ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009371
Parties:
| Complainant | Respondent |
Anonymised Parties | Customer Service Assistant | A Fast Food Outlet |
Representatives | Marge Lysaght, Citizens Information | No Appearance by or on behalf of the Respondent |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 |
CA-00012252-001 | 03/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00012252-002 | 03/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00012252-003 | 03/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00012252-004 | 03/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00012252-005 | 03/07/2017 |
Date of Adjudication Hearing: 05/10/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 , Section 39 of the Redundancy Payments Acts 1967 – 2014, Section 11 of the Minimum Notice and Terms of Employment Act , 1973,Section 7 of the Terms of Employment (Information) Act, 1994,and Section 27 of the Organisation of the Working Time Act , 1997 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant submitted a number of complaints to the WRC on 3 July, 2017. These complaints surrounded the circumstances of the closure of the Respondent Business. The Respondent did not engage with or respond to the complaints and did not attend the hearing or send a representative. |
Summary of Complainant’s Case:
The Complainant commenced employment on 11 February 2005 in the role of Customer Services Assistant. She worked a 42.5 hr week in return for €486.59 gross per week. The Respondent is a sole trader and was the owner and manager of Fast Food Outlets. The Claimant suffered from a knee complaint and was on sick leave from January 2017. During this period, she learned informally that the business had shut down. She understood that she had been made redundant on 13 April 2017. She made several attempts to contact her employer and his Accountant but there was no response. The Complainant submitted form RP 77 on 27 April 2017. This did not generate a response. The Complainant sought the support of the Advocacy services of Citizens Information Centre to pursue her case. The Complainants’ representative engaged with the company Accountant, who anticipated the appointment of an Insolvency Practitioner, but could not advice on when the claims could be processed. The claims were referred to the WRC on 3 July 2017. The Complainant received a completed RP 50 form signed by the Respondent on 30 August 2017. This was accompanied by an assertion of inability to pay the Redundancy lump sum payment, but no documentary evidence of same. The Accountant gave an undertaking that this would be provided to the Redundancy Payments Section of the Department of Employment Affairs and Social Protection. The other employment claims were compromised by the vacuum in the appointment of a Liquidator. The complainant gave evidence that she had worked in the company of a colleague Polish Worker for the past 4/5 years. She did not receive sick pay from her employer and was on illness benefit at the time of the closure in April 2017. 1 CA -00012252-001 Claim for Redundancy The Complainants’ representative submitted that a redundancy situation has arisen as per the definition set out in S.7(2) a of the Redundancy Payments Act, 1967 as amended. She contended that the Complainant had not received a redundancy lump sum payment and met the requirements set out under S7(1) of the Act. The Complainant confirmed breaks in service covered by Maternity Benefit and Illness benefit. 2 CA -00012252-002 Minimum Notice Claim The Complainants’ Representative submitted that the complainant had worked for her employer for more than 12 years, therefore, is entitled to 6 weeks payment in lieu of notice. 3 CA -00012252-003 Terms of Employment Claim The Complainant had repeatedly requested a written statement of her terms and conditions of employment and had not received it to date. 4 CA-00012252-004 Annual Leave The Complainant did not receive payment in lieu of outstanding accumulated annual leave entitlement. She is owed for 48.6 hrs of annual leave. 5 CA -00012252-005 Sunday Working The Complainants Representative submitted that the complainant worked every Sunday as part of her working week and she was never paid a reasonable premium for Sunday work. The Complainant submitted copies of P60, 2016, P45 dated 13 April 2017.Pay Slip dated 9 December 2016 and copies of RP 77 and RP50 forms. |
Summary of Respondent’s Case:
There was no appearance by or on behalf of the Respondent at the hearing. I am satisfied that he was on notice of the hearing. The Complainant submitted a letter dated 13 September 2017 from the Respondent Accountant which remarked on the forthcoming hearing. The Respondent did not make any contact with the WRC, or file any response to the claims lodged. I would like to have heard from the Respondent in this case. |
Findings and Conclusions:
I have given careful consideration to the case made by the Complainant in this instance. I found the circumstances surrounding the Respondents lack of direct communication with the complainant to be insensitive, particularly at a vulnerable time in the complainant’s employment.
The Complainant submitted that she had worked at the premise for over 12 years. I find that she was entitled to be treated with a lot more respect and did not deserve to be witness to the reported evasive response to her employment rights queries.
Trust and Confidence are meant to be the foundation of an employment relationship and while I haven’t heard any evidence from the Respondent in this case to date, I found serious shortcomings in the management and administration of the conclusion of the complainant’s employment relationship.
- CA -00012252-001 Claim for Redundancy
I find that the Complainant was made redundant from her employment on 27 April 2017. An employer who proposes to dismiss an employee through redundancy must give that employee statutory notice at least two weeks before the date of dismissal .
I accept the evidence of the claimant that the business closed and her dismissal resulted wholly from this cessation in accordance with Section 7(2) (a) of the Acts. I find the complaint to be well founded.
I find the complaint to be well founded.
I accept the uncontroverted evidence of the Complainant that she requested a statement of her terms of employment on a continuum from commencement of employment and she did not receive the statement. I find the complaint to be well founded.
I have not received any records from the Respondent on Annual leave at the Complainants employment. I find the complaint to be well founded in respect of 48.6 hours owing in cesser pay provided for in accordance with Section 23 of the Act.
Compensation on cesser of employment procedure.
23
- — F12 [ (1) (a) Where —
(i) an employee ceases to be employed, and
(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,
the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.
CA-00012552-005 Sunday Working
The Complainant submitted that she was not permitted a differential in the hourly rate for Sunday working. Her hourly rate given as €11.44 per hour, which did not vary during the 8 hour Sunday working. The Complainant submitted that her last Sunday worked at the Respondent business was 18 December, 2016.
The Complainants Representative made an application for extension of the statutory time limits based on reasonable cause. She stated that the Complainant was in position of less power and not in a position to advance the claim within the period of employment.
I have reflected on this submission and find that I agree to extend the Statutory Time limits on the grounds of reasonable cause to allow for a cognisable period of 12 months that is from 2 July 2016.
Section 14 of the Organisation of Working Time Act, 1997 details the provisions with regard to Sunday working.
Sunday work: supplemental provisions.
14
- — (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or
( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
( d) by a combination of two or more of the means referred to in the preceding paragraphs.
(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.
Based on the lack of a specific clause on uncontroverted evidence of the complainant, I find that the complaint is well founded
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
1 CA -00012252-001 Redundancy Lump Sum.
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 find that the complainant is entitled to a redundancy lump sum based on the following details:
Date of Commencement: 11 February 2005
Date of Termination: 27 April 2017
Gross Weekly Pay: €486.59
The Complainant had three breaks in service which did not disturb the continuity of employment and which was covered by DSP payments during:
- 5 August 2006 to 5 January 2007
- 6 January 2007 to 26 November 2007
- 4 January 2017 – ongoing.
This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.
Section 11 of the Minimum Notice and Terms of Employment Act, 1973, requires that I make a decision in relation to the complaint.
I order the Respondent to pay the complainant 6 weeks pay, €2,919.54 in lieu of notice.
Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the complaint.
I have found that the Respondent was in continuous breach of Section 3 of the Act. I order the Respondent to pay the complainant the sum of 4 weeks pay, €1,946.36 as just and equitable compensation for this breach in accordance with Section 7(2) d of the Act.
4 CA -00012252-004 Annual Leave
Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaints. I have found the complaint to be well founded.
I award the sum of €555.98 to be paid by the Respondent to the Complainant as compensation for the loss of that annual leave.
CA -00012252-005 Sunday Working
I have found the complaint to be well founded and have taken the period of 2 July 2016 to the last Sunday worked on 18 December 2016 as the reckonable period for the purposes of consideration of redress. I note that the complainant submitted that she worked a set work pattern of Saturday through to Wednesday weekly. She submitted that her hourly pay of €11.44 did not vary during the Sunday 8 hr shift.
Having regard to all the circumstances raised in the claim, I find that a 30% premium for working Sundays should be applied to 20 Sundays during 2016. I award compensation of € 2,377 (160 hrs @€14.86 per hour) for the breach of Section 14 of the Act.
Dated: 20th November 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words: Redundancy Lump Sum, Minimum Notice, Terms Of Employment, Annual Leave and Sunday Working.
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