ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011868

Parties:

Complaint:

Date of Adjudication Hearing: 18th April 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Sections 41 and 80 of the Workplace Relations Act 2015, Section 39 of the Redundancy Payments Act 1967, Section 11 of the Minimum Notice & Terms of Employment Act 1973, Section 27 of the Organisation of Working Time Act 1997, Section 6 of the Payment of Wages Act 1991 andfollowing 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 was making the following complaints under the 4 Acts:

1. Redundancy Payments Act 1967: That the Respondent had failed to pay him his statutory redundancy payments when his employment was terminated by the Respondent by reason of redundancy.
2. Minimum Notice and Terms of Employment Act 1973: That the Respondent had terminated his employment without affording him his minimum notice or pay-in-lieu of notice.
3. Organisation of Working Time Act 1997: That the Respondent had failed to afford him his annual leave and public holiday entitlements in accordance with the provisions of the 1997 Act in the relevant period
4. Payment of Wages Act 1997: That the Respondent had failed to pay him his final weeks’ wages in breach of the provisions of the 1991 Act.

The Complainant was employed by the Respondent from 27th June 2005 to 30th June 2017 and his normal weekly rate of pay was €580.00c nett per week.

The complaints were presented to the WRC on 11th November 2017.

Summary of Complainant’s Case:

The Complainant said that he was employed by the Respondent from 27th June 2005 to 30th June 2017.

The Complainant said that on 26th June 2017 he and his colleagues were informed that the Company would be ceasing trading on 30th June 2017 with the loss of all jobs and this duly occurred.

The Complainant said the Company closed down with the loss of all jobs and that he was not paid his statutory redundancy payments, his final weeks’ wages, his minimum notice entitlements or his outstanding accrued annual leave and public holiday entitlements.

The Complainant made the following complaints under the 4 Acts.

Redundancy Payments Act 1967:                                                                                                                      

 The Complainant said that the Respondent Company had closed down and ceased to trade on 30th June 2017 with the loss of all jobs, including his.   He said that this was clearly redundancy as defined under the Redundancy Payments Act.

The Complainant said that he had not been paid his statutory redundancy payments when his employment was terminated by the Respondent by reason of redundancy.

The Complainant sought a favourable decision.

Minimum Notice and Terms of Employment Act 1973:                                                                              

The Complainant said that his employment was terminated by the Respondent without notice or pay-in-lieu of notice in accordance with the provisions of the 1973 Act.

The Complainant said that his employment was terminated with only 4 days’ notice, when, based on his 12 years’ service he was entitled to 6 weeks’ notice.

The Complainant sought a decision that he was entitled to the balance of his minimum notice pay of 5 weeks and 1 days’ pay.

Payment of Wages Act 1991:                                                                                                                                

The Complainant said that he was not paid his final weeks wages and he sought a decision that he was entitled to one weeks pay in that respect.

Organisation of Working Time Act 1997:                                                                                                        

The Complainant said that he did not receive his annual leave or public holiday entitlement in the relevant period or at the termination of his employment.   However in discussion the Complainant stated that he got one weeks’ annual leave in the relevant period.

Summary of Respondent’s Case:

The Respondent was not present or represented at the Hearing and they sent no submissions.

Findings, Conclusions and Decision:

Section 41 and 80 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 39 of the Redundancy Payments Acts 1967 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Section 11 of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision in relation to complaint in accordance with the relevant redress provisions of the that Act.

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 provisions of the same Section 1997 Act.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the relevant redress provisions of the same Section of the 1991 Act.

Based on the uncontested evidence of the Complainant I find and declare that his complaints are well founded and they are upheld.

The following are my decision in relation to the specific complaints under the 4 Acts.

Redundancy Payments Act 1967: CA-00015726-001:                                                                                 

Based on the uncontested evidence of the Complainant the following facts were established at the Hearing:

• The Complainant was employed by the Respondent on a period of unbroken continuous service from 27th June 2005 to 30th June 2017, on this date his employment was terminated by reason of redundancy, when the Respondent Company ceased trading with the loss of all jobs.
• The Complainant’s normal weekly rate of pay was €580.00c
• The Complainant submitted his complaint/claim to the WRC on 11th November 2017.

Based on the foregoing, I find and declare that the complaint under Section 39 of the Redundancy Payments Act 1967, is well founded and it is upheld.   I require the Respondent to pay the Complainant his statutory redundancy payment based on his normal weekly wage of €580.00c and his continuous unbroken service from 27th June 2005 and 30th June 2017.

Minimum Notice and Terms of Employment Act 1973:   CA-0001576-004:                                    

Based on the uncontested evidence of the Complainant I find and declare that the complaint under Section 12 of the Minimum Notice and Terms of Employment Act 1973 is well founded and it is upheld.   Based on his 12 years service the Complainant was entitled to 6 weeks’ notice, however he only received 4 days’ notice leaving 5 weeks and one days’ pay due to him in the sum of €3,016.00c and I require the Respondent to pay him that amount.

Payment of Wages Act 1991: CA-0001576-005:                                                                                   

Based on the uncontested evidence I find and declare that the complaint under Section 6 of the Payment of Wages Act 1991 in relation to unpaid wages is well founded and it is upheld.   The amount due the to the Complainant is one weeks’ wages in the sum of €580.00c and I require the Respondent to pay him that amount.

Annual Leave in accordance with the Organisation of Working Time Act 1997:   CA-00015726-002: The relevant period under consideration for the purposes of this complaint is from 1st April 2017 (the beginning of the leave year) to 30th June 2017 (the date the employment ended) i.e. a period of 3 months.   The Complainant confirmed to the Hearing that he actually received one weeks paid annual leave in that period.   Accordingly, I must find and declare that the complaint under Section 27 of the Organisation of Working Time Act 1997 in relation to annual leave in accordance with the provisions of Sections 19, 20 and 23 of the 1997 Act is not well founded; it is rejected and is not upheld.

Public Holidays in accordance with the Organisation of Work Time Act 1997:   CA-00015726-003: Based on the uncontested evidence of the Complainant I find and declare that the complaint under Section 27 of the Organisation of Working Time Act 1997 in relation to public holidays in accordance with the provisions of Sections 21, 22 and 23 of the 1997 Act is well founded and it is upheld by me.

I note that the relevant period under consideration is from 11th May to 30th June 2017 (the date the employment ended) and there was one public holiday in that period (first Monday in May) which equates with the sum of €116.00c.

I note that Article 11 of the Council Directive 2002/15/EC upon which the legislation is based states:   “Member states shall lay down a system of penalties for breaches of the provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that these penalties are applied. The penalties thus provided shall be effective, proportional and dissuasive.”   I am fully taking this into account in the redress awarded below.

In accordance with the provisions of Section 27 of the Organisation of Working Time Act 1997, I declare that the complaint in relation to public holidays in accordance with the provisions of Sections 21, 22 and 23 of the 1997 Act is well founded and it is upheld, I require the Respondent to pay the Complainant compensation in the sum of €230.00c.

Dated:   20th July 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Key Words:   Redundancy Payments, Minimum Notice, Unpaid Wages, Annual Leave and Public Holiday entitlements