Case Number: ADJ-00014866. Workplace Relations Commission

• Court: Workplace Relations Commission
• Date: 10 October 2019
• Docket Number: ADJ-00014866
• Parties: A horticulture farm worker v A fruit farm operator

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant is one of a group of seven employees who submitted complaints to the Workplace Relations Commission on 23rd May 2018. The seven complaints were viewed as individual complaints and each was allocated a file number. The Complainant in this particular complaint commenced employment on 1st June 2011. The Complainant is employed as a Horticulture Farm Worker who works on the Respondents fruit farm.

Summary of Complainant’s Case:

Background. Complainants are farm workers of the Respondent with an employment length ranging from 3 to 10 years and in general earning the national hourly minimum wage. They were all issued with similar contract of employment. All Complainants are woman and are Polish. Complainants submitted a request for a period of annual lave around Christmas 2017 and some of them also for a period of unpaid leave following that Christmas paid leave. Annual leave requests were submitted in September 2017 and they were approved. On various dates in December 2017 Complainants were advised about lay –off that would fall on different dates and will have a different length with dates ranging between January and February 2018. All Complainants submitted a grievance to the Respondent questioning the ground of the layoff, selection for same and pointing to their gender. Respondent replied in similar terms to all Complainants grievances. Further letter was issued by Complainants solicitor to the Respondent, the Respondent chose not to engage and indicated they will outline their position in submissions to WRC. Complainants solicitor further replied to that letter in correspondence dated 11th June 2018 Submissions in relation to Lay-off 8. Complainants were put on a lay off in circumstances where the lay-off did not exist. Lay off is defined in Section 11 of Redundancy Payments Act as follows: Where [ …] an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and— (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off. It is submitted that there was no lay-off situation as defined in the aforementioned Act. There was work available for which Complainants were employed and that work was performed by newly hired employees. It is worth noting that each Complainant had a different period of start of lay-off advised to them by the Respondent while at the same time they all were employed to do the same work and were performing the same work. Those dates ranged from 8th January to 22nd January. Name Lay Off Period Years Served 1 29.01.18 to 19.02.18 3 2 29.01.18 to 19.02.18 9 3 22.01.18 to 19.02.18 9 4 18.01.18 to 19.02.18 10 5 22.01.18 to 19.02.18 7 6 08.01.18 to 19.02.18 8 The Complainant 22.01.18 to 19.02.18 7 Even if the Respondent was unable to provide work for which Complainants were employed it was for the Respondent to apply clear criteria of selection for lay-off. Respondent in letter of 8th December 2017/11th December 2017 advising of lay-off referred to the following alleged criteria: - Performance measurement and motivation system - Skill needs - “Other metrics” not indicated in the letter

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