ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00047209

Parties:

	Complainant	Respondent
Parties	Pat O'Connell	Earthworks Profiling Limited

Representatives

Neal Horgan BL instructed by McCoy Solicitors

Not present

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00057987-001	31/07/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00057987-002	31/07/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00057987-003	31/07/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00057987-004	31/07/2023

Date of Adjudication Hearing: 26/04/2024

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39

of the Redundancy Payments Acts 1967 – 2014 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. 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. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation may be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public.

Background:

The Complainant submitted four complaints for adjudication.

Summary of Complainant’s Case:

The Complainant was employed from 12/7/2016 to 31/12/2022 as a Plumber. He earned 637 Euros per week. He was made redundant in or around 16/12/2022 with effect from 31/12/2022 and was not paid his statutory redundancy, not given any written terms and conditions of employment during his employment, not paid outstanding holidays due of 5 days and not paid any statutory notice. The Complainant was expecting that his employment would resume with the Respondent in the months after the termination of his employment and this resulted in his delay in submitting his complaints to the WRC until 31/7/2023 and claimed that this entitled him to reasonable cause for the delay in submitting his complaints.

Summary of Respondent’s Case:

A Complaint was received by the Director General of the Workplace Relations Commission by the Complainant on July 31st 2023 alleging that his former employer contravened the provisions of the Redundancy Payments Act, 1967, the Minimum Notice & Terms of Employment Act, 1973, the Terms of Employment (Information) Act, 1994 and the Organisation of Working Time Act, 1997 in relation to him. The said complaint was referred to me for investigation. A Hearing for that purpose was held on April 26th 2024. 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 place at which the Hearing to investigate the complaint would be held and were not present at the Hearing.

Findings and Conclusions:

The complaints for Minimum Notice, Redundancy, Organisation of Working Time and under the Terms of Employment (Information) Act are all well founded. The details of each complaint and reasons for the decisions are set out in the Decisions section below.

Section 41(6) and (8) of the Workplace Relations Act 2015 (‘the 2015 Act’) provides as follows:-

41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

41(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The within claim was presented to the Workplace Relations Commission on 31st July 2023. The Complainant’s employment ended on December 31st 2023. The claim was presented out of time under Section 41 (6) however Ifind that the Complainant had reasonable cause for not submitting his complaint within 6 months and grant the extension of time sought under Section 41 (8).

Decision:

Redundancy Payments Act 1967 (CA-00057987-001)

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.

The entitlement to a redundancy payment is set out in Section 7 of the Redundancy Payments Act, 1967 which states as follows:

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

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,”

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; July 12th 2016

Date of Reckonable Service for Redundancy Payment Ceasing on: December 31st 2023.

Gross Weekly Wage: 637 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.

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.

Minimum Notice & Terms of Employment Act, 1973 (CA-00057987-002)

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

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

Having considered the Complainant’s submission, I find that the Respondent contravened Section 4.2d 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 four weeks notice pay amounting of 2548 Euros. I award the Complainant 2548 Euros under the Minimum Notice and Terms of Employment Information Act 1973.

Terms of Employment (information) Act 1994 (CA-00057987-003)

The Law

“3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Complainant submitted a complaint that the Respondent breached Section 3 of the Act. The Complainant commenced employment in July 2016 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 commencement of employment. The complaint was submitted in July 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 2548 Euros.

Organisation of Working Time Act 1997 (CA-00057987-004)

The Complainant advised he was due 5 days holiday pay when his employment was terminated. This amounted to 637 Euros. As the complaint was not contested I award the Complainant 637 Euros.

Dated: 8th May 2024

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Redundancy