Complainant

Respondent

Parties

Masood  Ur Rehman

Roti Panni Ltd

Representatives

Shonagh Byrne SIPTU

 Non-attendance

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-00044812-001

28/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044812-002

28/06/2021

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

CA-00044812-003

28/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044812-004

28/06/2021

The hearing was adjourned a number of times to try to ascertain the correct name of the respondent as there were a number of limited companies mentioned in the compliant form.  The complainant was not provided with payslips and this made identifying the correct respondent difficult.

The complainant gave his evidence under affirmation.  The hearings took place with the assistance of an Urdu interpreter provided by the Workplace Relations Commission.  A number of observers attended the hearing.

The respondent did not attend the hearing.  A number of efforts were made to contact the various names of the complainant’s employer.  Following a number of false starts, I am satisfied that details of the complaint and hearing were sent to the correct respondent’s registered address in advance of the final day’s hearing.

The respondent did not attend, however the hearing started with a 15-minute pause to allow the respondent to make contact with the WRC or otherwise arrive late.  The respondent did not make contact nor attend the hearing and the hearing proceeded in the absence of the respondent.

The production of the decision in this matter was partially delayed due to an immediate family bereavement and to the impact of Covid 19.

The complainant submitted that he was employed as a Tandoori Chef by the respondent from February 2007 until early January 2021 when the restaurant closed. During the course of his employment, he contends that he did not take annual leave and was not paid for public holidays from 2007 until the end of 2020.   He was continually employed by the same employer, in the same location on the same terms and conditions for the duration if his employment.  It was noted that the employer’s name changed repeatedly during the years and the Adjudication Officer was invited to conclude that the change in name came about by way of Transfer of Undertakings.  The same person employed the complainant at the same location for the entire course of his employment, although the restaurant changed names as outlined to the hearing.  It was submitted that for the purposes of redundancy legislation a transfer of business does not break the employees’ continuity of service. Instead, it is transferred to their new employment.

CA-00044812-001 Redundancy Payments Act

The complainant submitted that there was no break in his employment service, and that he had the required service to be entitled to statutory redundancy under the Redundancy Payments Act.  He submitted that he did not receive his statutory redundancy of two weeks’ pay per year of service plus a bonus week.  He was employed from February 2007 with the respondent as a Chef in the Restaurant until January 2021 giving him 13 years, 11 months service.  The complainant was represented by his union. At the hearings, the union official suggested that the complainant’s employment was continuous for 13 years notwithstanding that he worked for a number of different companies. The union submitted that the series of companies revolved around ownership within one family. The union submitted that although there was no transfer of undertakings proceedings before the WRC, nonetheless the employment situation is analogous to a Transfer of Undertakings situation as each business was a going concern when it was transferred, it operated out of the same premises and used the same equipment and personnel.  Accordingly, he should be entitled to claim redundancy for a 13-year period.

The complainant submitted that an employee's service is considered 'continuous' unless he/she is either dismissed or voluntarily leaves his/her job. Continuity of service is not normally affected by strikes, lay-offs or lock-outs, nor by dismissal followed by immediate re-employment. The transfer of a trade or business from one person to another (a Transfer of Undertakings) does not break continuity of service, and in such cases an employee's service with the new owner includes service with the previous owner. In this case the restaurant’s name changed but the ownership did not change.   Therefore, the complainant has the required 104 weeks continuous service to qualify for statutory redundancy pay.

CA-00044812-002 & 004 Organisation of Working Time Act

The complainant submitted that he did not receive any payment for annual leave for the duration of his employment and would have an entitlement of 20 days per year under the Organisation of Working Time Act, 1997.  He is seeking compensation for the breach of his entitlements to annual leave.

The complainant submitted that he did not receive payment or additional leave for the Public Holidays that fell during his employment.  It was submitted that Section 27 of the Organisation of Working Time Act provides that an adjudicator can “require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee ’s employment.

CA-00044812-003 Minimum Notice

The complainant submitted that he had over 13 years’ service with the respondent and should have received six weeks’ pay under the Minimum Notice & Terms of Employment Act.  It was noted that while the complainant did sign a number of employment contracts, during this employment, there was no break in his service.  In terms of the respondent’s name, the restaurant name changed during the course of his employment, but his service was not broken and he worked for the same person as a full time permanent chef on a continuous basis.

The complainant submitted that he did not receive his statutory minimum notice on the termination of his employment of 6 weeks’ pay under the Minimum Notice & Terms of Employment Act.

Complainant Evidence:

The complainant gave evidence with the assistance of an interpreter and outlined how he had worked continuously for the one employer although noting that it had been for a number of different companies. He noted that his place of employment remained the same throughout, and he worked for the same family throughout. He noted that he was not paid holiday or annual leave, he was not given minimum notice when he was made redundant, and he was never paid for public holidays.

The respondent did not attend the hearing of this matter.

Preliminary submission – Transfer of Undertakings.

The complainant provided a large amount of documentation connecting each iteration of employment was connected to the next.  The evidence of the complainant, which I found credible, was that he worked in the same location, using the same equipment, working with the same colleagues, for the same management and under the same terms and conditions of employment.  In the circumstances, and in the absence of any evidence to the contrary, I find that the complainant was employed continuously with the respondent through a series of transfers of undertakings and that the length of his service was in excess of 13 years.

CA-00044812-001 Redundancy Payments Act

Section 7(1) and (2) of the Redundancy Payments Act, 1967 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,

Having regard to the foregoing, and to the evidence provided by the complaint, I am satisfied that his employment came to an end by way of redundancy in accordance with the Act when the restaurant closed down at the beginning of January 2021 and did not re-open.

I find that the complainant has established an entitlement to a redundancy payment in accordance with the Act and accordingly, I find favour of the worker in the appeal of the employer’s decision to deny him redundancy.

The complainant gave evidence of having been employed with the respondent from 21 February 2007 until 31 December 2020.  Having regard to the foregoing, and to the evidence provided by the complaint, I am satisfied that his employment came to an end by way of redundancy in accordance with the Act.

CA-00044812-002 & 004 Organisation of Working Time Act

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.

Entitlement in respect of public holidays.

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Section 41(6) & (8) of the Workplace Relation Act deal with the timeframe for presentation of complaints and state as follows:

(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.

(…)

(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.

Having considered the evidence put forward by the complainant and having regard to my finding regarding his credibility, I am satisfied that the complainant has established that he was entitled to annual leave for 2020, and his Public Holiday entitlement.  Therefore, I find that the complaint is well founded, that the Act has been contravened and that the complainant was not paid for his entitled to 30 days in respect of holiday and annual leave owing to him which was due to him upon the termination of his employment.

As regards the claims under the Act for earlier years, I am mindful of the time limits set down in the Workplace Relations Act.  Accordingly, I am only considering the 12-month period prior to the lodging of the complaint when deciding upon this complaint.

CA-00044812-003 Minimum Notice

Section 4(1) of the Act outlines the minimum notice periods applicable to an employee and states as follows:

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—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(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,

(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,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

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

Having regard to the evidence provided to me in relation to this complaint, I am satisfied that the complainant has established that he was entitled to 6 weeks’ notice.  Accordingly, I find that the Act has been contravened and require the respondent to pay the complainant compensation for the loss of this notice period.

CA-00044812-001 Redundancy Payments Act

Having considered all the relevant information provided by the complainant, I am satisfied that the complainant has established that he is entitled to a redundancy payment in accordance with the Acts.  My decision is to allow the complainant’s appeal against the decision of the employer.

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.

I have decided that the complainant is entitled to a statutory redundancy payment based on the following criteria:

Date of Commencement: 2 February 2007

Date of Termination: 31 December 2020

Gross Weekly Pay: €400.00

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00044812-002 & 004 Organisation of Working Time Act

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded and that the Act has been contravened.  Arising from the foregoing, I require the employer to pay the complainant compensation of €41,600.00 equivalent to two years’ salary which I consider to be just and equitable in all the circumstances of this complaint.

CA-00044812-003 Minimum Notice

Having considered all the relevant information provided by the complainant, my decision is that the Act was contravened.  I direct the respondent to pay the complainant compensation of €2,400 in respect of that contravention.

Redundancy Payments Act – entitlement established – continuous employment by way of transfer – Organisation of Working Time Act – contravention established – award of compensation – Minimum notice – contravention established – award of compensation