ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001552
Complaints/Disputes for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 |
CA-00002158-001 |
25/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00002158-002 |
25/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00002158-003 |
25/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 |
CA-00002158-004 |
25/01/2016 |
Venue: Tom Johnson House, Haddington Road, Dublin 4.
Date of Adjudication Hearing: 27/04/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 and under section 13 of the Industrial Relations Act, 1946 under Section 39 of the Redundancy Payments Act, 1967 and under section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaints/disputes to me by the Director General, I inquired into the complaints/disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/disputes.
1) Industrial Relations Acts CA-00002158-001 |
The complaint under the Industrial Relations Acts was withdrawn. |
|
2) Organisation of Working Time Act CA-00002158-002 |
Complainant’s Submission and Presentation:
He stated that he was not paid a Sunday premium. His original contract of employment provided for double time.
The Pub closed in May and he was on social welfare until September 2015. In September 2015 he was offered 21 hours + per week. He worked the following Sundays October 4th 8 hours, 11th 6 hours, 18th 6.5 hours, Nov. 8th 5 hours, 22nd 4 hours, Dec 6th 5 hours, 20th 4.5 hours. He is claiming the premium payment for those hours.
Respondent’s Submission and Presentation:
His rate of pay was €10.85 per hour. This was an inclusive rate of pay to include Sunday working and Bank holidays. Other employees were paid the basic minimum rate and a premium for working Sundays. He was not paid a premium in addition to that.
Findings
I note the conflict of evidence inn this matter.
I find that the Respondents assertion that the rate of pay was an inclusive one was not supported by any documentation.
Sec 14 (1) (b) of this Act states, “an employee who is required to work on a Sunday .. shall be compensated by otherwise increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances b) by increasing the employees’ rate of pay by such an amount that is reasonable, c) by granting an employee such paid time off as is reasonable, d) or by a combination of two or more of the mean referred to in the preceding paragraph”.
I found no evidence to support the Respondent’s assertion that it was an inclusive rate.
Therefore I must find that the Respondent has breached Sec 14 of this Act.
I find that a premium of time and one third is reasonable in this industry.
I note that he worked a total of 39 hours and should be paid an additional €3.60 per hour worked = €3.61 X 39 = €140.79.
In addition to the economic loss I find that he should be paid €100 for breaches of his rights under this Act.
Decision:
Section 41(4) of the Workplace Relations Act 2015 and under section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Respondent should pay the Complainant €140.79 for the economic loss and in addition compensation of €100 (one hundred) for breach of his rights under this Act.
This is to be paid within six weeks of the date below.
3) Unfair Dismissals Acts CA-00002158-003
Complainant’s Submission and Presentation:
He confirmed that it was a redundancy claim that he was making.
Respondent’s Submission and Presentation:
No response was required.
Findings
I find that no complaint was made under this Act.
4) Redundancy Payments Acts CA-00002158-004
Complainant’s Submission and Presentation:
He stated that he was laid off in May 2015 when the Pub closed. In September he approached his employer for redundancy. He then got in excess of 50 % of his normal hours of work, providing services in different locations. By the end of January he asked for full time hours or redundancy. The employer understood that he wanted to leave and wrote to him giving him options. They then issued P45 and final wages.
He is seeking redundancy.
Respondent’s Submission and Presentation:
They stated that they operated out of the Pub and provided a catering service in a number of locations. The significant and critical share of the business was dependent on that Pub. On 27th May 2015 the Pub closed without any notice. As a consequence he was placed on protective/temporary lay-off on 28th May 2015. This was confirmed in writing. Notwithstanding this they provided work on a continuous basis at various events from 15th May to 2nd June and then 23rd June to 31st July and 4th August, 1st September and 18th September. This represented 14 out of a 16 week period. He took two week paid holidays in this period. In accepting work he requested to be rostered for 20 hours to enable him to receive social welfare and this was agreed to. On 10th September he was written to advise that the lay-off would cease and that he would be rostered back to work. From 23rd September he was rostered 50 % or more of his normal hours. In response he sent an RP9 form on 22nd September 2015. They responded that there was work available, they agreed to confine it to three days per week to facilitate social welfare and it was not a redundancy situation. He continued to work for the employer. He wrote on 10th November that he was available for full time work but if it was not available the hours should be confined to three days per week. A meeting took place with him on 10th November 2015. He continued to work on a rostered basis over Christmas and New Year. He wrote to the employer on 6th January 2016 seeking full time work and asserting that his contract terminated on 27th December 2015. They responded that full time hours were not available but would be shortly. He sent a further RP9 dated 18th January 2016. They responded on 20th January 2016 that redundancy constitutes the end of the employment and asked that he clarifies what he intends. He had rescinded the previous one. He replied that he would nominate a date of termination once the employer agreed to make him redundant. They responded with a counter note that no redundancy exists, that his job was available and his repeated requests for a lump sum and a refusal to accept work meant that he was resigning his position and his P45 and final salary would follow. He gave no explanation as to why he deemed any offer of work unsuitable. On 29th January 2016 he enquired about his holiday pay.
An entitlement to a lump sum only arises where the Complainant is made redundant. After he was served with the layoff notice work was made available to him. Short time work only exists where there is less than half of the normal weekly earnings. He received in excess of that amount. Therefore he has failed to establish an entitlement to a lump sum on the grounds that short time extended to four or more continuous weeks in January 2016.
Findings
I note that he was laid off due to the unexpected closure of the Pub from which he operated out of.
I note that despite this layoff notice he was provided with work.
I note that the Respondent facilitated him with work confined to three days.
I note that the Respondent kept him informed of the situation in writing.
I note that on each occasion that he raised redundancy he was advised that a redundancy situation did not exist.
I note that he was given work in excess of 50 % of his normal hours of work.
Under the circumstances I find that the Respondent was entitled to decline the request for redundancy.
I find that no redundancy situation arose.
I find that the Complainant resigned his position.
I find that this complain is not well founded.
Decision:
Section 41(4) of the Workplace Relations Act 2015 and under Section 39 of the Redundancy Payments Act, 1967 requires that I make a decision.
For the above stated reasons I have decided that this complaint is not well founded and that it fails.
Dated: 13th July 2016