of the cessation of the employment per section 24 of the Redundancy Payments Act 1967 (as amended). The time limit may be extended to 104 weeks where the employee can demonstrate to the satisfaction of the Adjudication Officer that the failure to bring the claim in the earlier time period was due to reasonable cause (24(2A)). I accept that the Complainant’s job was made redundant, and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014. In this instance I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: September 15th 2016 The employment ended: 15th May 2022 Gross weekly wage : €350.00
The Complainant was made aware of the fact that any award made under the Redundancy Payments Acts is subject to the Complainant having been in insurable employment for the relevant period under the Social Welfare Acts 1952 to 1966. A ceiling of €600.00 applies.
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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.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00060012-001 - The complaint herein concerning the obligation on employers to pay wages that are properly payable to an employee is not well founded as it is out of time.
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-00060012-002 – The complaint herein concerning Mobile staff in Civil Aviation is not well founded as it is out of time.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00060012-003 – The complaint herein concerning Public Holidays is not well founded as it is out of time.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00060012-004 - The complaint herein concerning the loss of annual leave on leaving the organisation is not well founded as it is out of time.
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 CA-00060012-005 - This complaint is withdrawn as it concerns the Enforcement of Employment Regulation Orders and not relevant.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00060012-006 - The complaint herein is well founded. I accept that the Complainant’s job was made redundant, and I accept that the Complainant was entitled to be paid redundancy pursuant to the Redundancy Payments Acts 1967-2014. In this instance I am satisfied that the Complainant is entitled to a redundancy payment based on the following facts established in evidence: The employment started: September 15th 2016 The employment ended: 15th May 2022 Gross weekly wage : €350.00
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00060012-007 - This complaint isWithdrawn as it is covered by CA-00060012-006
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Dated: 05th April 2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words: