ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000695
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00001031-001 | 23rd November 2015 |
Date of Adjudication Hearing: 30th March 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 11 of the Minimum Notice & Terms of Employment Act 1973, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed by the Respondent from 16th April 2007 to 28th August 2015, a period of 8 years and 4 months and his weekly rate of pay was €351.00c (€9 per hours x 39 hours per week) the Complainant was submitting that he had not received his minimum notice entitlements in accordance with the provisions of the Minimum Notice and Terms of Employment Act 1973 when his employment was terminated by the Respondent and the Respondent was denying the complaint.
Summary of Complainant’s Case:
My employment was terminated on 28th August 2015, without any minimum notice, on the ground of redundancy. My union representative tried to contact the company on two occasions but to no avail. I still have not received my statutory entitlements as per the Act. I have no other option but to lodge the complaint to the WRC. My length of service was 8 years. |
SIPTU said the Complainant has not received his minimum notice or pay in lieu of same. The Complainant’s employment was terminated by the Respondent by way of redundancy without notice on 29th August 2015.
SIPTU said it was no secret to the employees that the Respondent was experiencing some financial difficulties in 2015. In April 2015 the Respondent decided to close the kitchen section and the 2 chefs were relocated to work in a shop in a another named location owned by the Respondent. The Complainant was made a similar offer, but he rejected it as the new location was too far away from his home. He continued to work in his existing location along with 6 other colleagues.
On 28th August 2015, the Complainant was told by the Respondent that the Shop he worked in would be closing on 29th August 2015 and all the employees made redundant. Subsequently the Complainant’s was terminated on 29th August 2015 and he received his redundancy entitlements. However he did not receive his statutory minimum period of notice or payment in lieu of same.
On 21st September 2015 and on 1st October 2015, SIPTU wrote to the Respondent seeking payment of statutory minimum notice payment to the Complainant but received no response.
SIPTU said that it states on the Notification of Redundancy Form, RP50 that the date of the notice was 28th August 2015 and the date of termination of employment was 29th August 2015 and this document is signed by the Respondent. SIPTU said that it is clear that the Respondent failed to pay the Complainant his statutory 4 weeks minimum notice pay.
SIPTU said the Complainant worked for the Respondent for over 8 years, and that therefore under the provisions of the Act he is entitled to 4 weeks minimum notice or pay in lieu of same on the termination by the Respondent of his employment. SIPTU said that the Complainant was paid €351.00c per week and that therefore he is entitled to the to the sum of €1,404.00c.
SIPTU and the Complainant sought a favourable decision.
Summary of Respondent’s Position:
The Respondent accepted much of the facts as outlined by SIPTU, but denied that the Complainant had not received his minimum notice.
The Respondent said they got a closure notice for the Shop in which the Complainant and some of his colleagues worked.
The Respondent said that they moved premises and that it was unreasonable for most of the employees including the Complainant to move to the new premises, so they did not do so.
The Respondent said they knew at this this stage they would have to close down the Shop in which the Complainant and some of his colleagues worked and this was known to him and his colleagues and they were fully aware it was only a matter of time before there was a closure.
The Respondent said they ran out of money and so they had to close down the Shop that the Complainant and some of his colleagues worked in.
The Respondent submitted that the Complainant was fully aware that the Shop would close down and that he would have his employment terminated by reason of redundancy and that accordingly he had received notice of the termination of his employment.
In response to questions the Respondent confirmed that he had not, in advance, informed the Complainant of a specific date on which his employment would be terminated, nor had he ever in advance confirmed in writing to the Complainant that his employment would terminate or the date on which it would terminate.
Findings and Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 11 of the Minimum Notice & Terms of Employment Act 1973, requires that I make a decision in relation to the minimum notice claim, consisting of an award of redress as provided for in Section 12(1) of the Minimum Notice & Terms of Employment Act 1973.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
I cannot accept that is sufficient to comply with the provisions of the Act to tell or notify an employee will be terminated at some unstated date in the future; certainty is required to comply with the requirements of the Act. It is well settled law that notice must be certain and the Employment Appeals Tribunal (EAT) have regularly and frequently emphasised this fact.
The Respondent in their direct evidence confirmed that they had never, in advance of the termination of his employment, given or provided the Complaint with a specific nominated date on which his employment would terminate. Accordingly the Complainant was not provided with notice of the termination of his employment that was certain and that would comply with the requirements of the Minimum Notice & Terms of Employment Act 1973.
The Complainant was not provided with minimum notice that complies with the provisions of the Minimum Notice and Terms of Employment Act 1973 at the termination of his employment by the Respondent, accordingly I find and declare that the complaint under Section 11 of the Act in relation to a breach of the requirement of Section 4 of the Act in respect minimum notice entitlements is well founded and it is upheld.
The financial loss suffered by the Complainant is €1,404.00c (4 weeks wages at €351.00c per week) and in accordance with the provisions of Section 12(1) of the Minimum Notice and Terms of Employment Act 1973 I require the Respondent to pay him that amount and to do so within 6 weeks of the date of this decision.
Dated: 7th July 2016