ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006828
A Clerical Assistant
A Convenience Store
Complaint 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
Date of Adjudication Hearing: 25/05/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 11 of the Minimum Notice and 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 lodged a claim for payment of Minimum Notice on 24 January , 2017.The Respondent was in Liquidation .
Summary of Complainant’s Case:
The Complainant commenced work as a Clerical Assistant on 9 September 2002 on a part time basis. She worked a 16 hour week and received a gross payment of 198.00 euro .On 1 February , 2016, the complainant received a phone call from her employer to say that the bank had closed the business and she was directed not to show up for work next day or in the future. She applied for Statutory Redundancy and received a cheque some month’s later .One of her colleagues rang the Department of Social Protection to query the amounts paid as there was some awareness among the group that the amount received did not take account of annual leave and notice. They were informed that payment would be made once a Liquidator was appointed .The Complainant waited for this to happen.
The Liquidator was appointed at the end of December 2016 and the complainant understood that she had to claim for the payment in lieu of notice from the Liquidator, but she did not know the identity of the Liquidator. The Citizens Information Centre directed her to the Workplace Relations Commission and she apologised for the late submission of the claim due to misinformation .The complainant made an application for reasonable cause to extend the statutory time limit on her claim.
The Complainant submitted that she had never signed a contract of employment but had worked continuously at the store through two different owners .She submitted details of P60 and P45 and a Pay Slip dated 2013 .She also submitted a letter of confirmation from her employer on the store closure . The Complainant sought 6 weeks pay in lieu of notice.
Summary of Respondent’s Case:
The Respondent did not object to the arguments submitted by the Complainant .He submitted that the members had not passed a resolution on Wind Up in this case and the Company had been wound up through an Order of the High Court on 16 March 2017. As the Liquidator, he was prepared to address the claim in the context of an Order from the Workplace Relations Commission, for submission to the Department of Social Protection.
The former Company Secretary had submitted a short submission to the WRC dated May 1, 2017 which confirmed bankruptcy and Liquidation .There was no appearance by the Company Secretary at the hearing .
Findings and Conclusions:
This claim is linked in terms of the same context and background to an earlier decision ADJ 6946.
I have considered the application made for the complainant for an extension of the statutory time limit of 6 months beginning on the date of the contravention to which the complaint relates .I am permitted to extend this on the grounds of reasonable cause in accordance with Section 41(8) of the Workplace Relations Act, 2015 for a further 6 months.
I have considered the precedent in this regard in Ballinamore Nursing Home/Raicam Holdings ltd and Aster Kassa Guinan , Labour Court , EET 152,where the Court refused to grant an extension in time in an Employment Equality case.The Court referred to the established test in deciding reasonable cause as that set down in Cementation Skanska V Carroll LCR WTC 0338,2003)
It is for the claimant to show that there were reasons which both explain the delay and afford an excuse for the delay .The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd ……hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account .A short delay may require only a slight explanation whereas a long delay may require more cogent reasons ……hence the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.
In the instant case, I found that the complainant acted proactively in pursuit of her claim following the unexpected cessation of her work in February, 2016. She made a cogent argument and “falling through the cracks “between appointment of the Receiver and the Liquidation processes in this case. I must accept her evidence that she made every effort to advance her case within the time available to her.
I accept her evidence that this set of circumstances were unique in her working life. I must also accept that the complainant understood that the concession of the claim would automatically flow from the Liquidation process. I find the respondent would not be prejudiced in the event that I decide to grant an extension of the statutory time limits in this case. The Respondent is clearly on notice of the complaint. I find that the delay in submitting the complaint was inextricably linked to the operational wind down of the business and the delay in the actual Liquidation process. I find that it would inequitable to disallow the complaint on time limits when the complainant, a Lay litigant was not in a position to wield influence over these events.
I find that the Complainant has satisfied the test reflected in Ballina more and I believe that it is both fair and reasonable for me to permit the complainant an extension of time to incorporate a reasonable cause for the delay in her submission of the complaint in this case.
- 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.
Section 4 of the Minimum Notice and Terms of Employment Act 1973 provides that
Minimum period of notice
- — (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, ( 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,
Based on the undisputed evidence of the complainant at hearing, I find that the Complainant had in excess of 13 years service with the respondent at the time of the sudden closure of the business in February, 2016. I am satisfied that her claim is well founded and she was denied her statutory notice period of 6 weeks.
Section 41 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 and Terms of Employment Act, 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress options.
I have found that the complaint is well founded and I order the Respondent to pay 1,118 euro to the complainant as compensation for the breach of Section 4(2) of the Act.
Workplace Relations Commission Adjudication Officer: Patsy Doyle