ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006511
| Complainant | Respondent |
Anonymised Parties | A Construction Operative | A Building Company |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00008790-005 | 15/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00008790-006 | 15/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00008790-008 | 15/12/2016 |
Date of Adjudication Hearing: 14/12/2017
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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 employed by the Respondent as a General Operative from November 2005 until November 2016. His gross weekly rate of pay was €415. The complainant was not represented at the adjudication hearing but was assisted by an Interpreter that he himself had brought. The Respondent was also unrepresented at the hearing of these complaints. The complainant submitted complaints under the Redundancy Payments Act, 1967, the Unfair Dismissals Act, 1977 and the Terms of Employment (Information) Act, 1994. The complainant stated that he was unsure whether he should claim Redundancy or Unfair Dismissal and on that basis submitted both complaints. The Respondent accepted that it had breached the Terms of Employment (Information) Act, 1994 in so far as it had not provided a contract to the worker in compliance with the legislation. |
CA-00008790-005: Section 39 of Redundancy Payments Act, 1967
Summary of Complainant’s Case:
The complainant stated that he believed he was entitled to be paid redundancy from the employer. The complainant’s position is that he returned from his home country in late October 2016 having been getting treatment for a back complaint there since May 2014. The complainant’s position is that he was fit to resume work and attended at work on 1st November 2016 but was not allowed to remain at work as the Respondent had not been expecting him on that day and needed to clarify certain matters before he could return to work. |
Summary of Respondent’s Case:
The respondent stated that the complainant arrived at work on or around the 1st November 2016 having been absent for almost two and a half years. The respondent’s position is that a number of matters needed to be put in place before the complainant could return to work. Specifically, the respondent informed the complainant that he would need a doctor’s report confirming that he was fit to resume work, certification from an Irish doctor that he could be employed in the construction industry and he would also have to complete a manual handling course. The respondent contends that he had planned for the complainant to return to work on 21st November 2016 but this did not happen as a job had been cancelled at short notice in the preceding days. The Respondent contends that there was no work available until Monday 16th January 2017 but when he requested the complainant to return to work on that date, he did not receive a reply and subsequently received confirmation that the complainant had referred the matter to the Adjudication Services of the Workplace Relations Commission. |
Findings and Conclusions:
In relation to this complaint I find as follows: The complainant had been absent for two and a half years prior to returning to work on 1st November 2016. The respondent then put in place a return to work plan and sought certification from medical practitioners that the complainant was fit to return to work in the construction industry. The Respondent arranged medical appointments and assisted the complainant in attending and completing a manual handling training course. The respondent had hoped that the complainant would return to work on 21st November 2016 but this did not occur due to the unexpected loss of a construction contract. The respondent then placed the complainant on temporary layoff on 28th November 2016 retrospective to the 1st November 2016. The respondent could not facilitate the complainant’s return to work until 16th January 2017. It was confirmed at the adjudication hearing that the complainant had obtained new employment on 10th January 2017 and did not return to work for the respondent. Redundancy entitlements by reason of lay off or short time is set out in Section 12 of the Redundancy Payments Act, 1967 as follows: 12.(1)An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless — (a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and (b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time. I find that the complainant believed he was on temporary layoff since 1st November 2016 as had been notified to him by the respondent. The complainant submitted an RP9 form to the respondent on 15th December 2016 seeking his redundancy entitlements. |
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.
Decision:
Having considered the written and verbal submissions of the parties, I declare that the complaint is well founded. The complainant is entitled to be paid his redundancy payment based on the following information: Date of commencement of employment: November 2005 Date of commencement of long term sick leave: May 2014 Date of notice to respondent claiming redundancy payment: 15th December 2016 Gross weekly rate of pay: €415.00 The entitlement to a redundancy payment is based on the complainant having been in insurable employment for the relevant period under the Social Welfare Acts. |
CA-00008790-006: Section 8 of Unfair Dismissals Act, 1977
Summary of Complainant’s Case:
The complainant stated that he was unfairly dismissed by the respondent |
Summary of Respondent’s Case:
The respondent stated that the complainant was not dismissed. The respondent’s position is that the complainant was placed on temporary layoff with effect from 1st November 2016 and would have recommenced in his employment on 16th January 2017. The respondent confirmed that the complainant submitted an RP9 seeking his redundancy entitlements on 15th December 2016. Accordingly, the respondent contends that no dismissal took place. |
Findings and Conclusions:
On this complaint, I find as follows: The complainant was on temporary layoff from his employment with effect from 1st November 2016. On 15th December 2016, he submitted an RP9 to the respondent seeking that he be paid his redundancy entitlements. The complainant began in new employment on 10th January 2017. On that basis, I do not find that the complainant was dismissed as claimed. |
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Decision:
Having considered the submissions of both parties and all the evidence adduced at the adjudication hearing, I find that the complaint is not well founded. |
CA-00008790-008: Section 7 of Terms of Employment Information Act, 1994.
Summary of Complainant’s Case:
The complainant stated that he did not receive a written statement of his terms and conditions of his employment in contravention of Section 3 of the Terms of Employment (Information) Act, 1994. The complainant is seeking compensation in relation to the complaint. |
Summary of Respondent’s Case:
The Respondent accepted that the complainant was not provided with written terms and conditions of employment within a two-month period of the commencement of employment. |
Findings and Conclusions:
Section 3 of the Terms of Employment (Information) Act, 1994 provides as follows:
On the basis that the respondent accepted that it had breached the legislation, 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.
The Respondent is required to pay the complainant €500 for the breaches of the Terms of Employment (Information) Act, 1994. Payment should be made within six weeks of the date of this decision. |
Dated: 01.05.2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
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