EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Tomasz Szarlata -appellant RP709/2012
PW776/2012
against
Paul Clarke T/A Clarkes Panelcraft -respondent
under
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr D. Moore
Mr. P. Woods
heard this appeal at Dublin on 13th February 2014 and 21st May 2014
Representation:
Appellant: Mr. Richard Grogan, Richard Grogan & Associates,
Solicitors, 16 & 17 College Green, Dublin 2
Respondent: On the first day of hearing the respondent was represented by
Farrelly & Scully, Accountants, 2 Kennedy Road, Navan, Co. Meath.
On the second day of hearing there was no appearance or representation
on behalf of the respondent.
Background and summary:
The appeal under the Payment of Wages Act, 1991 came before the Tribunal by way of an employee (the appellant) appealing against a Rights Commissioner Decision (reference: r-123317-pw-12/JW).
The claim under the Payment of Wages Act, 1991 was in relation to non-payment of wages during a period of lay-off and a period of short-time. From 1 January 2012 to 30 April 2012, the appellant was placed on a two day week due to a reduction in work. Subsequently, from 1 May 2012 to 1 June 2012 the appellant was on lay off. The appellant’s claim was for the loss of wages he suffered during both of these periods. The appellant did not have a contract of employment which provided for lay off without pay.
On the first day of hearing the Tribunal heard evidence from the appellant that he commenced work with the respondent in 2005. He was paid a weekly payment of €320 by way of cheque. The appellant also received a cash payment of €110 (this figure was disputed). If he worked Saturdays the total increased to €500. The appellant felt the manner in which he was paid was normal. Indeed S.2 of the Payment of Wages Act, 1991 states that cash is a legitimate method of paying wages. The appellant was unaware that only €320 was paid through the tax system until he received P60s at the end of his employment. It was the appellant’s case that he could not be penalised because of the fact that his employer did not put the full payments through the tax system, especially in circumstances where he did not receive P60s or payslips.
In addition it was submitted that as the appellant worked 40 hours minimum per week the least figure that could be used for the calculation of the redundancy payment was €346.20, taking into account the national minimum wage of €8.65 per hour.
The appellant’s employment ended when he submitted an RP9 on 1 June 2012 after a period of lay off.
Determination:
The Tribunal has listened to the evidence adduced and in particular has tried to establish a correct gross weekly figure where there has been a paucity of concrete evidence.
On balance the Tribunal accepts that the appropriate gross weekly figure for the purpose of calculation is €320.00 which was the figure revealed on a P60 pre-dating the short period of lay off immediately preceding the date of termination. The Tribunal had no evidence that the appellant worked for more than 36 or 37 hours per week. The Tribunal finds therefore that the appellant is entitled to a lump sum under the Redundancy Payments Acts, 1967 to 2007, based on the following criteria:
Date of Birth: N/A
Date of Commencement: 15 September 2005
Period of lay-off: 1 May 2012 to 1 June 2012
Date of termination: 1 June 2012
Gross Weekly Pay: €320.00
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
The Tribunal finds that it is custom and practice in the respondent’s industry for lay offs to be unpaid. Accordingly, it upholds the Rights Commissioner Decision (reference: r-123317-pw-12/JW) under the Payment of Wages Act, 1991 in that regard.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)