ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006946
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: 09/05/2017
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 & 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 submitted a claim on 24 January 2017 for payment in lieu of notice, where the respondent had entered a Liquidation process.
Summary of Complainant’s Case:
The Complainant commenced work at the Respondent Convenience store on 10 October 2005.The complainant gave evidence that on the night of February 1, 2016,her employer phoned her and informed her that the business was to cease trading with immediate effect . She did not return to the shop.
The complainant had subsequently secured a redundancy payment from the Social Insurance fund but had not received payment in lieu of notice or holiday pay on cessation of employment. The Complainant was aware that the claim lodged on 24 January 2016 was a late application, but attributed the delay in submission to a protracted waiting period prior to the eventual appointment of a Liquidator in December, 2016. She submitted that as she was a lay Litigant, she did not possess the specialist knowledge to pursue the claim in time and sought an extension of time limits due to reasonable cause. She submitted that she had been informed that once the Liquidator was appointed, her claims would be realised .There was an inordinate delay in determining this process.
She sought payment of the value of 6 weeks pay in lieu of notice.
Summary of Respondent’s Case:
The Respondent did not appear in person. On May 1, 2017, The Respondent submitted a response to the claim directly to the WRC. This stated that the company had ceased trading on 1 February, 2016 with debts of almost 2m euro .Bankruptcy followed in March 2016 and the Bank appointed a Liquidator for the buildings and assets, which were disposed of by the Court .Liquidators were subsequently appointed.
The Liquidators contacted the WRC on the day before the hearing and indicated that they were not in a position to record an attendance at hearing.
Findings and Conclusions:
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 submitted extensive detail on pay slips and confirmation of payment of her statutory redundancy lump sum payment received. 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 and it was not until the receivers were appointed that she understood that she might have a claim for minimum notice . I must also accept that the complainant understood that the concession of the claim would flow from the receivers and she was not familiar with the Liquidation process. I can also accept from the first respondent submission dated May 1, 2017 that 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 it would inequitable to disallow the complaint .
I find that the Complainant has satisfied the test reflected in Ballinamore 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.
S.41 (8) Workplace Relations Act, 2015: 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.
Section 4 of the Minimum Notice and Terms of Employment Act 1973 provides that
Minimum period of notice.
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, ( 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 10 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 1,800 euro to the complainant as compensation for the breach of Section 4(2) of the Act.
Dated: 24 July 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle