Case Number: ADJ-00000044. Workplace Relations Commission

• Docket Number: ADJ-00000044
• Date: 23 March 2016
• Court: Workplace Relations Commission
• Parties: An Employee -v- An Employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000044

Complaints for Resolution:

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-00000037-001	02/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00000037-002	02/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00000037-003	02/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00000037-004	02/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00000037-005	02/10/2015

Date of Adjudication Hearing: 07/12/2015

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Act, 1967, Section 11 of the Minimum Notice and Terms of Employment Act ,1973, Section 27 of the Organisation of Working Time Act, 1997 and Section 7 of the Terms of Employment( Information Act,) 1994 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

Complainant’s Submission and Presentation:

The Complainant stated that she commenced work as a Chef on April 14^th, 2010 at the respondent Bar. She earned €400 per week for a 40 hour working week. The Bar closed on April 6^th, 2015 following a fire. A period of uncertainty followed the fire but in essence, the Business ceased to trade from that date. On 24^th June, 2015, the Complainant gave the Respondent notice of her maternity leave. At this time, she was claiming job seekers benefit. She sought confirmation of continuity of employment and outstanding holiday pay. On 25^th June, 2015, the Respondent notified the Department of Social Protection of the cessation of trading from April 6^th.

On July 8^th, the Respondent wrote to the complainant indicating that he would not be re- opening the Bar. He confirmed that he intended to pay her four days outstanding annual leave days when the Insurance claim was settled. The Complainant received her P45, dated 6^th April, 2015 on July 8^th, 2015. She was unable to obtain her Maternity Benefit as the premises had ceased to trade before her due date.

On 21^st July, 2015, The Citizens Information Centre wrote to the Respondent claiming on behalf of the Complainant:

1 Redundancy to the sum of €4,384.00.

2 Minimum Notice of €800.00

3 Annual Leave of € 320.00

4 Public Holiday (5 days) €400.00

5 Compensation to cover failure to provide a contract of employment € 1,600

6 Sunday Working (5 years) €19,200

TOTAL €26,704

On August 4^th, the Respondent contacted the Citizens Information Service, pleading an inability to pay the Complainant but offering a €1,000 figure in settlement. The Complainants representative asked the Respondent to obtain a letter confirming an “inability to pay “from his Accountant. The Respondent agreed. As no further contact was made between the parties, the Complainant lodged two complaints (CA 37 and CA38) to the WRC on 2^nd October, 2015. The Complainant withdrew CA 38 on 16^th October, 2015.

The Respondent did make some contact with the Complainant and her representative in advance of the hearing re-affirming his inability to pay and requesting that the claims be withdrawn from the WRC. The Complainant wished to proceed with her case and attended the Hearing on 7 December, 2015

Respondent’s Submission and Presentation:

On the morning of the Hearing, the Respondent did not attend. Mr R, Accountant, attended. He stated that the Respondent had been unable to travel from the North West, where he now lived. The Respondent had sought to alert the WRC that both his car and house were flooded but had been unsuccessful. Mr R availed of a pro-offered break of 15 mins to consult the Respondent on his instructions over the phone. Mr R agreed to represent the Respondent to contest the claims.

The Respondent is a Sole Trader, who did not own the Bar premises. He confirmed that the fire had caused the business to cease trading in April, 2015 and there were substantial debts outstanding on the business and that his client was simply unable to pay what he owed the Complainant .He had no wish to disadvantage the complainant but unless the Insurance Company paid out on compensation for the fire, the Respondent remained unable to pay. All records and rosters covering the complainant had been destroyed in the fire. Mr R disputed the timing of the claim for Sunday pay, alleging that it had not been raised whilst the Complainant was employed by the Respondent.

Findings:

The Complainant was represented by the Citizens Information Centre. At the commencement of the hearing, it became apparent that the Respondent was not in attendance. I am satisfied that all parties were on notice of the hearing on 7^th December, 2015. I adjourned the hearing to allow Mr R, the respondents Accountant to accept instructions. We reconvened after 15 mins, whereby Mr R agreed to represent the Respondent. The claims for Redundancy, Minimum Notice, and Annual Leave (4 days) were uncontested. Mr R took issue with the claims for outstanding Sunday premia and public holidays.

The Complainant had lodged an RP77 on the Respondent on the 10 July, 2015 but nothing followed. The Complainant gave a clear account of her time working at the Bar and produced pay slips and P 45 in evidence. I requested confirmation of an agreed start date and this followed by way of a copy of a tax deduction card which confirmed the start date as 15^th April, 2010. I was not shown a contract of employment and records of roster were reported as lost in the fire.

I asked the complainant during the hearing when the issue of Sunday premia and payment for public holidays was first rose with the Respondent. I was informed that there had been casual reference to these over the course of employment, but no definite outcome was recorded. The Respondent was unable to verify any of this.

Decision:

Section 41(4) 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.

Issues for Decision:

The complainant is seeking redress in regard to five complaints

...